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test
|
001-156247
|
ENG
|
UKR
|
CHAMBER
| 2,015 |
CASE OF SERIKOV v. UKRAINE
| 3 |
Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
|
5. The applicant was born in 1991 and lives in Kharkiv. 6. On 16 May 2008 the applicant was arrested by police officers G. and B. of the drug crimes unit and taken to the Kharkiv City Police Department (“the police station”). 7. Officer G. drew up a report following the search of his personal effects, according to which a package containing a substance, later determined to be marijuana, was found on the applicant. The report, indicating that it was drawn up at 6.25 p.m. on 16 May 2008, was signed by the applicant and attesting witnesses L. and T. 8. According to the Government, when officers G. and B. began drawing up the above-mentioned report at the scene of the applicant’s arrest, the applicant attempted to escape. The officers then handcuffed him. The applicant was then taken to the police station where he and the attesting witnesses were questioned. At 10.05 p.m. the applicant was released having signed a note affirming that he had no complaints against the police. 9. According to the applicant, at the police station he was ill-treated to make him confess. In particular, he alleged that he was threatened with rape, kicked and hit on the head and torso, and threatened with weapons. He was subjected to a “Palestinian hanging”; with his hands cuffed behind his back he was raised to the height of one or one and a half metres and then dropped face down on the floor. He lost consciousness several times. When she arrived at the police station, the applicant’s mother found him with bruises on his face, a swollen chin and marks of handcuffs on his wrists. 10. At the police station the applicant wrote two notes addressed to the police dated 16 May 2008. In an “explanatory note” the applicant stated that he had acquired some marijuana for personal use and had had it when the police had stopped him. The applicant further stated that he had not been physically or psychologically pressured. In a separate note he stated that he had no complaints against the police and undertook to appear when summoned. 11. At 11.10 p.m. on 16 May 2008 an ambulance arrived at the police station and the applicant was examined by a paramedic, F. The paramedic noted in her report that the examination was completed at 11.40 p.m. According to the report, the applicant had no complaints and nothing abnormal was detected. According to the applicant, the head of the drug crimes unit, officer O.D., was present during this examination and spoke with the paramedic afterwards. 12. Following the applicant’s examination at the police station he and his mother went to the Kharkiv Regional Directorate of the Ministry of the Interior (“the Regional Directorate”), where they arrived at about 11.45 p.m. on 16 May 2008, and where the applicant lodged a complaint accusing police officers of ill-treatment. 13. Officer O.D. followed the applicant to the Regional Directorate and arranged for him to be examined by the medical expert on duty there. 14. At 00.47 a.m. on 17 May 2008 forensic medical expert A.P. examined the applicant at the Regional Directorate. According to his report, finalised on 29 May 2008, the expert had been called upon to determine the presence and seriousness of any bodily injuries. The applicant said to the expert that the police had grabbed him by the neck and arms at the time of the arrest and had handcuffed him. He complained of a headache and pain in his shoulders. The report recorded a haematoma of 1.5 cm in width on the applicant’s neck, a haematoma of 2 x 1.5 cm on the inner side of his left shoulder, and two strip-like bruises on his left wrist. The expert took the view that the injuries could have been inflicted on the date and under the circumstances described by the applicant, and that the bruises on his wrist could have been caused by handcuffs. 15. At 3.46 p.m. on 17 May 2008 the applicant sought medical aid at the Kharkiv City Hospital (“the hospital”) where he was diagnosed with concussion and contusion of the soft tissues of the head and the rib cage. Hospitalisation was recommended but the applicant refused. 16. On 19 May 2008 the applicant was examined by Dr M. at the Neurology, Psychiatry and Drug Addiction Institute of the Academy of Medical Sciences of Ukraine. He was diagnosed with a brain concussion of medium seriousness and numerous bruises on his arms, shoulder blades and spine. 17. On 17 May 2008 the applicant’s mother lodged a criminal complaint with the Kharkiv Regional Prosecutor’s Office (“the KRPO”) against the police officers. She alleged that excessive force had been used to arrest her son and that he had then been tortured, humiliated and threatened with rape at the police station. 18. On 21 May 2008 the KRPO requested an examination of the applicant and his medical documentation by forensic medical experts. On 29 May 2008 medical experts I.D. and I.P. examined the applicant and his medical documentation. 19. In the course of pre-investigation enquiries in respect of the allegations of ill-treatment, the KRPO obtained statements (written explanations) from a number of individuals. In particular, in his written explanation, Mr S.D., who had witnessed the applicant’s arrest, stated that at about 6.15 p.m. on 16 May 2008 a stranger, without introducing himself, had grabbed the applicant by the scruff of his neck or by the shirt collar and, threatening him with a gun, pulled him to a car. He and another stranger had then grabbed the applicant by the arms, searched him and put him into their car. Officers G. and B. stated that at the time of arrest the applicant had attempted to flee and had been handcuffed. They and officer O.D. insisted that the applicant had not been ill-treated in any way. Attesting witnesses L. and T. confirmed the statements by the police and stated that the applicant had attempted to flee while the search report was being drawn up. He had then been caught and handcuffed. 20. In his written explanation given to the KRPO on 28 May 2008 the applicant stated, in particular, that immediately after having stopped him a police officer had hit him on the head, stomach and ribs with the handle and muzzle of his gun. He had then been pulled by the arms to a police car. At the police station the police officers had pulled down his trousers and threatened him with rape, had subjected him to a “Palestinian hanging”, and dropped him to the floor, causing him to lose consciousness. When his mother had arrived at the police station entrance hall she had seen him with a bruised and swollen chin, haematomas and bruises on his head, arms and body. 21. On 6 June 2008 the KRPO, referring to the above-mentioned evidence, refused to institute criminal proceedings against the police officers for lack of a corpus delicti in their actions. The KRPO found that the applicant’s handcuffing was the only instance of the use of force in respect of the applicant and that it had been lawful under the Police Act of 20 December 1990 (“the Police Act”). The applicant’s injuries recorded at 00.47 a.m. on 17 May 2008 were consistent with the police officers’ statements concerning the applicant’s arrest and handcuffing. The KRPO also stated that the applicant’s and his mother’s allegations were not supported by any objective data other than their own statements. The applicant’s mother appealed. 22. On 24 June 2008 the applicant, in a written explanation to the Kharkiv Moskovskyy District Prosecutor’s Office (“the MDPO”), largely confirmed his earlier statements and added that in the police car on the way to the police station the police officers had repeatedly hit him on the head and torso. 23. On 4 July 2008 forensic medical experts completed their report requested by the KRPO on 21 May 2008 and based on their examination of the applicant on 29 May 2008. They noted that the applicant had complained to them that he had been hit with a gun on the head and torso during his arrest and then ill-treated at the police station. The experts recapitulated that at the time of previous medical examinations the applicant had had a brain concussion, haematomas on his neck and left shoulder, and bruises on his left wrist. They were of the opinion that the injuries were consistent with the applicant’s statements as to their origin. 24. On 12 August 2008 the Kharkiv Chervonozavodskyy District Court set aside the KRPO’s decision of 6 June 2008 and remitted the materials for additional inquiry. The court held, in particular, that the KRPO’s enquiries had failed to explain the applicant’s injuries recorded at 00.47 a.m. on 17 May 2008. 25. On 19 January 2009 the Kharkiv Moskovskyy District Court (“the District Court”), in the course of examination of a criminal case against the applicant for possession of drugs, ordered the MDPO to conduct, by 19 February 2009, an investigation into the applicant’s allegations of ill-treatment. 26. On 16 February 2009 (apparently due to a clerical error the text of the decision indicates 16 February 2008 as its date) the MDPO refused to institute criminal proceedings against the police officers on grounds similar to the KRPO’s decision. The applicant’s mother appealed. 27. On 30 March 2009 the District Court set aside the decision of 16 February 2009 and remitted the materials for additional inquiry. The court found, in particular, that the MDPO’s decision had fully replicated the KRPO’s decision of 6 June 2008, had not explained the reasons for which the MDPO had accepted the police officers’ version of events and had failed to explain how the applicant’s handcuffing could explain all his recorded injuries. 28. On 22 October 2009 the MDPO refused to institute criminal proceedings on grounds similar to the earlier decisions. It informed the District Court that by this decision it complied with the court’s ruling of 19 January 2009. The applicant’s mother appealed. 29. On 27 November 2009 the District Court set aside the decision of 22 October 2009 and remitted the materials for additional inquiry. The court held, in particular, that the pre-investigation enquiries had collected sufficient information that a crime had been committed. Further investigation into the origin of the applicant’s injuries required such investigative steps as a confrontation between the applicant and the police officers and a reconstruction of events, which could not be conducted within the framework of pre-investigation enquiries without the institution of criminal proceedings. 30. In the course of the subsequent round of pre-investigation enquiries the MDPO again obtained written explanations from the police officers and the attesting witnesses, who largely repeated their previous statements. 31. On 12 May 2010 the MDPO, referring to the evidence gathered, refused to institute criminal proceedings on grounds similar to the earlier decisions. The applicant’s mother appealed. 32. On 14 June 2010 the District Court set aside the decision of 12 May 2010 and remitted the materials for additional inquiry, holding that the MDPO had failed to comply with the court’s previous instructions. 33. In the course of the subsequent round of pre-investigation enquiries the MDPO obtained written explanations from several individuals. Dr M. stated, in particular, that the applicant’s injuries she had recorded on 19 May 2008 could have been sustained from 16 to 18 May 2008. The applicant’s mother largely repeated her allegations and stated that she and the applicant had travelled from the police station to the Regional Directorate in a neighbour’s car which had been followed by officer O.D.’s car. 34. On 25 June 2010 the MDPO refused to institute criminal proceedings against the police officers on grounds similar to the earlier decisions, referring in addition to the explanations collected in the course of the latest round of pre-investigative enquiries. The MDPO stated that the District Court’s rulings of 27 November 2009 and 14 June 2010 had been impossible to comply with since investigative actions indicated by the court could only be conducted once criminal proceedings had been initiated and not at the stage of pre-investigation enquiries. The applicant’s mother appealed. 35. On 27 August 2010 the District Court set aside the decision of 25 June 2010 and remitted the materials for additional inquiry. The court held in particular that the MDPO had failed to resolve the contradictions in the medical evidence. The MDPO had also failed to resolve the contradictions between the applicant’s, witness S.D.’s, and the police officers’ accounts of the circumstances of the use of force during the applicant’s arrest, which, in the court’s opinion, could explain the documented injuries. 36. In the course of the subsequent round of pre-investigation enquiries the MDPO obtained written explanations from paramedic F. She stated that she had not seen any signs of injury on the applicant on 16 May 2008. She had not been pressured by the police. The applicant himself had not voiced any complaints, but his mother had said that her son had been beaten up. She also stated that she was not a specialist in forensic medicine and could not speculate as to the origin of injuries which had been documented later. 37. On 18 October 2010 the MDPO requested an opinion of a forensic medical specialist on a number of questions concerning the applicant’s injuries, in particular whether his injuries, as recorded in the available medical documentation, could have been inflicted between 11.50 p.m. on 16 May 2008 and 00.47 a.m. on 17 May 2008. 38. On 25 October 2010 the MDPO refused to institute criminal proceedings. The MDPO noted, in particular, that the District Court, in the rulings of 27 November 2009, 14 June and 27 August 2010, had indicated the need to conduct certain investigative actions, namely confrontation between the applicant and the police officers and reconstruction of events with the participation of the applicant and forensic experts. The MDPO stated that these instructions had been impossible to comply with since such actions could only be conducted once criminal proceedings had been initiated and not at the stage of pre-investigation enquiries. The MDPO also stated that the applicant’s injuries recorded at 00.47 a.m. on 17 May 2008 were consistent with the police officers’ statements concerning the applicant’s arrest and handcuffing. 39. On 15 February 2011 the KRPO informed the MDPO that its decision of 25 October 2010 had been a “mere copy” of the decision of 25 June 2010 and had failed to comply with the District Court’s ruling of 27 August 2010. The KRPO directed the MDPO to fully comply with the District Court’s instructions. According to the Government, the MDPO had then conducted a new round of pre-investigation enquiries and as a result the decision of 25 October 2010 was allowed to stand. 40. On 28 February 2011 a forensic medical expert produced a report in response to the MDPO’s request of 18 October 2010 and based on the medical evidence available in the case file. The expert stated, in particular, that it could not be ruled out that the applicant’s documented injuries could have been inflicted between 11.50 p.m. on 16 May 2008 and 00.47 a.m. on 17 May 2008. The expert also took the opinion that the diagnoses of contusion of the soft tissues of the head and of the rib cage, numerous bruises of arms, shoulder blades and spine which had been noted by the hospital staff on 17 May 2008 and by Dr M. on 19 May 2008 had not been confirmed by objective forensic medical information or the results of any tests, and for these reasons could not be taken into account in the forensic medical analysis. 41. According to the applicant, he had first learned about the MDPO’s decision of 25 October 2010 from the Government’s observations in the present case. 42. On 23 July 2012 the applicant’s mother challenged the decision of 25 October 2010 before the District Court. 43. At the time of the most recent communication from the applicant the proceedings before the District Court were pending.
| 1 |
test
|
001-184492
|
ENG
|
TUR
|
CHAMBER
| 2,018 |
CASE OF İSHAK SAĞLAM v. TURKEY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);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;Article 6-3-d - Examination of witnesses)
|
Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
|
5. The applicant was born in 1966 and lives in Diyarbakır. 6. At the time of the events he was a lawyer practising in that city. 7. On 18 April 2000 the applicant was questioned by the public prosecutor at the Diyarbakır State Security Court, on suspicion of membership of an illegal organisation, namely Hizbullah. The contents of a computer disk holding detailed information on the applicant’s background, which had been obtained by the security forces in a house belonging to Hizbullah, and police statements of four people, all of whom were accused of being members of the same illegal organisation, were read out to him during the questioning. The applicant denied having any affiliation with the illegal organisation and contested the accuracy of the evidence presented to him. He maintained that he had assisted certain members of Hizbullah as a lawyer and that he always acted within the limits of his profession, without directing those people’s submissions as alleged. He further maintained that certain information in the illegal organisation’s background report, such as the ages of his siblings, was wrong and that this in itself proved that he had not provided the information. He did not benefit from the assistance of a lawyer during questioning. 8. On the same day the applicant gave statements before the investigating judge of the Diyarbakır State Security Court, this time together with his business partner, who was accused of being a member of the same illegal organisation. He reiterated his submissions given to the public prosecutor and added that the fact that he had provided legal assistance to some members of the illegal organisation might have been perceived as a demonstration of support by certain people. The investigating judge refused the public prosecutor’s request for the applicant’s detention and decided that he should be released pending trial. 9. The following day, on 19 April 2000, the public prosecutor objected to the applicant’s release. The applicant was subsequently arrested on the basis of a warrant issued by the Diyarbakır State Security Court. 10. On 20 April 2000 the applicant was taken before the investigating judge, who decided that he should be detained on remand. 11. On the same day the public prosecutor filed a bill of indictment with the Diyarbakır State Security Court, accusing the applicant of membership of an illegal organisation. He relied on the police statements of the four witnesses as well as the background information obtained from the computer disk. 12. On an unspecified date the applicant’s lawyers lodged a petition with the trial court. They argued that there was no evidence against the applicant in that all of the witnesses relied on by the prosecution had denied their statements later on. They further stated that the background information obtained from the computer disk was not reliable. 13. At the hearing on 30 May 2000 the applicant’s lawyers once again challenged the use of the background information obtained from the computer disk, arguing that it was unreliable in that the disk had been de-encrypted and the information extracted in their absence. During the same hearing, the court noted that the four witnesses, who had mentioned the applicant in their police statements, had denied those submissions during the subsequent stages of the proceedings against them. The court held that the applicant should be released pending trial. 14. On 3 September 2001, following statements made by a certain M.S.B., the public prosecutor drew up another bill of indictment against the applicant, once again accusing him of membership of an illegal organisation. The allegations put forward by this latter indictment were joined with the case which was already pending before the State Security Court. 15. At the hearing on 4 December 2001, during which the applicant was not present, M.S.B.’s police statements were read out. On 30 April 2002 the court noted that M.S.B. had denied those statements at a later point. 16. On an unspecified date the public prosecutor submitted his written observations to the court. He argued that the applicant’s guilt was proven by various items of evidence, namely the background report prepared in respect of him, which contained detailed personal information, as well as the background reports and police statements of several other members of Hizbullah. In that connection, he referred to the statements of a certain N.S., who had maintained before both the police and the public prosecutor that the applicant had been a recruiter for the illegal organisation, had given courses to new members and had been in charge of certain cells. The public prosecutor also noted that the applicant’s name had been mentioned in the background reports of several members, including a certain Ş.A. 17. On 18 November 2003 the applicant’s lawyer applied for the expansion of the investigation and the cross-examination of the witnesses who had confirmed the applicant’s membership of Hizbullah. He mentioned, in particular, the names of N.S. and Ş.A., who had given statements against the applicant. The applicant’s lawyer further challenged the credibility of these two witnesses’ statements. In that connection, he argued that N.S. had not repeated his police statements against the applicant at a later point as alleged by the public prosecutor in his written opinion. The lawyer further noted that Ş.A. had claimed to have taken courses run by the applicant until the latter started his military service and asked the trial court to obtain information as regards the dates the applicant had served in the army in order to prove that those allegations were not credible. 18. On 27 January 2004 the court refused the application for the expansion of the investigation, without stating anything as regards the cross-examination of witnesses. 19. On 23 March 2004 the applicant applied to benefit from the Reintegration of Offenders into Society Act (Law no. 4959). 20. During the course of the proceedings, the State Security Courts were abolished and the case was transferred to the Diyarbakır Assize Court. 21. At the hearing on 21 February 2006 the Assize Court read out the police statements of Ş.A., in which he had claimed that the applicant had acted as a mentor within the illegal organisation and had given courses to other members, including him, which had ended when the applicant had started his military service. The trial court stated that although Ş.A. had reiterated his submissions in so far as they concerned himself before the public prosecutor and the investigating judge, he had not mentioned the applicant after his questioning by the police. The court nevertheless added the statements of N.S. and Ş.A. to the case file. The applicant’s lawyers maintained that they did not accept the statements against the applicant. 22. On 18 April 2006 the Diyarbakır Assize Court found the applicant guilty as charged and sentenced him to six years and three months’ imprisonment. The court relied on certain information obtained from the computer disk, namely the background report on the applicant and reports concerning other members, as well as the statements of N.S. and Ş.A. It also refused the applicant’s application to benefit from Law no. 4959, finding that he had not disclosed any information about the structure of the illegal organisation. 23. The applicant appealed against the judgment. He argued that the trial court had failed to hear evidence from N.S. and Ş.A. despite his requests to that effect and that he had been deprived of the possibility to put his questions to them. 24. On 19 November 2007 the Court of Cassation upheld the judgment of the Diyarbakır Assize Court.
| 1 |
test
|
001-153360
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,015 |
J.S. v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
1. The applicant, J.S., is a British national, who was born in 1993 and lives in Belfast. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr F. Shiels of Madden & Finucane Solicitors, a firm of solicitors based in Belfast. 2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Neenan of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 2008 the applicant was a pupil at a high school in County Down (“the school”). On 28 August 2008 the Public Prosecution Service for Northern Ireland (“the PPS”) received a police investigation file which alleged that the applicant had assaulted a teacher at the school. 5. In September and October 2008 teachers at the school refused to teach the applicant because of the alleged assault. On 13 October 2008 the teachers went on strike. In order for the strike to be resolved, the applicant voluntarily excluded himself from school and was provided with alternative educational assistance. 6. The strike nonetheless generated a great deal of publicity. Two articles appeared in the News Letter (one of Northern Ireland’s main daily newspapers) on 21 October 2008. 7. The first article carried the headline “Details of school ‘assault’ revealed” and continued: “Details of the alleged attack which sparked the teachers’ strike at [the school] have been released exclusively to the News Letter ... An incident report filed with [the school’s] management by the teacher who was allegedly attacked has been obtained by the News Letter. The staff member, who wishes to remain anonymous while negotiations continue, claimed he was shoved through the doorway of his class after being screamed and cursed at by the boy ... The pupil is understood to have suffered two family bereavements, including the death of his brother, before the alleged attack. Internal documents show school bosses had branded the boy ‘high risk’, with emotional and anger management issues. Reports also reveal management had warned staff to move at least 3 ft away from the pupil when he was in a confrontational mood. The boy was involved in a serious fight with another [school] pupil earlier this year after he was taunted about family members. He was being taught in the school’s special needs Pupil Support Centre just before the strike. The teachers have asked for the pupil to be removed from school or taught in isolation – but education authorities have refused.” 8. The second article, published under the headline “Pupil involved in 10 detentions” stated: “The pupil at the centre of the strike row was involved in up to 10 detentions in the past year, behaviour records obtained by the News Letter show. The punishments were given between September 2007 and February this year for incidents from aggression directed towards teachers and other pupils to disruptive behaviour and leaving school without permission. He was also involved in a serious fight with another pupil after he was teased about his family, confidential files say. Union officials have insisted the pupil has problems that make him a candidate for special needs teaching. ... The pupil’s monitoring diary from his time in the segregated pupil support centre shows he was making improvements.” 9. A similar article had appeared in the Belfast Telegraph (another daily newspaper published in Belfast) on 20 October 2008 under the headline “Details of strike school incident revealed”. This article also contained details from the monitoring diary, including the applicant’s marks for behaviour and comments made by teachers. 10. During the strike, the media made enquiries of the police, the PPS and the Northern Ireland Office (“the NIO”) as to what action had been taken in respect of the alleged assault at the school. The PPS, through a NIO press release, informed the media that a youth had been reported to the PPS by the Police Service of Northern Ireland (“the PSNI”), that a decision had been issued and that there would be a first appearance on summons in November on a charge of assault. In response to further queries, the PPS informed the media that the youth’s court appearance would take place on 4 November 2008. 11. The press release did not disclose the applicant’s name, age or school. However, subsequent media reports connected the youth in the press release to the previous stories about the strike at the school. Although the applicant’s name was not published, his age, the name of his school and the date of his hearing before the Youth Court were disclosed in these reports. 12. The applicant’s solicitors wrote to the PPS asking it to explain its decision to issue the press release. They also invited the PPS to withdraw the summons and reissue it without informing the media that a new court date had been set. 13. In the absence of a reply from the PPS, the applicant issued judicial review proceedings in which he contended that the information it had disclosed to the NIO and the press constituted an unjustified interference with his rights under Article 8 of the Convention (see section 3 below). 14. On 4 November 2008, in order to have the media excluded from the trial, the applicant applied to the Youth Court for the case to be adjourned to a date not to be announced in open court. The application was refused by the District Judge, who instead adjourned the hearing to 2 December 2008 and ordered that only three reporters could attend it. Pursuant to Article 22 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (“the 1998 Order”) the District Judge also ordered that “no details pertaining to the identification of the applicant be published or released to the media”. 15. The applicant renewed his application in writing. On 2 December 2008 the District Judge decided that the case should not be adjourned to an undisclosed date but indicated that the court would hear argument as to the exclusion of the press. Those arguments were heard on 20 January 2009. The Belfast Telegraph was represented and opposed the applicant’s application for exclusion; the PPS made no representations. 16. After hearing the parties’ arguments, the District Judge refused the application on the ground that, due to the extent of the publicity in the case, much of it from the perspective of the teacher alleged to have been assaulted, the applicant would be disadvantaged by a media ban because it would mean his version of events would not be aired. 17. The applicant sought judicial review of the District Judge’s decision, relying on Articles 6 and 8 of the Convention and Article 40(2)(b)(vii) of the United Nations Convention on the Rights of the Child (see Relevant law and practice below). 18. The applications for permission to apply for judicial review against the PPS (see paragraph 13 above) and against the District Judge’s decision (see paragraph 17 above) were heard together by the High Court, sitting as a Divisional Court. However, on 26 June 2009 the applications were dismissed. 19. The Divisional Court accepted that Article 8 was engaged as the applicant had a reasonable expectation of privacy due first, to the statutory scheme in place under the 1998 Order; and secondly, to the personal intrusion which had arisen from the extensive nature of the media reporting of the case. In reaching this conclusion, the Divisional Court did not consider the applicant’s complaints individually but instead had general regard to the intrusive nature of the media reports taken as a whole. 20. Having found that Article 8 was engaged, the Divisional Court went on to consider whether the PPS had been justified in the disclosures it made and whether the Youth Court had been justified in allowing three members of the press into the hearing. In respect of the PPS disclosures, the Divisional Court found that it was the responsibility of the media not to publish anything that disclosed the name, address or school of a child covered by the 1998 Order and the PPS had not been under any obligation to warn the media of its responsibilities. 21. With regard to the attendance of the press at the hearing, the Divisional Court found that the public interest in securing open justice had outweighed the interest of the applicant in preventing reporting of the case. It added that, in the course of the Youth Court hearing, personal material relating to the applicant might be disclosed in which there was little or no public interest. However, the Divisional Court considered that the Youth Court would make appropriate orders preventing publication of such information. 22. On 1 July 2009 the Divisional Court refused to certify a point of law of general public importance which ought to be considered by the House of Lords. 23. The applicant’s trial began on 26 July 2009. The applicant gave evidence in his defence and was acquitted. The Youth Court found that he had been unlawfully detained by the teacher concerned and that the force used by the applicant on the teacher had been reasonable and proportionate. 24. Before the trial, the applicant’s solicitors had complained to the police about the conduct of the media and alleged that the school had breached its obligations under the Data Protection Act 1998 in releasing personal information about him to the media. The police advised the applicant’s solicitor that the complaint about the release of personal information to the media would be forwarded to Information Commissioner as that aspect of the complaint was not a matter which they could investigate. The police took a statement from the applicant on 25 February 2010. 25. On 7 October 2010 the PSNI wrote to the applicant’s solicitor to confirm that a report has been submitted to the PPS and its advice and direction were awaited. On 12 November 2010 the PSNI notified the applicant’s solicitor that the PPS had advised that the offence in question was a summary only offence and, as such, had become statute barred six months after the date it was committed. No prosecution could therefore be brought. 26. The PSNI did not forward the applicant’s complaint to the Information Commissioner and the applicant therefore complained directly to the Commissioner on 16 November 2010. The outcome of this complaint is unknown. 27. In addition, by letter dated 22 February 2011 the applicant complained to the school about the release of confidential information to the media. The school replied on 14 March 2011, indicating that it had not released any personal or confidential information to the media, except where authorised by the applicant to do so. 28. Article 22 of the above Order provides as follows: “Restrictions on reporting proceedings (1) Where a child is concerned in any criminal proceedings (other than proceedings to which paragraph (2) applies) the court may direct that - (a) no report shall be published which reveals the name, address or school of the child or includes any particulars likely to lead to the identification of the child; and (b) no picture shall be published as being or including a picture of the child, except in so far (if at all) as may be permitted by the direction of the court. (2) Where a child is concerned in any proceedings in a youth court or on appeal from a youth court (including proceedings by way of case stated) - (a) no report shall be published which reveals the name, address or school of the child or includes any particulars likely to lead to the identification of the child; and (b) no picture shall be published as being or including a picture of any child so concerned, except where the court or the Secretary of State, if satisfied that it is in the interests of justice to do so, makes an order dispensing with these prohibitions to such extent as may be specified in the order. ... (4) A court shall not exercise its power under paragraph (3) without - (a) affording the parties to the proceedings an opportunity to make representations; and (b) taking into account any representations which are duly made. (5) If a report or picture is published in contravention of a direction under paragraph (1) or of paragraph (2), the following persons - (a) in the case of publication of a written report or a picture as part of a newspaper, any proprietor, editor or publisher of the newspaper; (b) in the case of the inclusion of a report or picture in a programme service, any body corporate which provides the service and any person having functions in relation to the programme corresponding to those of an editor of a newspaper, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale... (6) For the purposes of this Article a child is ‘concerned’ in any proceedings whether as being the person by or against or in respect of whom the proceedings are taken or as being a witness in the proceedings. (7) In this Article - ... ‘publish’ includes - ... (b) cause to be published...” 29. The relevant Data Protection principles are set out in section 4 of the Act: “4 The data protection principles (4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.” and in paragraphs 1 and 2 of Schedule 1 of the Act: “1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless — (a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. 2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.” 30. Schedule 3 provides that in the case of sensitive personal data, the processing must be necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment. Pursuant to section 2, “sensitive personal data” includes information as to “any proceedings for any offence committed or alleged to have been committed by [the data subject], the disposal of such proceedings or the sentence of any court in such proceedings”. 31. Section 13 of the Act provides for the award of compensation for damage caused by a contravention of the Act: “13 Compensation for failure to comply with certain requirements (1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage. (2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if— (a) the individual also suffers damage by reason of the contravention, or (b) the contravention relates to the processing of personal data for the special purposes. (3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.” 32. Moreover, one of the roles of the Information Commissioner’s office is to uphold information rights in the public interest. The Commissioner can rule on eligible complaints and take appropriate action when the law is broken. In particular, section 40 of the Act permits the Information Commissioner to issue an enforcement notice where a data controller has contravened the Act: “40 Enforcement notices (1) If the Commissioner is satisfied that a data controller has contravened or is contravening any of the data protection principles, the Commissioner may serve him with a notice (in this Act referred to as “an enforcement notice”) requiring him, for complying with the principle or principles in question, to do either or both of the following — (a) to take within such time as may be specified in the notice, or to refrain from taking after such time as may be so specified, such steps as are so specified, or (b) to refrain from processing any personal data, or any personal data of a description specified in the notice, or to refrain from processing them for a purpose so specified or in a manner so specified, after such time as may be so specified.” 33. Section 7(1) of the Human Rights Act 1998 provides that “A person who claims that a public authority has acted (or proposed to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.” 34. Article 40 of the United Nations Convention on the Rights of the Child provides: “1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society. 2. To this end ... the States Parties shall, in particular, ensure that: ... (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: ... (vii.) To have his or her privacy fully respected at all stages of the proceedings.”
| 0 |
test
|
001-168375
|
ENG
|
EST
|
CHAMBER
| 2,016 |
CASE OF PÖNKÄ v. ESTONIA
| 3 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Public hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
|
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
|
6. The applicant was born in 1987 and lives in Helsinki, Finland. 7. On 19 February 2007 the Harju County Court in Estonia convicted the applicant of murder. In the criminal proceedings T. was heard as a witness. In its judgment the domestic court dismissed the applicant’s argument that he had shot the victim in self-defence. The applicant was subsequently transferred to Finland to serve his prison sentence. 8. On 11 December 2008 V., the owner of the apartment where the applicant had committed the crime brought a civil action against the applicant before the Harju County Court. He claimed compensation for damage caused as a consequence of the offence (damaged chair which had been hit by the bullet, damaged or lost belongings (mostly various items used to wrap parts of the victim’s cut up body), damaged flooring after the police had cut out a piece of parquet with a bullet mark to serve as evidence, a lock cylinder removed for evidence, cleaning bills, unpaid utility bills) in the amount of 28,259 kroons (EEK) (corresponding to approximately 1,806 euros (EUR)). The plaintiff submitted to the court documentary evidence (material from the criminal case, photos, invoices, inventory list of the apartment attached to the contract between V. and the victim) in support of his claims. 9. On 14 January 2009 the County Court ruled that the action was accepted for proceedings and that the case was to be dealt with in simplified proceedings (lihtsustatud menetlus) under Article 405 § 1 of the Code of Civil Procedure (CCP) (Tsiviilkohtumenetluse seadustik). It also explained to the parties that if they wished to be heard, they would have to notify the court within fifteen days of the date of receiving the decision. The applicant was asked to provide the court with a written reply to the action. 10. On 8 April 2009 the applicant informed the County Court in writing that he did not object to accepting the action for proceedings but he contested the claim, arguing that he had not damaged or destroyed the items in question. He further contended that he had not committed murder but had shot the victim in self-defence; in so far as the alleged damage related to the collection of evidence, it had been caused by the police; the claims were unsubstantiated in part. He requested examination of the case at a court hearing and asked that he and two witnesses (T. and K. – Estonian and Finnish forensic experts) be summoned and questioned in court. He stated that he wished to explain that he had not caused the damage and had acted in self-defence. As to the witnesses, he also wished them to give evidence about his acting in self-defence. 11. On 7 May 2009 plaintiff V. replied in writing to the applicant’s submissions, stating that he did not deem it necessary for the applicant to be present in person at the court hearing. He asked the court to dismiss the applicant’s request for the summoning of witnesses, as these individuals would be unable to give testimony about the items in the apartment or their value, and their statements could not refute the findings of a final court decision. He also submitted additional evidence to the court (a photo of one of the items in question; a bank statement about the payment of utility bills; price lists to prove the cost of another damaged item and the cost of cleaning services). 12. On 8 July 2010 the County Court ruled that the case was to be examined in written proceedings (kirjalik menetlus) under Article 404 of the CCP. The court noted the plaintiff’s agreement to the case being examined in written proceedings and that the applicant wished to be heard. It then went on to explain that under Article 404 of the CCP a written procedure could be applied when the amount of the claim was under 50,000 kroons (EUR 3,196) and a party’s appearance in court was significantly hindered by a long distance or for any other good reason. It gave the parties a thirtyday time-limit from the date of receipt of the decision for making any written submissions. No appeal lay against this decision. 13. No submissions were made to the court within the thirty-day time limit. 14. By a judgment of 3 December 2010 the County Court adjudicated the case in simplified and written proceedings. The court noted in its judgment that it had also examined the material pertinent to the related criminal case and relied as documentary evidence on the statements made by T. in the criminal proceedings. Relying on the judgment in the criminal case, the County Court considered it established that the applicant had not acted in self-defence when he killed the victim. Based on the material of the criminal case as well as documentary evidence submitted by V., the County Court accepted V.’s claim in part, that is in the amount of EEK 22,337 (EUR 1,428, which amounted to 79% of the initial claim). The court found on the basis of the applicant’s submissions that accepting the claim was not justified in so far as it concerned the lock cylinder, unpaid utility bills and certain allegedly damaged items. It was noted in the judgment that an appeal lay to the Tallinn Court of Appeal and that the appeal could be examined in a written procedure unless examination at a court hearing had been requested in the appeal. 15. On 22 December 2010 the applicant filed an appeal against the County Court’s judgment. He complained that, although he had requested an oral hearing before the County Court, no hearing had been held. He had therefore been deprived of an opportunity to be examined and to explain his position, according to which he had caused no unlawful damage to the plaintiff’s property. He relied on Article 6 § 1 of the Convention and also referred to persons whose examination he had requested. He challenged the County Court’s reliance on the criminal court’s judgment and claimed that in a civil case it should be possible to challenge facts established in a criminal case. 16. On 7 January 2011 the Tallinn Court of Appeal refused to accept the applicant’s appeal. It noted that the County Court had examined the case in simplified proceedings (lihtmenetlus). In such circumstances, the Court of Appeal could only accept an appeal for examination if the County Court in its judgment had granted leave to appeal or a provision of substantive or procedural law had clearly been incorrectly applied or it was clear that the evidence had been wrongly assessed and this could have significantly influenced the court’s ruling. The County Court had not granted leave to appeal. The Court of Appeal did not find that in the case at hand it could be said that the County Court had clearly incorrectly applied a provision of substantive or procedural law or clearly wrongly assessed the evidence or breached the right to be heard (ärakuulamise õigus). The County Court had examined the matter under Article 405 § 1 of the CCP in simplified proceedings. Pursuant to Article 405 § 1 of the CCP, in such proceedings the court had to guarantee that the fundamental rights and freedoms and the essential procedural rights of the parties were observed and that the parties were heard (kohus kuulab menetlusosalise ära) if they so requested. However, for that it was not necessary for a court hearing (kohtuistung) to be conducted. On 8 July 2010 the County Court had ruled that the case was to be examined in written proceedings and had given the parties an opportunity to make written submissions. The applicant had thus been guaranteed an opportunity to present his position to the court. The Court of Appeal further noted that the applicant had not objected under Article 333 §§ 1 and 2 of the CCP to the County Court’s decision of 8 July 2010 whereby the court had ordered that the case be examined in simplified proceedings and requested the applicant to make his submissions in writing. Pursuant to Article 333 § 3 and Article 652 § 6 of the CCP (see paragraphs 19 and 20 below) the Court of Appeal could not therefore consider these arguments in the appellate proceedings. The Court of Appeal concluded that there was no legal basis for it to accept the applicant’s appeal for examination. 17. The applicant lodged an appeal against the Court of Appeal’s decision, arguing that by refusing to allow him a hearing the County Court had clearly violated procedural law and Article 6 § 1 of the Convention. 18. On 30 May 2011 the Supreme Court decided not to examine the appeal.
| 1 |
test
|
001-159441
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,015 |
DAS UNIVERSELLE LEBEN ALLER KULTUREN WELTWEIT E.V. v. GERMANY
| 4 |
Inadmissible
|
André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
1. The applicant, Das Universelle Leben Aller Kulturen Weltweit e.V., is a German association, which has its seat in Marktheidenfeld. It was represented before the Court by Mr C. Sailer, a lawyer practising in Marktheidenfeld. 2 3. The applicant is a registered association claiming to represent the interests of the religious community “Universelles Leben” that is gathering people in a “new, true Christian faith conveyed by a new prophet sent by God”. It did not provide further information on its members and specific activities. 4. The Federal Ministry for Family, Senior, Women and Youth affairs (hereinafter: “the Federal Ministry”) ordered the Federal Administrative Agency (Bundesverwaltungsamt – hereinafter “the Federal Agency”) to maintain an information division regarding “so-called youth sects and psycho-groups” and, within its activities, to gather information on the applicant association. 5. Relying on the Federal Freedom of Information Act (see paragraph 11 below), the applicant association requested access to files containing all the information gathered by the Federal Agency in this regard. On 30 March 2007 the Federal Agency refused the applicant’s request. 6. Subsequently, the applicant association filed an action against the refusal with the Cologne Administrative Court. During the court proceedings, the court ordered the Federal Agency to list and describe the documents in its possession so that the applicant association could specify its claim, and a comprehensive assessment of the lawfulness of the refusal could be made. 7. The Federal Ministry, which had initially requested the collection of information and was therefore an interested third party in the proceedings, declared an exemption of disclosure (Sperrerklärung), by virtue of Article 99 (1) of the Code of Administrative Court Procedure (see paragraph 12 below). It held that there was no duty to produce the documents or even to reveal their existence and contents in the court proceedings and to the applicant association. 8. Subsequently the matter was transferred to the Federal Administrative Court which, according to Article 99 (2) of the Code of Administrative Court Procedure, was the competent authority to assess the lawfulness of the exemption of disclosure. 9. On 25 June 2010 the Federal Administrative Court viewed the documents in question and decided on the legality of the exemption of disclosure. In a comprehensive introduction the court outlined its own standards of examination and explained that Article 99 (2) of the Code of Administrative Court Procedure would require an assessment if the provided reasons for confidentiality would be firstly relevant to the specific case and secondly sufficient to justify an exemption of disclosure. Applying these standards, the Federal Administrative Court found that a general, unsubstantiated reference to the confidentiality of internal working methods of the Federal Agency could not provide a sufficient reason. However, the court also established that the Federal Agency was, as a State authority, bound by the obligations provided in the German Basic Law (Grundgesetz). Consequently, as argued by the Federal Ministry, the right to privacy of third persons, protected by the German Basic Law, and in particular the protection of informants could generally justify an exemption of disclosure. Turning to the facts of the case, the court ruled that for some parts, consisting of public information, such as newspaper articles, internet printouts, court judgments or publications of the association itself, no reason for confidentiality could be adduced. Therefore, the refusal to produce these documents was held to be unlawful. However, the court accepted the refusal of disclosure regarding other documents concerning the applicant association. These concerned reports from former members of the applicant association who had left the community. Those persons had revealed sensitive personal information about their private and religious life to the agency. The Federal Administrative Court held that the refusal to produce these documents was justified in order to protect the anonymity of the sources of information and the private information of third parties. It further argued that there was no other possibility than non-disclosure, since the small number of possible sources would allow identification even if the documents were edited. Furthermore, it found that the statements did not include any defaming or libelous remarks. 10. On 22 August 2011 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the part of that decision which upheld the refusal, without providing reasons (no. 1 BvR 2016/10). 11. The relevant provisions of the Federal Act Governing Access to Information held by the Federal Government (Freedom of Information Act Informationsfreiheitsgesetz) read as follows: “Section 1 Underlying principles (1) Everyone is entitled to official information from the authorities of the Federal Government in accordance with the provisions of this Act. This Act shall apply to other Federal bodies and institutions insofar as they discharge administrative tasks under public law. For the purposes of these provisions, a natural or legal person shall be treated as equivalent to an authority where an authority avails itself of such a person in discharging its duties under public law. (2) The authority may furnish information, grant access to files or provide information in any other manner. Where an applicant requests a certain form of access to information, the information may only be provided by other means for good cause. In particular, substantially higher administrative expenditure shall constitute good cause. (3) Provisions in other legislation on access to official information shall take precedence, with the exception of Section 29 of the Administrative Procedure Act and Section 25 of Book Ten of the Social Code.” 12. Article 99 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung) reads, insofar as relevant, as follows: “(1) Authorities shall be obliged to submit certificates or files, to transmit electronic documents and provide information. If the knowledge of the content of these certificates, files, electronic documents or this information would prove disadvantageous to the interests of the Federation or of a Land, or if the events must be kept strictly secret in accordance with a statute or due to their essence, the competent supreme supervisory authority may refuse the submission of certificates or files, the transmission of the electronic documents and the provision of information. (2) On request by a party concerned, the Higher Administrative Court shall find by order without an oral hearing whether the refusal to submit certificates or files, to transmit the electronic documents or to provide information is lawful. If a supreme federal authority refuses the submission, transmission or information on grounds that the interests of the Federation would be impaired were the content of the certificates or files, of the electronic documents and the information to become known, the Federal Administrative Court shall decide; (...) The supreme supervisory authority shall submit the certificates or files refused in accordance with subsection 1, second sentence on request by this panel of judges, transmit the electronic documents or provide the refused information. It shall be subpoenaed to these proceedings. (...)”
| 0 |
test
|
001-181882
|
ENG
|
CYP
|
CHAMBER
| 2,018 |
CASE OF DANILCZUK v. CYPRUS
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1965 and is currently detained in Czarne Prison in Poland. 6. The applicant was placed in detention on remand at Nicosia Central Prisons on 14 September 2010 pending criminal proceedings against him before the Limassol District Court (case no. 25536/10). 7. On 11 January 2011 the applicant was convicted of a number of offences (including burglary, theft, various road traffic offences and unlawful residence). On 24 January 2011 the court imposed four sentences ranging from six months’ to two years’ imprisonment, to run concurrently from 5 September 2010. 8. The applicant was released on 18 May 2012 following the suspension of his sentence by virtue of a decree issued by the President of the Republic concerning a number of prisoners. 9. In his application form the applicant, without specifying the exact period of his detention, submitted that he had been held in overcrowded cells at Nicosia Central Prisons, where there was only 0.5 to 1.7 sq. m of personal space for each detainee. He stated that the cells were cold and lacked adequate light. Furthermore, there were no toilets in the cells. He sometimes had to wait two to three hours to use the toilet, and, when the cells were locked, he had to urinate into a bottle and defecate into a waste bag. 10. The Government submitted that the applicant had been detained from 14 September 2010 until his release on 18 May 2012 in three different parts of Nicosia Central Prisons. Between 14 September 2010 and 24 January 2011 he had been detained in Block 5, which accommodated remand prisoners. Following his conviction and sentence he had been transferred to Block 2B, where he had been detained between 24 January 2011 and 5 October 2011. On the latter date he had been placed in Block 2A, where he had been detained until his release on 18 May 2012. Both Block 2B and 2A accommodated sentenced prisoners. The Government provided copies of Nicosia Central Prisons’ daily occupancy records (ημερήσιες χωρητικότητες των κεντρικών φυλακών) indicating the number of prisoners in each block per day. However, they submitted that no records were kept in relation to occupancy of particular cells in the blocks. 11. Block 5 could accommodate up to sixty-eight remand prisoners; it had thirty-four double occupancy cells measuring 6.21 sq. m, eight toilets and eight showers. Block 5 included Block 5A, which had twenty-three double occupancy cells of the same size as Block 5, accommodating forty-three remand prisoners. It was almost certain that during his detention in Block 5 the applicant had shared a cell with another inmate and that therefore he had had 3.10 sq. m of personal space. 12. At the time the applicant had been detained there Block 2B had not yet been renovated. It had twenty-six double occupancy cells measuring 9.98 sq. m; two large cells measuring 19.55 sq. m, which accommodated five to seven detainees, and a common room which had been made into a dormitory for between twenty and fifty inmates. The dormitory measured 90 sq. m and had nineteen windows. Prisoners with short-term sentences had been kept in the dormitory. Block 2B had six toilets and six showers. 13. Based on the daily occupancy records for the relevant period, the number of inmates in the block varied from 80 to 124 per day. The Government stated that it was possible that the applicant had spent time in all the different types of cells in this block during his detention. In the double occupancy cell the applicant would have had 4.99 sq. m of personal space; in the larger cell he would have had from approximately 2.8 to 3.9 sq. m, depending on whether he had shared the cell with five, six or seven inmates; and, lastly, in the dormitory he would have had from 1.8 sq. m to 4.5 sq. m of personal space, depending on the number of inmates detained there with him. If the applicant had been held in the dormitory in early spring or during the winter (see paragraph 49 below), he would have disposed of between 2.04 and 3.2 sq. m of personal space as the daily occupancy records indicated that the block had accommodated between 94 and 110 inmates per day during those periods. 14. On 5 October 2011 the applicant was transferred to Block 2A, which had been renovated. The block had forty-one double occupancy cells, accommodating eighty-two prisoners. The cells measured 9.80 sq. m and thus the applicant had had 4.9 sq. m of personal space at his disposal. There were six toilets, six showers and three urinals. 15. The various parts of the prison were equipped with a central heating system which covered all the blocks and cells. The central air conditioning system which functioned in the summer months was in the corridors and there were individual electrical fans in the cells. All the cells had properly insulated windows, which provided natural light and ventilation. The dimensions of the windows varied. Detainees were free to move outside their cells in the closed prison, including the yard, workshops, kitchen and school from 6 a.m. to 5 p.m. (winter time) or to 6 p.m. (summer time). After that, the detainees could move freely within their blocks until 9 p.m. on weekdays and 10 p.m. on weekends and public holidays. 16. Following the 2012 report of the European Committee for the Prevention of Torture (“CPT”) on its visit to Cyprus from 12 to 19 May 2008, the prison administration discontinued the practice of switching off cell bells during the night, hence detainees had access to the toilets during those hours (see paragraphs 26-27 and 30 below). The administration of the prison had issued order no. 32/2008 concerning prisoners having access to the toilet facilities whenever necessary. The order had also directed prison staff to check and ensure that the call panel in the warden’s room was active at all times, especially during the evening, so that prisoners could be assisted and emergencies prevented. A violation of the order constituted a disciplinary offence. According to a letter by the prison director dated 27 February 2014, records were not kept of when cells were opened for toilet visits during the night, that is between 9 p.m. and 6 a.m. However, a detainee could leave his cell for up to three toilet visits during that period.
| 1 |
test
|
001-177424
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF DOLGOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)
|
Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-160420
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF KHACHUKAYEVY v. RUSSIA
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person);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;Degrading treatment;Inhuman treatment)
|
Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicants are: (1) Ms Elita Khachukayeva, who was born in 1972 and lives in Goyty, Chechnya; (2) Ms Khadizhat Khachukayeva, who was born in 1998 and lives in Alkhan-Yurt, Chechnya; (3) Ms Kheda Khachukayeva, who was born in 2001 and lives in UrusMartan, Chechnya. The applicants are the wife and daughters of Mr Islam Deniyev, who was born in 1966. 6. At the material time the applicants and Mr Islam Deniyev lived in the village of Alkhan-Yurt in the Urus-Martan District, Chechnya. The village was situated along a major highway known as “Kavkaz”, part of the road between Rostov in Russia and Baku in Azerbaijan, which has several permanent military roadblocks posted along it. It was impossible to drive on the highway without being checked and information from the check being entered into a log. One permanent roadblock was situated about three kilometres to the east of Alkhan-Yurt, at the junction with the road towards Grozny, the main city in Chechnya. This road block was commonly referred to as “Chernorechensky” (also spelled as “Chernorechye”), after the name of a nearby suburb of Grozny. 7. On 24 November 2000 Mr Islam Deniyev drove to Gudermes with his friends Mr Sayd-Akhmed S., a resident of Martan-Chu, and Mr Khizir A., a resident of Alkhan-Yurt, in the latter’s Toyota Land Cruiser car. The vehicle’s licence plate number was A999BK95, which was easily recognisable because of the three nines. 8. At about 11 a.m. on 24 November 2000 a group of Alkhan-Yurt residents were passing through the Chernorechensky roadblock by bus and saw Mr Khizir A.’s Toyota Land Cruiser car there. Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. were standing next to the vehicle, surrounded by members of the military. Nearby were some armoured military vehicles (BMP) and UAZ cars. According to two unnamed witnesses, who had also been stopped at the roadblock at the same time, they and Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. were taken to the military unit’s headquarters in the village of Tangi-Chu. 9. The applicants have not seen Mr Islam Deniyev since 24 November 2000. They were not eyewitnesses to the abduction. Their submission to the Court was based on the first applicant’s complaints and requests to various State authorities, a witness statement by Mr R.V. dated July 2007 and copies of documents from the criminal investigation file. 10. The applicants learnt about the detention of Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. later on the day of 24 November 2000 from the bus passengers, but were not worried at first, as they presumed that the three men had been stopped for a routine identity check. They were also reassured by Mr R.V., the head of the Alkhan-Yurt village administration at the time, who said that there was no need to worry as all three men were law-abiding citizens. 11. Several days later, at the end of November 2000, Mr R.Sh. saw Mr Khizir A.’s Toyota Land Cruiser car in a military convoy, passing through a roadblock over the Terek river in the village of Chervlenaya, about twenty kilometres to the north of Grozny. Mr R.Sh. was later questioned by the prosecutor’s office (see paragraph 25 below). 12. In March 2001 a friend of the missing men, Mr Kh.G., spotted the licence plate from Mr Khizir A.’s Toyota Land Cruiser car on a military vehicle and informed the investigation of this (see paragraph 19 below). The serviceman driving the vehicle was subsequently questioned and stated that he had recovered it at the roadblock (see paragraph 21 below). 13. On an unspecified date in August 2001 the applicants learned that the blown-up shell of a Toyota Land Cruiser had been found in the north of Chechnya, in the Naurskiy District. The car was identified as the one belonging to Mr Khizir A. 14. On 21 November 2002 the remains of three bodies and items of clothing were found in the forest near the village of Darbankhi (also spelled as Darban-Khi), near the Darbankhi-Vinogradnoye road in the north of the Grozny district. Relatives of the abducted men subsequently identified some of the clothing as belonging to the missing men (see paragraphs 28-29 below). 15. On 30 September 2003 the Urus-Martan Town Court declared Mr Islam Deniyev a missing person, at the request of his sister Ms A.D. On 17 November 2006 she was appointed as the legal guardian of the second and third applicants. 16. On 7 December 2000 (in the documents submitted the date is also stated as 16 January 2001) the first applicant and relatives of Mr SaydAkhmed S. and Mr Khizir A. complained about the abduction of the men at the roadblock to several law-enforcement agencies. They described the circumstances of the incident and stressed that their relatives had most probably been detained by officers of the Federal Security Service (hereinafter “the FSB”) (Федеральная служба безопасности (ФСБ)) or the Main Intelligence Service (hereinafter “the GRU”) (Главное разведывательное управление (ГРУ)) and that their own search for the abducted men had not produced any results. 17. On 6 February 2001 the Grozny prosecutor’s office (hereinafter “the prosecutor’s office”) opened criminal case no. 13023. The decision stated, among other things, the following: “... On 24 November 2000, at about 11 a.m., on the Rostov-Baku highway at the former roadblock of the Chernorechensky [traffic police] post unidentified persons detained and took away [Mr Islam Deniyev, Mr Khizir A. and Mr Sayd-Akhmed S.] to an unknown destination...” 18. On 13 February 2001 Chechnya’s Deputy Minister of the Interior wrote to the Chechnya prosecutor providing details of the abduction which were similar to the applicants’ account before the Court and asking to be informed whether the abducted men had been arrested and, if so, on what charges. The letter also stated that there were witnesses to the abduction. 19. On 21 March 2001 the investigators questioned Mr Kh.G., who stated that on 17 March 2001 he had seen a grey UAZ with the registration number A999BK95 and that a group of military servicemen had been next to it. He had recalled immediately that the plate had belonged to Mr Khizir. A.’s Toyota Land Cruiser and asked the driver of the vehicle where he had got it. The driver told him that he had received it from Mr R.E., the driver of the head of the Grozny district department of the interior (hereinafter “the Grozny ROVD”) (Грозненский районный отдел внутренних дел (РОВД)), who had obtained it from a military serviceman stationed in the settlement of Chervlenaya. The witness had taken the plate from the driver and on 20 March 2001 handed it over to the investigators. 20. On 22 March 2001, investigators questioned the driver of the head of the Grozny ROVD, Mr R.E., who stated that he had obtained the licence plate with the registration number of Mr Khizir. A.’s car in December 2000 from a military serviceman at the Chernorechensky roadblock. 21. On 22 March 2001, investigators questioned a serviceman, Mr P.V., who stated that he had found the licence plate with the A999BK95 registration number when he was manning the Chernorechensky roadblock in December 2000 and had handed the plate over to the policemen who had taken over from him at the roadblock. 22. On 6 April 2001 the investigation in the criminal case was suspended on account of the failure to identify the perpetrators. 23. On 18 May 2001 the supervising prosecutor overruled the decision to suspend the investigation as premature and unlawful and ordered that further steps be taken. 24. On 28 May 2001 the proceedings were resumed, before being suspended again on 28 June 2001. 25. On 18 October 2001 the investigators questioned Mr R.Sh. who stated that on or around 25 November 2000 he had been crossing the roadblock over the Terek river in the village of Chervlenaya, when he had seen a military convoy which included Mr Khizir A.’s Toyota Land Cruiser. The car, which had been moving among at least ten military vehicles, was being driven by a tall red-headed man in a special black military uniform with a bullet-proof vest. 26. On 4 March 2002 the deputy prosecutor of Grozny overruled the decision to suspend the investigation as premature and unlawful and ordered that further steps be taken. In particular, he pointed out the following: “The examination of the case file shows that the investigation has been carried out in an extremely superficial manner and without any plan. ... To this date, none of the victims’ relatives have been questioned or granted the procedural status as the relative of a victim, [the investigator] has contented himself with sending formal requests to various bodies and receiving equally formal replies. ... It is necessary to question family members and close friends about the missing men’s lives, work and social activities ..., to receive a reply from the military prosecutor’s office of the [Northern Caucasus Military Circuit], to question in detail the witness who found the missing car in the forest ..., to question once again the witness [R.Sh.] who saw the vehicle in a military convoy going over the Terek bridge in the village of Chervlenaya ..., to take all the necessary steps to identify the military unit which passed over the bridge at that time. The witness has highlighted the large number of vehicles in the convoy, so it would appear to be quite possible to clarify this question. If positive replies are obtained a visit should be planned to the location of the military unit to find out more about the fate of the missing car.” 27. Following the discovery of the remains of three people (see paragraph 14 above) on 21 November 2002 (in the documents submitted the date is also referred to as 11 October 2002), the Grozny district prosecutor’s office opened criminal case no. 56184 on 28 November 2002. 28. On 28 November 2002 the investigators in criminal case no. 56184 questioned the brother of Mr Islam Deniyev, Mr A.D., who described the circumstances of the abduction at the roadblock and stated that some of the items of clothing found with the remains of the bodies resembled clothing worn by Mr Islam Deniyev on the date of his abduction. On the same date, Mr A.D. officially identified several items of the clothing as belonging to Mr Islam Deniyev. 29. On 29 November 2002 the investigators in criminal case no. 56184 questioned the wife of Mr Sayd-Akhmed S., Ms M.S., who described the circumstances of the abduction at the roadblock and then identified several items of the clothing as belonging to her missing husband, Mr Sayd Akhmed S. 30. On 28 April and then again on 6 June 2003, the supervising prosecutors criticised the investigation and ordered that the investigators take the steps which had been ordered previously. The documents submitted in the case show that none of the steps were taken, apart from granting victim status to some of the relatives of the men who had disappeared. 31. On 15 December 2002 the investigators ordered a complex forensic examination of the human remains (see paragraph 27 above). On 20 February 2004 the experts concluded that they belonged to people with different blood groups. They came to no conclusion about a possible cause of death. 32. On 29 November 2004 the investigators ordered a genetic test of the fragments. Blood samples were collected from the relatives of Mr Islam Deniyev, Mr Khizir A. and Mr Sayd-Akhmed S. 33. On 30 December 2004 the genetic test report showed that the remains belonged to Mr Islam Deniyev, Mr Khizir A. and Mr SaydAkhmed S. 34. Despite the genetic test results of 30 November 2004, the initial investigation into the abduction of the three men in criminal case no. 13023 continued until 25 March 2008 and referred to them as “missing”. 35. On 18 December 2006 the first applicant was granted the status of a victim in criminal case no. 13023 and questioned. She stated that she had learnt of her husband’s abduction by servicemen at the roadblock from her relatives. 36. On 20 December 2006 the investigators again questioned Mr A.D., who reiterated his previous statement and added that he and his relatives had found the burnt Toyota Land Cruiser car in 2001 (see paragraphs 13 and 28 above). 37. On 20 and 26 December 2006 the investigators questioned Ms A.D., who stated that her brother, Mr Islam Deniyev, and his friends, Mr SaydAkhmed S. and Mr Khizir A., had been abducted at the roadblock by officers of the GRU. The witness added that she was taking care of the second and third applicants. 38. On 15 January 2007 the first applicant asked the investigators to provide her with unrestricted access to the investigation file. On 7 February 2007 the investigators granted her request in part, stating that she was allowed to access only the documents which referred to proceedings she had been involved in. 39. On 13 July 2007 the investigators questioned Ms Z.E., who stated that on 24 November 2000 her nephew, Mr Khizir A., and his two friends, Mr Islam Deniyev and Mr Sayd-Akhmed S., had been abducted by federal servicemen at the roadblock. She also submitted that on that date Mr Khizir A. had left home with a large sum of money as he had intended to buy a car. 40. On 25 March 2008 the investigators combined the abduction case (no. 13023) and the murder case (no. 56184) into one file (no. 13023). The Grozny department of the investigation committee was put in charge of the investigation and the applicants were informed of these developments. 41. The case file shows that between 2001 and 2007 the investigators requested information on the possible whereabouts of the abducted men from the military units stationed in the region at the time, as well as from detention centres, hospitals, law-enforcement agencies and correctional facilities. For the most part, they received no answer and the replies that did come in were negative. 42. Between 2001 and 2008 the investigation in criminal case no. 13023 was suspended and resumed on at least nine occasions. Each suspension of the proceedings was overruled by the supervising body as premature and unlawful. The last suspension took place on 24 April 2008, but the investigation was resumed on 18 February 2012. It is still pending. 43. In March 2007 the first applicant appealed to the Zavodskoy District Court in Grozny against the investigators’ refusal to provide her with unrestricted access to file no. 13023. She sought a ruling obliging the investigators to provide her with full access, to resume the investigation, which had been suspended, and to carry it out in an effective manner. She also asked for free legal counsel to assist her in the proceedings. 44. On 25 January 2008 the Zavodskoy District Court allowed the complaint in part. The applicant appealed. On 27 February 2008 the Chechnya Supreme Court granted the request for full access to the case file. The request for free legal assistance was dismissed for lack of grounds in domestic law. 47. The applicants maintained that it was beyond reasonable doubt that the men who had taken away and then killed Mr Islam Deniyev had been State agents. In support of that assertion they referred to the ample evidence contained in their submissions and the criminal investigation file. They submitted that they had made a prima facie case that their relative had been abducted and killed by State agents and that the essential facts underlying their complaint had not been challenged by the Government. 48. The Government did not contest the essential facts as presented by the applicants. At the same time, they claimed that the investigation had not obtained information proving that State agents had been involved in the detention or killing of the applicants’ relative. 49. A number of principles have been developed by the Court when it has been faced with the task of establishing the facts of events on which the parties disagree (see El-Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR 2012): the factual findings should be based on the standard of proof “beyond reasonable doubt”; and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII, and Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005VIII). 50. The Court has dealt with a whole series of cases concerning allegations of disappearances and killings in Chechnya. Applying the abovementioned principles, it has concluded that if applicants make a prima facie case of abduction and killing by servicemen, this is sufficient for them to show that their relatives fell within the control of the authorities, and it is then for the Government to discharge their burden of proof, either by disclosing any documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Tovsultanova v. Russia, no. 26974/06, §§ 7781, 17 June 2010; Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011; and Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012). 51. Turning to the circumstances of the present case, the Court notes that the documents from the investigation file provided by the Government (see, for example, paragraphs 17, 18, 26, 28-29, 35 and 37 above) demonstrate that Mr Islam Deniyev was detained on 24 November 2000 at the roadblock by a group of armed servicemen and that his remains were discovered about two years later, in November 2002 (see paragraphs 27 and 33 above). 52. The next point to be considered is whether there is a causal link between the detention of Mr Islam Deniyev by State servicemen at the roadblock and his death. The Court reiterates in this connection that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see, among many authorities, Avşar, cited above § 392). 53. In the present case there was no news of Mr Islam Deniyev between his detention on 24 November 2000 at the roadblock and the discovery of his remains in November 2002. The Court also notes that although a forensic expert examination was carried out on the remains, it failed to establish the cause of his death (see paragraph 31 above). 54. The Government did not dispute the circumstances of the discovery of the remains. The link between the detention and the death of Mr Islam Deniyev was, moreover, assumed in the domestic proceedings as the investigations into the abduction and the death were joined (see paragraph 40 above). The Government did not provide any substantiated version of the events to refute the version presented by the applicants. 55. The Court finds that the facts of the present case strongly suggest that the death of Mr Islam Deniyev was part of the same sequence of events as his abduction and support the conclusion that he was executed extrajudicially by State agents. In these circumstances, the Court finds that the State is responsible for the death of the applicants’ relative. 56. For the above reasons the Court considers that it has been established that Mr Islam Deniyev was killed following his unacknowledged detention by State servicemen.
| 1 |
test
|
001-167498
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF DAVLYASHOVA 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 1964 and is detained in Vinzili, Tyumen Region. 5. The authorities initiated several criminal proceedings against the applicant. On 28 August 2012 she was arrested on suspicion of fraud. 6. On 31 August 2012 the Leninskiy District Court of Tyumen remanded her in custody. The court extended her detention stating that she was accused of serious crimes, the crimes did not relate to commercial sphere, another set of criminal proceeding against her was pending and she had been convicted previously, she did not live at her place of residence, she might put pressure on witnesses, destroy or conceal evidence, re-offend, abscond or in any other way interfere with investigation. It appears that criminal proceedings against the applicant are still pending.
| 1 |
test
|
001-168782
|
ENG
|
HUN
|
CHAMBER
| 2,016 |
CASE OF ERMÉNYI v. HUNGARY
| 3 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
|
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
|
6. The applicant was born in 1950 and lived in Budapest. 7. Having been a judge since 1 January 1978 and a member of the Supreme Court since 1 March 1994, on 15 November 2009 he was appointed Vice-President for a six-year term by the President of the Republic, after being proposed for the post by the President of the Supreme Court. 8. The mandate of the President of the Supreme Court was prematurely terminated, upon the entry into force of the Fundamental Law on 1 January 2012, in reaction to his criticisms and publicly expressed views regarding proposed judicial reforms (see Baka v. Hungary [GC], no. 20261/12, § 151, 23 June 2016). 9. In connection with these events, a proposal for the termination of the applicant’s mandate as Vice-President was submitted to Parliament on 23 November 2011, and was adopted on 28 November 2011 in the form of section 185 of Act no. CLXI of 2011 on the Organisation and Administration of the Courts (“the AOAC”) (see Baka, cited above, § 30). Accordingly, as of 1 January 2012, the applicant was removed from his position as Vice-President, three years and ten months before the scheduled expiry of his mandate. He remained in office as president of one of the Civil Law division benches of the Kúria (the historical appellation by which the Supreme Court was renamed in 2012). 10. On 7 February 2012 the applicant lodged a constitutional complaint with the Constitutional Court challenging the termination of his position. In its judgment no. 3076/2013. (III. 27.) AB, adopted by eight votes to seven, the Constitutional Court rejected the constitutional complaint. It held that the premature termination of the applicant’s term of office as Vice-President had not violated the Fundamental Law, since it had been sufficiently justified by the full-scale reorganisation of the judicial system and important changes made in respect of the tasks and competences of the President of the Kúria. It noted that the Kúria’s tasks and competences had been broadened, in particular with regard to the supervision of the legality of municipal council regulations (for the relevant parts of the Constitutional Court’s judgment see Baka, cited above, § 55). Seven judges dissented and considered that the changes concerning the judicial system, the new Kúria and the person of its president had not fundamentally affected the status of the Vice-President. The position of the Vice-President within the organisation of the supreme judicial instance had not changed. Under the Act LXVI of 1997 on the Organisation and Administration of the Courts, the Vice-President was already entitled to act in the stead of the President of the Supreme Court only with regard to managerial tasks at the Supreme Court, but not with regard to his or her functions as President of the National Council of Justice (see Baka, cited above, § 56). The dissenting judges concluded that the premature termination of the applicant’s term of office had not been sufficiently justified by the reorganisation of the judicial system; and that it had weakened the guarantees in respect of the separation of powers, had been contrary to the prohibition on retroactive legislation, and had breached the principle of the rule of law and the right to a remedy. 11. On 6 July 2012, as a consequence of the lowering of the judges’ mandatory retirement age pursuant to section 90 (ha) of Act no. CLXII of 2011 on the Legal Status and Remuneration of Judges (“the ALSRJ”) (see Baka, cited above, § 52), the President of the Republic released the applicant from his duties as a judge with effect from 31 December 2012. 12. In its judgment no. 33/2012. (VII. 17) AB of 16 July 2012, the Constitutional Court declared unconstitutional and consequently annulled the provisions on the compulsory retirement age of judges (see Baka, cited above, § 53). On the basis of that judgment, the Budapest Labour Court found, in a first-instance judgment of 21 March 2013, that the termination of the applicant’s judicial service had been unlawful and reinstated him – without, however, ordering his reinstatement in his previous position as president of one of the Civil Law division benches of the Kúria. 13. Following the Constitutional Court’s judgment of 16 July 2012, Parliament adopted a modified scheme governing the reduction of judges’ compulsory retirement age and provided different options for those who had already been affected by the unconstitutional legislation (see Act no. XX of 2013 referred to in Baka, cited above, § 54). The applicant opted not to be reinstated and received lump-sum compensation for the termination of post as a judge.
| 1 |
test
|
001-154163
|
ENG
|
MKD
|
CHAMBER
| 2,015 |
CASE OF ILIEVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 3 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Just satisfaction)
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
|
5. The applicant was born in 1976 and lives in Kriva Palanka. 6. On 24 April 2009 the applicant was operated on for stomach cancer and subsequently underwent chemotherapy. 7. On 29 October 2009 she had been feeling anxious and distressed, and her husband requested medical assistance from Kriva Palanka hospital (110 km from Skopje). Dr M., a general practitioner, gave an instruction that the applicant was to be transferred to a psychiatric clinic in Skopje. Dr C.T., a specialist in neuropsychiatry in Kriva Palanka hospital, also gave instructions for her to be transferred to that clinic with police assistance. 8. Still on 29 October, at around 5 pm., an ambulance arrived at the applicant’s house in the village of Uzem. Two police officers, who were later identified as M.N. and I.A. in the subsequent criminal proceedings, assisted with the applicant’s transfer to the Bardovci psychiatric hospital in Skopje, where she remained until 31 October 2009. 9. The relevant parts of a notice of her discharge, dated 2 November 2009 from Bardovci hospital provide as follows: “[This is the] first admission of (the applicant) to this hospital; it was carried out with the assistance of the police from Kriva Palanka. According to the limited information obtained from (the applicant’s) husband by telephone, (it is known) that since summer this year, when she was diagnosed with and treated for stomach cancer, (the applicant) had become ... melancholic, lethargic, and had threatened with committing suicide. When admitted, [the applicant] was malnourished, dehydrated, and had several haematomas of different sizes, most probably of recent date (најверојатно од понов датум) ... Concerning her psychological state she was depressed, anxious, tearful, and fixated on her poor state of health (cancer) ...she was burdened with depressive ideas and had a paranoid attitude towards her husband, which may be well-founded ... She is discharged without having been examined or treated, at her husband’s request.” 10. Following her discharge from the hospital in Skopje, the applicant was on the same day admitted to the Kriva Palanka hospital. A handwritten medical certificate was issued and entered in the hospital’s records under no. 2131. At the applicant’s request a transcript of this certificate was made by Dr G.S. The relevant parts of this certificate state that: “[According to the applicant] she was handcuffed by the police during her transfer to Bardovci psychiatric hospital, as instructed by a doctor. Objectively: haematoma measuring 2 x 6 cm on both forearms around the wrist joints; 3 hematomas measuring 1 x 2 cm on both lower legs. On the right hip, (a haematoma) measuring 1 x 2 cm. Regarding these injuries, [the applicant] says that they were inflicted by kicks and blows.” 11. Still on 31 October 2009 the applicant was also examined by Doctor M. (see paragraph 7 above). The relevant parts of the medical certificate issued on that date read as follows: “On 29 October 2009 at about 5 pm., on a request by (the applicant’s) husband and as suggested in (a neuropsychiatric opinion), the patient was transported to Skopje psychiatric clinic. The applicant states that she was abused during the transfer: she was hit and punched on the legs, [a third person] sat on her legs, and her hands were handcuffed behind her back. When she arrived she was treated violently by hospital staff. When examined ... [the following] is observed: [she] is upset; a haematoma and a scratch on the lower legs, thus 4-5 scratches on the right side measuring 1 x 2 cm; on the left side 4-5 (scratches) measuring 1 x 2 cm and 2 x 2 cm; haematomas and (two) scratches on the stomach measuring 3 x 1 cm; 5 scratches on the back measuring 5 x 6 cm; some small haematomas ... The patient has visible injuries caused by a trauma, namely hitting and punching. Opinion: light bodily injury.” 12. On 15 February 2010 Doctor M. issued a certificate that on 29 October 2009 the applicant had been examined and that an instruction had been given for her to be transferred to Skopje psychiatric clinic. 13. In support of the application before the Court, the applicant provided four photographs of her, showing the following injuries: five scratches on the lower and middle part of the back; two scratches and a haematoma on her stomach, and several haematomas on the lower legs. 14. On 21 November 2009 the police drew up an official note (службена белешка) regarding information obtained from Dr S.V. As indicated in the note, S.V. decided, “for the sake of truth”, to provide relevant information in reaction to a television interview broadcasted on 3 November 2009 in which the applicant had stated that she was ill-treated by police officers during her transfer to Bardovci hospital. During the interview she showed the injuries that she had allegedly sustained. The relevant parts of the note read as follows: “... I want to say that on 27 October 2009 at 9 pm., I was called, through the duty medical centre of Kriva Palanka hospital, to intervene in an urgent case reported by (the applicant’s) husband. I arrived at a pensioners’ home in Kriva Palanka, where (the applicant and her husband) were waiting. (The husband) told me that (the applicant) had injured herself, namely that she had hit her body and head against a wall and a bed; her face was covered with blood, and there was blood on the floor in front of the door. That suggested that she had had a nervous breakdown, for which I prescribed treatment. In my opinion and in view of the foregoing, it is most likely that the injuries she showed to the cameras were self-inflicted on the date indicated above, which was when I intervened.” 15. On 3 December 2009 L.S. provided information to the police in relation to media statements by the applicant and her husband that the applicant had been ill-treated by the police. L.S. stated that the applicant’s husband had beaten the applicant on three occasions (she did not specify the exact dates when the alleged beatings had happened, but she confirmed that it had been on “the nights of Thursday, Friday and Saturday”). She further stated: “During the Sunday night two women, most likely journalists, visited [the applicant’s husband]. On the Tuesday [the applicant’s husband] invited residents to watch on television ‘how do the police from Kriva Palanka work. I put them in a mould; I’ll take a lot of money from them’. I personally believe that [the applicant’s] injuries were inflicted by [her husband] who, while intoxicated, beats her up every day in front of their children.” 16. The note further indicated that four individuals (whose identity was specified), together with other residents in the building in which the applicant lived, could be interviewed regarding the case. 17. On 11 January 2010 the police informed the applicant’s husband that on 3 December 2009 L.S. had made a complaint against him, and that an official note had been drawn up. As stated in the letter, both the applicant’s husband and L.S. had been advised to stop arguing in future. The letter further indicated that L.S. had been warned that in the event of false reporting a misdemeanour complaint would be lodged against her. 18. In submissions of 27 January and 18 February 2010 the applicant brought criminal charges of medical malpractice against Dr C.T. alleging that he had instructed her to undergo a psychiatric examination without examining her, against V.S., a nurse who had accompanied the applicant during her transfer to Skopje (she had been sitting in the front passenger seat), and against M.N. and I.A., the police officers, for inflicting ill-treatment and mild bodily injury. She alleged that on 29 October 2009 she had been distressed. In the circumstances, her husband had gone to Kriva Palanka hospital, where Dr C.T. had decided that she be transferred to Skopje psychiatric clinic with assistance from the police. Doctor M. had also issued a recommendation in this respect (see paragraph 7 above). The applicant claimed, inter alia, that M.N. and I.A. had forcibly put her in the ambulance, stating that they had grabbed her arms and dragged her to the ambulance, ignoring her cries of pain from the surgery. After she had been put in the ambulance, she had been forcibly made to lie on a bed with her hands handcuffed behind her back. I.A. sat on her legs. They had gone, firstly, to Kriva Palanka hospital where Dr C.T. had given instructions, by telephone, to V.S. to administer an injection. The applicant alleged that on the way to Skopje she had been hit, punched and threatened by the police officers. As a result, she had “several injuries (haematomas) all over the body and limbs and five to seven marks on the back from the handcuffs, of which I have photographs”. In support of her complaint she attached medical certificates (see paragraphs 9, 10, 11 and 12 above). 19. On 31 March 2010 the public prosecutor contacted the Ministry of the Interior with a request for further information regarding the incident. In reply, on 26 May 2010 the Sector for Internal Control and Professional Standards within the Ministry of the Interior submitted a “special report” regarding the case. It referred to statements (which it submitted in support) which Dr C.T., the applicant and her husband had given to the police between 13 and 15 April 2010. 20. Dr C.T. confirmed that on 29 October 2009 the applicant’s husband had told him that they lived in the pensioners’ home in Kriva Palanka; that the applicant’s mental health was poor; that she had arrived at their family house in the village of Uzem (see paragraph 8 above) without his consent; that she had broken a window to get in; that she had been aggressive and was capable of killing herself, their children or himself; that she had been uncooperative; and that she had refused to sleep or eat. 21. In the statement, the applicant’s husband confirmed that the applicant’s mental health had deteriorated since the stomach surgery, and that he had explained “her condition” to the doctors M. and C.T. during his visit of 29 October 2009. He also informed the police officers M.N. and I.A. about her state of health while he was in the ambulance with them on the way to their family house. When they got to the house he had asked the police officers to wait outside so that he could explain to the applicant that she was going to be taken to a psychiatric hospital. When the police officers had entered the house their children had started crying and putting their arms around the applicant. The police officers had forcibly separated the children from the applicant; they had grabbed her by the arms and dragged her (while she was on her knees) towards the door. After the situation had calmed down and in order not to harm the applicant, he had taken her by the legs, and he and the police officers had taken her to the front of the ambulance. Then the police officers had put her in the ambulance; they had handcuffed her hands behind her back and made her lie on a bed. To keep her still, I.A. had sat on her legs. The police officers had remained with the applicant in the rear of the ambulance, while V.S. had sat in the front passenger seat. While he had been occupied with the children in the house, the ambulance had left the scene. The next day he had found out that the applicant had been taken to Bardovci hospital; he went there, but no visits were allowed that day. 22. In depositions made on 15 April 2010 the applicant confirmed that on 29 October 2009 she had consented to be taken to Skopje psychiatric clinic; that the police officers had grabbed her hands and dragged her; that before she got into the ambulance M.N. had hit her on the back with a baton; and that her husband had helped M.N. and I.A. to bring her to the front of the ambulance. She also stated that no infusion or injection had been administered when they had stopped at Kriva Palanka hospital; that during the transfer to Skopje hospital (the ambulance had been driven at excessive speed) her hands had been handcuffed behind her back; that I.A. had been sitting on her legs and that she (I.A.) had hit her on the legs and head with a truncheon; that M.N. had grabbed her hair and had tightened up the handcuffs; that both M.N. and I.A. had punched her and hurt her legs. When she was admitted to Bardovci hospital she was bleeding and had bruises. 23. The “special report” of the Ministry further referred to statements given by doctors S.V. and L.S. (see paragraphs 14 and 15 above). It also specified that the police officers concerned had denied that they had used any force against the applicant, and that the applicant had used offensive language against them and had been screaming loudly. The record also stated that V.S. (the nurse) and J.D. (the driver of the ambulance), had also denied that the police officers had used any force against the applicant. The report went on to state: “when (the police officers) arrived at (the applicant’s) house, they were warned by the (applicant’s) husband to be cautious because Marina had a knife with which she might assault them. For that reason, he proposed going into the house first to tell (the applicant) that she was going to be taken to Skopje for medical treatment. After five minutes, (the applicant’s husband) went out and called (the police officers) into the house. The police officers went in and told Marina that they would have to transfer her by ambulance to a health institution in Skopje. In response to that, Marina said to (her husband): do I deserve this from you, being taken for medical treatment; I do not belong there, you should go there because you are drunk every day and you constantly abuse and hit me and the children; I’m covered in bruises because of you ... Throughout the journey, (the applicant) used offensive language against the police officers and the nurse, she [the applicant] was very aggressive and angry, and she was screaming loudly and trying to hurt herself by hitting her head against the window of the ambulance. The police officers and the nurse had been forced during the entire transfer to hold her hands in order to prevent her from hurting herself or some of them”. 24. On 8 June 2010 the Kriva Palanka public prosecutor’s office, referring to the Ministry’s “special report” and the discharge notice from Bardovci hospital, rejected the applicant’s complaint against the accused (the decision noted that the nurse V.S. had died in the meantime), finding that the alleged offences were not subject to State prosecution. On 14 June 2010 the applicant, in the capacity of a subsidiary prosecutor, took over the prosecution and brought private charges before the Kriva Palanka Court of First Instance (“the trial court”) on the same charges as above (see paragraph 18 above). 25. On 6 October 2010 the trial court heard Dr C.T., M.N., I.A., the applicant, who was not legally represented, and her husband. According to the transcript of the court hearing, Dr C.T.’s statement was consistent with the statements he had made to the police (see paragraph 20 above). 26. The relevant parts of M.N.’s statement, as described in the court record, read as follows: “(the applicant’s husband) arrived at the police station and said in front of colleagues and himself (M.N.) that he had been afraid that something could happen to his children or (to the applicant), because, when she had gone to Uzem she had taken a knife and a telephone wire; they went by ambulance to Uzem ... [when they went into the house] (the applicant) became upset and grabbed one of the minor children in her arms; (the applicant’s) husband took the child away, and because she did not want to get into the vehicle he (M.N.) took her arms and her husband took her legs and they put her in the ambulance.” 27. I.A. confirmed M.N.’s statement, and stated that she had held the applicant down with her hands to prevent her from standing up. Both M.N. and I.A. denied that they had used force or handcuffs against the applicant. They also stated that a tranquilliser had been administered to the applicant before they had left for Skopje. 28. The applicant objected to the defendants’ statements. She further denied that her husband had helped the police officers to take her to the ambulance; on the other hand, she reiterated that the police officers had grabbed her and put her into the ambulance; that she had been handcuffed, and that M.N. had hit her with a truncheon; that I.A. had sat on her legs during the transfer; that I.A. had held her mouth closed to stop her talking, and had hit and punched her. 29. The applicant’s husband confirmed that he had requested that Dr C.T. give an instruction for the applicant to have treatment. When the applicant had refused to get into the ambulance the police officers had grabbed her by the arms and dragged her towards the ambulance. In order not to hurt her, he had grabbed the applicant by the legs and put her in the vehicle. M.N. had handcuffed the applicant. The applicant’s husband denied saying that the applicant had a knife and a wire. 30. On 6 October 2010 the trial court delivered a judgment acquitting C.T., M.N. and I.A. for lack of evidence. It also discontinued the proceedings against V.S. The trial court established that: “The accused doctor C.T. ... acted conscientiously and in accordance with his duty, and at the request of [the applicant’s] husband who had informed him about [the applicant’s] condition, he provided appropriate treatment; he drew up a report and instructed that she be transferred with police assistance to Skopje psychiatric clinic. [The applicant] was not examined by a specialist (не и бил извршен специјалистички преглед) because she was brought [to the hospital] outside working hours (and) [Dr C.T.] was far away from the office; after [V.S.] had told him by telephone about [the applicant’s] condition, he instructed that a tranquilliser injection be given and that [the applicant] be transported to Skopje. The accused M.N. and I.A., police officers in Kriva Palanka police station called to provide assistance during [the applicant’s] transfer by ambulance to Skopje psychiatric clinic, acted professionally and in accordance with the law and their powers; they did not use any physical force against the applicant and they did not inflict any injuries on her. The court established the above on the basis of evidence admitted at the trial, namely: oral evidence from the accused, who did not admit the alleged criminal offences, as well as the material evidence from the case file ... of the Kriva Palanka prosecutor’s office which ... [on the basis of the Ministry’s special report] rejected [the applicant’s] criminal complaint ... All these items of evidence are clear, undisputable, categorical, and inter-related; there is no reason for the court to question their reliability ... relying on [this evidence] the court delivers judgment, finding that [the evidence] does not prove that the accused committed the criminal offences with which they are charged. The court examined [the applicant’s] statement that ... the police officers had dragged her into the ambulance; that she had been handcuffed, and that M.N. had hit her with a truncheon ... that during the transfer she had been restrained with handcuffs; that police officer I.A. had been sitting on her legs and had closed her mouth to stop her talking; and (that I.A.) had hit and punched her ... The court examined the statement of [the applicant’s husband] that ... the police officers had grabbed [the applicant] by the arms and dragged her towards the ambulance, and in order not to hurt her, because she had recently had surgery, he had taken her legs and helped to put her in the ambulance; that police officer M.N. had put her head between her legs and had handcuffed her ... The court examined evidence submitted with the criminal complaints (medical reports described in paragraphs 7, 9, 10, 11 and 12 above), and photographs, but they did not contain anything that could lead to a different assessment of the facts from that established [by the court]. (This evidence) is medical evidence, on the basis of which the court established that there had been an instruction for the applicant to be treated at Skopje psychiatric clinic, and a medical certificate had been issued for the visible injuries that she had; that on 29 October 2009 she had been admitted to (Bardovci) hospital; that (at that time) she had been depressed and had a depressive and paranoid attitude towards her husband; that [she] had several haematomas of recent date ... four photographs showed bruises and scratches on her legs and body. It is undisputed that owing to [the applicant’s] condition she needed to be transferred for treatment with assistance from the police; this was also what her husband had asked for. She was admitted to an appropriate institution for treatment and was then discharged at the request of her husband; the injuries described in the medical certificate and visible in the photographs – a haematoma and scratches, which were noted in the discharge notice upon [the applicant’s] admission, were of recent date. However, this evidence cannot lead to a conclusion that [the injuries] were inflicted during the transfer, namely on the day when [the applicant] was transferred by ambulance with assistance from the police.” 31. The applicant appealed against the judgment and reiterated her argument that she had been ill-treated, and complained that Dr C.T. and M.N. had given false statements; that the trial court’s judgment had been delivered after the trial court had held only one hearing; and that her husband had not given oral evidence before the trial court. 32. On 15 December 2010 the Skopje Court of Appeal upheld the facts established and the reasoning given by the trial court. The court reiterated that on the basis of a request by the applicant’s husband and in view of the applicant’s state of health Dr C.T. had correctly ordered urgent medical treatment with police assistance. The fact that the applicant had been hospitalised in Bardovci hospital instead of in Skopje psychiatric clinic, as instructed by Dr C.T., was irrelevant, as the medical care she had received was appropriate. The court confirmed that the police officers had acted in accordance with the law and their duties as police officers. 33. On 9 March 2011 the public prosecutor informed the applicant that there were no grounds for lodging a request for review of the legality of the judgments. 34. According to the applicant, she has never suffered from any mental disorder, nor was she receiving any medical treatment in that respect.
| 1 |
test
|
001-172562
|
ENG
|
AZE
|
COMMITTEE
| 2,017 |
CASE OF KHALILOVA AND AYYUBZADE 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)
|
Carlo Ranzoni
|
5. The applicants were born in 1974 and 1994 respectively and live in Baku. At the material time the first applicant was a member of one of the main opposition parties in the country, the Popular Front Party of Azerbaijan, and the second applicant was a member of an opposition group, Nida. 6. The applicants participated in an assembly on 6 May 2014. According to the applicants, they were among people who gathered near the Baku Assize Court to support members of Nida (an opposition group), who were being tried on that day. The courtroom was full, and therefore some people gathered outside the court to wait for the outcome of the proceedings. When the court announced its judgment, those who had gathered outside began to protest against the judgment, since they considered it unfair. The protest was brief, spontaneous and peaceful. Immediately after the protesters started chanting slogans, police officers and people in plain clothes began to forcibly disperse the demonstration. 7. The applicants were arrested during the dispersal operation and were taken to a police station, where they were kept overnight. 8. The applicants were questioned at the police station. 9. On the day of the applicants’ arrest, administrative-offence reports on them (inzibati xəta haqqında protokol) were issued, which stated that they had committed an administrative offence under Article 298.2 of the Code of Administrative Offences (“the CAO”): participation in a public assembly organised not in accordance with the law. 10. According to the applicants, they were never served with copies of the administrative-offence reports or other documents from their case files. They were not given access to a lawyer either after their arrest or while they were in police custody. 11. According to a police officer’s decision and an order dated 6 May 2014, a State-funded lawyer (Mr O.A.) was invited to defend the first applicant. Similarly, according to a police officer’s decision and an order dated 6 May 2014, a State-funded lawyer (Mr A.B.) was invited to defend the second applicant. 12. The applicants were brought before the Nasimi District Court on the day following their arrest. 13. According to the applicants, the hearing before the first-instance court was very brief in both cases. Members of the public were not allowed inside the courtroom, even though the court had not taken a formal decision to close the hearing to the public. 14. According to the applicants, they were not given an opportunity to appoint lawyers of their own choosing. 15. A State-funded lawyer was invited to defend the first applicant. It was the same lawyer, Mr O.A., who had been invited to defend her in accordance with the above-mentioned police officer’s decision of 6 May 2014. 16. The second applicant was not represented by a lawyer. According to the transcript of the hearing in his case, he refused the assistance of the State-funded lawyer and decided to defend himself in person. 17. According to the transcript of the hearing concerning the first applicant, the State-funded lawyer did not make any oral or written submissions. 18. The only witnesses questioned during the hearing concerning the first applicant were police officers who, according to official records, had arrested her or issued the administrative-offence report on her. They testified that the applicant had staged an unauthorised protest. With respect to the second applicant, the court did not question any witness. 19. According to the transcript of the hearing concerning the first applicant, she stated that she had participated in the protest of 6 May 2014 and had rightfully used “improper language” in the course of the protest. 20. According to the transcript of the hearing concerning the second applicant, he stated that he had simply protested against an unfair judgment against the Nida members, and had not committed any unlawful action. 21. In both cases the Nasimi District Court found that the applicants had participated in an unauthorised demonstration. The court convicted the applicants under Article 298.2 of the CAO, and sentenced them to a period of administrative detention of thirty and twenty days respectively. 22. 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 spontaneous and 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 firstinstance court’s decisions in their respective cases. 23. The first applicant was assisted by a lawyer of her own choosing before the Baku Court of Appeal. The second applicant was not represented by a lawyer. 24. On 16 and 22 May 2014 respectively the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the firstinstance court.
| 1 |
test
|
001-160064
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,015 |
EKLUND v. FINLAND
| 4 |
Inadmissible
|
Aleš Pejchal;Armen Harutyunyan;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano
|
1. The applicant, Mr Veikko Eklund, is a Finnish national who was born in 1947 and lives in Helsinki. He was represented before the Court by Mr Matti Jousinen, a lawyer practising in Helsinki. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Apparently in 1997 the applicant was subject to an enforcement inquiry (ulosottoselvitys, utsökningsutredning) in which he had to provide information on his assets, debts and income. Another enforcement inquiry was carried out on 9 February 2004. 5. On 10 March 2008 the applicant was charged on two counts of making a false statement in court (perätön lausuma tuomioistuimessa, osann utsaga inför domstol) as he had, inter alia, given false information in 2006 and 2007 before the domestic courts in a matter in which he was heard as a witness. 6. On 14 May 2008 the Vantaa District Court (käräjäoikeus, tingsrätten) convicted the applicant as charged and imposed a suspended prison sentence of five months. 7. The applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten). 8. On 18 June 2010 the Helsinki Appeal Court upheld the District Court judgment. Justice P.V. was part of the composition of the Appeal Court. The Appeal Court judgment became final as no appeal was lodged. 9. On 17 January 2011 charges were pressed against the applicant who was accused, inter alia, of aggravated debtor’s fraud (törkeä velallisen petos, grovt gäldenärsbedrägeri) for not having declared, during the enforcement inquiry on 9 February 2004, the real estate which was used as his principal residence but which was officially owned by a limited liability company, all of whose shares were owned by the applicant’s children. 10. On 11 January 2012 the District Court convicted the applicant of, inter alia, aggravated debtor’s fraud for failing to declare the above real estate on 9 February 2004 and sentenced him to a total of two years and ten months in prison. The court found that the applicant had been obliged to declare the property concerned and since he had not done so during the inquiry on 9 February 2004, he was guilty of concealing his property. 11. By letter dated 9 February 2012 the applicant appealed to the Appeal Court, requesting that the District Court judgment be quashed. He alleged in particular that the District Court had not explained why, on 9 February 2004 during the enforcement inquiry, he should have declared the real estate as his personal property when it was owned by a limited liability company. The company had obtained legal confirmation of ownership (lainhuuto, lagfart) and had been officially entered in the land register as the owner of the real estate. The property rights of the company or its shareholders were never even put into question. The applicant claimed that he had given truthful information on 9 February 2004. 12. On 11 September 2012 the oral hearing started before the Appeal Court and the names of the justices sitting in the composition became known to the parties. The oral hearing continued on 12, 14, 24 and 25 September 2012. 13. On 6 November 2012 the Appeal Court upheld the District Court judgment as far as the count of aggravated debtor’s fraud was concerned. It agreed with the lower instance that during the enforcement inquiry on 9 February 2004 the applicant had been obliged to declare the property concerned and since he had not done so the conviction should be upheld. Concerning any possible issue of self-incrimination, the Appeal Court found it established that on 9 February 2004, during the enforcement inquiry, the applicant had not been charged with any crime. He had not therefore had any right to remain silent on 9 February 2004 but should have declared the real estate. This judgment was delivered by the Appeal Court composition which included Justice P.V. 14. By letter dated 18 December 2012 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. He also referred to the prohibition on self-incrimination and claimed that, when making his statement on 9 February 2004, it could not be ruled out that he could have been accused of debtor’s fraud, had he given any information. Moreover, he claimed that Justice P.V. had been biased as he had been part of the Appeal Court composition also on 18 June 2010 when the applicant had been convicted of making a false statement in court. 15. On 11 March 2013 the Supreme Court refused the applicant leave to appeal. 16. By letter dated 20 August 2013 the applicant lodged an extraordinary appeal with the Supreme Court, requesting that the Appeal Court judgment of 6 November 2012 be annulled and the proceedings reopened due to the fact that the Appeal Court had been biased and the prohibition of selfincrimination had been violated. 17. On 7 May 2014 the Supreme Court refused the applicant’s request for annulment and reopening. 18. At the material time, the provisions on enforcement inquiry were included in Chapter 3 of the Enforcement Act (ulosottolaki, utsökningslagen, Act no. 37/1895, as amended by Act no. 679/2003). These provisions stated that, for the purpose of obtaining the necessary information for enforcement, the Bailiff could carry out an enforcement inquiry. For the enforcement inquiry, the debtor had to provide information on his assets, debts and income, as well as his or her address and the name of his or her employer. He also had to give information about the whereabouts of any object or document which, by a judgment, he had been ordered to give to another person or which by law had to be given to the enforcement authority. 19. In the enforcement inquiry, the debtor had to provide such information as was necessary to establish whether property disposed of and related transactions could be recovered for the purposes of enforcement. Where requested by the Bailiff, the debtor in the enforcement inquiry had to prepare a list of assets, debts and income, or verify and confirm by signature such a list prepared by the Bailiff on the basis of information given by the debtor. 20. If the debtor or his or her representative failed to comply with their obligations, the Bailiff could order the debtor to fulfil the obligations within a specified time-limit under threat of an administrative fine. Payment of the administrative fine was ordered if the obligations had not been fulfilled or had been contravened without a valid reason. 21. As from 1 March 2004 Chapter 3, section 73, of the Enforcement Act contained also a provision prohibiting the Bailiff from transmitting incriminating information to other authorities. This provision read as follows: “The Bailiff must not disclose information which has to a substantial extent been received from: ... 2) the debtor, when asked about a fact referred to in paragraphs 6 to 8 of section 52, if the answer indicates that the debtor may have committed an offence in a context other than the enforcement procedure, and the disclosure of the information entails a risk of charges for the debtor; ...” 22. The Enforcement Act was replaced by the Code of Enforcement (ulosottokaari, utsökningsbalken, Act no. 705/2007) with effect from 1 January 2008. The contents of the relevant provisions essentially remained the same. 23. Concealment of property and provision of incorrect information in an enforcement inquiry are punishable offences under the Penal Code (rikoslaki, strafflagen, Act no. 39/1889, as amended by Act no. 769/1990).
| 0 |
test
|
001-170387
|
ENG
|
SVN
|
CHAMBER
| 2,017 |
CASE OF B.K.M. LOJISTIK TASIMACILIK TICARET LIMITED SIRKETI v. SLOVENIA
| 3 |
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)
|
András Sajó;Egidijus Kūris;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
6. The applicant company B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi has its registered office in Istanbul. 7. On 13 November 2008 customs officers stopped and checked the applicant company’s lorry, in which they found packages of unknown content. A preliminary test of the content revealed that the packages contained heroin. The customs officers informed the police accordingly. 8. On 14 November 2008 the police inspected the lorry and its trailer and found 105 kg of heroin. The driver, a Turkish citizen, was arrested and detained. The lorry was seized and the trailer and its goods became the object of a customs procedure. On an unspecified date the applicant company received documents enabling the goods contained in the trailer to be delivered to their destination. The trailer was returned to the applicant company. Subsequently, the police filed a criminal complaint against the driver with the Ptuj District State Prosecutor’s Office. 9. On 15 November 2008 the Ptuj District State Prosecutor’s Office charged the driver with the production and trafficking of illegal drugs under Section 186(1) of the Criminal Code. The District State Prosecutor further requested that the applicant company’s lorry be confiscated under Section 186(5) of the Criminal Code since it had been used for the transportation of illegal narcotic drugs. 10. On 25 November 2008 the applicant company asked the Ptuj District Court to provide it with the case-file concerning the charges against the driver. It also enquired when it would be able to retake possession of the seized lorry. On 8 December 2008 the court informed the applicant company of the charges against the driver. It further informed the applicant company that the lorry had been seized in accordance with Section 220 of the Criminal Procedure Act read in conjunction with Section 186(5) of the Criminal Code and that no decision could be made on the return or confiscation of the lorry until a decision on the merits had been issued. On 23 December 2008 the applicant company informed the court that it opposed the District State Prosecutor’s request for confiscation of the lorry. 11. On 29 December 2008 the Ptuj District Court found the driver guilty of drug trafficking and sentenced him to nine years’ imprisonment. It ordered that the lorry be returned to the applicant company. It held that confiscation was possible only if one of the conditions set out in the second paragraph of Section 73 of the Criminal Code were met, namely the existence of reasons of general security or morality. The District Court considered that that condition had not been met, taking into account the fact that there was no indication that the applicant company knew about the transportation of the illegal material. 12. Both the driver and the Higher State Prosecutor appealed. On 21 May 2009 the Maribor Higher Court modified the first-instance judgment and, relying on Sections 73(3) and 186(5) of the Criminal Code, ordered the confiscation of the lorry. It held that the legislative framework provided for mandatory confiscation in cases of drug-related criminal offences since the nature of their commission, their magnitude and the dangerous consequences thereof called for the extension of coercive measures to persons who were not the perpetrators of the criminal offence, irrespective of whether or not the owners of the vehicle knew what the perpetrator had been transporting. The Higher Court explained that in accordance with Section 73(2) of the Criminal Code, objects used in the commission of a criminal offence could be confiscated even when they did not belong to the perpetrator, in so far as the third party’s right to claim damages from the perpetrator was not thereby affected. Moreover, Section 73(3) provided for the possibility of mandatory confiscation in cases provided for by the statute. Thus, Section 186(5) of the Criminal Code implemented those two provisions by providing mandatory confiscation of the means of transport used for transportation and storage of illegal substances. 13. On 17 July 2009 the applicant company lodged a constitutional complaint against the aforementioned decision and an initiative for review of the constitutionality of Section 186(5) of the Criminal Code, alleging a violation of its property rights. It complained in particular that it had not known that the lorry was being used for illegal purposes, adding that the first-instance court had explicitly established its non-involvement in the commission of the criminal offence at issue. Claiming that it had not had an effective possibility to prevent the abuse of its property for criminal purposes, the applicant company stressed that the lorry had been subject to regular controls concerning possible vehicle modifications and hidden compartments. Thus, according to the applicant company, the measure complained of constituted a punishment and an unjustified and disproportionate interference with its property and that it had not had the opportunity to participate in the criminal proceedings. 14. On 29 September 2011 the Constitutional Court dismissed both the constitutional complaint and the initiative. In reviewing the contested legislation, the Constitutional Court confirmed the Higher Court’s view that Section 186 of the Criminal Code provided for mandatory confiscation of vehicles used for the transportation and storage of drugs or illegal substances in sport, regardless of their ownership. According to the Constitutional Court, drug-related criminal offences sanctioned under Section 186 of the Criminal Code represented a great evil and an extremely high degree of threat not only from the perspective of the individual, but also from the perspective of society as a whole; the purpose of the impugned measure was to prevent the commission of such criminal offences in the future and thus to protect important legal values in society, such as health and life – especially of young people. The Constitutional Court stressed that the nature of the criminal offences in question, the manner in which they were committed and their consequences justified the interference with the ownership rights of all owners of the means of transport used for drug-trafficking, regardless of their potential involvement in the criminal activities at issue, adding that a different regulation governing the confiscation of goods would diminish considerably the possibilities for effectively preventing the criminal offences in question. 15. Balancing the general interests in question with the property rights of the applicant company, the Constitutional Court held that the measure complained of did not amount to an excessive interference despite the fact that the applicant company had had no effective possibility for preventing the misuse of its property for criminal purposes and had not participated in the commission of the criminal offence. In this connection, the Constitutional Court pointed out that legal certainty required that every instance of legally recognised damage be adequately protected. Thus, by virtue of Section 73(2) of the Criminal Code, the confiscation did not affect the right of third parties to claim compensation from the offender. Under the general rules of tort law, the injured owner had the possibility and the right to exact compensation from the person responsible for the damage. The Constitutional Court added that it was for the regular courts to establish in each individual case whether all the elements required for recognition of the alleged damage and thus for payment of compensation were fulfilled. 16. Meanwhile, on 29 June 2009 the Ptuj District Court informed the applicant company that the lorry was to be sold at a public auction and that it could submit written comments in this respect. On 6 July 2009 the applicant company replied that it was willing to buy the confiscated lorry. On 20 October 2011 the court ordered the sale of the lorry and informed the applicant company thereof. On 30 November 2011 the lorry was sold at public auction for 12,000 euros (“EUR”). According to the Government the lorry was sold to the applicant company. In this regard, they submitted a document stating that the lorry had been sold to “B.K.M. LOJISTIK, TAS.VE TIC.LTD.STI”, a company from Istanbul. However, the applicant company contested that statement, alleging that it was another company that had purchased the lorry. The Government did not reply to this submission.
| 1 |
test
|
001-174213
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,017 |
ÇAKMAKÇI v. TURKEY
| 4 |
Inadmissible
|
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano
|
1. The applicant, Mr Fırat Çakmakçı, is a Turkish national who was born in 1985 and lives in Istanbul. He was represented before the Court by Mr S. Durak, a lawyer practising in Istanbul. 2. The Turkish Government (“the Government”) were represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. At the time of the events giving rise to this application, the applicant was a conscript soldier (private rank) serving at the Bozkuş gendarmerie station in Kars. 5. According to the information provided by the applicant in his application, on 7 June 2006 the commander of the Bozkuş gendarmerie station, S.Ö., ordered him and another conscript, K.Ö., to make some poles for the purpose of tethering the guard dogs of the station. Accordingly, the applicant and K.Ö. found some metal rods and cut them in half. When looking for tools in the generator room of the station to straighten the curved ends of the poles, the applicant found what he thought to be a used mortar shell, which he believed presented no risk of exploding, and decided to hit the poles with it. The mortar shell exploded upon impact with the metal pole, as a result of which the applicant lost a finger and a toe, and K.Ö. lost both his feet. The applicant was first taken to the Sarıkamış Military Hospital in Kars, and was then transferred to the GATA Military Hospital in Istanbul for further medical treatment. 6. It appears that the commander of the gendarmerie station, S.Ö., lost consciousness after the incident due to anxiety and was also taken to the Sarıkamış Military Hospital, where he was given sedatives. 7. On 17 January 2007 the GATA Military Hospital issued a medical report, declaring the applicant unfit for military service on account of the injuries he had sustained. According to this report the third finger of his left hand, the fifth toe of his left foot and the fourth toe of his right foot had had to be amputated. The applicant had also sustained various fractures to his feet and suffered from some loss of vision in his left eye. This report was approved on 6 March 2007. 8. The Sarıkamış military prosecutor’s office initiated an investigation of its own motion into the circumstances of the incident. Accordingly, all the evidence at the site of the incident was photographed and recorded, and an incident report was prepared on 7 June 2006. The military prosecutor also took witness statements from fourteen soldiers serving at the Bozkuş gendarmerie station. The pertinent witness statements are summarised below: - Lt. H.A.S.: “... while S.Ö. was in the emergency room [at the hospital], the military prosecutor called me ... he asked to talk to S.Ö. S.Ö. told the [prosecutor] that he had found an old [mortar shell] two years ago, which he had placed on the roof of the station, and that he did not know how the [mortar shell] had ended up at the scene of the incident.” - Sgt. S.Ç.: “... I first saw the bomb in September 2005. When I asked the station commander what it was, he told me it was unexploded ordnance.” - Pte. S.Ç.: “... I was responsible for cleaning the generator room. I saw a shiny object in that room. Yet I did not know what it was.” - Pte. M.F.: “The mortar shell has been in the generator room since I first arrived at the station in November 2005. I did not know it was a bomb though, none of the privates at the station did. We had not been given any information about it.” 9. On 8 June 2006 the military prosecutor interrogated S.Ö. It appears that S.Ö. did not remember talking to the military prosecutor on the phone while in hospital, as he had been under the effect of sedatives. However, he did not deny that he may have made the statement alleged by Lt. H.A.S. 10. Later on the same date S.Ö. was taken before the military court in Sarıkamış (Kara Kuvvetleri Komutanlığı Dokuzuncu Motorlu Piyade Tugay Komutanlığı Askeri Mahkemesi). Before that court, he said the following: “I took up duty at the Bozkuş gendarmerie station in 2004. During the period of my duty, I never found any ordnance. Therefore, I did not put any such material on the roof. I have been a soldier for nineteen years, I know what action to take if I find [explosive] ordnance ... we have received orders on [handling and storage of ordnance]; we have also participated in a seminar. Yet, since I had not found any ordnance, I had not had to take [the ordered] precautions ... I lost consciousness [after the incident]. I remember talking to the military prosecutor on the phone, but I do not remember saying that I had found a [mortar shell] two years ago which I had placed on the roof ... There is a sergeant in charge of the generator room, A.E. Both he and I inspect the generator room on a daily basis. There was no ordnance in the generator room ...” The military court ordered S.Ö.’s arrest after taking his statement. 11. On 12 June 2006 the military prosecutor took the statement of the applicant’s friend K.Ö., who said the following: “... Upon receiving orders from S.Ö. to fix dog chains, I went to the generator room with [the applicant] ... We found a used mortar shell there. I do not know how long that object had been there. I had not noticed it before. [The applicant] told me that we could use that object, that it would not present any danger as it had already exploded. The mortar shell exploded when we started ... meddling with it ...” 12. On 28 June 2006 a military prosecutor took the applicant’s statement, recording the following: “... We went to the generator room to find other tools. There was normally a generator, [the soldiers’] suitcases and building supplies in the generator room. We found a hollow iron cylinder there. We did not initially realise that it was ordnance. We fixed two of the metal rods [with the help of that object]. S.Ö. in fact saw us [handling that object]. He told us that what we were holding was ordnance. He asked us if there was any TNT inside it. I told him there was nothing in it as I had already fixed two metal rods with it and nothing had happened, and the hollow part [of the object] looked empty and rusty ... As we were fixing the third metal rod, the object exploded ... The object that we used in the generator room had been there since I had started my military service”. The applicant later repeated this statement before the court on 20 February 2009. 13. The ballistic report dated 1 August 2006 confirmed that the explosion had been caused by a military-grade mortar shell. 14. On 26 October 2007 S.Ö. was indicted by the military prosecutor for causing bodily harm by negligence under Article 89 § 4 of the Turkish Criminal Code (Law no. 5237), by virtue of Article 146 of the Military Criminal Code (Law no. 1632), on account of his failure to obey the orders to store the mortal shell in question safely, despite having received specific instructions and having attended a seminar on the matter. The military prosecutor stressed in the indictment that despite his denials, there was witness evidence to confirm that S.Ö. had been aware of the presence of the mortar shell in the station. 15. In a statement he made before the military court on an unspecified date, S.Ö. maintained that he did not remember talking to the military prosecutor while at the Sarıkamış Military Hospital. He further claimed that Lt. H.A.S. had come to the gendarmerie station two days before the incident for an inspection, that he had also inspected the generator room, and that neither of them had seen a mortar shell there. He added that all the arms and ammunition at the station were kept in a special storage room, and that keeping material outside of that room was against regulations. He lastly claimed that all soldiers under his command had been under strict orders to inform him if they found any explosives, and that he had received no such information. 16. On 19 September 2008 K.Ö. stated before the military court that he and the applicant had found a mortar shell outside the storage room. When they had asked S.Ö. whether the mortar shell was at risk of exploding, he had responded that it would not explode owing to its age. 17. Based on the witness statements and other evidence furnished by the prosecution, including an order dated 11 November 2005 from the Selim provincial gendarmerie command regarding the storage of firearms and munitions, and the training documents on a seminar given at the Bozkuş gendarmerie station in April 2006 regarding explosives, the military court in Sarıkamış convicted S.Ö. as charged on 13 November 2009 and sentenced him to five months’ imprisonment. The military court held that S.Ö.’s failure to store the mortar shell, which had apparently been in the station for over two years, with caution and to hand it over to the responsible authorities, despite strict orders regarding the safe storage and handling of munitions, had been clearly negligent. The pronouncement of the judgment was, however, conditionally suspended (hükmün açıklanmasının geri bırakılması) for a period of five years, in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271). 18. On 28 April 2009 the applicant submitted a request to the Ministry of Defence, asking to be compensated for the injuries he had sustained on account of the explosion. The applicant claimed that the Ministry of Defence had failed in its responsibility to properly store and dispose of the mortar shell, and had likewise failed to provide proper training on firearms and munitions and to issue warnings regarding the explosives found in the Bozkuş gendarmerie station. 19. On 11 May 2009 the Ministry of Defence dismissed the applicant’s request, on the grounds that the gendarmerie forces were under the responsibility of the Ministry of the Interior. 20. Accordingly, on 2 June 2009 the applicant submitted his compensation request to the Ministry of the Interior. Upon that Ministry’s failure to respond to his request, on 3 September 2009 the applicant filed an action for compensation against the Ministry of the Interior with the Supreme Military Administrative Court. 21. By a judgment of 2 June 2010 the Supreme Military Administrative Court rejected the applicant’s compensation claim for being out of time. The court held that if the applicant believed that he had suffered damage on account of a wrongful act of the authorities, then he should have lodged a compensation claim with the relevant authorities within one year of the notification of the impugned act or from the date on which he had otherwise learned of the impugned act and, in any event, within five years of the commission of that act, in accordance with section 43(1) of the Supreme Military Administrative Court Act (Law no. 1602). Bearing in mind that the relevant incident had occurred on 7 June 2006 and that the medical report issued by the GATA Military Hospital in relation to his injuries resulting from the mortar shell explosion had become final on 6 March 2007, the petition he had lodged with the Ministry of Defence on 28 April 2009 had been lodged out of time. 22. Section 43 of the Supreme Military Administrative Court Act (Law no. 1602 of 20 July 1972) reads as follows: “Anyone who considers himself or herself to have suffered damage on account of a wrongful act of the authorities must lodge an application for compensation with the relevant authority within a year of notification of the impugned act or from the date on which he or she learned of the impugned act and, in any event, within five years of the commission of that act. Should all or part of the claim be dismissed, or if no reply is received within sixty days, an application for judicial review may be lodged ...” 23. Article 146 of the Military Criminal Code (Law no. 1632 of 15 June 1930) provides: “Anyone who causes injury or death to someone due to negligence [in handling] his or her arms and munitions or non-compliance with rules and orders shall be punished in accordance with Articles 455 and 459 of the [now defunct] Turkish Criminal Code.” 24. Article 89 §§ 1 and 4 of the new Turkish Criminal Code (Law no. 5237 of 12 October 2004) provides as follows: “Negligent injury 1. Anyone who negligently inflicts physical pain on someone, or impairs someone’s health or cognitive capacity shall be sentenced to a term of imprisonment of between three months and one year, or to a fine. ... 4. Where the [negligent] act leads to the injury of more than one person, [the offender] shall be sentenced to a term of imprisonment of between six months and three years.” 25. The relevant domestic law and practice on the storage and handling of munitions and the training provided to soldiers on these matters are outlined in paragraph 30 below.
| 0 |
test
|
001-161375
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF YEGOROV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
6. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal conviction for drug dealing. 7. The applicants disagreed with their conviction and argued that the police had incited them to commit drug-related offences.
| 1 |
test
|
001-178342
|
ENG
|
RUS
|
CHAMBER
| 2,017 |
CASE OF AKHLYUSTIN v. RUSSIA
| 3 |
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 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
|
5. The applicant was born in 1979 and lives in Ivanovo. 6. At the relevant time the applicant was a member of the Ivanovo Region electoral commission. 7. On 23 October 2003 a deputy head of the Ivanovo Region Department of Internal Affairs ordered audio-visual “surveillance” (“наблюдение”) of the applicant’s office. The parties did not submit a copy of that decision. 8. The surveillance was carried out from 27 October to 5 November 2003 by means of a hidden camera. 9. The applicant was subsequently charged with abuse of power, an offence under Article 285 of the Criminal Code. While studying the criminal case file he discovered that it contained video recordings of him talking on the telephone in his office. 10. At the trial the applicant pleaded not guilty. He claimed, in particular, that the video recordings were inadmissible as evidence as they had been obtained unlawfully without prior judicial authorisation. He also challenged the authenticity of the recordings. 11. On 27 September 2004 the Leninskiy District Court of Ivanovo convicted the applicant of abuse of power and sentenced him to two years’ imprisonment, suspended for two years. The court relied on statements by several witnesses, physical evidence, expert reports and the video recordings of the applicant’s telephone conversations. It found that the video recordings were authentic and that they had been obtained in accordance with the procedure prescribed by law. 12. The applicant appealed. He reiterated, in particular, his argument that the video recordings were inadmissible as evidence. 13. On 12 November 2004 the Ivanovo Regional Court upheld the conviction on appeal. The court held that the District Court had correctly declared the video recordings admissible as evidence because they had been obtained in accordance with the procedure prescribed by law.
| 1 |
test
|
001-174468
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,017 |
KOKY v. SLOVAKIA
| 4 |
Inadmissible
|
Alena Poláčková;Branko Lubarda;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
1. The applicant, Mr Jozef Koky, is a Slovak national who was born in 1977 and is detained in Ilava. Having been granted legal aid, he was represented before the Court by Mr M. Kuzma, a lawyer practising in Košice. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 3 February 2009 the Dolný Kubín District Court found the applicant guilty of armed robbery and theft and sentenced him to twentyfive years’ imprisonment. Following an appeal by the Public Prosecution Service, the ruling on the sentence was quashed and a new sentence of life imprisonment was imposed by the Žilina Regional Court on 30 April 2009. On that day the ruling became final and binding. 4. The relevant part of the appellate judgment may be summarised as follows. The applicant was found guilty of an offence specified in Article 47 § 2 of the Criminal Code (Law no. 300/2005 Coll., as amended) after having already in the past twice been found guilty of offences specified in that provision, with unconditional prison sentences being imposed on him. Thus, pursuant to the “three strikes” rule embodied in that provision, he had to be sentenced to imprisonment for life. ’s situation, and other factors, such as the level of his involvement in the preparation of and attempt to commit the offence in question and his cooperation in uncovering the offence, as well as his reduced sanity and plea bargain. In that respect, the court of appeal found that the trial court had erred when it had accepted as fulfilling one of the conditions stipulated by Article 39 § 1 of the Criminal Code for the imposition of a twenty-five-year prison sentence the fact that the applicant had used a firearm exclusively as a threat and that neither the offence in issue nor the two earlier similar offences had attained a high degree of gravity. More specifically, the court of appeal observed that the fact that the applicant had committed the offence while armed constituted an element of the offence in question and held that this excluded the possibility of accepting as a mitigating circumstance the fact that the firearm had only been used as a threat. 5. Nevertheless, the applicant twice availed himself of an extraordinary remedy – lodging an appeal on points of law with the Supreme Court. His first appeal of 3 June 2009 was declared inadmissible on 28 August 2009. His second appeal was lodged on his behalf by a legal-aid lawyer after being appointed on 2 May 2012. 6. In his second appeal, the applicant relied in particular on Law no. 576/2009 Coll., amending Article 47 § 2 of the Criminal Code as of 1 January 2010. In its amended form, this provision only allowed for the imposition of a life sentence in a situation such as his if it was necessary to ensure the effective protection of society and there was no hope that a prison sentence of twenty-five years would sufficiently ensure the convict’s rehabilitation. 7. On 26 September 2012 the Supreme Court rejected the applicant’s second appeal, upholding the reasoning of the Regional Court. As amendment no. 576/2009 Coll. had only entered into force once the applicant’s trial had been completed with final effect, it could not be relied on to improve his situation. 8. On 16 January 2013 the applicant challenged the judgments of the Supreme Court and the Regional Court before the Constitutional Court by lodging what he considered to constitute a complaint under Article 127 of the Constitution. He invoked mainly his right to a fair trial and the prohibition of torture, arguing that imprisonment for life was clearly a disproportionate sentence, given the circumstances of his case. Moreover, he contended that the higher courts’ conclusions regarding the presence of any circumstances justifying the imposition of a twenty-five-year sentence had been arbitrary, partly because they had assessed some of the relevant facts erroneously and partly because they had failed to assess some of them at all. 9. In a letter of 25 January 2013 a single Constitutional Court judge informed the applicant under Section 23a of the Constitutional Court Act that his submission could not be dealt with as it clearly fell short of the requirements for a constitutional complaint. 10. The applicant’s subsequent request for the re-opening of his proceedings was dismissed by the District Court on 13 November 2014 and, following the applicant’s interlocutory appeal, by the Regional Court on 13 January 2015. 11. Release on parole is governed by the provisions of Articles 66 et seq. of the Criminal Code. 12. Article 66 § 1 allows for release on parole where a convicted prisoner’s behaviour and compliance with the obligations imposed demonstrate his or her rehabilitation and where that prisoner can be expected to behave properly. 13. Under Article 67 § 2, a whole-life prisoner can be released on parole after having served at least twenty-five years of the sentence. 14. Article 67 § 3, as in force until 31 December 2009, prohibited the conditional release of persons (i) repeatedly sentenced to life imprisonment, or (ii) who were sentenced to life imprisonment under Article 47 § 2 of the Criminal Code. 15. As from 1 January 2010, reference to the latter category of convicts was deleted from that provision by virtue of the above-mentioned Law no 576/2009 Coll. (see paragraph 6 above). 16. In proceedings brought under file no. PL. ÚS 6/09 on 3 November 2008, the Pezinok District Court asked the Constitutional Court to examine whether Articles 47 § 2 and 67 § 3 of the Criminal Code (as in force at that time) were in conformity with the Constitution and Articles 3 and 5 § 4 of the Convention. 17. On 2 November 2011 the Constitutional Court discontinued the proceedings in respect of the latter provision with reference to amendment no. 576/2009 Coll. A majority of judges then concluded that Article 47 § 2 of the Criminal Code was not contrary to Article 3 of the Convention. It was admitted that in a small number of cases the effects of that provision reached the limits of conformity with Constitution from the viewpoint of their proportionality. Emphasis was put on the fact that the amendment which had taken effect on 1 January 2010 gave judges wide discretion to take into account the particular circumstances of each case. In separate opinions three judges disagreed with that conclusion. Views were expressed that Article 47 § 2 of the Criminal Code provided for disproportionate penalties. The offence of less serious robbery was referred to by way of example.
| 0 |
test
|
001-147676
|
ENG
|
POL
|
CHAMBER
| 2,014 |
CASE OF BRAUN v. POLAND
| 3 |
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
|
5. The applicant was born in 1967 and lives in Wrocław. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant is a film director, historian, and author of press articles often commenting on current issues. The Government contested that the applicant could be considered a journalist. 8. On 20 April 2007 the applicant participated in a debate on a regional radio station, Polskie Radio Wrocław. During the debate he stated as follows: “... among the informers (informator) of the [communist-era] secret political police is Professor [J.M.] – this information confirms the theory that among those who speak out the most against lustration are people who have good reasons for doing so.” 9. On the same day the applicant called Mr J.M. an “informant” (konfident) on television. The matter was widely commented on in the media. 10. On 17 May 2007 a special commission set up at Wrocław University to examine the problem of covert surveillance of academics issued a statement in the case of Mr J.M. The statement included a list of documents concerning Mr J.M., which had been found in the archives. The commission concluded that those documents had not led it to the unequivocal conclusion that Mr J.M. had been a collaborator with the secret police. 11. On 24 May 2007 Mr J.M. brought a civil action for protection of his personal rights against the applicant. 12. On 3 July 2008 the Warsaw Regional Court allowed the action. It ordered the applicant to pay 20,000 Polish zlotys (PLN) to a charity and to reimburse the claimant PLN 5,800 for the costs of the proceedings. The applicant was also ordered to publish an apology for having damaged the claimant’s good name in six national and regional newspapers, on three national TV channels and on Radio Wrocław. The court considered that the applicant had clearly used several expressions indicating that the claimant had been a secret collaborator with the communist-era secret services. The main question to be considered was whether such statements could be considered true. 13. The court noted that Mr J.M. was a distinguished linguist and wellknown person in Poland. He was a member of the Polish Language Council and for many years had been presenting a programme on television. The court established that between 1975 and 1984 Mr J.M. had been summoned by agents of the secret services on five occasions for interviews in connection with applications he had made for passports and returns from stays abroad. This was not contested by the claimant, who had himself made this information public. In 1978 Mr J.M. had been formally registered as a secret collaborator (a “TW”). Other notes from the Institute of National Remembrance (“IPN”) archives indicated that until 1989 a two-volume file on the claimant had existed; however, the file could no longer be found at the Wrocław branch of the IPN. The court noted that the case of Mr J.M. had been examined by a special commission set up at Wrocław University to examine the problem of covert surveillance of academics, but that the commission had been unable to reach any unequivocal conclusions. 14. The trial court heard the applicant and the claimant as well as a number of witnesses: historians (specialists on lustration), former agents of the secret services assigned to recruiting collaborators at Warsaw University, and employees of the IPN. Some of them testified that many files on secret collaborators had been destroyed when the regime fell in 1989. A few witnesses testified that they had not known of any case of fictitious registration of somebody as a secret collaborator or of a situation in which the services had kept a file on somebody for many years even though he or she had not actually been collaborating. The director of the Wrocław branch of the IPN testified that he had heard of an instance of fictitious registration of somebody as a TW. However the probability of such a situation was very low. He also declared that on the basis of the available documents, he would not have concluded that the claimant had been a communist police informant. Another historian called to testify declared that it had been impossible to draw any unequivocal conclusions. A third historian stated that the claimant had been a “real agent of the security service”. A fourth historian testified that the internal files of the secret services were reliable; the regime would only falsify documents for external purposes. The same witness considered that on the basis of the information available to him, he would also have concluded that Mr J.M. had been an intentional and secret collaborator with the communist-era secret services. Two other witnesses, former agents of the secret services, were unable to remember whether they had recruited Mr J.M. as a secret collaborator. 15. The applicant submitted that once he had discovered that Mr J.M. was on the list of secret collaborators with the secret services it had been his duty to inform the public about it. His intention had not been to offend the claimant. He had acted in the general interest, taking part in a public debate on matters of considerable importance to society. Moreover, his assertion had been provoked by public statements made by the claimant, who had questioned the importance of lustration. The applicant also argued that he had not alleged that the claimant had caused harm to other people or that he had been paid for his services. The information provided by him - that J.M. had been a collaborator - had therefore been truthful and given in the public interest. 16. Nevertheless, the court noted that no documents confirming that the claimant had agreed to be a collaborator or that he had actively reported to the secret services were available. The court referred to the definition of collaboration contained in the 1997 Lustration Act and reiterated that collaboration had to be intentional, secret and consist of passing on information. It concluded that registration by the secret services alone was not sufficient to consider that someone had been a secret collaborator. 17. The applicant lodged an appeal against the judgment. He argued that the registration of Mr J.M. as a secret collaborator by the services, in light of generally known facts, had allowed him to conclude that he had been a collaborator. Mr J.M. had remained registered as a TW for eleven years, his files had been destroyed, and the secret services had not been known for falsifying their internal files. According to historians, in 1989 the services had only destroyed the files of important collaborators. The applicant underlined that he had acted in the general interest as the claimant had been a public figure who had recently criticised the process of lustration. 18. On 29 October 2008 the Wrocław Court of Appeal dismissed the appeal. It further ordered the applicant to pay the claimant PLN 2,000 as reimbursement of the costs of the appellate proceedings. The court accepted all the findings of the first-instance court regarding the facts of the case. It considered that when personal rights had been breached by a statement of alleged facts, the illegality of such action could be excluded only if the statement contained truthful information. Acting in the general interest did not exclude responsibility for making untrue statements. In the present case there was no evidence, in the form of either documents or witness statements, proving that Mr J.M. had indeed actively collaborated with the secret services. Therefore, in the light of the material collected in the case, the court concluded that the applicant had not proved the veracity of his statements. Furthermore, the court considered that the applicant had not fulfilled his duty to act with particular diligence and caution in making serious allegations on the basis of unconfirmed circumstantial evidence. 19. The applicant lodged a cassation appeal against the judgment and requested that a hearing be held. 20. At the hearing, held on 10 September 2009, the Supreme Court announced the judgment and gave an oral summary of the reasons. It dismissed the applicant’s cassation appeal but amended the text of the apology and limited its reach to one national daily newspaper and Radio Wrocław. The applicant was ordered to reimburse the claimant a further PLN 2,000 for the costs of the cassation proceedings. The text of the apology to be published by the applicant was as follows: “I apologise to Professor J.M. for having made, on 20 April 2007, the untrue assertion that he had been an informer of the [communist-era] political police”. 21. Following the announcement of the judgment the applicant’s lawyer requested the court to prepare written reasons and to deliver them to him. The Supreme Court’s judgment with reasons, fifteen pages long, was received by the applicant’s lawyer on 30 November 2009. 22. In analysing the interplay between two competing rights – the right to freedom of expression and the right to protect one’s good name – the court referred to a resolution of the Supreme Court (18 February 2005, III CZP 53/04 OSNC 2005, nr 7-8, p 114). According to the conclusion of this resolution a journalist’s actions would not be considered illegal if they were made in the public interest and the duty to act with due diligence was fulfilled. Imposing an obligation on a journalist to prove the veracity of each statement would unjustifiably limit the freedom of the press in a democratic society. However, the Supreme Court considered that this approach could not be applied to the applicant’s case as his statement had been of a private nature and the applicant could not be considered to be a journalist with a socially necessary duty to inform. Therefore, the interpretation of the law adopted by the lower courts was correct. Making false allegations was illegal, whereas the question of due diligence would be taken into account only when assessing the fault of the defendant. 23. The court agreed with the facts as established by the lower courts in particular as regards the conclusion that the statement made by the applicant had not been true. Following the approach taken in the case thus far, the court considered that making an untrue statement that offended the personal rights of a person would always be contrary to the law. Breaching someone’s personal rights would not be against the law only if the statement could be proven to be true. An untrue statement would remain illegal even if all efforts had been made to diligently collect and examine its factual basis. In consequence, whether the applicant had acted in good faith and in the public interest or believed that the statement had been true did not influence the illegality of his action and could only be considered when assessing his financial liability for offending the personal rights of Mr J.M.
| 1 |
test
|
001-158504
|
ENG
|
PRT
|
CHAMBER
| 2,015 |
CASE OF QING v. PORTUGAL
| 3 |
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);No violation of Article 14+5-1-c - Prohibition of discrimination (Article 14 - Discrimination) (Article 5-1-c - Reasonable suspicion;Article 5 - Right to liberty and security);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;Dmitry Dedov;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
5. The applicant was born in 1964 and lives in Parede. At the material time, she was working as a Chinese-Portuguese translator and was married to a Portuguese national. 6. On 16 December 2010 criminal proceedings were initiated against the applicant, her husband and others by a public prosecutor of the Central Department of Investigation and Prosecution (Departamento Central de Investigação e Ação Penal) in Lisbon on allegations of aiding illegal immigration, money laundering and forgery. 7. In April 2011 the applicant sent letters to the Attorney General (Procurador-Geral da República) and Director of the Immigration and Borders Service (Serviço de Estrangeiros e Fronteiras), informing them that she knew she was being investigated, and that she was available to present herself to the judicial authorities to be questioned and considered as a defendant. The letters read, in so far as relevant, as follows: “[The applicant] is ready to be made a defendant and questioned. She hereby suggests the following dates for these procedural steps, for which she volunteers to attend when summoned: 30 April – Saturday, at any time; 1 May – Sunday, at any time; 7, 8, 9, 10, 17, 18 and 20 May, at any time.” 8. On 9 June 2011 the public prosecutor issued an arrest warrant against the applicant on the basis of Articles 254 and 257 § 1 of the Code of Criminal Procedure (hereinafter “the CCP”), as the case material provided sufficient grounds for believing that she might abscond, obstruct the investigation or continue the alleged criminal activity. The arrest warrant reads, in so far as relevant, as follows: “In view of the above, it is essential to question the suspect and thus assess the application of other preventive measures in addition to providing information on identity and residence [termo de identidade e residência]. Having regard to the strong grounds that exist regarding the commission of the acts described, which are crimes allowing for the application of pre-trial detention, and taking into account that, in the present case, there is a risk of absconding, a risk of continuing the criminal activity and obstructing the investigation ... I order Qing Xu’s arrest... to bring her before the investigating judge...” 9. On 14 June 2011 the applicant was arrested at her home between 5 and 6 a.m. She was questioned by an investigating judge of the Lisbon Criminal Investigation Court over the following two days, 15 and 16 June 2011. 10. The applicant challenged the arrest before the investigating judge and submitted observations with regard to the preventive measure she thought should be applied. She argued that there was no reason to believe that she would abscond and, as such, the arrest warrant had been issued by the public prosecutor unlawfully. She further stated that she did not have a criminal record; she had two young children who lived with her. She further claimed that she had a permanent residence in Portugal, where she had been living for at least twenty years. She also stated that she was ready to hand over her passport, and that prohibiting her from going to places attended by immigrants and contacting the other defendants in the proceedings would be adequate preventive measures. 11. On 16 June 2011 the investigating judge dismissed her request, noting as follows: “In the present case it appears evident that there is a risk of the defendant absconding, given that she is a Chinese national and once confronted with the seriousness of the facts attributed to her, she could flee from Portugal to her home country. ... the crimes of aiding illegal immigration and money laundering allow the application of the preventive measure of pre-trial detention in respect of the defendant. The requirements established under Article 257 § 1 of the CCP have thus been met and the defendant’s appeal is dismissed.” 12. The investigating judge also remanded the applicant in custody for the duration of the investigation, noting as follows: “The acts committed by the defendants are objectively serious. [They] are Chinese nationals, with the exception of defendant J.G. [the applicant’s husband], raising fears that when confronted with the seriousness of the facts attributed to them, they would evade justice and flee to their home country. It is also evident that there is a risk the investigation will be obstructed with regard to the gathering of evidence, as there are numerous investigative steps to be carried out, namely the examination of witnesses. ... taking into account the profits obtained from the criminal activity, it is also evident that there is a risk that the criminal activity will continue. ... The defendants Qing Xu and K.G. are primarily responsible for the criminal organisation acting in Portugal... Thus, having regard to the severity and multiplicity of the crimes against them, the risk of absconding and ... obstructing the investigation and finally, it being predicted that a custodial sentence will be imposed after trial, only detention on remand would be adequate and proportionate to the severity of the facts and the preventive aims required in this particular case. With regard to defendants B.G., J.G. [the applicant’s husband] and M.M., the application of other preventive measures which would not deprive them of liberty [medidas não privativas de liberdade] would be proportionate to the purpose of preventing the above-mentioned risks. In view of the above: - defendants K.G, Qing Xu and Z.M. should ... be held in pre-trial detention pursuant to Articles 191, 193, 196, 202 § 1 (a) and 204 (a), (b) and (c) of the Code of Criminal Procedure. - defendants B.G, M.M. and J.G. [the applicant’s husband] are prohibited from leaving Portugal and must surrender their passports, prohibited from contacting each other, and must attend their nearest police station on a weekly basis ... the prohibition on contact does not apply to J.G. and defendant Qing Xu or to B.G. and defendant K.G., as they live together.” 13. The applicant appealed against the decision of the investigating judge to the Lisbon Court of Appeal. She complained that there had not been any justification for her arrest or for the application of the custodial measure as her family situation, place of residence and other personal circumstances had not been taken into account when the court had ordered her detention. She also argued that she had voluntarily shown that she was available to be questioned by the authorities in April 2011. 14. On 13 July 2011 the public prosecutor in charge of the criminal case asked the investigating judge to classify the proceedings as particularly complex, noting that more time was needed to complete the investigation. 15. On 5 August 2011 the investigating judge accepted the public prosecutor’s request to classify the proceedings as particularly complex and extended the pre-trial detention to twelve months, taking into account the number of applicants and crimes that were being investigated. 16. On 14 September 2011 the Lisbon Court of Appeal dismissed the applicant’s appeal against the arrest warrant and upheld the court’s decision of 16 June 2011 to hold her in pre-trial detention. The court held, inter alia, the following in relation to the lawfulness of the arrest warrant: “... The public prosecutor’s reasoning that ‘there were grounds for considering that [the applicant] would not present herself to the authorities on a scheduled date could not eventually be justified’; however, one cannot say that the arrest warrant was unlawful because of that.” In relation to the necessity of the detention on remand, it noted that: “... It can be considered that there is ‘no high risk of the defendant absconding’ since on 29 April 2011, aware of the ongoing criminal proceedings against her, she nevertheless volunteered to be questioned [by the authorities] and even detained. Furthermore, she did not flee from her residence or the country. However, neither her family circumstances nor the measure of electronic surveillance are, at present, capable of safeguarding the risk [relating to the] gathering of evidence... Indeed, it would not be possible to safeguard the risk for the investigation, which is very high, especially given the nature of the Chinese community in Portugal. And it does not avoid the risk of the criminal activity continuing especially since, as said by the public prosecutor at first instance, ‘it was mainly done from home, and the contact was established with third parties.’” 17. The applicant filed a request for clarification with the Lisbon Court of Appeal regarding its decision of 14 September. On 2 November 2011 it was rejected. 18. Between October 2011 and February 2012 the applicant lodged three requests with the investigating judge of the Lisbon Criminal Investigation Court asking for her release and the remand in custody to be replaced with police supervision pending trial or house arrest with electronic surveillance, reiterating that there was no risk of her absconding or continuing criminal activity, that she had contacted the police voluntarily, that she had not committed the alleged crimes, that she was a mother of two children living in Portugal, and that she had a permanent place of residence there. 19. On 12 October 2011, 13 December 2011 and 13 February 2012 the investigating judge of the Lisbon Criminal Investigation Court upheld the decision to maintain her in pre-trial detention, noting as follows: “... the requirements for the order [of pre-trial detention] remain unchanged and strengthened. For that reason, [the defendants] should remain in pre-trial detention pending trial (Article 213 § 1 a) of the CCP).” “The arguments submitted by the defendant [the applicant] do not interfere with the reasons on which the pre-trial detention was based. It is therefore our understanding that these reasons remain valid.” “The defendant claims equal treatment in the judicial decisions. In her arguments she did not inform [the court] of any new circumstances which could affect the reasons that justified her detention on remand. The reasons which were already analysed in an appeal remain unchanged and there are therefore no grounds capable of mitigating the preventive requirements which justified the detention on remand. I therefore dismiss the defendant’s request and order that she remains in pre-trial detention pending trial.” 20. Between October 2011 and February 2012 the applicant also lodged two requests with the Prosecutor General’s Office to have the criminal inquiry expedited (pedido de aceleração processual). 21. On 9 November 2011 and 20 February 2012 the Prosecutor General’s Office rejected the request. It substantiated its decisions by the fact that the requests were manifestly ill-founded, given the complexity of the proceedings and the fact that the investigation was under way. 22. On 19 March, 30 May, 30 August and 19 November 2012 the investigating judge reviewed the grounds for application of the applicant’s pre-trial detention, in accordance with Article 213 § 1 of the CCP. He noted that they remained unchanged and, therefore, upheld the custodial measure applied in respect of the applicant. 23. On an unspecified date the applicant was indicted and her case sent to the Lisbon Criminal Court for trial. 24. On 29 January 2013 the investigating judge decided to release the applicant from pre-trial detention and place her under house arrest with electronic surveillance. The relevant parts of the decision read as follows: “From the analysis of the case file ... there are no new facts capable of affecting the strong grounds surrounding the acts attributable to the defendants; nor does it seem that the risks mentioned [in the 16 June 2011 order] have ceased to exist. From the evidence provided to date, namely with regard to their personal and family circumstances, less severe preventive measures can be applied in respect of the defendants. The risk of absconding still exists; however, it can be safeguarded through electronic surveillance.” 25. On 30 January 2013 the applicant was released from pre-trial detention. 26. On 20 February 2013 the Lisbon Criminal Court delivered its judgment. The applicant was acquitted of money laundering and forgery. She was convicted of aiding illegal immigration and sentenced to five years’ imprisonment, although the sentence was suspended on the condition that she made an annual payment of EUR 1,500. On the same day she was released from house arrest. 27. On an unspecified date she appealed against the judgment to the Lisbon Court of Appeal. According to the latest information received on 29 April 2015, the proceedings are still pending.
| 1 |
test
|
001-161776
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,016 |
HAUTĂ AND OTHERS v. ROMANIA
| 4 |
Inadmissible
|
András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
|
1. The applicants, Ms Elena Haută, Ms Veronica Dima and Ms Aurelia Florea, are all Romanian nationals, born in 1930, 1924 and 1935 respectively and live in Huşi, Şişcani and Vuţcani, respectively. The applicants were initially represented before the Court by Mr J. Crudu, a lawyer practising in Vaslui. The first and the third applicants are currently represented by Ms Diana-Elena Dragomir, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) are represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 11 March 1999 the applicants’ mother, Z.D., lodged with the administrative authorities a request under Law no. 9/1998, seeking to be compensated for a plot of land, a house and a yard she and her husband G.D., now deceased, had owned together before 1940 in Bazarghean, Durostor District. In her appended statement, given before a public notary on 19 July 1999, Z.D. confirmed that she had never received any compensation for the respective property. 5. On 27 January 2000 the Vaslui County Commission for Implementing Law 9/1998 allowed the request and granted the claimant 529 million lei (ROL) (approximately 29,000 euros (EUR) at the time) in compensation. 6. On 7 June 2002 this decision was overturned by the Central Commission, the national authority in charge of the implementation of Law no. 9/1998, which held that the calculation of the total amount needed to be done again, given that the disputed plot of land was actually located on the outskirts and not in the central area, while the disputed house had been built with adobe and not with bricks. The decision stipulated that: “In view of the advanced age of the person entitled [to compensation] the decision must urgently be redrafted and the three children of the deceased father, G.D., should be included therein.” 7. Z.D. contested this decision, claiming that the calculation made by the County Commission was correct; however, in the judgment of 13 January 2003, the Vaslui Court of First Instance upheld the decision given by the Central Commission. Z.D. appealed. Her appeal was dismissed as out of time by the Iaşi Court of Appeal on 31 March 2003. A further appeal lodged with the same court was dismissed as inadmissible on 20 October 2003. 8. On the same day Z.D. died. 9. The applicants, Z.D.’s heirs, have lodged several requests with various state authorities (including the President, the Ombudsman, and the Prefect of Vaslui), asking for a decision to be taken in their case. 10. An expert report issued on 19 October 2005 at the request of the Vaslui County Commission proposed that an amount of 23,891.62 RON be given for the impugned land. The report mentioned that according to a certificate issued by the Huşi Mayor Office, Z.D. had never requested or received compensation in accordance with the Romanian legislation on land restitution. A similar expert report issued on 15 October 2005 evaluated the impugned house and appurtenant land to 145,533.01 RON. 11. Consequently, on 1 November 2005 the Vaslui County Commission issued another decision on Z.D.’s name, granting her compensation in the amount of 169,424 Romanian lei (RON) (approximately EUR 47,000 at the time). 12. On 14 July 2006 the National Authority for Property Restitution (hereinafter “the National Authority”), the authority which had replaced and taken over the responsibilities of the Central Commission, replied to one of the applicants’ letters. The National Authority informed them that their file was pending before it, and that generally every file was assessed on the basis of on documents such as civil status certificates, other certificates attesting whether any compensation had already been granted, expert reports, and so on. 13. On 15 November 2006 the Prime Minister’s Head of Chancellery issued an order which invalidated the decision of 1 November 2004, given that the claimant needed to submit further documents concerning the civil status of G.D.’s heirs and attesting to whether any other compensation had been received by any of the heirs, in accordance with the Romanian legislation on land restitution. The Chancellery sent the file back to the Prefect of Vaslui County for further examination, while holding that: “compensation should be granted to the claimant for 10 ha of land, house and yard of 4000 sq. m.; for the rest of the yard [the claimant] should be granted equivalent agricultural land”. 14. On 15 January 2007 the Prefect of Vaslui addressed a letter to Z.D., informing her that she needed to submit the documents referred to in the decision of 15 November 2006. 15. No other decision has yet been taken on the claims lodged by Z.D. under Law no. 9/1998. 16. Law no. 9/1998 came into force on 14 March 1998 and was amended in 2004 and 2007; it established a compensatory mechanism for Romanian citizens whose immovable properties were confiscated without due compensation under the Treaty of Craiova, signed by Romania and Bulgaria on 7 September 1940 (see paragraph 35 below). 17. The mechanism referred essentially to pecuniary compensation or to the right to shares in State-run companies. The deadline for filing such claims was set in Article 4 § 1 at eighteen months from the entry into force of the law. This deadline was subsequently extended by Law no. 97/2005, for a period of twelve more months starting with the entry into force of the law on 21 April 2005 and then by Law no. 348/2006, for a period of eighteen more months, starting from the entry into force of the law on 28 July 2006. 18. The bodies in charge of implementing the said Law were the County Commissions established within each county (including Bucharest) under the authority of the Prefect, and the Central Commission for Implementing Law no. 9/1998. 19. Under Article 7 § 1, the County Commissions had responsibility for assessing and dealing with requests for compensation within a maximum of six months following the date of registration. The decisions of the County Commissions were communicated to the claimants and the Central Commission, and they could be challenged by the claimants before the Central Commission within fifteen days. The latter then had to ratify or reject such decisions within sixty days. In their turn, the decisions adopted by the Central Commission could be challenged before the domestic courts. 20. From 18 October 2004, when Government Decision no. 1643/2004 came into force, the responsibilities of the Central Commission were taken over by the Department for the Application of Law no. 9/1998, functioning within the Prime Minister’s Chancellery. The Department forwarded the ratification decisions adopted by the County Commissions for the approval of the Prime Minister’s Head of Chancellery. The Department was further entitled to make a proposal for adjustment of the compensation at the time of the ratification decision, in accordance with Law no. 9/1998. 21. These responsibilities were taken over by the National Authority with effect from the entry into force of Government Decision no. 361/2005, namely on 29 April 2005; this act was modified by Government Decision no. 240/2006 on 27 February 2006. 23. Adopted on 14 March 2014, EGO no. 10/2014 suspended for a period of six months the issue by the competent authorities of any decision on claims lodged under Law no. 9/1998 and Law no. 290/2003. The ordinance further suspended for the same period the voluntary payment of compensation already granted under Law no. 9/1998, Law no. 290/2003, and Law no. 393/2006. 24. Law no. 164/2014 concerning measures for the acceleration and finalisation of the process of resolving compensation claims lodged under Law no. 9/1998 and Law no. 290/2003 entered into force on 18 December 2014. 25. Article 2 states that the only compensatory measure possible was pecuniary compensation. 26. Article 3 defines the applicability of the law to all claims lodged in due time with the County Commissions and in respect of which no decision has been issued, or in respect of which a decision granting compensation has been issued but no payment has been made, as well as to those claims lodged under Law no. 9/1998 or Law no. 290/2003 that are currently pending before the domestic courts. 27. The law authorises the transfer of all powers of the Central Commission to the National Authority, who shall thus ratify or otherwise any decision taken by the County Commissions on claims lodged under Law no. 9/1998 and Law no. 290/2003. The National Authority is entitled to request further information and documents, from public institutions as well as from claimants, when such documents are missing or are not corroborated. 28. Decisions taken by the National Authority are subject to appeal before the administrative courts. 29. Article 10 of the law sets out the deadlines by which all payments should be made, providing also for the manner in which the compensation should be adjusted for inflation, on the basis of the consumer price index, from the moment the decision was issued until the entry into force of the law. 30. Article 12 sets out a 120-day deadline within which the claimants are to supplement their files with further documents, following a written request in that respect sent by the authority. This deadline may be extended once, for sixty more days, at the request of the claimant, if evidence shows that he/she has taken the necessary steps to obtain the necessary information. 31. Article 13 provides that the County Commissions are bound to issue a decision on the applicants’ claims within: “a) nine months, if there are less than 500 files pending before them; b) eighteen months, if the files pending before them are in the range of 501-1000; c) thirty-six months if they have more than 1000 files pending before them.” This deadline started running on 1 January 2015. 32. Article 14 stipulates that decisions issued by the County Commissions before the entry into force of the present law and already registered with the National Agency should be ratified or otherwise within eighteen months of the entry into force of the law. Decisions issued after the entry into force of the law should be ratified or otherwise by the National Authority within eighteen months of their registration with that authority. The registration number and the number of files pending with the National Authority shall be published on its web page. 33. Article 15 gives claimants the opportunity to apply to the courts in the event that the above-mentioned deadlines are not complied with. 34. Article 17 of the law sets out several measures meant to increase the efficiency of the compensation procedures, providing, inter alia, for a temporary increase of the number of posts available at the National Authority. 35. The Treaty of Craiova was signed on 7 September 1940 by Romania and Bulgaria. Under the terms of this treaty, the signatory parties agreed on the border line that was to be established between the two countries, with particular reference to the territory between the Black Sea and the Danube River (the Cadrilater). Section III of the Treaty provided for a mandatory resettlement of Romanian citizens of Bulgarian ethnicity living in Tulcea and Constanţa Districts to Bulgaria, and the resettlement of ethnic Romanians living in Durostor and Caliacra Districts to Romania. Section V of Annex C of the Treaty stipulated that the Romanian State was in charge of compensating those Romanian citizens who, following the mandatory resettlement had to abandon their possessions in the rural areas which were transferred to Bulgaria.
| 0 |
test
|
001-158148
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF A.L. (X.W.) v. RUSSIA
| 3 |
Violation of Article 2 - Right to life (Article 2 - Expulsion;Article 2-1 - Death penalty) (Conditional) (China);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (China);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
6. According to the applicant, he is a Russian national, A.L., born in 1972. According to the Government, the applicant is a Chinese national, X.W., born in 1973. He lives in Elista. 7. On 19 March 2014 the applicant was arrested in St Petersburg on suspicion of murdering a Chinese policeman in 1996. He was in possession of a Russian national passport in the name of A.L., born in 1972 in the Primorskiy region of Russia. 8. On 21 March 2014 the Smolninskiy District Court of St Petersburg ordered the applicant’s detention until 17 April 2014, pending receipt of an official extradition request from the Chinese authorities. The District Court noted that the applicant had been identified by means of photographic comparisons as X.W., a Chinese national born in China in 1973. His name was on Interpol’s list of wanted persons. The Chinese authorities had issued an arrest warrant in his name dated 15 December 2011 from which it was apparent that he was suspected of a criminal offence under Article 232 of the Chinese Criminal Code. That offence was punishable by the death penalty, life imprisonment or at least three years’ imprisonment, and the limitation period was twenty years. The limitation period in respect of a comparable criminal offence in the Russian Criminal Code was fifteen years, but this was suspended if the suspect had fled from justice. The court further noted that a Russian national passport in the name of A.L. had apparently been unlawfully obtained by the applicant after he submitted false information to the competent Russian authorities. It was clear that he was not a Russian national but a Chinese national and could be therefore extradited to China. 9. The Chinese authorities failed to submit an official extradition request within the thirty-day time-limit established by the Bilateral Treaty on Extradition of 26 June 1995. 10. On 17 April 2014 the St Petersburg Transport Prosecutor ordered the applicant’s release. At the same time he noted that it was necessary to start administrative removal proceedings against the applicant on the grounds that his residence in Russia was unlawful. 11. Despite the release order, the applicant remained in detention. 12. On 18 April 2014 the St Petersburg transport police drafted a report on the commission by the applicant of an offence under Article 18.8 of the Administrative Offences Code (unlawful residence in Russia of a foreign national, see paragraph 47 below). 13. On the same day, 18 April 2014, the Smolninskiy District Court found the applicant guilty of an administrative offence under Article 18.8 of the Code of Administrative Offences and ordered his administrative removal to China. The court took note of a letter dated 21 March 2014 by the Federal Migration Service which showed that it was impossible to establish whether or not the applicant was a Russian national. He had received a Russian national passport in the name of A.L. in 2000 after declaring that he had lost his previous passport, which had been issued in 1988. However, according to the Federal Migration Service, the allegedly lost passport never existed. The court further relied on the extradition casefile, from which it was apparent that the applicant was in fact a Chinese national, X.W., rather than a Russian national A.L. Being a Chinese national, he was residing in Russia unlawfully without a valid visa or residence permit. The court noted that the applicant was sought by the Chinese authorities on suspicion of murder. He was therefore dangerous and it was necessary to sentence him to administrative removal from Russia. Lastly, the court observed that, although the applicant had a Russian wife, he did not have any children who were minors living in Russia. In such circumstances, and taking into account his dangerousness, the public interest outweighed his personal interest in maintaining his family life in Russia. 14. The applicant appealed. He submitted, in particular, that his passport as a Russian national had never been cancelled and was therefore still valid. He further argued that his administrative removal was extradition in disguise. The fifteen-year limitation period established by Russian criminal law had expired and he could no longer be lawfully extradited to China. If he was administratively removed to China he would be immediately arrested and very probably subjected to the death penalty. His removal to China would therefore be in breach of Articles 2 and 3 of the Convention. 15. On 24 April 2014 the Federal Migration Service found that the applicant was not a Russian national. He had obtained the Russian national passport in the name of A.L. unlawfully. 16. On 28 August 2014 the St Petersburg City Court quashed the judgment of 18 April 2014, finding that the administrative offence report of 18 April 2014 had been procedurally defective, and remitted the case to the District Court for a new examination. These proceedings were later discontinued. 17. On 29 August 2014 the Krasnoselskiy District police drafted a new report on the commission by the applicant of an offence under Article 18.8 of the Administrative Offences Code. 18. On 30 August 2014 the Krasnoselskiy District Court of St Petersburg discontinued the administrative offence proceedings against the applicant, finding that the administrative offence report of 29 August 2014 had been procedurally defective. 19. On 31 August 2104 the applicant was released. His passport, seized upon arrest, was not returned to him. He was served with a decision by the St Petersburg and Leningrad Region Interior Department, dated 29 August 2014, declaring the undesirability of his presence in Russia (the “exclusion order”) which read in its entirety as follows: “On 27 August 2014 the Interior Ministry of the Russian Federation decided that your presence (residence) in Russia was undesirable in accordance with section 25 of [the Entry and Exit Procedures Act]. You must therefore leave the Russian Federation before 3 September 2014. If you do not leave before the stated deadline, you will be deported. In accordance with section 27 of [the Entry and Exit Procedures Act], if a decision declaring the undesirability of an individual’s presence (residence) in the Russian Federation has been issued, that individual may no longer enter the Russian Federation.” 20. The applicant challenged the exclusion order before the Smolninskiy District Court. He also complained that his passport had been unlawfully seized. He submitted that he could not cross the Russian border without a passport and could not therefore comply with the exclusion order by leaving Russia for another country. In these circumstances, the exclusion order would automatically entail his deportation to China. If he was deported to China he would be immediately arrested and very probably subjected to the death penalty. His deportation would therefore be in breach of Articles 2 and 3 of the Convention. 21. On 12 November 2014 the Smolninskiy District Court found that the exclusion order had been lawful. It had been issued by a competent authority in accordance with the procedure prescribed by law and had been based on sufficient reasons. Given that the applicant was sought by the Chinese authorities on suspicion of murder, had been fined several times in Russia for driving offences and had lived in Russia unlawfully with an unlawfully issued passport, there were sufficient reasons to find that he represented a real threat to public order and security. The court further noted that the applicant did not dispute the above facts. The thrust of his complaint was that his deportation to China would expose him to a risk of being subjected to the death penalty that amounted to inhuman treatment. Those arguments could not, however, serve as grounds for annulling the lawfully adopted exclusion order. The court also held that the applicant’s argument that the exclusion order would automatically entail his deportation to China was unconvincing. Firstly, deportation was not automatic and required a separate administrative decision that could be challenged before a court. Secondly, the applicant had the possibility of avoiding deportation to China by leaving Russia for another country. 22. The court further held that the seizure of the applicant’s passport in the name of A.L. had been lawful. By the decision of 24 April 2014 the Federal Migration Service had found that that passport had been issued unlawfully and that the applicant was not a Russian national. Those were lawful grounds for seizing a passport. The procedure prescribed by law had been respected. 23. The applicant appealed. He submitted, in particular, that the domestic law did not require a separate administrative decision on deportation. The exclusion order alone constituted a sufficient legal basis for deportation and his failure to leave Russia before the stated deadline could therefore entail automatic deportation to China. He did not have any remedies with suspensive effect in such a situation. He further reiterated his argument that he could not leave Russia for another country because his passport had been seized by the authorities and he did not have any other identity documents. Lastly, he argued that his deportation to China would amount to a breach of not only Articles 2 and 3 of the Convention, but also of Article 8, because he was married to a Russian national. 24. On 25 February 2015 the St Petersburg City Court upheld the judgment of 12 November 2014 on appeal, finding that it had been lawful, well-reasoned and justified. It added that a genetic test had established that the applicant’s genetic profile matched the genetic profiles of X.W.’s parents. There was therefore no doubt that the applicant’s real name was X.W. It further agreed with the District Court that the applicant could avoid deportation to China by leaving Russia for another country using his Chinese passport. 25. From 18 April to 29 August 2014 the applicant was detained in a detention centre for aliens (Центр для содержания иностранных граждан) located in Krasnoye Selo in St Petersburg. 26. From 18 to 21 April 2014 the applicant was held in a punishment cell. From 18 to 20 April 2014 he was handcuffed. The cell had no windows and was empty. It had no bunk or chair and the applicant had to stand or remain in the squatting position all the time. There was no lavatory bowl or running water. His requests to allow him to use the toilet were refused and he had to relieve himself in a plastic bottle. He was given food only once during that period but was anyway unable to eat it because of his handcuffs. 27. On 21 April 2014 the applicant was transferred to solitary confinement cell no. 412 on the fourth floor where he remained until 2 July 2014. The cell measured 9 sq. m and was equipped with a bed, a bedside cabinet, a table, a sink and a lavatory bowl that stank. The window did not open so the applicant could not air his cell. The window was also covered with paint which blocked the daylight. The artificial lights were dim. The cell was damp and cold and the applicant had to sleep with his coat on. The cell was swarming with mice. 28. From 2 July to 29 August 2014 the applicant was held in solitary confinement cell no. 413. The conditions of detention in that cell were similar to those in cell no. 412. 29. Both cells nos. 412 and 413 were locked and the applicant remained alone all the time. Neither the other inmates nor the warders ever entered the cells. The cells were not equipped with a radio or TV set. The applicant was not given any books or newspapers. He was not allowed to use his mobile telephone. As he was in total isolation, he counted the days by drawing sticks on paper. 30. It was not until 5 June 2014 that he was allowed to take walks in the yard. In particular, he was allowed to go out in the yard on 10, 11, 12, 14, 15, 17, 18, 21 and 30 June, 13, 7, 11, 13, 15, 19, 27 and 29 July and 3, 6, 9, 11, 12, 18, 21, 24 and 25 August 2014. The walks lasted between ten minutes and half an hour. The exercise yard measured 30 m by 8 m and was enclosed by a three-metre-high fence. The applicant was always alone in the yard. 31. It was very difficult to get permission for family visits. He was allowed only four visits from his wife, each time for less than half an hour and in the presence of warders. 32. The detention centre had no canteen and the food was brought from other detention facilities. It was always cold and did not contain any vegetable, fruit, meat or dairy products. The warders gave him food through a small window in the door. No drinking water was provided and the applicant had to drink tap water which was of poor quality. 33. During his four-month stay in the centre the applicant was allowed to take a shower only five times. The water in the shower was cold. There was no laundry service and the applicant had to wash his clothes himself. 34. According to the Government, the applicant was held in cell no. 412 which measured 27.4 sq. m. The cell had windows, artificial light and central heating. It was equipped with a lavatory bowl, running hot and cold water, a bed, a bedside cabinet and a dining table. 35. Inmates were provided with hot meals three times per day. They could walk in the exercise yard every morning in accordance with applicable regulations. 36. The detention centre for aliens had a library which the applicant was allowed to use on request. 37. The detention centre for aliens had no punishment cells and its warders never used handcuffs. 38. On 29 August 2014 the applicant was transferred to an administrative detention cell at Krasnoselskiy District police station no. 9 where he remained until 31 August 2014. 39. The applicant was placed in a cell at about 4.30 p.m. on 29 August. However, he remained handcuffed until 11.30 p.m. of the same day. 40. The cell measured 3.75 sq. m. It had concrete walls and ceiling and no windows. There was an opening in the wall measuring 40 cm by 60 cm blocked by a metal sheet with ventilation holes. 41. The cell was equipped with a narrow wooden bench. There was no table, chair, sink or lavatory bowl. The applicant was not given any food or water. He was not allowed to go to the toilet until about 1 p.m. on 30 August before a court hearing. He remained handcuffed from 1 to 5 p.m. on 30 August 2014 during the entire court hearing and until his return to the police station. 42. The applicant’s representatives were not allowed to visit him. 43. The applicant was released at about 4.30 p.m. on 31 August 2014. 44. The Government submitted the floor plan of police station no. 9. It is apparent from the plan that there were three administrative detention cells, two of them measuring 7.55 sq. m and one measuring 6.5 sq. m. Each cell was equipped with two benches. There was no other furniture and no lavatory facilities in the cell. 45. The Government confirmed that the windows were blocked by metal screens with holes in them. 46. According to the police officers’ statements, the applicant was given food but refused to eat it. He preferred to eat food brought by his wife. He was allowed to go to the police station toilet on request. The applicant was not handcuffed.
| 1 |
test
|
001-180852
|
ENG
|
MNE
|
CHAMBER
| 2,018 |
CASE OF VUJOVIĆ AND LIPA D.O.O. v. MONTENEGRO
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
|
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
|
5. The first applicant was born in 1956 and lives in Cetinje. The second applicant was founded in Cetinje in 1990. The first applicant is the founder, the sole owner, and the executive director of the second applicant. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 1 July 2013 an insolvency creditor X (stečajni povjerilac) requested the Commercial Court (Privredni sud) in Podgorica to open insolvency proceedings (stečajni postupak) in respect of the second applicant. In the proceedings before the Commercial Court the second applicant was represented by the first applicant and a lawyer duly authorised by the latter. On 27 December 2013 the Commercial Court opened insolvency proceedings in respect of the second applicant and, inter alia, appointed an insolvency administrator (stečajni upravnik). 7. On 23 January 2014 the second applicant, through the lawyer, lodged an appeal against the Commercial Court decision. 8. On 18 March 2014 the Court of Appeals (Apelacioni sud) in Podgorica rejected the appeal (žalba se odbacuje) as having been submitted by an unauthorised person, given that the lawyer had not been appointed by the insolvency administrator. The court relied on sections 75 and 76 of the Insolvency Act (see paragraphs 17-18 below). This decision was served on the applicants on 17 April 2014. 9. On 12 May 2014 the applicants lodged a constitutional appeal. 10. On 13 May 2014 the applicants’ representative filed an initiative with the Constitutional Court (Ustavni sud) seeking the assessment of the constitutionality of section 76 of the Insolvency Act in force at the time. There is nothing in the case-file as to the outcome of that initiative. 11. On 23 July 2014 the Constitutional Court rejected the applicants’ constitutional appeal for “not having been lodged by a party to the domestic proceedings or by a person authorised to appeal on behalf of the person whose rights and freedoms were violated”. This decision was served on the applicants on 15 October 2014.
| 1 |
test
|
001-163805
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF VASENIN v. RUSSIA
| 4 |
No 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 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra
|
5. The applicant was born in 1973 in Perm. He is currently detained in Kostroma Region. 6. In 2002 a court found that the applicant, who suffered from schizophrenia, had committed a number of criminal offences, including possession of drugs and aggravated robbery, and ordered his admission to a psychiatric hospital. The applicant was placed in a mental institution in Leningrad Region, where he remained until 30 January 2005, when he escaped. 7. On 21 September 2005 he was arrested by the Ukrainian border police for an unlawful attempt to cross the border. On the same day the Lychakivsky District Court of Lviv sentenced him to fifteen days administrative detention. According to a certificate issued by the Ukrainian Border Service in Lvov, the applicant was detained from 21 September to 6 October 2005. 8. In 2005 the police opened a criminal investigation into the arson of vehicles belonging to a private company. 9. According to the applicant, on 28 November 2005 he was arrested by the police in Belgorod, a town near the Ukrainian border, during a random identity search operation. He was taken to a police station and allegedly beaten up to force him to confess to the criminal offences. The following day the applicant confessed to having set a vehicle on fire on 9 August 2005. 10. A report indicated that the applicant was arrested on 29 November 2005. On the same day he wrote a statement, confessing to having burnt out a car together with an accomplice. The investigator assigned a legal-aid lawyer and questioned the applicant in his presence. The applicant again confessed to the arson attack. He also mentioned that several months earlier he had escaped from a psychiatric hospital, where he underwent treatment under a court’s order. 11. On 30 November 2005 the investigator asked the Belgorod District Court of the Belgorod Region to order the applicant’s placement in custody. 12. On 1 December 2005 the request was granted. The District Court held that the applicant was charged with a serious criminal offence punishable by up to five years’ imprisonment. His escape from a mental hospital and his lack of a permanent place of residence demonstrated his liability to abscond. Furthermore, relying on statements by a witness who had testified to having been approached by the applicant with a view to “discussing charges against him”, the court found that the applicant was prone to influencing witnesses and obstructing justice. It concluded that only detention could ensure the interests of justice. 13. The applicant was admitted to temporary detention facility no. IZ31/1 in Belgorod. He shared a cell with other detainees. There is no evidence suggesting that the detention authorities had made an effort to accommodate the applicant’s mental disorder. 14. The applicant submitted that after his admission to the detention facility the police officers who had allegedly beaten him up after the arrest had again driven him to the police station for questioning, had handcuffed him to a heating unit and had left him in that position until late evening. He had not been given food for the entire day and had only twice been allowed to use a toilet. 15. On 2 December 2005 the applicant confessed to having blown up a car with an accomplice on 5 October 2005. He later repeated the confession at the crime scene. 16. In January 2006 the investigating authorities charged the applicant with a robbery committed on 25 November 2005. They also asked the District Court to extend the applicant’s detention pending investigation, claiming that the case was complex and that more time was necessary to complete the investigation. The defence argued that the applicant was in need of psychiatric treatment and that he therefore should be released and admitted to a mental institution. On 26 January 2006 the court extended his detention until 16 February 2006, having considered that that there were no circumstances warranting the applicant’s release. 17. Another extension, based on the same reasoning, followed on 9 February 2006. The applicant was to be detained until 16 April 2006. 18. In the meantime, the investigators authorised a psychiatric expert examination of the applicant. In a report issued on 15 February 2006, psychiatrists indicated that the applicant suffered from paranoid continuous progressive schizophrenia and the initial stage of paraphrenia. The doctors also noted that that serious emotional disorder made the applicant particularly dangerous and thus called for his detention under constant psychiatric supervision. 19. Acting in response to the psychiatrists’ findings, the authorities appointed, on 16 March 2006, a legal guardian to assist the applicant in the proceedings. 20. On 30 March 2006 the pre-trial investigation was closed and the applicant was committed for trial before the Oktyabrskiy District Court of Belgorod. Referring to his diagnosis, the prosecution sought his admission to a psychiatric hospital. 21. On 7 April 2006 the applicant lodged an application with the Oktyabrskiy District Court asking for a preliminary hearing to be held in his case. He disputed the charges and declared his innocence. Without submitting documentary evidence the applicant argued that he had been detained in Ukraine between 22 September and 6 October 2005 and thus he had not committed any crime during that period. He also disagreed with the expert report of 15 February 2006, stating that a psychiatric hospital with a lighter security regime would be more appropriate for his condition. Lastly, he asked that his presence at the trial be ensured, as he doubted the efficiency of the legal aid. He noted that he had never met with his legal guardian. 22. On 13 April 2006 the court held the preliminary hearing. The applicant was present. The court was to decide on the applicant’s continued detention and the need for his personal presence at trial. 23. The applicant and his legal-aid counsel expressed different opinions on several matters. While the applicant insisted on his transfer from the ordinary detention facility to a psychiatric hospital, his legal guardian and legal-aid lawyer agreed to the extension of his detention. As regards the necessity of his presence, the applicant’s counsel argued that it was desirable, but not necessary. The legal guardian submitted that the issue could be discussed at a later stage. The applicant strongly insisted on his personal participation, as he was afraid that otherwise he could be convicted of crimes which he had not committed. 24. Having heard the parties, the court ordered the applicant’s detention pending trial and stated that the trial was to be held in his absence, as the personal participation of persons suffering from a mental disorder was not provided for by the Russian Code of Criminal Procedure for cases such as the one to be decided. 25. The applicant challenged the decision of 13 April 2006, but ten days later his claim was returned without examination on the merits. The court held that his lawyer or legal representative only had a right, under Russian law, to lodge an appeal in such category of cases. 26. On 25 April 2006 the court held a trial hearing in the presence of a prosecutor, the victims, their lawyers, the applicant’s counsel and legal guardian. The applicant himself was not brought to the court-house. The court read out records of the statements made by the victims at the pre-trial stage and heard testimony from one of the victims. It further read out statements by seven witnesses and studied the applicant’s written confessions made on 29 November and 2 December 2005. It examined other documents and material evidence. Neither the legal-aid counsel nor the legal guardian made any applications or objections. They did not ask any questions during the victim’s cross-examination and did not challenge the admissibility of any item of evidence, including the applicant’s confession. During their closing arguments the lawyer and the guardian acknowledged that the applicant had committed the impugned offences. They stated that owing to his mental disorder he should not bear criminal or civil responsibility and should be admitted to a high-security psychiatric hospital under intensive supervision. 27. On 3 May 2006 the District Court delivered its judgment. It established that on 9 August 2005 the applicant and his accomplice had set fire to a car; that on 5 October 2005 they had blown up another car and that on 25 November 2005 they had committed a robbery. Relying on the psychiatric report of 15 February 2006 the court ordered the applicant’s treatment in a high-security psychiatric institution under intensive supervision. It held that the preventive measure in the form of the applicant’s detention should remain unchanged until his admission to a psychiatric hospital. 28. On 12 May 2006 the applicant appealed. He also asked the court to provide him with the trial records from the first-instance court proceedings. The applicant argued that he had been unlawfully convicted of crimes he had not committed, that his confession had been given under pressure and that his defence team, comprising the legal-aid counsel and the legal guardian assigned against his will, had been manifestly ineffective. The applicant submitted that on 5 October 2005 he had still been in detention in Ukraine and therefore he could not have blown up a car in Russia on the same day. 29. A similar complaint was filed with the Belgorod regional prosecutor’s office. 30. Neither the applicant’s counsel, nor his guardian lodged an appeal against the judgment of 3 May 2006. It became final on 13 May 2006. 31. On 15 May 2006 the court dismissed the applicant’s application for access to the trial records as such a request could only be lodged by his defence counsel or legal guardian. Two days later the Oktyabrskiy District Court returned the applicant’s appeal against the judgment of 3 May 2006, informing him that his lawyer or legal guardian were the only ones with the authority to appeal. A similar response arrived from the prosecutor’s office on 26 May 2006. 32. On 11 June 2006 the judgment of 3 May 2006 was enforced and the applicant was admitted to Oryol Psychiatric Hospital. 33. In 2012 the Belgorod regional prosecutor’s office applied to the Presidium of the Belgorod Regional Court for supervisory review of the case referring to the breach of the applicant’s right to defence. 34. On 27 September 2012 the request was granted. Invoking Article 6 § 3 (c) of the Convention, the court held that the trial court’s decision to hold the hearings in the applicant’s absence had been unjustified. 35. On 11 October 2012 the Presidium of the Belgorod Regional Court acknowledged a violation of the applicant’s right to defence, quashed the judgment of 3 May 2006 and remitted the case to the Oktyabrskiy Regional Court for a fresh examination on the merits. 36. The first hearing in the case was to be held on 19 November 2012, but the court was unable to summon the applicant. The summons was returned with a note that the applicant could not be found at the indicated address. On 26 November and 6 December 2012 the District Court repeatedly attempted to inform the applicant of the hearing by registered post and telegram. The summons was not served on the applicant as he had left the place of his residence. 37. On 6 December 2012 the District Court held that it could not proceed with the examination of the criminal case in view of the lack of any knowledge of his whereabouts. It returned the case to the investigating authorities with an order to find the applicant. 38. The parties did not inform the Court of the outcome of the proceedings. 39. On 10 December 2005 the applicant complained to the Belgorod town prosecutor’s office about his arrest and subsequent ill-treatment. The complaint contained no references to bodily injuries or possible witnesses to the beatings. It was not supported by any other evidence. 40. Having questioned the alleged perpetrators, who denied any instance of ill-treatment, the prosecutor’s office refused to open a criminal case on 20 January 2006. 41. On 27 February 2006 a higher-ranking prosecutor overturned the decision of 20 January 2006 with an order to verify whether the applicant had had any injuries on his admission to the detention facility. 42. On 10 March 2006 the prosecutor’s office again refused to open a criminal case, mainly referring to the applicant’s mental disorder. On 14 April 2006 the Oktyabrskiy District Court upheld the refusal. 43. The applicant was detained in the following institutions: from 2 December 2005 to 11 June 2006 in the temporary detention facility; from 11 June 2006 to 4 December 2007 in Oryol Psychiatric Hospital; from 4 December 2007 to 24 February 2009 in St Petersburg High-Security Psychiatric Hospital; and from 24 February to 31 August 2009 in Kashchenko Psychiatric Hospital in St Petersburg. The applicant was then discharged for outpatient treatment. 44. Shortly after his admission to the temporary detention facility the applicant was seen by a resident doctor, whom he informed that he had been suffering from schizophrenia since 2001. 45. In the end of December 2005 he was examined by a psychiatrist. According to the doctor’s report of 21 December 2005, the applicant had maniacal schizophrenia. Having noted that his condition did not call for any drug regimen, the doctor recommended his further examination and treatment in a mental institution. 46. A report prepared by the detention authorities for the applicant’s examination by a psychiatric commission indicated that there were no peculiarities in his general behaviour. He had good relations with inmates and was respectful of the authorities. He never violated prison regulations. 47. On 15 February 2006 the applicant was examined by a commission of doctors from Belgorod Regional Clinical Psychoneurological Hospital. The experts confirmed that the applicant suffered from paranoid continuous progressive schizophrenia and paraphrenia in the initial stage. They recommended treatment in a high-security medical institution with intensive supervision, given the danger the applicant posed to those around him. 48. During his stay in the temporary detention facility he received no antipsychotic drugs. No aggressive outbursts or other incidents were recorded. 49. On admission to Oryol Psychiatric Hospital in June 2006 the applicant behaved aggressively. He was given antipsychotic medication. In the beginning of February 2007 his mental condition improved. By the end of 2007 his behaviour was satisfactory. 50. During his stay in St Petersburg High-Security Psychiatric Hospital and in Kashenko Psychiatric Hospital, St Petersburg the applicant received standard psychiatric treatment with antipsychotic medication. His mental condition significantly ameliorated, he was no longer in need of inpatient treatment and he was therefore released. 51. A chest X-ray examination performed several days after his admission to the temporary detention facility disclosed that the applicant had been infected with focal tuberculosis at the infiltration stage. The applicant was seen by a doctor. A standard treatment regimen with first-line antibacterial drugs was ordered. 52. Daily entries in his medical records show that between 13 January and 20 April 2006 the applicant received the prescribed anti-tuberculosis drug regimen. A scheduled break in his treatment followed. 53. In Oryol Psychiatric Hospital his treatment continued. A chest X-ray in February 2007 showed that the tuberculosis had been “clinically cured”, with only insignificant traces of the disease remaining in the left lung. On 10 November 2008 doctors confirmed his complete recovery. 54. The submitted documents indicate that during his treatment the applicant was subjected to regular X-ray examinations, and blood and sputum tests. 55. A blood test carried out by Oryol Psychiatric Hospital on 16 June 2006 showed that the applicant had hepatitis C. On 29 June 2006 he was seen by an infectious diseases specialist. Treatment with a regimen of drugs was prescribed. It resulted in the remission of the hepatitis in June 2007. In December 2007 the doctor confirmed the full remission. When asked by the doctor about the possible causes of the infection, the applicant stated that he had shared his safety razor with inmates in the temporary detention facility. 56. Subsequent medical tests and check-ups did not show any deterioration in the applicant’s health. It appears from the submitted documents that the illness has remained dormant ever since. 57. On 11 June 2012 the applicant was arrested in Ivanovo for drug trafficking. The Leninskiy District Court of Ivanovo authorised his detention. He was placed in a temporary detention facility. In 2013 he was transferred to a psychiatric hospital in Kostroma Region.
| 1 |
test
|
001-159806
|
ENG
|
NLD
|
CHAMBER
| 2,016 |
CASE OF S.S. v. THE NETHERLANDS
| 4 |
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan)
|
Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
6. The applicant is of Pashtun origin, was born in 1964 and has been in the Netherlands since 1998. 7. The applicant entered the Netherlands on 3 August 1998 and on 4 August 1998 applied for asylum, submitting the following account in his interviews with immigration officials held on 4 August 1998, 26 August 1998 and 21 March 2000. 8. After completing his elementary education in 1976, the applicant had attended the military academy in Kabul. He had graduated in 1982 and had started working in 1982 with the rank of second lieutenant at an administrative department of one of the directorates of the Afghan security service KhAD/WAD (“Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati”) during the former communist regime in Afghanistan. He had become head of this department – which was responsible for handling confidential documents – in 1988, which function he had continued to hold until the fall of the ruling communist People’s Democratic Party of Afghanistan (“PDPA”) in 1992. In 1990 he had been promoted to the rank of lieutenant-colonel. 9. The applicant’s directorate had been assigned the task of negotiating and concluding agreements with groups that opposed and fought the communist Government, namely the mujahideen. These agreements entailed remunerated cooperation with the ruling PDPA. The applicant had attended meetings between thus “employed” mujahideen commanders and executives of the directorate. During these meetings the performance of such commanders was assessed and decisions were taken on whether or not they should continue to be paid. The applicant had taken minutes at those meetings. He believed that the mujahideen were holding him personally responsible for the discontinuation of their pay where decisions to that effect had been taken. In addition, these mujahideen commanders had never admitted to cooperating with the KhAD and were very keen on keeping this a secret, for which reason they were interested in eliminating the applicant. 10. In 1992, after the fall of Kabul, these mujahideen commanders had come looking for the applicant. They were said to have come to his office and asked for him. The applicant had been informed of this by the president of the directorate he had worked for, who had maintained good relations with the mujahideen and hence had remained in post there. 11. The applicant and his family had fled to Mazar-e-Sharif, where they had led a quiet life until 1997, when various mujahideen groups had come to the city, including those mujahideen feared by the applicant. He had gone into hiding, during which period his house had been searched by the mujahideen. The applicant and his family had then fled to Pakistan. 12. On 15 September 1999, a person-specific official report (individueel ambtsbericht) not concerning the applicant was drawn up by the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken). According to this report, torture was systemic in WAD interrogation centres and within the KhAD the loyalty of its staff was carefully controlled. It was considered impossible that persons belonging to the higher management of the KhAD/WAD had not been involved in the implementation of the above methods. This report was taken into account in the applicant’s asylum procedure. 13. The applicant’s asylum claim was also examined in the light of an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs, on “Security Services in Communist Afghanistan (1978-92), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether and, if so, which former employees of those services should be regarded as implicated in human rights violations (see A.A.Q. v. the Netherlands (dec.), no. 42331/05, §§ 50-52, 30 June 2015). 14. By a decision of 18 July 2000 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum claim. The Deputy Minister held, inter alia, that serious reasons had been found for believing that the applicant had committed acts referred to in Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). 15. Referring to the official report of 29 February 2000 (see paragraph 13 above), the Deputy Minister emphasised the widely known cruel character of the KhAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations and the “climate of terror” which it had spread throughout the whole of Afghan society, including the army. The Deputy Minister underlined the vague definition of “enemy of the communist regime” used by the KhAD, how it found those enemies through an extensive network of spies, and how all of this led to widespread and often random arrests of suspects. It was also noted that the KhAD was considered to be an elite unit of the communist regime, and that only those whose loyalty was beyond doubt were eligible for recruitment to the service. Furthermore, new recruits were initially assigned to KhAD/WAD sections actively engaged in tracking down “elements that posed a threat to the State”, where – in order to prove their loyalty unequivocally – they were directly involved in the human rights violations the KhAD was associated with. In this regard the Deputy Minister emphasised that every promoted officer had been involved in arrests, interrogations, torture and even executions. 16. Having established, on the basis of elaborate argumentation based on various international documents, that those involved in the KhAD were likely to fall within the scope of Article 1F of the 1951 Refugee Convention, the Deputy Minister proceeded to an analysis of the applicant’s individual responsibility under that Convention. In the light of the above, the applicant’s plea that he had never been involved in any human rights violations and had worked his whole career for one department only was dismissed. In view of the applicant’s career and several promotions, the Deputy Minister excluded the possibility of the applicant not having been involved in human rights violations committed by the KhAD. 17. The Deputy Minister underlined that the application of Article 1F of the 1951 Refugee Convention did not require proof that the applicant had personally committed the alleged crimes; it sufficed that serious reasons existed to consider that the applicant had, or should have had, knowledge of those crimes and that he bore responsibility for them, which responsibility he had voluntarily assumed. In this context the Deputy Minister referred, inter alia, to paragraphs 42 and 43 of “The Exclusion Clauses: Guidelines on their Application” (UNHCR, 1 December 1996), stating: “persons who are found to have performed, engaged in, participated in orchestrating, planning and/or implementing, or condoned or acquiesced in the carrying out of any specified criminal acts by subordinates, should rightly be excluded. ... voluntary continued membership of a part of a government engaged in criminal activities may constitute grounds for exclusion where the member cannot rebut the presumptions of knowledge and personal implication.” 18. The Deputy Minister further referred to a letter of 28 November 1997 sent by the Deputy Minister of Justice to the President of the Lower House of Parliament (Tweede Kamer) stating that Article 1F was also applicable when the person concerned had not himself committed any acts referred to in this provision but had been an active and conscious member of an organisation known for committing war crimes and crimes against humanity. As the applicant had not in any way distanced himself from or resisted the crimes committed by the KhAD, the Deputy Minister concluded that Article 1F was applicable to the applicant’s case. Consequently, the applicant’s asylum request was rejected and Article 1F held against him. 19. The Deputy Minister further found no grounds on the basis of which the applicant would be eligible for a residence permit on compelling humanitarian grounds (klemmende redenen van humanitaire aard). As regards the applicant’s plea under Article 3 of the Convention the Deputy Minister held that, even assuming that a real risk existed of the applicant being subjected to treatment contrary to that provision in Afghanistan, Article 3 did not guarantee a right to residence. The Deputy Minister considered in this context that granting residence to the applicant would conflict with the State’s interest in terms of its credibility on the international stage, particularly regarding its responsibility towards other States. In the Deputy Minister’s view, a situation in which the Netherlands was forced to become a host State for individuals who had elsewhere shocked public and international legal order with acts considered to constitute grave crimes under both Dutch and international law was to be avoided. 20. The applicant’s objection (bezwaar) to this decision was rejected, after he had been heard on it on 16 May 2003 before an official board of enquiry (ambtelijke commissie), on 11 August 2003 by the Minister of Immigration and Integration (Minister van Vreemdelingenzaken en Integratie), the successor to the Deputy Minister of Justice. The Minister endorsed the Deputy Minister’s impugned decision and proceeded, in addition thereto, to an analysis of the applicant’s individual responsibility under the 1951 Refugee Convention on the basis of the prescribed and so-called “personal and knowing participation test” and held Article 1F against him. 21. As regards the “knowing” element, the Minister – having regard to the official report of the Ministry of Foreign Affairs of 29 February 2000 (see paragraph 13 above) – found that the applicant had known or should have known about the criminal character of the KhAD. The Minister did not attach any credence to the applicant’s submissions that he had not known about the human rights violations committed by the KhAD. Basing herself on the Ministry of Foreign Affairs official report of 29 February 2000, the Minister held that the commission of human rights violations by the KhAD under the PDPA rule was a fact of common knowledge and that, therefore, it was unthinkable that the applicant would have been ignorant of those acts. The Minister emphasised in this regard the high rank the applicant had held, the long period he had worked for the KhAD and the fact that he had attended meetings with the executives of the Directorate in which he had been employed. The Minister concluded that the applicant had knowingly participated in torture and executions. 22. As regards the applicant’s personal participation in human rights violations attributed to the KhAD, the Minister found, basing herself to a large extent on the same factual information as the Deputy Minister had done in his previous decision, that the applicant had failed to demonstrate that he had not committed such violations himself or that his conduct, or lack thereof, had prevented these violations from being committed. The Minister held, therefore, that the applicant had personally participated in the commission of acts referred to Article 1F of the 1951 Refugee Convention. 23. The Minister did not attach credence to the applicant’s rebuttal, which amounted to his case having to be distinguished from the general situation with regard to the KhAD and its officers as described in the official report of 29 February 2000. The applicant had claimed that he had obtained a desk job not by proving his loyalty to the KhAD in sinister ways – as the official report stated – but rather through bribes. The Minister held that, based on the applicant’s position and description of his tasks (including the processing of high-level classified information), he had attempted to trivialise his activities and had greatly impaired his credibility in consequence. On this point, the Minister relied, inter alia, on Amnesty International’s “Reports of torture and long-term detention without trial” of March 1991, according to which the Directorate in which the applicant had been employed was engaged in systematic torture. 24. The Minister further identified several inconsistencies in the applicant’s declarations and rebuttals, from which it was concluded that his declarations concerning certain of the tasks he stated he had performed were highly implausible. As regards the applicant’s various rebuttals, it was found, in the relevant part, that the burden of proof in terms of Article 1F of the 1951 Refugee Convention was less stringent than in a criminal prosecution (“serious reasons for considering” that the applicant might have been guilty of human rights violations sufficed to render this provision applicable). Taking into account that the applicant had never sought to leave the KhAD or the WAD, for which he had worked for about ten years, in which his last held rank was that of lieutenant-colonel, and in which he had been promoted to head of his department, the Minister concluded that there were no indications that the applicant had been forced or had involuntarily worked for the KhAD/WAD. 25. As regards the applicant’s claim that the official report of 29 February 2000 of the Ministry of Foreign Affairs was not accurate and was based on unreliable sources and that, therefore, it was too general in scope and could not be applied to his case, the Minister held that this report was founded on several acclaimed sources, such as the United Nations Special Rapporteur, Human Rights Watch, numerous Amnesty International reports, and a variety of United Nations publications. 26. The Minister went on to analyse, of her own motion, the applicant’s eligibility for a residence permit for reasons not related to asylum. It was held that no such permit could be issued, since the application of Article 1F of the 1951 Refugee Convention gave rise to “contraindications” against the applicant in terms of his eligibility for other types of residence permit. However, while reiterating that Article 3 of the Convention did not guarantee a right to residence, the Minister considered that it could not be ruled out that the applicant, in the present circumstances, would run a real risk of treatment contrary to that provision if expelled to Afghanistan, for which reason the applicant was not to be expelled. 27. The applicant lodged an objection against the refusal by the Minister to grant him a residence permit for reasons not related to asylum. This objection was rejected by the Minister on 16 January 2004, confirming her impugned refusal. 28. The applicant appealed against the Minister’s decisions of 11 August 2003 and 16 January 2004 before the Regional Court (rechtbank) of The Hague, arguing, inter alia, that the factual underpinning of the Ministry of Foreign Affairs official report of 29 February 2000 contained errors, which had led the Minister to draw incorrect conclusions as to the applicant’s personal and knowing participation in the crimes referred to in Article 1F of the 1951 Refugee Convention. 29. In its judgment of 10 February 2005, the Regional Court of The Hague sitting in Utrecht held that the official reports issued by the Ministry of Foreign Affairs, which lay to a great extent at the basis of the Minister’s decisions, had been drafted in an unbiased manner, were accurate and objective, and provided the required insight in the relevant information, and that therefore, the Minister had been entitled to rely on them. In addition, the Regional Court noted that the evaluation of the credibility of facts adduced by asylum seekers fell to a large extent within the Minister’s discretion and could, therefore, only be evaluated marginally by the court. The Regional Court agreed with the Minister on all points as to the latter’s decision to hold Article 1F of the 1951 Refugee Convention against the applicant and, consequently, to refuse him an asylum-based residence permit. As regards the Minister’s separate decision of 16 January, refusing the applicant a residence permit for reasons not related to asylum, the Regional Court adopted a different reasoning, but reached the same conclusion. 30. In respect of Article 3 of the Convention, the Regional Court held, with reference to case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), that the Minister should, wherever possible, avoid creating a situation in which an asylum seeker is refused a residence permit but cannot be expelled to his/her country of origin for reasons based on Article 3 of the Convention. For that reason, the decision should demonstrate that the Minister had examined whether Article 3 of the Convention would lastingly (duurzaam) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned. This, the Regional Court found, the Minister had failed to do in the present case, for which reason it quashed the Minister’s decision of 11 August 2003 and remitted the case back to the Minister for a fresh decision. 31. After the applicant had once more been heard on 20 May 2005 before an official board of enquiry, the Minister rejected the asylum request anew in a fresh decision of 2 August 2005. In this fresh decision, the Minister limited herself to Article 3 of the Convention. She dismissed the applicant’s fear of returning to Afghanistan as a (former) member of the PDPA and former officer of KhAD, referring to an official report issued by the Ministry of Foreign Affairs in January 2005 and holding that the sole fact that an asylum seeker had been a PDPA member was not enough in itself to render Article 3 applicable in the eventuality of expulsion. The Minister further noted that the mere fact that the applicant had a different political conviction from those currently in power in Afghanistan similarly did not suffice to render Article 3 applicable. The Minister further took into account that the applicant had stated that he was not a known person in Afghanistan. The applicant had no concrete indication that he would be searched for by any group or person. In addition, relatives of the applicant – including his father and brother – were still living in Afghanistan without ever having encountered any problem. 32. The Minister further addressed the applicant’s claim that he had reason to fear certain named mujahideen commanders, who would identify him as the KhAD officer who had not paid them, or paid them less than agreed upon. The applicant had submitted that he had attended meetings – where he had only taken minutes – in the course of which cooperation agreements had been reached between the KhAD and a mujahideen commander. In addition, the applicant had alleged that these mujahideen commanders were keen on ensuring that nobody in present-day Afghanistan would find out that they had cooperated with KhAD in the past, for which reason they were interested in eliminating the applicant. On this point, the Minister held that the applicant had failed to establish these commanders’ whereabouts and current influence in Afghan society. The Minister noted that according to the applicant’s own statements, he did not believe that these individuals occupied high positions in today’s Afghanistan. Furthermore, the Minister considered that the mujahideen commanders were aware of the applicant’s role in those meetings as well as of the identity of the person taking the decisions as regards financial support of the mujahideen, and that it was therefore implausible that they would be after the applicant. Finally, it was underlined that the applicant had been able to stay in Afghanistan until 1997 without any problems. For these reasons, the applicant’s claim that he was being sought by the mujahideen was dismissed as founded on nothing but suspicion and speculation. The claim based on Article 3 was consequently rejected. 33. The applicant appealed anew to the Regional Court of The Hague, arguing, inter alia, that the Minister had erred in finding him guilty of participation in torture under the auspices of the KhAD. In his view, the Minister had disregarded the fact that the applicant had held an administrative position in KhAD which was only concerned with maintaining contacts with the mujahideen and reaching agreements with them. Furthermore, the Minister had been inconsistent in finding, on the one hand, that the applicant had participated in human rights violations, but, on the other hand, that the applicant had not held an important position within the PDPA party. The applicant submitted that it was likely that he was well known enough for his former adversaries, who were now those in power in Afghanistan, to find him and subject him to treatment contrary to Article 3 of the Convention. 34. The Regional Court of The Hague sitting in Amsterdam rejected the applicant’s appeal on 12 April 2006. It noted that, according to a general official report on Afghanistan of July 2005 by the Ministry of Foreign Affairs, that some former military officials, members of the police and the KhAD/WAD security services possibly risk falling victim to human rights violations – not only by the authorities but also by the population (victims’ relatives), unless they maintained relations with influential Islamic and political parties or tribes. According to the court, this did not mean that every former KhAD officer ran a real risk of treatment contrary to Article 3, and the applicant was thus required to establish the existence of such a risk in the particular circumstances of his case. The Regional Court agreed with the Minister that the applicant had failed to do so, as his claims were found to be merely based on unsubstantiated expectations, including his claimed fear of persecution by the mujahideen commanders who had been paid by the KhAD/WAD. No further appeal lay against this ruling.
| 0 |
test
|
001-180555
|
ENG
|
LTU
|
CHAMBER
| 2,018 |
CASE OF KRISTIANA LTD. v. LITHUANIA
| 4 |
No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Civil proceedings;Article 6-1 - Access to court)
|
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Georges Ravarani
|
5. The applicant company is a legal entity registered in Vilnius. 6. In 1994 the Government adopted a resolution establishing the Development Plan for the Curonian Spit National Park (hereafter “the development plan”). The main objectives of the development plan were published in the Official Gazette (Valstybės žinios) (see paragraph 53 below). The development plan explicitly indicated that the buildings with a former military objective, situated in the adjacent dunes, had to be removed (nukeliami) and the natural environment fully restored. 7. In 1998 the Government decided to privatise the former Soviet (later the – Russian Federation) military buildings, without the land, in Juodkrantė, the Neringa Municipality, within the Curonian Spit National Park. There were two military barracks, a canteen, a store house and two sheds. 8. In 1999 the State Property Fund carried out a public auction, at which the applicant company was the only participant and purchased the buildings for 226,000 Lithuanian litai (LTL, approximately 65,454 euros (EUR)). The purchase agreement, which was concluded in February 2000, indicated that the applicant company had to lease the land assigned to the buildings (įsipareigoja išsinuomoti šiam objektui priskirtą žemės sklypą). 9. In September 2001 the Neringa Municipality decided to prepare a detailed plan of the area where the buildings were sited. The purpose of the plan was to designate a plot of land near the existing buildings, providing an opportunity to renovate the buildings or to build new recreational buildings. 10. In August 2002 the authorities in charge of the Curonian Spit National Park decided that renovation of the buildings had to meet the requirements applicable to the whole area. The buildings had to be integrated in the landscape; as they were sited in the forest, the purpose of the use of the land had to be changed. 11. In September 2002 the Klaipėda Region department of environmental protection decided that the purpose of the use of the land, on account of its specific location, could only be changed if the projects were approved by those managing protected areas or with the approval of the Ministry of Environment. In August 2003 the same department rejected a detailed plan submitted by the applicant company, seeking to amend the purpose of the land so that it became a recreational area. 12. The applicant company instituted court proceedings, urging the court to declare unlawful the authorities’ rejection of the detailed plan proposed by the applicant company (see paragraph 11 above) and to oblige them to accept it. 13. The applicant company’s claim was dismissed on 23 October 2003 by the Klaipėda Regional Administrative Court and on 27 January 2004 by the Supreme Administrative Court. The courts held that in accordance with domestic law there was no possibility to build new recreational buildings in the Curonian Spit National Park (see paragraph 53 below). The courts thus held that the applicant company’s detailed plan was contrary to the development plan. 14. In January 2004 the applicant company asked the authorities to conclude a lease agreement in respect of the land assigned to the buildings. The authorities replied that the applicant company had to provide a plan of the land. However, as there was no detailed plan of the area, the land could not be leased. The applicant company was also obliged to pay the land tax. 15. The applicant company instituted court proceedings and complained that it had to pay the land tax but the Vilnius Regional Administrative Court on 30 April 2004 and the Supreme Administrative Court on 17 September 2004 held that it had to pay the land tax because it had been using the land in question. 16. In February 2006 the applicant company asked the authorities to include the land in question in the landscape management recreational zone. In March, the Protected Areas Service replied that the development plan of 1994 indicated that the buildings had to be demolished. It said that it would formulate provisions in the explanatory report regarding the possibility to compensate the applicant company for the buildings. In this case, the applicant company would be able to acquire other buildings owned by the authorities. 17. In November 2011 the applicant company proposed that the land under its buildings be included in the recreational zone and that a compensation mechanism be determined for the buildings if the area had to be redeveloped. In December 2011 the authorities replied that the redevelopment of the area had been determined in 1994 and that they could not agree with the applicant company’s proposals. The authorities indicated that any decision regarding the applicant company’s buildings had to be taken by the Government. 18. In January 2012 the applicant company complained about the refusal of its proposal (see paragraph 17 above) to the State Territorial Planning and Construction Inspectorate. It claimed that it had legitimate expectations that it would be able to use its possessions in an appropriate manner, namely that it would be allowed to reconstruct the buildings without increasing their height. In February 2012 the Inspectorate replied that when approving the Curonian Spit National Park Management Plan (hereafter “the Management Plan”), a decision on a compensation mechanism and time-limits would also have to be taken. 19. In April 2012 the applicant company examined a draft of the Management Plan and found that its buildings were indicated as objects to be redeveloped (rekultivuojami objektai) but that that decision had not been explained. The applicant company asked the authorities to amend the draft so that it included the issue of compensation for the buildings or included the buildings in the landscape management recreational zone. 20. In May 2012 the Ministry of Environment and the Protected Areas Service replied that they had set up a working group to determine a compensation mechanism for the property that had to be expropriated. 21. In May 2012 the applicant company asked the authorities to inform it about the conclusions of the working group. In June 2012 the authorities replied that the working group had to be set up before 29 June 2012. 22. The working group was set on 20 July 2012 and had to provide its proposals before 19 November 2012. 23. In February 2010 the applicant company asked the authorities for planning permission to carry out major renovation work on one of the buildings, namely the canteen. The authorities replied that they could not issue planning permission and that the applicant company had to provide them with the lease agreement in respect of the land assigned to the buildings. Only after such agreement was provided, the authorities would examine the applicant company’s request. 24. The applicant company lodged a complaint with the domestic courts against the authorities’ refusal to issue planning permission for renovation of the canteen. On 30 August 2010 the Klaipėda Regional Administrative Court allowed the claim, holding that the applicant company had been paying the land tax, which was evidence that it had been using the plot of land. 25. On 9 May 2011 the Supreme Administrative Court allowed an appeal lodged by the authorities. It held that the applicant company had not provided any information proving that it was the owner of the plot of land, so the authorities had not been obliged to issue planning permission for renovation of the canteen. The applicant company applied for the reopening of the proceedings. Its request was refused by the Supreme Administrative Court in January 2012. 26. On 6 June 2012 the Government approved the Management Plan by Resolution No. 702 (see paragraph 54 below) and asked the Ministry of Environment to set up a working group to assess the legal grounds for expropriating property for public needs (dėl darbo grupės teisinėms prielaidoms paimti turtą visuomenės poreikiams sudarymo). The working group was set up on 20 July 2012 and its proposals were to be submitted by 19 November 2012. The Management Plan included the reserve land in Juodkrantė, indicating that its purpose was to compensate for the possible losses incurred by lawful owners of buildings that had been earmarked for demolition. 27. On 4 July 2012 the applicant company lodged a complaint with the Vilnius Regional Administrative Court, urging it to revoke the part of the Government Resolution where it had been decided that the buildings at 21 Miško street (the location of the applicant company’s buildings) would be demolished and to order the authorities to amend the Management Plan. The applicant company argued that the issue of compensation and the time-limits for the demolition of property had not even been mentioned in the Management Plan. It also argued that clear indications on compensation for the buildings and for the land tax were needed. 28. On 23 July 2012 the Vilnius Regional Administrative Court refused to examine the claim. The reasons were provided in two short paragraphs, which mainly reiterated the provisions of domestic law (see paragraph 62 below). The applicant company had complained about the lawfulness of the Government Resolution. The court considered that issues as to whether acts adopted by the Government were in accordance with the Constitution or laws fell within the jurisdiction of the Constitutional Court. It stated that it was not within the area of competence of the administrative courts to examine the lawfulness of the activities of, inter alia, the Government (as a collegial institution). As regards an amendment to the Management Plan, the court stated that that was linked to the first part of the claim and thus would not have any legal consequences on the applicant company. 29. In August 2012 the applicant company lodged a separate complaint and asked the Supreme Administrative Court to examine the case on the merits. It claimed that the first-instance court had misinterpreted the provisions of the Law on Administrative Proceedings, and thus limited the applicant company’s right of access to a court. The applicant company thought that when the Government had approved the Management Plan, it had been implementing the function of public administration, and that that document had had a direct influence on the applicant company’s rights and obligations, and was thus an individual legal act that had to be examined before the administrative courts. On 28 November 2012 the Supreme Administrative Court upheld the decision of the Vilnius Regional Administrative Court of 23 July 2012. It held that the applicant company had questioned the lawfulness of both the Management Plan and the development plan. The Supreme Administrative Court held that when the Government had approved the Management Plan, it had been carrying out the function of State power. Moreover, the court had already ruled on the issue of the attribution of the Management Plan to the jurisdiction of the administrative courts and had decided that it had not been attributable to those courts (see paragraph 79 below). The court indicated that a legal act could consist of textual and graphic information (tables, drawings, schemes, plans, symbols, emblems). The Constitutional Court had already held that all parts of a legal act were interrelated and were of equal legal effect (see paragraph 77 below). The court further held that the present case was in substance identical to cases already examined by it, and that there were no grounds to reach a different conclusion on the nature of the Management Plan. The court explained that the applicant company could only raise the issue of the lawfulness of the Government Resolution in the context of an individual case regarding violation of its specific rights (by complaining against an individual legal act, by which the Government Resolution and the decisions of the Management Plan would be implemented). It could then ask the court examining that case to refer the issue to the Constitutional Court. The applicant company’s request to organise the procedure to amend the Management Plan so that it included the land in question in the landscape management recreational zone was dismissed because the applicant company had failed to address the authorities or the courts after the approval of the Management Plan. 30. The applicant company then applied for the reopening of the proceedings. On 3 April 2013 the Supreme Administrative Court rejected its application on the grounds that the applicant company’s claims had been dismissed for being outside the administrative court’s jurisdiction and the proceedings could only be reopened if an administrative case had been examined on the merits. 31. In October 2011 the applicant company asked the authorities which documents were necessary for the proposed renovation work. In November 2011 the authorities replied that it was not clear from the applicant company’s request which building (“specific, not complex or nonspecific” (ypatingas, nesudėtingas ar neypatingas), as defined in the domestic law) it was aiming to renovate. The applicant company had indicated major repair work. The authorities stated that a detailed plan was not necessary, the location of the building to be renovated was not important and a document proving ownership of the land (see paragraph 25 above) was not necessary either. 32. In May 2013 the Neringa Municipality inspected the applicant company’s buildings and held that they were in a state of disrepair. It requested that the applicant company appoint a person responsible for the maintenance of the buildings before 3 June 2013, remove the damaged parts of the buildings before 1 July 2013 and renovate the buildings before 31 May 2014. 33. On 30 December 2013 the applicant company asked the authority in charge of the Curonian Spit National Park to issue planning permission to carry out major repair work in order to renovate the buildings. The same month the applicant company received a response that permission could not be issued because it would be contrary to the Management Plan of 6 June 2012 (see paragraph 26 above). 34. The applicant company instituted court proceedings before the Vilnius Regional Administrative Court against the decision of the authority in charge of the Curonian Spit National Park of 30 December 2013 (see paragraph 33 above). It urged the court to order the authority to issue the planning permission required for it to carry out major repair work and to award it EUR 48,489 in respect of pecuniary damage for the land tax and property tax it had paid between 2000 and 2014. 35. In the course of proceedings the applicant company submitted a draft friendly settlement agreement to be concluded by the State, proposing that the State compensate it for the removal of the buildings by providing the applicant company with lease rights to State-owned land measuring 0.7685 hectares in Neringa with construction rights. The State representative refused to agree to the proposal because it was in breach of domestic law (see paragraph 63 below). 36. On 14 November 2016 the Vilnius Regional Administrative Court held that the refusal of the authority in charge of the Curonian Spit National Park to issue the planning permission required to carry out major repair work was in accordance with the relevant domestic law. The applicant company also asked the court to refer the question of whether the Management Plan was in accordance with the Constitution to the Constitutional Court. The court acknowledged that the authority’s decision had lacked a seal of approval but held that that shortcoming could not be regarded as grounds to overrule the decision. The court also held that the authority had not acted unlawfully, so there were no grounds for awarding the applicant company pecuniary damages. Moreover, domestic law did not require that the Management Plan contain a compensation mechanism for the buildings to be “removed”. However, the Management Plan in question indicated that an area in Juodkrantė had been designated to compensate for the losses incurred by the lawful owners of the buildings to be removed. Thus the Management Plan provided for the opportunity to compensate for possible losses. As regards the referral to the Constitutional Court, the court held that the applicant company had mistakenly stated that the decision to remove the buildings had only been indicated in the Management Plan. The court stated that it was a commonly known fact that the applicant company’s buildings had been earmarked for removal at the time the purchase agreement had been concluded, and the applicant company, as a diligent legal entity, should have assessed the legal status of the buildings and the restrictions on their use. The legitimate expectations of the applicant company had not been breached as it had not proved the need to refer the issue to the Constitutional Court. The court also pointed out that the buildings had not been taken from the applicant company for the needs of society (see paragraph 45 below). However, when using them the applicant company had to follow the legal regulations, which established that construction in the area in question was not allowed and that it was attempting to protect its rights in the wrong way. The decision that had had legal consequences for the applicant company had been the decision to privatise the buildings and to sell them to the applicant company. 37. In December 2016 the applicant company appealed and asked the Supreme Administrative Court to refer the matter to the Constitutional Court; to overrule the decision of the authority in charge of the Curonian Spit National Park of 30 December 2013; to order the authority to issue the applicant company with the planning permission required to carry out major repair work and to award it EUR 48,489 in respect of pecuniary damage. The proceedings are still ongoing. 38. On 15 April 2015 the Government adopted Resolution No. 389 approving the start of the amendment of the Management Plan. One of the purposes set out in the resolution was to combine the interests of the State and municipalities with those of the relevant natural and legal persons. 39. In June 2016 the applicant company submitted its proposals, namely that the area in which its buildings were located be included in the landscape management zone and that the buildings there should not exceed one storey with an attic. If the proposal to redevelop the land were maintained, the applicant company wanted a clear decision on time-limits for redevelopment and a compensation mechanism. 40. On 20 June 2016 the Protected Areas Service indicated that the land on which the applicant company’s buildings were sited was not affected by the amendment of the Management Plan. It also indicated that the reply could be appealed against to the Supreme Administrative Disputes Commission (“the commission”) or to the Vilnius Regional Administrative Court in one month from its reception. 41. In July 2016 the applicant company lodged a complaint with the commission about the reply of the Protected Areas Service (see paragraph 40 above). The applicant company stated that it had paid EUR 41,887 in land tax and EUR 22,795 in property tax between 2000 and 2014. It also stated that although the Management Plan had entered into force in 2012, it had not been proven that removing the buildings was necessary in the interests of society. There had also been no indications about the exact time-limits and procedure for the removal of the buildings. The applicant company thus asked the commission to overrule the decision of the Protected Areas Service of 20 June 2016 and to order it to amend the Management Plan in accordance with the applicant company’s proposals. 42. In August 2016 the commission closed the case, stating that the issue was not within its competence. The applicant company appealed against that decision, claiming that it had been formal and lacked reasoning, and that the commission had ignored the fact that the Protected Areas Service’s reply of 20 June 2016 had indicated that it was amenable to appeal before the administrative courts or the commission (see paragraph 40 above). 43. On 15 December 2016 the Vilnius Regional Administrative Court dismissed the applicant company’s appeal. It held that the applicant company had been represented by professional lawyers and the mere fact that the Protected Areas Service had erroneously indicated that its decisions were amenable to appeal did not discharge the applicant company of the obligation to follow the appeal procedure as laid down in domestic law (see paragraph 50 below). The court held that the applicant company had to address the State Territorial Planning and Construction Inspectorate with its complaint. 44. In January 2017 the applicant company appealed before the Supreme Administrative Court. The proceedings are still ongoing.
| 0 |
test
|
001-170285
|
ENG
|
UKR
|
CHAMBER
| 2,017 |
CASE OF ABUHMAID v. UKRAINE
| 3 |
Preliminary objection joined to merits and dismissed (Article 34 - Victim);Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life;Positive obligations)
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
|
6. The applicant was born in 1970 in Rafah, Gaza. He currently lives in Kyiv. 7. Between 1977 and 1993 the applicant lived mainly in Rafah. He claimed to have been involved in the activities of Fatah, the Palestinian political organisation. 8. In 1993 the applicant went to Ukraine to study. The same year he entered Kyiv Polytechnic University. In 1999 the applicant finished his studies at the University and obtained a master’s degree in biomedical electronics. In 2001 the applicant enrolled in a postgraduate course at the same University. In 2003 he withdrew from the course as he had no money to pursue his studies. The applicant claims that since 2003 he has been working as a freelance translator/interpreter for the Embassy of Libya in Kyiv and for various private companies (the applicant speaks fluent Arabic, English and Russian, and understands Ukrainian). 9. In 1998 the applicant married a Ukrainian national. In 2007 they divorced. In 2011 the applicant married another Ukrainian national; their marriage lasted for less than two months. In March 2013 the applicant entered into a relationship with another Ukrainian national. In January 2014 they married and currently live together as a family. 10. The applicant visited Gaza twice in 2000. According to the applicant, one of the visits was due to his father’s death. Since December 2000 the applicant has remained in Ukraine without leaving its territory. 11. In 2001 the applicant was issued with a registration card by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”). The card bears the name “Hicham Ahmad Sadiddin Hmeid”. The applicant attributes the difference in the spelling of his name to varying transliterations of Arabic names. Similar cards were issued to the applicant’s mother and sister, who currently reside in Rafah. 12. Prior to November 2009 the applicant was staying in Ukraine on the basis of passports of limited duration, issued by the Palestinian Authority, and temporary residence permits, which were regularly extended by the Ukrainian police. In 2008-09 an extension of the applicant’s residence permit was requested by the Embassy of Palestine and granted by the Ukrainian authorities, as at the time access to the Palestinian territories was problematic. 13. In 2003 the applicant started preparing documents to apply for a permanent residence permit on the basis of his marriage to a Ukrainian national. He could not complete his application because his then brother-in-law was opposed to the applicant being registered as resident in the flat in which the applicant, his then wife and brother-in-law resided at the time. 14. On 9 March 2010 the applicant applied to the migration unit within the Golosiyivkyy District Police Department in Kyiv for an extension of his residence permit. The police noted that the applicant’s residence permit had expired in November 2009 and that since then the applicant had been in Ukraine in violation of migration regulations. 15. On 10 March 2010, at the request of the police, the Golosiyivskyy District Court in Kyiv, relying on Article 203 § 1 of the Code on Administrative Offences, ordered the applicant to pay a fine for violating migration regulations. 16. The applicant’s identification documents were kept by the Golosiyivkyy District Police Department pending the outcome of the applicant’s request for an extension of his residence permit. 17. According to the applicant, about a week later his residence permit was extended until 15 September 2011. The Government contested that submission, stating that no extension had been granted. 18. In the meantime, on 11 March 2010 the applicant was stopped by officers of the Solomyanskyy District Police Department in Kyiv for an identity check. As he had no identification documents, the applicant was arrested and taken to the police station. The applicant stated that his explanation that his documents were being kept at another police department had not been taken into account. On 12 March 2010 the applicant was taken to the Solomyanskyy District Court in Kyiv, which, having examined the material submitted by the police, fined the applicant for failure to carry identification and foreigner’s registration documents. 19. On 28 April 2010 the applicant was stopped by officers of the Desnyanskyy District Police Department in Kyiv for an identity check. Having noted that the applicant was living in a flat in Kyiv without a rent contract or official registration, the officers asked the Desnyanskyy District Court in Kyiv to fine the applicant. By a decision of 28 April 2010, the court ordered the applicant to pay a fine for violating migration regulations. 20. The applicant did not appeal against the court decisions convicting him of administrative offences, as he had no legal representation and took the view that those decisions would not have any consequences for his stay in Ukraine. 21. On 16 September 2011 the applicant went to the migration unit of the Chief Police Department in Kyiv to apply for an extension of his residence permit. On the way he was stopped by officers of the migration unit of the Solomyanskyy Police Department in Kyiv, who informed the applicant that there had been an order deporting him from Ukraine. The officers seized the documents the applicant had with him for his application for an extension of his residence permit, including his passport and marriage certificate. The documents have not been returned to the applicant. The applicant claimed that for that reason he could not provide a copy of his most recent residence permit. 22. Subsequently the applicant contacted a lawyer, who helped him to obtain copies of the decisions concerning his expulsion and to lodge an appeal against them (see paragraph 28 below). 23. On 17 March 2010 the Solomyanskyy District Police Department in Kyiv issued a decision stating that the applicant should be removed from Ukraine for violation of migration regulations and banning him from entry to the country until 12 March 2015 under section 32 of the Legal Status of Foreigners and Stateless Persons Act 1994 (see paragraphs 64-67 below). In the decision, it was noted that the applicant had come to Ukraine in 2005 for a private visit; that after the expiry of his residence permit he had remained in Ukraine illegally; that he had not requested an extension of his residence permit; that he had no relatives in Ukraine; that he had no work permit; that he had earned his life working at a market in Kyiv; and that he was “known to the police”. 24. According to the Government, the applicant was informed of the decision of 17 March 2010 on the same day and asked for a court hearing on his expulsion case (see paragraph 27 below) in his absence. In support, they provided copies of written statements allegedly signed by the applicant and by a translator. 25. The applicant claimed that he had not been informed of that decision and that the written statements in that regard had been forged by the police. The applicant also argued that he had not been aware that subsequently, in May 2010, the police had initiated court proceedings for him to be forcibly removed from Ukraine. 26. In their written submissions made in the course of those proceedings, the police reiterated the findings in the decision of 17 March 2010 and requested the Kyiv Administrative Court to order the applicant’s immediate forcible removal and his placement in a facility for temporary detention of foreigners and stateless persons for the period necessary to prepare the removal. In the latter regard, the police argued that there were reasons to believe that the applicant would try to remain illegally in Ukraine. 27. On 18 May 2010 the Kyiv Administrative Court heard the case in the absence of the parties, having noted that the applicant had submitted a written statement that he did not wish to be present and that he agreed with the expulsion decision, and also that the police were not able to attend the hearing because of their high workload. The court relied on the findings in the decision of 17 March 2010 and allowed the claims of the police. In its decision, the court noted that its ruling was to be enforced immediately and that it could be appealed against within ten days under Articles 185-187 of the Code of Administrative Justice. If no appeal was lodged against the decision it would enter into force after the expiry of the ten-day period. 28. According to the applicant, he was informed of the decision of 18 May 2010 on 25 November 2011. On 29 November 2011 a lawyer submitted an appeal on the applicant’s behalf, together with a request for renewal of the ten-day time-limit, to the Kyiv Administrative Court for further transfer to the Kyiv Administrative Court of Appeal. 29. In the appeal, the applicant argued that he had been studying in Ukraine between 1993 and 1999. In December 2000 he had returned from Palestine to Ukraine fearing persecution by the Israeli authorities. Without providing any further details, the applicant stated that he had been arrested and tortured by the Israeli authorities with the aim of obtaining his confession of cooperation with Hamas. The applicant further noted that he was married to a Ukrainian national, that he had been officially allowed to stay in Ukraine until 16 September 2011, and that on that day the police had seized his identification documents and ordered him to leave Ukraine. The applicant also expressed the wish to apply for asylum once the Migration Service started accepting asylum applications according to the new regulations (see paragraphs 75-79 below). 30. The applicant complained that the first-instance court had failed to examine all the facts pertinent to the case and to hear him. According to the appeal, the applicant had not been informed of the decision of 17 March 2010 and had not asked the court to hear the case in his absence. 31. He also argued that the first-instance court had not checked whether it was safe for the applicant to return to Palestine and had not been informed of the circumstances essential for the outcome of his case. In particular, the applicant argued that the Ukrainian police had withheld the information that he had a valid residence permit and that he had used to be married to a Ukrainian national. The applicant complained that the expulsion decision of 17 March 2010 had been taken in violation of Articles 2, 3 and 5 of the Convention, given the human rights situation in Palestine, and in violation of the domestic procedure. 32. On 14 November 2012 the Kyiv Administrative Court of Appeal heard the case in the absence of the parties. It is unknown whether the applicant or his lawyer intended to take part in the hearing and, if so, whether they informed the Court of Appeal accordingly. 33. The appeal was rejected as unsubstantiated. In particular, the Court of Appeal relied fully on the findings of the first-instance court and noted that “the claimant, having been removed from Ukraine, had crossed the Ukrainian border despite the existing entry ban”. The decision entered into force immediately. 34. On 6 December 2012 the applicant lodged with the Higher Administrative Court a cassation appeal challenging the factual and legal findings of the lower courts. The applicant also complained that his expulsion from Ukraine would be contrary to Article 8 of the Convention given his personal and family ties with that country. 35. On 3 October 2013 the Higher Administrative Court overturned the lower courts’ decisions on the ground that they had failed to examine whether there were grounds preventing the applicant’s expulsion under Ukrainian law. The Higher Administrative Court also noted that the lower courts had not given due consideration to the applicant’s private and family life interests in Ukraine. The case was thus sent for re-examination to the first-instance court. 36. After another round of examination by the courts at the first and appeal levels of jurisdiction resulting in a decision ordering the applicant’s forcible removal from Ukraine, in February 2014 the case was sent back to the start again by the Higher Administrative Court, for the same reasons as in its decision of 3 October 2013. 37. On 29 October 2014 the Desnyanskyy District Court, to which the case was eventually remitted, refused the application for the applicant’s forcible expulsion. 38. The court held that the applicant’s forcible removal from Ukraine would be in violation of his right to respect of family life as guaranteed by Article 8 of the Convention, having regard in particular to the fact that the applicant was married to a Ukrainian national. It also found that, in the event of his removal to Palestine, the applicant’s life and security would be endangered, given the armed conflict on that territory, which would entail a violation of Ukraine’s commitments under Articles 3 and 5 of the Convention. The court took the view that the applicant had grounds to be given the status of refugee or of a person in need of complementary protection. The court also noted that, by operation of the statutory one-year time-limit (see paragraph 58 below), the applicant could no longer be considered as having committed the administrative offences of which he had been convicted in 2010 (see paragraphs 15, 18 and 19 above). 39. That decision was not appealed against and became final. 40. On 25 January 2012 the applicant lodged an asylum application with the State Migration Service. According to the applicant, in his application he stated that he feared persecution by Hamas if returned to Gaza, as he had been a member of Fatah. 41. According to the applicant, during the assessment of his asylum case migration officers questioned him on two occasions. They asked formal questions not related to the substance of his allegations. 42. On 1 August 2012 the applicant received a written notice dated 21 June 2012 that his asylum application had been refused by a decision of the State Migration Service of 17 May 2012 and that he could challenge it before the courts. No copy of the decision was given to the applicant. 43. On 3 August 2012 the applicant challenged the refusal of his asylum application before the Kyiv Administrative Court. In particular, the applicant argued that he had not been informed of the reasons for that decision, and that this prevented him from effectively appealing against it. The applicant also argued that the examination of his application had not been thorough and objective, as his questioning had been formalistic and no additional information had been sought concerning the general situation in Palestine or the applicant’s personal circumstances from other State authorities, such as the State Security Service, or from the applicant himself, to check the reliability of his submissions. The applicant stated that he had not been given access to the evidence in the inquiry. He maintained his allegation that he was at risk of persecution by Hamas, and also argued that if returned to Gaza, as a male Palestinian he ran a real risk of ill-treatment by the Israeli authorities, even though he did not support Hamas. In that regard, he referred to the reports of Amnesty International and Human Rights Watch concerning the human rights situation in Palestine in 2012. The applicant also contended that the Migration Service had disregarded that, as a Palestinian refugee registered with UNRWA and outside its field of operation he was entitled to the same protection in Ukraine as refugees under the United Nations Convention Relating to the Status of Refugees of 1951. 44. On 20 September 2012 the court rejected the applicant’s case, finding that the Migration Service had examined the matter thoroughly and fully and that the applicant’s arguments were unsubstantiated. In particular, the court noted that the material relating to the applicant’s asylum proceedings demonstrated that he did not run an individual and real risk of persecution by the Palestinian authorities, as Hamas and Fatah had entered into negotiations concerning a transitional government for Palestinian territories; he had not been subjected to such persecution at any time; the applicant had not provided any evidence that he would not be able to avail himself of the protection of his country of origin; he had travelled freely to and from Palestine; all his family lived there; and he did not face criminal prosecution there. The court also noted that the applicant had left his country of origin voluntarily for economic and personal reasons; he had had his residence permit in Ukraine repeatedly extended for personal reasons; and he had requested asylum only after he had not been able to legalise his further stay in Ukraine. Relying on the latter ground, the court found that the applicant had missed the time-limit for lodging an asylum application pursuant to Article 5 of the Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011. On the whole, the court found that it had been for the applicant to provide documents or persuasive arguments demonstrating that he had run a real and personal risk of persecution, which he had failed to do. 45. On 25 October 2012 the applicant lodged an appeal with the Kyiv Administrative Court of Appeal. In particular, he stated that his allegations of risk of persecution by Hamas and by the Israeli authorities were, inter alia, supported by the fact that his passport had been issued by the Palestinian Authority associated with Fatah, by his registration card issued by the UNRWA, and by various international reports, which neither the Migration Service nor the court of first instance had sought to obtain or examine. According to the applicant, the court’s review of his case had not been full or thorough, thus falling short of the requirements of the Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011, as interpreted by the Plenary Higher Administrative Court (see paragraphs 80-86 below). 46. On 4 December 2012 the Court of Appeal rejected the applicant’s appeal, having agreed with the first-instance court in that the applicant had failed to substantiate his asylum application as required by the national law and pertinent international documents, including the European Union Council Directive of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status and the Guidelines on procedures and criteria for determining refugee status under the 1951 Geneva Convention, issued by the UNHCR in 2011. 47. The applicant appealed in cassation, stating that the lower courts had not fully examined the material pertinent to his case, which had resulted in a wrong dismissal of his asylum request, in violation of Articles 3, 8 and 13 of the Convention. As to Article 8, the applicant noted that he had studied in Ukraine between 1993 and 1999, that since 2000 he was permanently resident on its territory, and that he was married to a Ukrainian national. 48. On 7 February 2013 the Higher Administrative Court rejected the applicant’s cassation appeal, having found no elements demonstrating that the lower courts had erred in the application of substantive or procedural law or that review of the evidence in the case was required. 49. In November 2014 the applicant lodged a new asylum application with the State Migration Service. 50. On 24 December 2014 the Kyiv Department of the State Migration Service refused to examine the application, finding that it was wholly unsubstantiated. 51. On 20 July 2015 the Kyiv Administrative Court overturned that decision, having found that the State Migration Service had failed to thoroughly examine the matter. The court in particular found that, although the arguments on which the applicant’s new application for asylum had been based were the same as in the applicant’s initial application, the new application needed to be reconsidered in the light of the decision of the Desnyanskyy District Court of 29 October 2014 and on the basis of the new Act on the Legal Status of Foreigners and Stateless Persons, which had entered into force on 25 December 2011. It therefore ordered the State Migration Service to reconsider the applicant’s new asylum application. 52. The reconsideration of the applicant’s new asylum application is currently pending. According to the Government, by operation of section 1 of the Refugees and Persons in Need of Complementary or Temporary Protection Act (see paragraph 79 below), this gives the applicant a lawful ground to stay in Ukraine for the duration of the said reconsideration. 53. As he could not obtain asylum in Ukraine and in order to use all possible opportunities to legalise his stay in Ukraine in order to evade expulsion, in 2014 the applicant applied for leave to immigrate, principally relying on the fact that he was married to a Ukrainian citizen. The Migration Service refused to examine his application as there were inconsistences in the spelling of his name in the applicant’s asylum seeker’s certificate and in his passport and marriage certificate. The applicant’s requests for the relevant changes to be made in the documents were allegedly ignored by the authorities. 54. The applicant further claimed that an official from the Migration Service told him that he would have to leave Ukraine and to apply for leave to immigrate from abroad in order to obtain leave to enter Ukraine lawfully. 55. According to the applicant, he could not leave Ukraine as he had nowhere to go. In Palestine his life and health would be endangered and he had not maintained close links with the place where he lived before he had moved to Ukraine. In his view, he could not apply for leave to immigrate into Ukraine, as he could not be considered as staying on its territory “on lawful grounds”, which was required by the Immigration Act (see paragraph 74 below). According to the Government, the applicant could not apply for leave to immigrate while his asylum application was being examined. Furthermore, pursuant to Article 4 § 3 (1) of the Immigration Act leave to immigrate could be granted to an alien who had been married to a Ukrainian citizen for over two years (see paragraph 74 below). At the time, the applicant’s marriage had lasted for less than two years. Thus, no leave to immigrate could be granted to him on that ground. 56. The parties did not inform the Court of any further developments in that regard.
| 0 |
test
|
001-169214
|
ENG
|
UKR
|
CHAMBER
| 2,016 |
CASE OF FRIDA, LLC v. UKRAINE
| 3 |
Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)
|
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
|
5. The applicant company is a limited liability company registered in 2004 in Ukraine, with its registered office in Kyiv. 6. On 12 April 2005 the applicant company and another company, S., concluded an agreement by which the applicant company undertook to provide information and analytical services to S., and the latter undertook to pay for those services. On 24 November 2005 the parties concluded an additional agreement for supplementary services to be provided to S. by the applicant company. 7. On 27 April 2006 the applicant company lodged a claim against S. with the Kyiv Commercial Court, seeking recovery of an alleged debt under the above agreement, as well as the payment of penalties and legal fees. 8. On 9 June 2006 the Kyiv Commercial Court opened the proceedings in the case. 9. On 11 September 2006, during a hearing in the case, S. submitted a counterclaim, seeking that the agreement be declared void. The court adjourned the hearing until 14 September 2006 without deciding on the admissibility of the counterclaim. 10. On 14 September 2006 the judge hearing the case accepted S.’s counterclaim for joint consideration with the original claim by the applicant company. At the same hearing, the judge granted S.’s counterclaim in part and rejected the original claim of the applicant company in full. According to the record of the hearing, the hearing lasted ten minutes. 11. On 13 October 2006 the applicant company lodged an appeal on points of law against the judgment of 14 September 2006 with the Higher Commercial Court of Ukraine (“the HCCU”). It argued that the proceedings before the first-instance court had not been adversarial, and had not complied with the principle of procedural equality between the parties: the first-instance court had not provided the applicant company with an opportunity to prepare and submit observations as to S.’s counterclaim or collect and provide evidence in defence. The applicant company requested that the impugned judgment be quashed and the case remitted to the first-instance court for fresh consideration. 12. On 9 November 2006 the HCCU returned the applicant company’s appeal on points of law to it without considering the appeal on the merits, because the relevant court fee had not been paid in full. 13. On 21 November 2006 the applicant company resubmitted its appeal on points of law with proof of having paid the full court fee. The appeal on points of law was submitted together with a cover letter. In the cover letter, the applicant company set out the circumstances which had resulted in its missing the deadline for appealing on points of law, and asked the HCCU to extend the relevant time-limit and consider the appeal. Apart from that information, the cover letter contained the date, name and address of the court to which it was addressed, the case reference number, the parties’ contact details, and the disputed amount which was the subject of the case. The letter ended with a list of enclosures, the applicant company’s lawyer’s details, his signature and a stamp. 14. On 19 December 2006 the HCCU found that the applicant company had submitted the second appeal on points of law outside the time-limit provided for by Article 110 of the Code of Commercial Procedure, and had failed to enclose an application for an extension. Relying on sub-paragraph 5 of Article 111-3 § 1, the HCCU declined to consider the applicant company’s appeal on points of law. 15. On 4 January 2007 the applicant company challenged the decision of 19 December 2006 before the Supreme Court, arguing that on 21 November 2006 it had in fact applied for an extension of the time-limit for lodging the appeal on points of law with the HCCU. The application had been included in the text of the cover letter accompanying the appeal on points of law. 16. On 22 February 2007 the Supreme Court upheld the decision of 19 December 2006.
| 1 |
test
|
001-177692
|
ENG
|
MKD
|
COMMITTEE
| 2,017 |
CASE OF SPIRIDONOVSKA AND POPOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 4 |
No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
|
Aleš Pejchal;Krzysztof Wojtyczek
|
5. The applicants were born in 1954 and 1951 respectively and live in Kumanovo. 6. On 23 August 1948 a plot of agricultural land (“the land”) was confiscated from V.R., the applicants’ late grandmother, on the basis of the Expropriation Act (акт за експропријација – “the first confiscation order”), issued by the Kumanovo Peoples’ City Council (Градски Народен Одбор во гр. Куманово). According to the first confiscation order, the total surface area of the land was six shinik (шиник – an old unit of land area (see paragraph 25 below)). 7. On 20 October 1948 a second confiscation order was issued concerning a plot of land owned by V.R. The second confiscation order did not specify the surface of the land which was to be confiscated. 8. On 17 December 1948 the Kumanovo Confiscation Commission adopted a confiscation decision (решение за експропријација), which confirmed the above confiscations of V.R.’s real property. According to the decision, the total area of the confiscated land was 3,349 square metres (sq. m). 9. In a final court decision in inheritance proceedings of 19 January 2001, each applicant was declared heir of one half of the land confiscated from their late grandmother. According to this decision, the surface area of the land in question was six shinik. 10. On 15 February 2001 the applicants instituted restitution proceedings under the Restitution Act seeking restoration of the land confiscated from their grandmother. In support of their claim they submitted the first confiscation order (see paragraph 6 above). Copies of the restitution claim and the accompanying documents were communicated to the Solicitor General (Јавен Правобранител). It appears that the Solicitor General did not submit any observations in reply. 11. On 25 June 2001 the Kumanovo Restitution Commission (part of the Ministry of Finance) (“the Restitution Commission”) made an on-site inspection and found that the land in question had been free of any buildings. 12. On 14 January 2002 the Restitution Commission accepted the applicants’ restitution claim and decided to restore to their possession the plot of land, the total surface area of which was 8,309 sq. m, which, as stated in the order, corresponded to six shinik (“the restitution order”). The order stated that the plot had been confiscated on the basis of the first confiscation order (see paragraph 6 above). Through a proprio motu investigation it also established that the land in question had been part of a larger undeveloped, State-owned plot. 13. It appears that the Solicitor General was served with a copy of the order but did not lodge an appeal against it. As a consequence, it became final on 18 June 2002. 14. On 27 June 2002 the total area of the land was transferred in the second applicant’s possession (воведување во владение). The applicants then had their property rights registered in the relevant Land Registry. 15. In a decision of 15 April 2003, which became final on 16 May 2003, the Kumanovo Court of First Instance, in non-contentious proceedings, accepted the applicants’ application to have the State, represented by the Solicitor General, delineate the area belonging to them (8,309 sq. m) from a larger plot of land belonging to the State. By this decision the applicants became the owners of a separate plot of land with the total area of 8,309 sq. m. 16. In October 2003 the Solicitor General applied to have the applicants prohibited from further disposing of the land since the land restored to their possession had not corresponded to the land confiscated from their late predecessor in terms of its surface area. 17. On 28 October 2003 the Kumanovo Court of First Instance dismissed that application finding that the land had been restored to the applicants’ possession on the basis of the restitution order. Furthermore, no proceedings had been instituted under section 63 of the Restitution Act (see paragraph 37 below) by a third party. 18. On 1 July 2004 the Skopje Court of Appeal upheld this decision noting that the Solicitor General had furthermore participated in the proceedings concerning the delineation of the land (see paragraph 15 above). 19. On 7 October 2003 the Solicitor General sought, in administrative proceedings, that the restitution order be declared, under section 267(1)(5) of the Administrative Procedure Act (see paragraph 37 below), partially null and void in respect of the part of the land which had been returned to the applicants but allegedly had not been confiscated from their predecessor. The Solicitor General argued that the restitution order had been based on the first confiscation order, which had been invalid since it had neither been signed nor stamped and it had specified the surface of the confiscated land in shinik. He had submitted the second confiscation order, which had specified that the surface area of the confiscated land had been 3,340m2. The Solicitor General therefore lodged an application to have the restitution order declared partially null and void regarding the difference in surface area of the land specified in the first confiscation order of 23 August 1948 and the confiscation decision of 17 December 1948. 20. On 23 May 2005 the Second-Instance Administrative-Procedure Commission in the Area of Denationalisation (Комисија за решавање во управна постапка во втор степен од областа на денационализацијата – “the second-instance commission”) dismissed that application finding that the final restitution order, which had meanwhile been enforced, could not be declared null and void on the basis of section 267(1)(5) of the Administrative Procedure Act because the sections of the Restitution Act on the basis of which the restitution order had been made had not contained any explicit provisions allowing for its nullification, as required under that subparagraph. As for the argument that the confiscation order had been neither signed nor stamped, is was stated that this could have been put forward before the finality of the restitution order, and could not have led to declaring the order null and void on the basis of section 267(1)(5). 21. The Solicitor General challenged the latter decision by lodging an administrative action (тужба за управен спор) with the Administrative Court in which he complained that the restitution order of 14 January 2002 had been based on a confiscation order which had not been signed and stamped and on erroneous facts regarding the surface area of the land. In this connection the Solicitor General referred to an extract from the State Archives dated 16 August 2005 which indicated that the land had been expropriated on the basis of a confiscation order of 20 October 1948. In this submission the Solicitor General noted that his claims regarding the differences in the surface areas had been substantiated by documents supplied to him by “interested parties” according to which the accurate area of the land could be established. 22. On 14 March 2008 the Administrative Court upheld the decision of the second-instance commission, finding that the remedy under section 267(1)(5) relied on by the Solicitor General had been inapplicable to the facts of the case. It further stated that the missing stamp and signature were not sufficient reasons to declare the restitution order null and void. Under the terms of the relevant domestic law applicable at the time, this was the final decision. With regard to the differences in surface areas the judgment stated: “The court, in deciding, assessed the arguments of the [Solicitor General] put forward in the claim, but it did not accept them as bases to decide differently, because none of the conditions under [section] 267 of the Administrative Procedure Act for declaring the order null and void had been fulfilled.” 23. On 14 January 2009 the Restitution Commission, acting on its own motion (по службена должност) and relying on section 267(1)(3) of the Administrative Procedure Act, found that the restitution order was unenforceable and declared it null and void in full (“the nullity decision”). It further held that the merits of the case would be decided in a separate decision. It also issued a provisional measure (привремен заклучок), prohibiting the applicants from selling the land until the final resolution of the case. 24. The Restitution Commission indicated that in the course of examining a separate restitution claim submitted by the heirs of a certain G.T, it had reviewed the documents concerning the applicants’ restitution application. 25. The Restitution Commission held that under the applicable law in 1948, a confiscation order (акт за експропријација) had had to precede a confiscation decision (решение за експропријација). It found that the restitution order had been based on the confiscation order of August 1948, according to which the total surface area of the land formerly owned by the applicants’ predecessor had been six shinik. However, the confiscation decision dated 17 December 1948, on the basis of which the plot had been confiscated, had specified that the surface area of the confiscated land had been 3,349 sq. m. The Restitution Commission also referred to evidence submitted on 23 August 2001 by the Land Registry Office, according to which the area of the plot had been six shinik and had represented a part of a larger plot of land, the total surface area of which was 8,309 sq. m. A further extract from a “Geodetic Review of the Association of Land Experts of Macedonia” and “Review of old units of land area and their conversion into hectares, areas and sq. m”, issued on the basis of a letter dated 25 March 1952, specified that one shinik corresponded to 650 sq. m. Lastly, the Commission relied on a cadastral plan drawn up by a licenced surveyor (катастарска скица изработена од геометар) made for a separate set of restitution proceedings (instituted by the heirs of G.T.), according to which the surface area of the land, formerly owned by the applicants’ predecessor, had been 3,763 sq. m. In such circumstances, the Commission found that the applicants had unlawfully obtained possession of 4,546 sq. m of land, on the basis of the restitution order. For those reasons, the Commission held that the restitution order had been contrary to sections 1 and 2 of the Restitution Act and was legally unenforceable pursuant to section 267(1)(3) of the Administrative Procedure Act. In respect of the latter section, the Commission held that the unenforceability of a decision concerned not only the factual (фактичка), but also the legal (правна) impossibility of enforcement. 26. Both applicants appealed, arguing that the restitution order was a final decision which could not be altered. They also referred to the judgement of the Administrative Court of 14 March 2008, which had stated that none of the conditions for nullity under section 267 of the Administrative Procedure Act had been fulfilled (see paragraph 22 above). 27. On 13 October 2009 the second-instance commission dismissed the applicants’ appeals, endorsing the reasoning given by the Restitution Commission. It held that the Restitution Commission had been obliged, pursuant to section 268 of the Administrative Procedure Act, to declare the restitution order null and void. 28. The applicants lodged an administrative action against the latter decision before the Administrative Court. They again referred to the judgement of the Administrative Court of 14 March 2008 (see paragraph 22 above). They further stated that the issue of nullity had already been finally resolved following the application lodged by the Solicitor General (see paragraphs 19-22 above). 29. On 17 May 2010 the Administrative Court upheld their action and annulled the decision of the second-instance commission. The court further rejected as inadmissible an application by R.T. and B.T., the legal successors of G.T. (“the third persons”), to intervene in the proceedings. The relevant part of the judgment reads as follows: “... In the court’s opinion, there has been no breach of section 267(1)(3) of the Administrative Procedure Act ... This section concerns the impossibility for factual enforcement and the legal impossibility for enforcement which would be in contravention of ... legislation. In the present case there is no such situation and therefore it cannot be considered that section 2 of the Restitution Act has been breached ... This is so because the evidence admitted in the course of the proceedings provides a certain basis for the court to conclude that in the present case the restitution order ... was adopted in accordance with the Restitution Act, which had been preceded by a correct and full establishment of the facts, thereby leading to the conclusion that in that case all statutory conditions had been fulfilled for [the return of] the property concerned. With regard to the application lodged by R.T. and B.T. ... it is clear that [they] did not participate, nor could they have participated in the administrative proceedings initiated by other persons who claimed a right to restitution of a part of the property which had indisputably been in the possession of their legal predecessors. In view of that ... in the present case there is no possibility that third persons (interested persons) can have standing as parties to the restitution proceedings. However, that does not mean that those persons will be deprived of the right to protect their rights and interests ... a possibility remains for them to establish their rights by lodging a civil claim before a competent court within five years of the finalisation of the restitution order (section 63, paragraph 2 of the Act), against the persons to whom possession was restored or compensation was paid in accordance with the provisions of the Act.” 30. On 3 and 4 August 2010 the Solicitor General and the third persons respectively appealed against that judgment before the Supreme Court, which had in the meantime become competent to act upon appeals against judgments of the Administrative Court. In the appeal the third persons argued that the difference between 3,349 sq. m and the surface originally granted to the applicants belonged to them and adduced evidence to this end. The applicants submitted observations in reply. 31. On 25 October 2010 the Supreme Court accepted the appeal submitted by the Solicitor General and overturned the decision of the Administrative Court. The relevant part of the judgment reads as follows: “In the Supreme Court’s opinion, which has been stated in several of this court’s cases, a restitution order can be considered as legally impossible to enforce, if there are breaches of the law which cannot be remedied with the application of other legal means, as is the situation in the present case. In particular, with the [restitution] order more was restored to the [applicants] than what they had been entitled to, having in mind the surface of the property which was in their legal predecessor’s possession. In support of this, the State organs submit ‘Geodetic Review of the Association of Land Experts of Macedonia’ and ‘Review of old units of land area and their conversion into hectares, areas and sq. m’ as evidence that one shinik in the city of Kumanovo amounted to 650 sq. m. This finds support in the expropriation decision of 17 December 1948 where it was noted that the expropriated land had had a surface of 3,349 sq. m, which had been preceded by an accurate determination of the object of expropriation. The finding is further supported by a cadastral plan done by a licenced surveyor (катастарска скица изработена од геометар) on the basis of the limits and boundaries of the plots of land as laid out in the expropriation decision. ... [T]he conclusion is correct that in the present case, with the restitution order, the property registered as property of the State was restored contrary to the conditions specified in the Restitution Act, sections 1 and 2. Since the State organs established that part of the concerned property was not in possession of the legal predecessor [of the applicants], there is a legal obstacle for the exercise of a restitution right over that part of the property. Hence, such an order cannot be enforced, which is grounds for the application of paragraph 1 subparagraph 3 of section 267 of the Administrative Procedure Act, meaning that the decision is null and void (ништовно) ... ... In respect of the third persons, or the interested persons, the Restitution Act excludes the possibility for them to appear as parties to the restitution proceedings, but what remains for them is the possibility to claim their rights in a civil suit before a competent court within five years after the finalisation of the restitution order (section 63 paragraph 2 of the Act), against the persons to whom possession was restored or compensation was paid in accordance with the provisions of this Act.” 32. This decision was served on the applicants on 24 December 2010 and 25 January 2011 respectively. By decisions of 31 January and 28 March 2011 the Supreme Court rejected as inadmissible their applications for the reopening of the proceedings. 33. On 19 December 2012, in civil proceedings initiated by the second applicant against the Land Registry, the Kumanovo Court of First Instance issued an injunction banning the respondent State from disposing of the plot of land. On 1 March 2013 the latter decision was annulled (става вон сила) as the applicant had withdrawn the action against the Land Registry. 34. Acting upon the initial restitution application, the Restitution Commission requested clarification from the Land Registry regarding the historical records of the plot of land in question on 27 March 2013. The Land Registry confirmed that the plot which had been taken from the applicants’ predecessor was now a part of a plot owned by the State with an area of 8,309 sq. m. 35. On 29 October 2013 the Restitution Commission accepted the applicants’ restitution claim and decided to restore to their possession a plot of land with an area of 2,460 sq. m and to award them financial compensation for the remaining part of the plot with an area of 889 sq. m which could not be restored, in total amounting to a total surface area of 3,349 sq. m. 36. On 5 December 2013 the second applicant challenged the latter decision with an administrative action. It appears that the proceedings are still pending.
| 0 |
test
|
001-156737
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,015 |
DARICIUC v. ROMANIA
| 4 |
Inadmissible
|
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
|
1. The applicant, Mr Vasile Dariciuc, is a Romanian national, who was born in 1955 and lives in Rădăuți. He was represented before the Court by Ms I.M. Peter, a lawyer practising in Bucharest. 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. On 4 January 2011, after his daughter had committed suicide in December 2010, the applicant notified the Suceava Child Protection Agency (“the Agency”) and complained that the child’s paternal grandparents had prevented him from contacting his five year-old granddaughter who had not been informed about her mother’s death and therefore had been potentially exposed to a severe emotional trauma. 5. On 13 January 2011 the Agency informed the applicant that they had initiated an investigation in respect of his claims. 6. On the same date the Agency summoned the paternal grandparents together with the applicant’s granddaughter to its office for an interview aimed at clarifying their family’s situation. 7. On 17 January 2011 the Agency asked the Arbore Mayor’s Office to produce a social investigation report on the paternal grandparents’ home. 8. On 20 January 2011 the Agency summoned the applicant to its office for an interview aimed at clarifying his family’s situation. 9. On the same date the applicant’s son-in-law, who had been accompanied by his granddaughter, was interviewed at the Agency’s office. According to the conversation report produced on that occasion the applicant’s son-in-law had informed the Agency that his wife had suffered from depression because he had left to work abroad. He had returned to Romania two days prior to the meeting at the Agency and had not told his daughter about her mother’s death. He had acknowledged that his daughter had to be informed about her mother’s death and had agreed to inform her with the help of a psychologist. He had also stated that the applicant had used to have a normal relationship with his granddaughter, before he had started pressuring them and picking fights in front of their home. The applicant had not agreed to the marriage between him and his wife and had used to interfere in their marriage. 10. According to that report the applicant’s son-in-law had also been counselled on how to speak to his daughter about her mother and had been advised to shield her from family fights. 11. On the same date the Agency provided the applicant’s granddaughter with psychological counselling in order to prepare her for the news that her mother had died. 12. On 24 January 2011 the Arbore Mayor’s Office produced the social investigation report requested by the Agency on 17 January 2011. The report concluded that the child had a close connection to her father and her paternal grandparents who had cared for her in her father’s absence. The father’s family had provided the child with normal conditions for her physical, moral and intellectual development and her health had not been endangered. 13. On 28 January 2011 the applicant was interviewed at the Agency’s office. According to the conversation report produced on that occasion the applicant had informed the Agency that his relationship with his son-in-law had been very bad and that his son-in-law had refused to allow him into his home. 14. According to the same report the Agency’s representatives had explained to the applicant that he had made a mistake in informing his granddaughter about her mother’s death directly and without any preliminary coaching. He had been advised that it would be in the best interest of the child to avoid and to solve family conflicts. He had also been informed that it would be advisable for him to avoid speaking ill of his sonin-law in front of his granddaughter. 15. On 29 September 2011 the Agency informed the applicant following his enquiry that they could have ordered his granddaughter’s psychological evaluation only if it had been ordered by a court or had been requested by her father. Moreover, they stated that they had not been competent to punish an individual for failure to comply with a final court judgment. Furthermore, they noted that the applicant’s granddaughter had received psychological counselling in respect of her mother’s death and in order to help her process the trauma. 16. On an unspecified date the applicant asked the Agency to inform him whether he had a right to have contact with his granddaughter and whether she could have been counselled in the absence of her father in order to improve his relationship with her. 17. On 23 July 2013 the Agency informed the applicant that they did not have the competence to contradict the final court judgment (see paragraph 29 below) granting him visiting rights. Moreover, they stated that the child could not have undergone psychological counselling without her father’s consent on account of her young age and the fact that the Agency’s intervention had not been needed for reasons imputable to the applicant’s son-in-law. 18. On 15 and 23 July 2014 the Agency informed the Romanian Government that in 2011 they had supported the applicant in his attempts to rekindle his relationship with his granddaughter. They stated that, following his daughter’s death, the applicant had asked the Agency to intervene and to help him preserve his relationship with his granddaughter. Following the applicant’s notification, the Agency’s representatives had spoken to the applicant’s son-in-law. Because his son-in-law had not informed his granddaughter about her mother’s death, the applicant’s son-in-law and the child had been included in psychological counselling program which had led to the applicant’s granddaughter finding out the truth about her mother. Neither the Agency’s, nor the Arbore Social Protection Service’s investigations carried out at the child home had disclosed any danger for the child. In this context, the Suceava Child Protection Agency had mediated a meeting between the applicant, his son-in-law and his granddaughter in order to observe their interaction and to help resolve the conflict between the two parties so that the child would not be traumatised even further. During that meeting, the interaction between the applicant and the applicant’s son-in-law had been very tense. The applicant had accused his son-in-law of killing his daughter and had called him a murderer in front of the child. Because the applicant’s son-in-law had also been verbally aggressive towards the applicant, both parties had been advised on the negative consequences of their behaviour in respect of the child. Whilst the applicant’s son-in-law had changed his behaviour and had mastered his anger, the applicant had failed to do the same even though he had been warned that his behaviour might affect his granddaughter’s emotional wellbeing and that it had caused her to reject contact with him. The applicant’s granddaughter had refused any physical contact with the applicant both before and after she had been counselled by a psychologist. 19. On the same dates the Suceava Child Protection Agency also informed the Romanian Government that every time the applicant’s granddaughter had been brought to the Agency, her psychological evaluation had been carried out in two stages: her interaction with the adults had been observed and afterwards she had received psychological counselling in the absence of her father. Also, given the child’s young age, the fact that her father had been her legal representative and that he had not been a danger to the child, there had been no legal basis for the Agency to accept the applicant’s request to organise psychological counselling sessions between him and his granddaughter without the father’s consent and in his absence. Moreover, after Law no. 272/2004 on protection of the rights of children had been amended on 30 September 2013 a person facing conflicts caused by enforcement of visiting rights could have notified the social protection service from the child’s domicile. However, after the aforementioned date the applicant had no longer contacted the Suceava Child Protection Agency, and the latter had not been informed by the Arbore Social Protection Service either that the applicant had faced problems with the enforcement of his visiting rights. 20. On 11 January 2011 the applicant opened proceedings against his son-in-law seeking custody of his granddaughter. 21. On 16 February 2011 the applicant amended his application and asked the domestic courts to grant him visiting rights in respect of his granddaughter if his request for custody rights was dismissed. He asked to see his granddaughter every Sunday at her home and to be granted the right to take her at his house for a month during the summer holiday. 22. On the same date the Rădăuți District Court allowed in part the applicant’s action and granted him visiting rights every Sunday from 10 a.m. to 6 p.m. at his granddaughter’s and son-in-law’s home. It held that the applicant was entitled to have a normal relationship with his granddaughter, a fact that had also been acknowledged by the applicant’s son-in-law who had objected only to the visiting schedule requested by the applicant. A normal relationship between the applicant and his granddaughter was in the child’s best interest. Given the child’s young age, she needed a stable living environment which could have been affected if she had to travel to the applicant’s home for a month during the summer holiday. The applicant could also have asked for an extension of his visiting rights once his relationship with his granddaughter had improved and the child had grown older. 23. The applicant appealed against the judgment before the Suceava County Court. He asked to be granted visiting rights in respect of his granddaughter at his house or in a neutral location on account of his poor relationship with his son-in-law. He further argued that a denial of his request by the court would prevent him from actually reconnecting with the child. 24. On an unspecified date the Suceava County Court ordered the Agency to produce a psychological evaluation report in respect of the applicant’s granddaughter. 25. On 4 October 2011, following the second-instance court’s order for a psychological evaluation report, the Agency organised a meeting between the applicant, his granddaughter and his son-in-law in order to assess their interaction. According to the meeting report produced on the same date, at the beginning of the meeting the applicant’s daughter had sat only in her father’s lap and had not approached the applicant. Afterwards, she had been examined by a psychologist. The applicant’s son-in-law had stated that when the applicant had come to see his granddaughter according to the court’s schedule he had told the child that her father would murder her just as he had done with her mother. At the same time the applicant had claimed that his son-in-law had been controlling his granddaughter and had turned her against him. The parties had been advised that mediation services could have been provided for them in order to help them resolve their conflict. The applicant’s son-in-law had refused, however, to leave the child alone with her grandfather because he could not have trusted his behaviour towards her. The applicant had accused his son-in-law of murdering his daughter in front of the child. At the end of the meeting the child had refused interact with her grandparent. 26. On the same date the Agency produced the psychological evaluation report ordered by the second-instance court. It concluded that the applicant, his son-in-law and his granddaughter had needed psychological counselling in order to enable them to resolve their conflict and to rekindle their relationship. 27. On 13 December 2011 the Suceava County Court allowed the applicant’s appeal, quashed in part the judgment of the first-instance court and granted him visiting rights on the second Sunday of each month from 10 a.m. to 6 p.m. at his home. It held, amongst other things, that according to the available evidence the applicant and his granddaughter had enjoyed an affectionate relationship both prior and after the child’s mother’s death. The relationship between the applicant and his granddaughter had changed abruptly and the child had refused to see her grandfather any more, her refusal being fuelled by a feeling of fear towards her grandfather. The conclusions of the psychological evaluation report produced in respect of the child had recommended psychological counselling for both the applicant and the child’s father in order to resolve the conflict between them and to allow them to have a balanced relationship with the child. Consequently, the conflict between the applicant and his son-in-law had influenced the applicant’s relationship with his granddaughter, given that the child’s attitude towards her grandfather had changed. In the absence of any evidence that the applicant would have endangered the child’s physical or moral development, he had been entitled to have a personal relationship with his granddaughter. Given the excessively tense situation between the applicant and his son-in-law, the age and the interests of the child, the relationship between the applicant and his granddaughter could have been rekindled only if he had been allowed to take her to his home during the allowed visiting hours. 28. The applicant appealed on points of law (recurs) against the judgment. He asked to be granted visiting rights in respect of his granddaughter either every Sunday or alternatively every second Sunday at his house on account of his busy work programme. He further argued that a denial of his request by the court would prevent him from rekindling the relationship with his granddaughter. 29. By a final judgment of 27 March 2012 the Suceava Court of Appeal dismissed the applicant’s appeal on points of law. It held, amongst other things, that it was in the best interest of the child to have contact with her grandfather given that the applicant had not endangered his granddaughter’s physical and moral development and that prior and after the child’s mother’s death they had had an affectionate relationship with one another which had been affected by the death of the child’s mother and the conflict between the applicant and his son-in-law. In spite of the child’s fear towards the applicant, according to the social investigation report the best interest of the child had been to establish a functional relationship with the applicant, reason for which the parties psychological counselling had been recommended. However, the visiting schedule requested by the applicant would have been tiring for the child, given their family situation and the child’s young age and would have also limited the applicant’s son-in-law’s time spent with his child. The visiting programme could have been changed once the factual circumstances had changed and if it had been in the best interest of the child. Consequently, it was more appropriate for the applicant to have contact with his granddaughter only one Sunday per month. 30. On 17 July 2012 the applicant brought criminal proceedings against his son-in-law on the basis of Article 307 of the Romanian Criminal Code for repeatedly obstructing him to see his granddaughter. He argued that although on 8 April, 7 and 13 May 2012 he had contacted his son-in-law and had asked him to allow him to have contact with his granddaughter, his son-in-law had refused to allow him to see her. 31. On 22 January 2013 the Rădăuți Prosecutor’s Office dismissed the criminal proceedings opened by the applicant against his son-in-law. It held that even though the applicant had been granted visiting rights in respect of his granddaughter by a final court judgment, every time he had asked her to go with him to his home she had obstinately refused. Moreover, the child had been heard in the presence of a representative of the Suceava Child Protection Agency and she had refused to go to the applicant’s house because she had feared him after he had repeatedly visited her at school and had scared her with his repeated requests to follow him home. Furthermore, the psychological report produced by the Suceava Child Protection Agency showed that the child had feared the applicant and had recommended that the child underwent psychological counselling in order to rekindle her relationship with the applicant. Lastly, the applicant’s son-in-law had only observed his child’s wishes and there was no evidence that he had influenced the child. The applicant appealed against the prosecutor’s office’s decision before the domestic courts. 32. By a final judgment of 12 April 2013 the Rădăuți District Court dismissed the appeal lodged by the applicant. It held that the applicant was not a parent and therefore the elements required for the offence provided by Article 307 of the Romanian Criminal Code to exist had not been met. Moreover, the police officers had heard the child in the presence of the representative of the Suceava Child Protection Agency and she had refused to go to the applicant’s home because she had feared him. The child had also stated that her father had never told her not to go to the applicant’s home. 33. In his initial letters the applicant informed the Court that in his hometown there had been only three bailiffs and all of them had refused to help him enforce the final judgment of 27 March 2012. 34. On 11 November 2013 the applicant employed a bailiff located in Suceava to enforce the final judgment of 27 March 2012. 35. On 12 November 2013 the bailiff employed by the applicant motioned the Suceava District Court to approve the enforcement of the final judgment of 27 March 2012. 36. On 14 November 2013 the Suceava District Court approved the bailiff’s request. 37. On 26 November 2013 the bailiff informed the applicant’s soninlaw that enforcement proceedings had been initiated against him following the applicant’s request. She invited the applicant’s son-in-law to her office on 3 December 2013 in order for him to pay the required enforcement fees and to provide the required information concerning his assets. She also informed him that failure to comply or to provide the required information was punishable by fines. 38. On the same date the bailiff notified the applicant’s son-in-law that he needed to comply with the domestic courts’ judgment and that the first meeting between the applicant and his granddaughter would take place on 8 December 2013. She also notified him that she would proceed with the enforcement of the judgment as provided, among other things, by Articles 910 and 911 of the Romanian Civil Procedure Code if he refused to comply. 39. On 3 December 2013 the applicant’s son-in-law agreed before the bailiff to obey the final judgment of 27 March 2012. 40. On 8 December 2013 the bailiff accompanied the applicant to his granddaughter’s home in order to enforce the judgment. The report produced by the bailiff on the same date stated that the applicant’s soninlaw had agreed to allow the applicant to see his granddaughter and had not obstructed the enforcement proceedings. The applicant’s granddaughter had a strong emotional connection with her father and had been hostile towards the applicant. She had obstinately refused to accompany her grandfather anywhere without her father being present because she had feared her grandfather. Consequently, the applicant and his son-in-law had agreed, with the child’s consent, to take the child in a public location and to spend the day together accompanied by the bailiff. The applicant had been able to give his granddaughter a gift and had interacted with her calmly and openly. The applicant’s son in law had agreed to allow his daughter to visit her grandfather any time she wished and even on other days than the ones that had been mentioned by the court. The applicant’s granddaughter had agreed to have future contact with her grandfather but only in her father’s presence. 41. On 7 January 2014 the bailiff notified the applicant’s son-in-law for a second time that he needed to comply with the domestic courts’ judgment and that the second meeting between the applicant and his granddaughter would take place on 12 January 2014. She also reiterated that she would proceed with the enforcement of the judgment as provided, among other things, by Articles 910 and 911 of the Romanian Civil Procedure Code if he refused to comply. 42. On 12 January 2014 the bailiff accompanied the applicant to his granddaughter’s home. The report produced by the bailiff on the same date stated that the parties had agreed for the meeting to take place in a public location after they had consulted the applicant’s granddaughter’s wishes. The applicant’s son-in-law had reiterated his willingness to allow the applicant to visit his granddaughter, but had informed the bailiff that she had refused to see her grandfather in his absence or in a different location than the one she had chosen. At the same time, the applicant had expressed his dissatisfaction with his son-in-law’s compliance with the final court judgment granting him contact rights, in so far as he had been influencing the child in choosing the locations of their meetings and therefore he had not allowed him to spend time with his granddaughter at his home. The applicant and his granddaughter had enjoyed the time together, while the applicant’s son-in-law had kept a low profile. Also the parties had agreed to allow the child and her grandfather to choose together the locations of their future meetings. At the end of the day the applicant’s granddaughter had refused her father’s proposal to travel back to her home in the company of her grandfather. 43. On 9 February 2014 the bailiff accompanied once more the applicant to his granddaughter’s home. The report produced by the bailiff on the same date stated that the applicant and his granddaughter had agreed for the meeting to take place in a public location. The applicant and his son-in-law had a disagreement on whether the location of the meetings could have been chosen by the applicant on his own or only with the child’s consent. The interaction between the applicant and his granddaughter had been short and the child had behaved apprehensively towards him because he had scolded her over the phone prior to their meeting. Subsequently, the applicant and his son-in-law had had a fight and the latter had taken his daughter and had left. Before leaving the applicant’s son-in-law had stated that he had not complied with the judgment granting the applicant visiting rights because he had felt compelled, but as a result of the enforcement proceedings. 44. On 2 April 2014, once more, the bailiff notified the applicant’s sonin-law that he needed to comply with the domestic courts’ judgment and that a new meeting between the applicant and his granddaughter would take place on 13 April 2014. She also reiterated that she would proceed to enforce of the judgment as provided, among other things, by Articles 910 and 911 of the Romanian Civil Procedure Code if he refused to comply. Moreover, she drew the applicant’s son-in-law’s attention to the provisions of Article 912 of the Romanian Civil Procedure Code and informed him about the applicant’s right under the last paragraph of Article 912 to motion the courts to apply penalties if the child refused to comply even during those enforcement proceedings. 45. On 5 May 2014 the applicant asked the bailiff to cease the enforcement proceedings. In his written request he stated, among other things, that the judgment could not be enforced because his son-in-law had influenced his granddaughter. Moreover, his son-in-law had allegedly informed him that he would never allow his granddaughter to visit his home. 46. On 22 July 2014 a bailiff located in the applicant’s home town informed the Government that no enforcement file had been registered by his office concerning the final judgment of 27 March 2012. 47. On 25 July 2014 a second bailiff located in the applicant’s home town informed the Government that the applicant had not asked him to enforce the final judgment granting him visiting rights. However, the aforementioned bailiff stated that an unknown person had spoken to him in 2013 about a case similar to that of the applicant, but that after the discussion the person had left without returning. He had advised that person that the refusal of the child to have contact with him had been a problem and that the adult had to make efforts in order to rekindle the relationship with the child. At the same time he had advised that person to notify the child protection services and a psychologist in order to avoid any trauma for the child. 48. On 29 July 2014 the bailiff employed by the applicant informed the Government that the applicant and his son-in-law had fought every time they had met. The applicant had been dissatisfied with his son-in-law’s presence at the meetings and had accused him that he had not allowed the child to go to his home. At the same time, the applicant’s granddaughter had obstinately refused to meet with her grandfather in her father’s absence. During each meeting the bailiff had repeatedly tried to convince the child to meet with her grandfather in her father’s absence, but she had refused. 49. On 5 February 2013 the Arbore Police Department informed the applicant’s son-in-law that, following his request, the applicant had been warned not to visit his granddaughter’s school, although he had spoken only to the teachers and had enquired about her schooling situation. 50. On 23 July 2014 the Arbore Mayor’s Office informed the Government that they had not taken any steps in order to assist the applicant in the enforcement of his visiting rights because he had not asked them to assist him. Moreover, they acknowledged that the applicant’s son-in-law had complained before them that the applicant had visited his granddaughter’s school in breach of the visiting programme set out by the domestic courts. They also stated that the applicant’s son-in-law had attached a number of documents to his complaint including copies of the operative part of the judgment setting out the applicant’s visiting rights, a copy of the judgment dismissing the applicant’s criminal complaint against his son-in-law and the reports prepared by the bailiff employed by the applicant on 8 December 2013 and 12 January 2014. 51. Articles 14 and 16 provided that a child had the right to maintain personal relations and direct contact with his parents, relatives and other persons with whom he had developed a close connection. He also had a right to know his relatives and to maintain personal relations with them as well as with other persons with whom he had developed family relations if it did not affect his best interest. The child’s parents or any other legal representative could not prohibit the child’s contact with his grandparents, except in circumstances where a court had decided otherwise. 52. Article 15 provided that the child’s personal relationships could be maintained by meeting the person entitled to have contact with him at the child’s or the aforementioned person’s home. 53. On 3 October 2013 Law no. 272/2004 was amended. Following its amendment Article 15 also provided among other things that the parent living with the child had a duty to help maintain the child’s relationship with the other parent. In order to rekindle and maintain a child’s personal relationships, the social protection or the child protection agencies had to provide professional counselling to both the child and his parents upon their request. If the parent living with the child obstructed the child’s personal relations with the other parent by ignoring the schedule set out by the court or agreed on by the parties, the other parent could request the social assistance services from the child’s home to monitor the situation for up to six months. During the monitoring process the representatives of the social assistance services could attend the moment the parent not leaving with the child would take him from his home or return him and could interview the parents, the child or any other person either leaving with the child or not in order to produce a monitoring report. The monitoring report could recommend the extension of the monitoring period by a maximum of six months, the psychological counselling of one or both parents and a series of measures aimed at improving the child’s relation with the parent with whom he was not living. The monitoring report could also be used as evidence before the court. 54. Following the amendment of Law no. 272/2004 on 3 October 2013 Article 161 was introduced. It provided that at the request of an interested person the domestic courts could order several measures, such as fines and security deposits, in order to secure the child’s contact rights with other persons. 55. The relevant provisions concerning interlocutory measures, namely Article 581, are set out in Costreie v. Romania (no. 31703/05, § 56, 13 October 2009). 56. Article 300 provided that an appeal on points of law suspended the enforcement of a judgment only in cases concerning the moving of land borders, destruction of constructions, crops or of any other fixed work as well as in cases expressly provided by law. 57. Article 24 provided that the provisions of the New Civil Procedure Code applied only to trials and enforcement proceedings started after it had entered into force. 58. Article 711 provided among other things that any interested party could contest the enforcement or the enforcement acts. The enforcement could also be contested if the bailiff refused to carry out an enforcement or to carry out an enforcement act according to law. 59. Articles 909 provided among other things that if the debtor ignored the bailiff’s notification to observe the creditor’s contact rights, the bailiff could, at the creditor’s request, ask the court to apply penalties on the debtor. 60. Article 910 provided among other things that if the debtor failed to comply with his duties within a month from the notification of the court order for penalties, the bailiff had to proceed with the enforcement. The enforcement had to be carried out in the presence of a representative of a child protection agency, and when the latter considered it necessary, in the presence of a psychologist assigned by him. If requested by the bailiff, public agents had to assist with the enforcement. Bullying or pressuring the child in order to successfully enforce a judgment was prohibited. 61. Article 911 provided among other things that if the debtor was acting in bad faith and hid the child, the bailiff had to record the incident and inform the prosecutor’s office attached to the court charged with the enforcement proceedings in order to open criminal proceedings against the debtor for failure to comply with a court judgment. 62. Article 912 provided among other things that if the bailiff noted that the child himself categorically refused to leave the debtor or was hostile towards the creditor, he had to produce a report describing the situation. He also had to communicate the aforementioned report to the parties and to the representative of the child protection agency. The representative of the child protection agency had to motion the competent court from the child’s home, for the court to set out, depending on the child’s age, a schedule for psychological counselling sessions for a period no longer than three months. The court had to examine the request urgently in a council chamber, by a final interlocutory judgment after summoning the parties and the person living with the child. The court-appointed psychologist had to produce a report at the end of the counselling sessions which had to be communicated to the court, the bailiff and to the child protection service. The bailiff had to resume the enforcement proceedings as provided by Article 910 after receiving the psychologist’s report. If the minor continued to refuse to comply, even during those enforcement proceedings, the creditor could ask the competent court from the child’s home to order penalties. 63. Article 307 provided among other things that the refusal of a parent to return a child without the consent of the other parent or the person enjoying custody rights in respect of the child was punishable by a prison sentence or by a fine. The same punishment could be applied in respect of the person who enjoyed custody rights if he or she had repeatedly prevented the child’s parents from maintaining contact with their child as agreed by the parties or set out by a court.
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test
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001-173505
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ENG
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HRV
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ADMISSIBILITY
| 2,017 |
KOVAČEVIĆ v. CROATIA
| 4 |
Inadmissible
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Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
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1. The applicant, Mr Nikola Kovačević, is a Croatian national who was born in 1966 and lives in Zaprešić. He was represented before the Court by Mr M. Čičković, a lawyer practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 17 August 2002 the applicant was physically attacked by a certain M.M. Following the said event, on 25 November 2002 M.M. was found guilty in minor offence proceedings for breaching public order and peace and ordered to pay a fine. 5. On 21 July 2003 the applicant lodged a civil action with the Zagreb Municipal Court (Općinski sud u Zagrebu) against M.M., claiming damages in connection with the physical attack on him. He submitted medical documentation in relation to the injuries he had sustained and requested that an expert report be obtained detailing the duration and intensity of his physical pain and mental suffering as a result of the attack on him. 6. On 23 August 2005 the Zagreb Municipal Court declared that it lacked jurisdiction to examine the applicant’s case. The case was referred to the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) as the competent court. 7. At a hearing held on 6 December 2005 the trial judge informed the applicant of the possibility of hiring a lawyer to assist him in the proceedings. The applicant maintained that he wished to represent himself. 8. At a hearing held on 14 June 2006 the applicant and M.M.’s representative agreed that the trial court should question the parties and three witnesses, and should order an expert medical report detailing the means of infliction, the duration and the intensity of the applicant’s physical pain and mental suffering as a result of M.M.’s attack on him. 9. On 6 September 2006 the trial court heard evidence from the applicant. 10. On 27 October 2006 the trial court heard two witnesses, as well as the applicant (the plaintiff) and the defendant. It dismissed the applicant’s proposal for the police records of action undertaken in relation to the attack on him to be obtained. The applicant then stated that he had no further proposals for evidence. The relevant part of the record of the hearing reads as follows: “The plaintiff proposes in the next part of the proceedings to seek from the police their records of action undertaken, but the judge dismisses that evidence proposal, given that the minor offence proceedings file has been obtained ... The plaintiff does not have any further evidence, or any proposal to adduce further evidence. The judge explains what evidence he can propose in the proceedings and in what manner, and warns him of the repercussions of applying the burden of proof rule. ... The Court renders a decision Given that the parties do not have any further proposals for evidence, even after a warning of the repercussions of applying the burden of proof rule, the court, which cannot itself propose evidence in these proceedings, closes the hearing.” The applicant signed the record of the hearing without expressing any objections. 11. On 3 November 2006 the Dubrovnik Municipal Court dismissed the applicant’s civil action on the grounds that the scope and intensity of the consequences of the attack on him by M.M. had not been proven as he had not proposed the gathering of the necessary evidence, that is to say the obtaining of a medical expert report. The relevant part of the judgment reads as follows: “The medical documentation in question was included in the civil action, the credibility of which was undisputed ... The court does not have the expertise to establish facts on the basis of medical documentation – that requires the expertise of a medical expert. However, in order to use the assistance of an expert in proving a fact or clarifying the real nature of the matter, it is necessary that a party, in this case the plaintiff, proposes doing so. It is only then that the court can order an examination and an expert report on the question of whether the plaintiff sustained injuries in the incident concerned, and if so, which and of what kind, and also whether he experienced mental suffering and physical pain, and if so, of what intensity and duration... Therefore, there was neither any evidence as to the viability and the extent of the consequences, nor any proposal to adduce such evidence (obtaining the medical expert report), as the damage caused by the defendant to the plaintiff ... The court warned the plaintiff of the repercussions of applying the burden of proof rule at a hearing held on 7 October 2006 ‒ after he [the plaintiff] stated that he had neither any further evidence nor any proposals to adduce further evidence ‒ and informed him that he could be represented by a lawyer ... which he [the plaintiff] disregarded.” 12. The applicant appealed against this judgment, alleging in particular that his statement concerning the obtaining of a medical expert report had been incorrectly entered into the record of the hearing. The relevant part of his appeal reads as follows: “...the statement which appears in the reasoning of the first-instance judgment to the effect that the plaintiff did not propose the obtainment of an expert report is incorrect, because the plaintiff’s statement in that respect was not correctly entered in the records. In particular, the plaintiff stated that, if the court could not establish the facts on the basis of the offered evidence, and if the presence of the plaintiff’s witness (N.I.) could not be ensured, then, if necessary, [the court should] supplement the evidence as to the facts with an expert report. The court misinterpreted the plaintiff’s statement in that respect and therefore came to the wrong conclusion ...” 13. 16 On July 2009 the Dubrovnik County Court (Županijski sud u Dubrovniku) dismissed the applicant’s appeal as ill-founded, holding that the first-instance court had duly examined all the parties’ relevant submissions. It noted in particular that the record of the hearing held before the first-instance court indicated that the trial judge had warned the applicant of the repercussions of failing to propose the gathering of relevant evidence, and that the records had been signed without any objections. 14. The applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske), alleging in particular that the lower courts should not have dismissed his civil action merely because no expert report had been obtained in the proceedings. 15. On 30 March 2011 the Supreme Court dismissed the applicant’s appeal on points of law as ill-founded. It held, in particular, that the lower courts had correctly dismissed the applicant’s civil action by applying the burden of proof rule, given that the applicant, although warned, had failed to propose that an expert medical report be obtained. 16. The applicant then lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decisions of the lower courts. He alleged, in particular, that the courts had dismissed his civil action on the grounds that he had failed to propose that the expert medical report be obtained, even though he had expressly proposed that such evidence be obtained at the hearing held on 14 June 2006. 17. On 25 January 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. This decision was served on the applicant’s representative on 15 February 2012.
| 0 |
test
|
001-140404
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF SEMIKHVOSTOV v. RUSSIA
| 3 |
Preliminary objection partially joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award
|
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
|
6. The applicant was born in 1965 and lives in the Leningrad Region. 7. On 9 February 2001 the Solnechnogorsk Town Court of the Moscow Region found the applicant guilty of torture and manslaughter and sentenced him to thirteen and a half years’ imprisonment. 8. As is evident from medical documents provided by the applicant, prior to his arrest in October 1999 he completely lost the vision in his left eye, while the vision in his right eye was substantially impaired. In 1984 he was registered as Category 3 disabled on account of his poor eyesight. 9. In 2001, during his detention in correctional facility IK-1 in the Mordoviya Republic, the applicant was severely beaten up by warders, and sustained a serious spinal injury leading to partial paralysis of his lower extremities. He started using crutches. According to him, subsequent ill-treatment, inadequate conditions of detention and a lack of proper medical assistance caused his health to deteriorate drastically: he developed an intervertebral hernia and intravascular tumor which, in turn, resulted in the lower part of his body being completely paralysed. He became wheelchair-bound. He supported his allegations with medical certificates issued in penal medical facilities. 10. From 1 January 2006 to 27 January 2010 the applicant served his sentence in correctional facility IK-7 in the Mordoviya Republic. In January 2010 he was transferred to correctional facility IK-11 in the Mordoviya Republic, where he was detained until his release on 14 January 2013. 11. Having made no complaints about the conditions of his detention in facility IK-7, the applicant provided the following description of the conditions of his detention in facility IK-11 supporting his arguments with handwritten statements by a former inmate, D. On his arrival to the facility the applicant was assigned to Unit 5, which was not equipped to house wheelchair-bound inmates. A large number of two-tier beds were installed in the dormitory. The unit was dimly lit as the beds blocked the windows. Ninety inmates occupied the dormitory. 12. The lavatory in the dormitory was not adapted for disabled people, as the lavatory pans were not at floor level and did not have rails. The applicant always asked for assistance from at least two other inmates, as he was unable to use the lavatory on his own. Not every inmate was willing to help, which made a sensitive situation even more frustrating and embarrassing for him, since he suffered from enuresis and encopresis (bladder and bowel incontinence). Relying on D.’s statement, the applicant argued that he had received assistance from inmates in the facility in exchange for cigarettes and money. Without payment, inmates had refused to help him. The applicant stressed that in addition to their unwillingness to help him, the inmates also had to perform their own daily duties in the unit. They therefore had had no free time to help him to move around the facility. The facility administration had not taken any steps to rectify the situation. The applicant cited, as an example, behavior by two inmates, Ya. and Z., appointed by the administration of the facility to assist him. The applicant insisted that they had created “acute” situations to force him to pay more for their services. When he could not pay, he had been left without any assistance, unable to go to the lavatory and forced to defecate in his underpants. The applicant also submitted that in November 2012, once the Court had communicated his application to the Russian Government, he had only been provided with a special chair to use in a lavatory room. 13. The applicant then proceeded to describing the procedure for using the bathhouse. He had been able to use a communal bathhouse once a month when an inmate had agreed to take him there in his wheelchair. Passages throughout the correctional facility grounds had been separated by barriers approximately 20 cm high. The applicant had required assistance from at least two inmates to carry him over. In December 2010 and January 2011 he had been unable to find anyone willing to take him to the bathing facility. On the occasions he had been able to find inmates willing to help him and had paid for their services, he had been taken to the bathhouse, undressed, and carried by his hands into the cabin where he had been placed on a chair. He had showered leaning on a wall that he would not fall over. The bathing facility had not had any equipment to accommodate a disabled person such as the applicant. The shower heads had been installed too high and he had again needed to ask a detainee to help him to take a shower. Once again help had not been given willingly, as inmates had only been afforded fifteen minutes to take a shower themselves and had not wanted to spend that time helping him. 14. Citing the handwritten statement by inmate D., the applicant stressed that inmates who had wanted to use the shower cabins in the dormitories had to pay. The shower cabin had been locked and only the supervising inmates had had access to the key. 15. The applicant was not allowed to use the electric water heaters, which he needed to keep clean, in view of his suffering from bladder and bowel incontinence. He could not go to eat in the facility canteen, so was forced to eat in the dormitory, with food having been brought to him by inmates from the canteen. In November 2010 he did not eat for seven days as the food was served in dirty tableware. 16. In January 2011 the applicant did not receive his daily quota of three meals a day. A cook was assigned the task of taking food to the applicant from the facility canteen. However, given that the cook was often too busy with his usual tasks, and the fact that the food was scarce, he frequently did not receive anything. In September 2011 the applicant started receiving food in a plastic mayonnaise bowl, which was never washed or cleaned. He experienced food poisoning and stomach pain and his face, legs and arms became swollen. His requests for food to be served in suitable tableware were disregarded. 17. On 13 December 2011 the applicant was registered as Category 1 disabled, having been diagnosed with paraplegia. 18. According to the applicant, in the end of January 2012 he was sent to a prison hospital to determine whether he was fit to continue serving his sentence. On his return to facility IK-11 several days later the applicant was again assigned to Unit 5. He provided an identical description of the conditions of his detention, save for minor details. In particular, he argued that a hundred inmates shared the dormitory, which measured 60 sq. m. Thirty-five inmates suffered from HIV, various stages of tuberculosis or had various disabilities. He could not take exercise in the open air, as he could not get into his wheelchair without assistance and could not leave the dormitory as the passageway was too narrow. Lavatory pans were installed on a pedestal 40 cm above the floor and were separated from each other with partitions. He always received cold food in plastic bowls, and there was no way of heating food in the dormitory. His wheelchair was taken from him in the dormitory for security reasons. 19. The applicant and his representatives lodged a large number of complaints with various authorities. On 10 December 2010 a deputy prosecutor of the Dubravnaya District prosecutor’s office sent a letter to the applicant, informing him that the regulations concerning conditions of detention in prison facilities did not cover the provision of access ramps. However, on the prosecutor’s request ramps had been installed at the entrance to the dormitory building where the applicant was being held. The deputy prosecutor further stated that the applicant received food in the dormitory, being served by an inmate on duty who took it to him from the facility canteen. He was not asked to pay for that service and the food was served in the proper tableware and was adequate. The applicant received similar letters from various officials in 2010 and 2011. 20. On 16 January 2012 a request to institute criminal proceedings was sent to the Investigation Department in the Mordoviya Republic. That request was forwarded to the local investigation unit and the prosecutor’s office. No response followed. 21. On 14 January 2013 the applicant was released from detention. Two facility officials escorted him to St. Petersburg where, according to him, he did not have family or a home. The applicant was admitted to a hospital in the Leningrad Region, where he has remained ever since, despite his efforts to find a place to stay a charity hostel. 22. Relying on certificates issued by the governor of correctional facility IK-11, photos of the applicant’s dormitory in that facility and handwritten statements by inmates from facilities IK-7 and IK-11, the Government provided a lengthy description of the conditions of the applicant’s detention. In particular, while describing the conditions of the applicant’s detention before his transfer to facility IK-11, they argued that the applicant had been able to use his legs and had therefore not needed assistance to move around, although he had allegedly attempted to conceal that fact from the authorities. 23. The Government continued with the description of the detention conditions in facility IK-11. 24. On his arrival at facility IK-11 on 27 January 2010 the applicant had been assigned to Unit 8 where he had stayed for a month. A certificate issued by the governor of correctional facility IK-11 showed that the entrance to the dormitory building of Unit 8 had been equipped with a wheelchair ramp when the applicant had stayed there. Following the applicant’s transfer from the unit, that ramp had been dismantled. 25. The Government stated that inmates had had at least 2 sq. m of personal space. As is evident from a handwritten statement by the head of Unit 8, the applicant’s dormitory had 70 sleeping places. The Government also provided the Court with dormitory plans. According to the plan, Unit 8 was on the second floor, with at least ten stairs leading to it from the first floor. A long corridor of 32 sq. m led to the sleeping room of 142 sq. m where there were seventy bunks, seventy chairs and thirty-five bedside tables. A lavatory of 7.5 sq. m, a shower room of 5.5 sq. m and a dormitory kitchen of 14 sq. m were accessible from the corridor. 26. A photo submitted by the Government showed the applicant’s metal bed in a corner near a window. In a certificate the facility governor provided an explanation about the photo, indicating that 1.3 m of free space separated the applicant’s bed from the neighbouring bunk. 27. On 28 February 2011 the applicant had been transferred to Unit 5 where he remained until his release. Unit 5 had been on the first floor of the facility dormitory block. The dormitory had been easily accessible to the applicant. Doorways had been sufficiently wide for him to enter and move around. The Government produced handwritten statements by inmates Z. and Sem. who confirmed that the applicant had been able to enter the dormitory building without any difficulties, as the entrance door step was no more than 5 cm high. In a certificate submitted to the Court the facility governor stated that it had not been necessary to install the ramp at the entrance of the dormitory building of Unit 5, as the entrance door step had been less than 5 cm high. 28. The Government again reiterated that at least 2 sq. m of personal space had been afforded to inmates. The dormitory of Unit 5 had 53 sleeping places and was divided into three sleeping rooms. The applicant’s room measured 63.5 sq. m and contained eighteen bunks, nine bedside tables and eighteen chairs. A large square corridor of 46 sq. m separated the sleeping rooms from the remaining part of the dormitory. Six doors from the corridor led to a lavatory of 9 sq. m, a shower room of 6 sq. m, a locker room, a dormitory kitchen of 16 sq. m, a store room, and an office for the unit head. 29. The Government also submitted four photos of the dormitory, which showed rows of two-tier bunks separated by a narrow passageway. The applicant’s single-tier bed was installed by a wall in the corner near the window. According to explanations given by the facility governor, the space between the applicant’s bed and the neighbouring bunks was 1.2 m wide. 30. The Government further described the bathing facilities. Photos of the bathhouse showed a narrow tile-covered long room with at least ten high partitions dividing the room into a number of small cubicles with a shower head installed in each of them, but no handrails or other similar equipment. The bathhouse was equipped with 16 shower heads installed 2 m above the floor. A shower handle was placed 1 m above the floor. Each inmate had twenty minutes to use the bathhouse. In view of the fact that the applicant had been registered as Category 1 disabled, he had been given an additional twenty minutes to take a shower. Relying on a handwritten statement by inmate Ya., the Government observed that that inmate had helped the applicant to use the bathhouse. 31. The dormitories of Units nos. 5 and 8 were equipped with shower cabins with electric water heaters. Photos provided by the Government showed clean shower rooms which were tiled floor to ceiling. A curtain separated the shower from the remaining part of the room. The shower heads were installed at least 2 m above the floor. No handrails were installed in the rooms. The applicant had been allowed to use the cabins without any restrictions. The Government relied on statements by four inmates. As is evident from a handwritten statement by inmate G., the applicant had needed assistance of other inmates, including when using the shower cabins. Inmate Ya. also wrote that he and inmate G. had helped him to use them. 32. The lavatory of Unit 8 was equipped with four squatting pans installed on pedestals 15 cm above the floor. Partitions separated the pans from each other creating cubicles 80 cm wide. The lavatory of Unit 5 had three squatting pans. The remaining description of the facilities was similar to that of Unit 8. The Government stressed that after his arrival at facility IK-11 the applicant had been given a special chair to use in the lavatory. They provided photos of the two lavatories and of the special chair the applicant had used. The photos showed several cubicles with plastic walls and full-size doors. The cubicles with lavatory pans were separated from the remaining part of the room by a high step. Rows of sinks with taps and mirrors above them were installed along a wall. The equipment was installed at a height suitable for use by able-bodied inmates. A photo of the lavatory in Unit 5 also showed a tile-covered basin with a tap above it. Given the height of the tap, the basin had been accessible to the applicant. One of the photos showed a special chair that had been made from an ordinary wooden chair, from which the base had been removed and replaced with a toilet seat. 33. As is evident from a certificate issued by the governor of facility IK-11, the applicant had always eaten in the kitchens of the dormitory buildings during the entire period of his detention. The Government stated that he had been given hot food three times a day. The facility medical personnel had checked the quality of the food daily and had kept a record of it in the log. Food had been taken to him from the canteen by inmates. According to a statement given by the facility’s chief cook, he had supervised the process of taking food to the applicant from the canteen. The food had always been served in clean dishes and had been hot. It had been taken to the applicant by inmates Sa. and G. Those two inmates confirmed that the food had been served in thermos flasks which had been clean, and that the applicant had never made any complaints about quality or quantity of the food. Nor had he ever refused it. 34. The Government stressed that the applicant had been assisted by inmates, among them Sa., G., Ya. and Z. Those inmates had helped the applicant “willingly and free of charge” in moving around the correctional facility grounds, using the lavatory and bathhouse, and visiting the facility shop, medical unit and library. They had regularly taken food to the applicant and had fulfilled his other requests. The Government cited statements by several inmates in support of those submissions. As is evident from the inmates’ handwritten statements, the applicant had not needed assistance to move around the dormitory, as the space had been wide enough for his wheelchair. At the same time two inmates had always accompanied him if he needed to move around the facility grounds. 35. As to other aspects of detention, the applicant had also remained under permanent medical supervision, having been provided with medical care of requisite quality, subjected to necessary diagnostic and clinical procedures and consulted by specialists in respect of his illness, although he had not always complied with medical advice. The Government also stated that the applicant had had “a tendency to exaggerate his condition”. 36. According to the applicant, on 21 December 2011 his representatives from an NGO, the Fund in Defence of Inmates’ Rights, lodged an application with the Polyanskiy District Court of the Mordoviya Republic, seeking his release on health grounds. The representatives enclosed with their application a long list of illnesses from which the applicant suffered, including paraplegia, atrophy of the left eye, astigmatism in the right eye, a renal cyst, epilepsy, acute viral hepatitis C, and osteochondrosis of the lumbosacral section of the spine, complicated by the formation of a hernia and tumour. Following receipt of the complaint, the District Court authorised a forensic medical examination of the applicant to determine whether he was fit to continue serving his sentence. At the end of January 2012 he was transferred to a prison hospital for that purpose. Despite remaining there for several days, he was sent back to the correctional facility without any examination having been carried out. He further alleged that the facility officials had misplaced his documents and the court had had no choice but to discontinue the proceedings. 37. The Government disputed the applicant’s submission, having explained that a request for the applicant to be released on health grounds had been lodged at the end of December 2011 by a representative of an NGO, the Fund in Defence of Inmates’ Rights. That request had been redirected to the governor of facility IK-11 to comply with the statutory requirements. On a number of occasions between January and May 2012 facility officials had asked the applicant to sign his application for early release or to sign a power of attorney authorising a representative of the Fund to act on his behalf in court proceedings. The applicant had refused to undergo the medical examination required under Russian law to support the release application and to sign it. Given the applicant’s refusal to comply with those requirements, the court had adjourned examination of the matter and had instructed the facility officials to provide documents showing that the applicant’s state of health had called for his release. When asked again by the officials to undergo a medical examination in a prison hospital, the applicant had refused. He had notified the authorities that he had already stayed in the hospital on a number of occasions, having undergone inpatient treatment there. In June 2012 the facility governor had asked the applicant to lodge another release application. The applicant had allegedly told him that his representative had lodged a complaint with the Court and that he would be generously compensated for every day he had been detained in the correctional facility.
| 1 |
test
|
001-144902
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,014 |
E.B. v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
1. The applicant, Ms E.B., is a Polish national, who was born in 1976 and lives in London. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Stephen Fidler, a solicitor advocate practising in London. The Government were represented by their agent, Ms R. Tomlinson, of the Foreign and Commonwealth Office. Observations on the merits were received from the respondent Government and the applicant and third party observations were received from the AIRE Centre and Fair Trials International. 2. 3. The applicant entered the United Kingdom in 2007. At the time, she had two children: A., born in 1993; and B., born in 1999. She subsequently gave birth to a third child, C., born in 2008. 4. On 16 July 2009 a European Arrest Warrant (“EAW”) was issued in respect of the applicant in light of a conviction in Poland for three counts of insult, one of assault and one of threatening behavior for which she had been sentenced to eighteen months’ imprisonment. She appealed against her proposed surrender to Poland, arguing that the surrender would lead to her separation from her children. 5. In November 2009, B. and C. were placed in foster care. The applicant enjoyed supervised access to them four times a week. 6. The applicant subsequently became pregnant. 7. On 11 June 2010 the District Judge ordered the applicant’s surrender to Poland. The judge found it “troubling” that there was no material before the court from social services as to what arrangements had been put in place for the care of any of the applicant’s children in the event of her extradition. He accepted that her extradition would engage Article 8, noting that the main issue was proportionality. He referred to the strong public interest in honouring extradition agreements and the need for exceptional Article 8 grounds in order to outweigh that interest. The applicant’s family unit was “already fragmented with two children in care” and there was a “high probability” that the unborn child would be taken into care for the same reasons as the other two, namely the applicant’s poor emotional state and inability to look after them. This was likely to occur regardless of whether or not she was extradited. Given the applicant’s already fragmented family life and the principle that she should face the consequences of her proven misconduct in Poland, the judge concluded that there was no proper basis for discharging her from the extradition proceedings. 8. The applicant appealed to the High Court. 9. In August 2010 she gave birth to her fourth child, D., and started breastfeeding him. She was subsequently placed in a residential unit with D., and B. and C. joined them in September and October respectively. At the time, A. was accommodated by the local authority in semiindependent accommodation. 10. Social services subsequently provided an update of the circumstances of the applicant and her children to the High Court. They explained that the applicant was undergoing a parenting assessment which would determine whether her children could remain with her or not. If the applicant completed the assessment successfully and remained in the United Kingdom, then an ongoing care plan and support package would be put in place for her to continue looking after her children in the community. If the applicant were extradited to Poland, her three youngest children would be taken into foster care while the local authority liaised with the Polish authorities with a view to finding a longer-term care arrangement for the children in Poland. 11. On 21 October 2010 the High Court dismissed the applicant’s appeal against her surrender. The judge found that the applicant’s situation was, in itself, no bar to extradition. He concluded that the evidence before the court did not support a conclusion that irretrievable damage, either to the applicant or her baby, would result from the applicant’s extradition. The judge expressed the hope that every opportunity would be taken by those responsible to ensure that the applicant’s arrival in Poland, and that of her baby, would be as painless as possible. 12. On 28 October 2010, the applicant lodged an application before this Court and requested an interim measure to prevent her extradition. 13. On 2 November 2010, the President of the Chamber decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be extradited until further notice. 14. On 22 February 2011 the application was communicated to the respondent Government for observations. 15. By letter dated 17 November 2011, the applicant’s legal representatives informed the Court that B., C. and D. had been placed in local authority care. Care proceedings were commenced in respect of all three children. 16. In November 2011 the applicant gave birth to a fifth child, E. The child was immediately placed in local authority care and care proceedings were commenced. 17. By letter dated 15 March 2012, the applicant’s legal representatives informed the Court that a final care order had been made in respect of B. 18. By letter dated 30 May 2013, the applicant’s legal representatives informed the Court that final care and placement orders had been made in respect of C., D. and E. The applicant’s consent had been dispensed with. 19. Part I of the Extradition Act 2003 deals with extradition to Category 1 territories which include all the member states of the European Union which operate the European Arrest Warrant system. Poland is therefore a Category 1 territory. 20. Section 21 of the Act requires the judge at the extradition hearing to decide whether a person’s extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998. If the extradition would be incompatible, then the judge is required to order the person’s discharge. 21. If the judge at the extradition hearing orders the person’s extradition, Section 26 provides for a right of appeal to the High Court. Section 32 provides for a right of appeal to the House of Lords against a decision of the High Court, with the leave of either the High Court or the House of Lords.
| 0 |
test
|
001-178351
|
ENG
|
RUS
|
CHAMBER
| 2,017 |
CASE OF KONSTANTIN MOSKALEV v. RUSSIA
| 3 |
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 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
|
5. The applicant was born in 1982 and lives in the Krasnoyarsk region. 6. At the material time the applicant was a police officer with the Economic Crimes Department of the Department of the Interior of the Krasnoyarsk Region. 7. On 31 July 2008 a certain Mr P. complained to the internal security department of the Department of the Interior of the Krasnoyarsk Region (“the internal security department”) that the applicant had extorted money from him. In particular, the applicant had asked for money in exchange for assisting him, through his contacts in the regional government, in obtaining a licence for the retail sale of alcoholic beverages. Mr P. gave the internal security department a recording he had made of his telephone conversation with the applicant earlier the same day. During that conversation the applicant had asked Mr P. to bring him money before 2 August 2008. 8. Police officers invited Mr P. to take part in an “operative experiment” (“оперативный эксперимент”), to which he consented. On the same day the head of the internal security department ordered an operative experiment in respect of the applicant with the use of audio and video recording devices. 9. On the same day, 31 July 2008, the head of the internal security department also ordered the interception of the applicant’s telephone communications without judicial authorisation by reference to section 8(3) of the of the Operational-Search Activities Act (hereafter “the OSAA”). The decision read in its entirety as follows: “[The internal security department] has received operative information that [the applicant], a senior police officer with the Economic Crimes Department of the Department of the Interior of the Krasnoyarsk Region, is extorting money in the amount of 200,000 roubles from [P.], the director of limited liability company [the company name], for assisting him in obtaining a licence for the retail sale of alcoholic beverages. At the request of the police officer the money must be delivered in the period from 31 July to 2 August 2008; the exact time and place for delivering the money is to be agreed in advance by telephone [telephone number] given by [the applicant]. [The applicant’s] actions contain elements of a criminal offence under Article 290 § 2 of the Criminal Code [bribe-taking] ... It is necessary to perform the operational-search measure ‘interception of telephone communications’ with the aims of documenting [the applicant’s] criminal activities in a thorough and objective way, collecting evidence and uncovering other participants in criminal offences.” 10. On 1 August 2008 the acting head of the internal security department sent a letter to the deputy President of the Tsentralnyy District Court of Krasnoyarsk, informing her that on 31 July and 1 August 2008 the applicant’s telephone had been tapped in accordance with the urgent procedure provided for by section 8(3) of the OSAA. He then repeated verbatim the decision of 31 July 2008 ordering the interception of the applicant’s telephone communications. 11. On the same day, 1 August 2008, after the police had intercepted the applicant’s telephone conversation with Mr P. in which the two men had arranged to meet later that day, Mr P. was provided with a video camera, a radio transmitter and the necessary amount of money in banknotes marked with a special substance. The applicant and Mr P. met in the applicant’s car, where Mr P. left the marked money. Immediately after Mr P. had left, the applicant was arrested by the police, his car was searched and the money was seized. 12. On 18 August 2008 the Investigations Committee of the Krasnoyarsk Region opened criminal proceedings against the applicant on suspicion of attempted fraud, an offence under Article 159 of the Criminal Code, in connection with the aforementioned incident. The applicant was suspected of attempted fraudulent appropriation of the funds of a private company in the amount of 200,000 Russian roubles. 13. On 28 October 2008, in reply to a request from the applicant for an expert examination of the recordings of his telephone conversations and the video recordings of his meeting with Mr P., the investigator in charge of the case held, in so far as relevant, as follows: “... [the applicant’s] guilt for the criminal offence under Article 159 § 3 ... is completely proven by the preponderance of evidence collected.” 14. Identical statements were made by the investigator in his decisions of 7 November and 12 December 2008 and 1 April 2009 rejecting various complaints lodged by the applicant. 15. In reply to the applicant’s complaints that his telephone had been tapped unlawfully without judicial authorisation, the investigator stated, in his decisions of 7 November and 12 December 2008, that section 8(3) of the OSAA permitted the interception of telephone communications without judicial authorisation in urgent cases, provided that a court was notified within twenty-four hours of its commencement and judicial authorisation was obtained within forty-eight hours, failing which it had to be discontinued. Interception of the applicant’s telephone communications had been ordered by the head of the internal security department because at the time there had been sufficient reasons to believe that the applicant was involved in a serious criminal offence punishable under Article 290 § 2 of the Russian Criminal Code. The District Court had been notified of the interception the next day, and on the same day, that is, before the expiry of the forty-eight-hour time-limit, the interception had been discontinued; hence, there had been no reason for seeking judicial authorisation. The interception of the applicant’s telephone communications had therefore been lawful. 16. During the trial the applicant challenged the admissibility of all the items of evidence obtained as a result of the “operative experiment” and the interception of his telephone communications. He argued, in particular, that the police had had insufficient grounds for carrying out the surveillance measures and that they had not obtained a judicial authorisation to intercept his telephone communications. 17. On 7 December 2009 the Tsentralnyy District Court declared the audio and video recordings admissible as evidence. It held, in so far as relevant, as follows: “... [the applicant] argues that the operative experiment and other operational-search measures were unlawful because such measures are permissible only with the aim of suppressing, preventing and investigating criminal offences of medium severity or more serious criminal offences. I suppose that at the time when the police made the decision to carry out the operative experiment and other operational-search measures against [the applicant] they had information that he had committed criminal offences classified as serious or especially serious under the law (abuse of power, bribetaking). In the court’s opinion, for ordering operational-search measures it is sufficient that there be some elements of a criminal offence, rather than the entire corpus delicti, permitting [the police] to make a preliminary rather than definitive classification of the offence ... The court is not convinced by [the applicant’s] arguments that the interception of his telephone communications was unlawful because the case file does not contain a judicial decision authorising this operational-search measure. The operational-search measure against [the applicant] was carried out in conditions of urgency. Section 8(3) of the OSAA provides that a judge must be informed within twentyfour hours of the commencement of operational-search activities in conditions of urgency and that judicial authorisation must be obtained within forty-eight hours, failing which the activities must be discontinued. The court agrees with [the applicant] that the case file does not contain a judicial decision authorising operational-search measures. At the same time it notes that a judge was informed about the operational-search measures within twenty-four hours and the measures were discontinued within forty-eight hours of their commencement, as required by section 8(3) of the OSAA. No judicial refusal of authorisation was received. It therefore finds that no breaches of legal provisions governing operationalsearch measures were committed in the present case ...” 18. On 22 December 2009 the District Court convicted the applicant as charged, sentenced him to two years and two months’ imprisonment, and stripped him of his rank in the police. The court based its judgment on the statements of numerous witnesses, material evidence, expert opinions, and the audio and video recordings made on 31 July and 1 August 2008. It found that the recordings were authentic and had been obtained in accordance with the procedure prescribed by law, repeating the reasoning set out in the decision of 7 December 2009 on the admissibility of evidence. 19. In his appeal submissions the applicant complained, among other things, that the District Court had relied on unlawfully obtained evidence, in particular on recordings of his telephone conversations made without judicial authorisation. He also contested the authenticity of the recordings. 20. On 8 April 2010 the Krasnoyarsk Regional Court upheld the applicant’s conviction on appeal, adhering to the reasoning of the trial court. It found, in particular, that the audio and video recordings had been correctly declared admissible as evidence and found authentic.
| 1 |
test
|
001-158952
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF ŠOŠ v. CROATIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
|
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković
|
5. The applicant was born in 1980 and lives in Zagreb. 6. On 19 May 2011 the Split Office of the National Police Unit for the Suppression of Corruption and Organised Crime (Policijski nacionalni ured za suzbijanje korupcije i organiziranog kriminaliteta, Odjel za suzbijanje korupcije i organiziranog kriminaliteta Split; hereinafter: “the police”) lodged a criminal complaint against the applicant before the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Državno odvjetništvo, Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: “the State Attorney’s Office”), alleging that he had participated in an organised international drug-trafficking scheme. 7. On the basis of the extensive evidence collected during the preliminary investigation, including through mechanisms of international legal assistance in criminal matters from the authorities in Spain, Slovenia and the Netherlands, and the results of secret surveillance measures, on 20 May 2011 the State Attorney’s Office opened an investigation in respect of the applicant and nine other persons suspected of drug trafficking. In particular, it was alleged that the applicant had participated in an organised drug-trafficking scheme by securing the means of communication between other members of the group. 8. During the investigation, the State Attorney’s Office questioned a number of witnesses and obtained further voluminous evidence from the police. It also commissioned telecommunication expert reports and requested assistance in obtaining evidence from the authorities in Spain, Slovenia, the Czech Republic, Bosnia and Herzegovina and the Netherlands. 9. On 9 November 2011 the State Attorney of the Republic of Croatia (Glavni državni odvjetnik Republike Hrvatske) extended the investigation for a further six months. 10. Following the completion of the investigation, on 16 May 2012 the State Attorney’s Office indicted the applicant and nine other defendants in the Split County Court (Županijski sud u Splitu) on charges of drug trafficking. It alleged that the applicant had facilitated communication between other members of the group operating an international drug-trafficking scheme. 11. On 18 May 2012 the investigating judge forwarded the indictment to the defendants, instructing them that they could submit their comments on it within a period of eight days. 12. On 28 May 2012 the applicant denied the charge, alleging numerous substantive and procedural flaws. 13. Several hearings for the confirmation of the indictment were held before a three-judge panel of the Split County Court. Meanwhile, the defence lawyers challenged the decision on the admissibility of evidence before the Supreme Court. 14. On 23 November 2012 the applicant complained to the Supreme Court of a lack of diligence in the conduct of the proceedings. He pointed out that the Supreme Court had not yet decided on the question of the admissibility of the evidence, which was incompatible with the requirement of due diligence in the conduct of the proceedings. 15. On 25 January 2013 a three-judge panel of the Split County Court confirmed the indictment and referred the case to trial. 16. The criminal proceedings against the applicant are still pending. 17. On 19 May 2011 the applicant was arrested in connection with the criminal complaint lodged against him by the police (see paragraph 6 above). 18. The next day, after hearing the applicant’s defence, the State Attorney’s Office ordered that he be remanded in custody for a period of forty-eight hours. 19. Following the opening of the investigation against him, on 20 May 2011 the State Attorney’s Office asked an investigating judge (sudac istrage) of the Split County Court to order the applicant’s pre-trial detention (istražni zatvor). It also requested that the other defendants be remanded in custody. 20. On the same day the investigating judge accepted the request and ordered the applicant’s pre-trial detention for one month under Article 123 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and gravity of charges). He also ordered the pre-trial detention of nine other defendants in the proceedings. The relevant part of the decision reads: “Reasonable suspicion that the suspects committed the offences at issue follows from the criminal complaint lodged by [the police] and the [supporting material] ... The pre-trial detention of all the suspects, save for Đ.F. and N.E. who are detained in Spain, was ordered under Article 123 § 1 (2) of the Code of Criminal Procedure. The suspects Š.L. and D.J. ... are still at large and there is therefore a risk that if the other suspects were at large, they could hinder the proper conduct of the proceedings by influencing [Š.L. and D.J.]. In addition, a number of witnesses should be questioned concerning the offences at issue ... and, since they know the suspects or are relatives of theirs, there is a risk that the suspects, if at large, could hinder the proper conduct of the proceedings by influencing the witnesses ... The pre-trial detention of all the suspects was also ordered under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of the [suspects’] organisation, and the fact that they have allegedly smuggled over 700 kilograms of cocaine, 338 kilograms of which has been seized in Spain, this court finds that it suggests special circumstances justifying the fear that they may reoffend. ... The pre-trial detention of all the suspects, save for S.R., was also ordered under Article 123 § 1 (4) of the Code of Criminal Procedure. This court finds it necessary to order detention under this provision also so as to ensure the proper conduct of the proceedings, given that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, it is alleged that the suspects have smuggled over 700 kilograms of cocaine, which can be used to make a significant number of individual doses and thus to endanger the health of a high number of persons. Moreover, the suspects have allegedly operated on the territories of several countries, where they organised networks of persons helping them in the commission of the offences, which suggests a particularly organised and systemic approach in the commission of the offences. Apparently large sums of money were also spent for the [distribution and] transport of the drugs from South America. This suggests, in the view of this court, that the circumstances of the offence are particularly serious, surpassing the circumstances in which such offences are ‘usually’ committed ...” 21. The applicant challenged the decision of the investigating judge before a three-judge panel of the Split County Court, arguing that the judge had failed to take into account the extent of his specific participation in the alleged offences at issue. He pointed out that his alleged role in the commission of the offences was peripheral and irrelevant, since his only contact with the case was through the third defendant, whom he had known from the past but had not suspected of being involved in a criminal activity. The applicant also stressed that he was a self-employed car mechanic and had had no previous conflict with the law. He therefore requested that less severe preventive measures be applied for securing his proper participation in the proceedings. 22. On 6 June 2011 a three-judge panel of the Split County Court dismissed the appeals lodged by the applicant and two other defendants. The relevant part of the decision reads: “It is alleged that the suspects, acting within an organised group, obtained cocaine abroad and transported it to Croatia for the purpose of its further distribution. The proceedings at issue concern not only a serious and socially dangerous offence, but there are also other specific circumstances showing the seriousness of the case. The suspects obtained the drugs in South America, in large quantities of several hundreds of kilograms, and the whole process of transporting the drugs required a high degree of organisation and distribution of work. The quantity of drugs found, namely around 370 grams [sic] of cocaine, is higher than in other [similar cases]. The investigating judge thus correctly concluded that in respect of the suspects S.K. and Vlatko Šoš the circumstances of the offence are particularly serious, which also justifies the fear that the suspects might reoffend. There are therefore sufficient reasons for pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure. ... Furthermore, since in the further course of the proceedings, as indicated in the investigating judge’s decision, it is necessary to question a number of witnesses who have relevant knowledge of the offences at issue and know the suspects S.K., Vlatko Šoš and S.R., the investigating judge correctly ordered the detention under Article 123 § 1 (2) of the Code of Criminal Procedure. Given that the investigating judge’s decision ordering the detention is justified, there are no grounds for accepting the requests of the suspects, put forward in the appeals, to replace their detention by alternative measures.” 23. On 17 June 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and gravity of charges), reiterating his previous arguments. 24. The applicant challenged that decision,. On 7 July 2011 a three-judge panel of the Split County Court dismissed his complaints, endorsing the reasoning of the investigating judge. 25. On 18 August 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). He found that all the relevant witnesses had been questioned and that there was no further possibility of remanding the applicant in detention on the grounds of the risk of collusion. As to the other grounds relied upon for the applicant’s detention, the investigating judge reiterated his previous findings. 26. The applicant lodged an appeal against that decision before a three-judge panel of the Split County Court, arguing that his detention had been constantly extended without providing any reasons relevant to his particular situation. He also requested that his detention be replaced by house arrest. 27. On 27 September 2011 a three-judge panel of the Split County Court dismissed the applicant’s appeal, endorsing the findings of the investigating judge. It provided no reasoning concerning the applicant’s request for the replacement of his detention by house arrest. 28. On 18 October 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads: “The pre-trial detention of all the suspects was also ordered under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of the [suspects’] organisation, and the fact that they have allegedly smuggled over 700 kilograms of cocaine, 338 kilograms of which has been seized in Spain, this court finds that it suggests special circumstances justifying the fear that they may reoffend. ... The pre-trial detention of all the suspects, save for S.R., was also ordered under Article 123 § 1 (4) of the Code of Criminal Procedure. This court finds it necessary to order detention under this provision, also so as to ensure the proper conduct of the proceedings, given that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a long prison sentence has been prescribed. Specifically, it is alleged that the suspects have smuggled over 700 kilograms of cocaine, which can be used to make a significant number of individual doses and thus to endanger the health of a high number of persons. Moreover, the suspects have allegedly operated on the territories of several countries, where they organised networks of persons helping them in the commission of the offences, which suggests a particularly organised and systemic approach in the commission of the offences. Apparently large sums of money were also spent for the [distribution and] transport of the drugs from South America. This suggests, in the view of this court, that the circumstances of the offence were particularly serious, surpassing the circumstances in which such offences are ‘usually’ committed ...” 29. The applicant lodged an appeal against the above decision, asking to be released and for less severe preventive measures to be applied. On 28 October 2011 a three-judge panel of the Split County Court dismissed his appeal as ill-founded, reiterating its previous arguments and without providing further reasons for refusing the applicant’s request. 30. On 15 November 2011 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against those decisions, arguing that the reasons given for his continued detention were neither relevant nor sufficient. He pointed out that the Split County Court had collectively extended the pre-trial detention of all the defendants in the proceedings, without taking into account his specific arguments. 31. On 18 November 2011 the investigating judge extended the applicant’s pre-trial detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). In his decision, the investigating judge stated that the initial grounds for the applicant’s detention had not changed. The judge also noted that owing to the complexity of the case, the investigation would be extended for a further six months. 32. The applicant appealed against that decision, arguing that it lacked the relevant reasoning. He also asked to be released on bail or for the application of other less severe preventive measures. 33. On 6 December 2011 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments. It held that, in view of the gravity of the offences at issue, the applicant’s detention could not be replaced by less severe preventive measures, nor could he be released on bail. 34. On 9 and 16 December 2011 the applicant urged the Constitutional Court to decide on his constitutional complaint of 15 November 2011 (see paragraph 30 above). 35. On 22 December 2011 the Constitutional Court declared the applicant’s constitutional complaint of 15 November 2011 inadmissible on the ground that a new decision on his detention had been adopted in the meantime, namely on 18 November 2011 (see paragraph 31 above), and that his detention was no longer based on the impugned decision. This decision was served on the applicant’s representative on 10 January 2012. 36. On 18 January 2012 the investigating judge extended the applicant’s detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) on the ground that the relevant circumstances warranting his detention had not changed. 37. The applicant lodged an appeal against the above decision, arguing that it lacked the relevant reasoning and asking that his detention be replaced by less severe preventive measures. 38. On 31 January 2012 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments concerning the necessity of the defendants’ continued detention. 39. On 14 February 2012 the applicant lodged a constitutional complaint before the Constitutional Court, arguing that in extending his detention throughout the investigation, the court had always used the same wording and phrases. He pointed out that the Split County Court had failed to make a proper assessment of the necessity of his continued detention given that its decisions were merely a reproduction of the same wording provided in the initial decision ordering his detention on 20 May 2011. 40. On 22 February 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the Split County Court. The relevant part of the decision reads: “The impugned decision of the investigating judge ... provides detailed and clear reasoning with regard to the relevant legal circumstances related to the appellant’s [detention]. The Constitutional Court finds that the impugned decisions comply with the relevant constitutional [requirements] concerning the extension of the appellant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure.” 41. On 16 March 2012 the investigating judge extended the applicant’s detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) on the ground that nothing had changed in the relevant circumstances warranting his continued detention. 42. The applicant appealed against that decision, reiterating his request for release and the application of less severe preventive measures. 43. On 29 March 2012 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments. It found that it was not possible to release him and to apply less severe preventive measures in view of the particular gravity and seriousness of the charges against him. 44. Following the submission of the indictment against the applicant to the Split County Court (see paragraph 10 above), on 18 May 2012 a three-judge panel of that court extended the applicant’s detention pending trial under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) without setting any time-limits for the detention. The relevant part of the decision reads: “Against the defendant: ... 9. Vlatko Šoš ... the pre-trial detention is extended and it should continue further ... on the basis of Article 123 § 1 (3) and (4) of the Code of Criminal Procedure ... Statement of reasons ... Reasonable suspicion that the suspects have committed the offences at issue follows from the indictment submitted by the [State Attorney’s Office] and the evidence listed in the indictment. ... With regard to the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš the detention was extended under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of [the defendants’] organisation, and the fact that they have allegedly smuggled large quantities of cocaine for the purpose of its further distribution, 338 kilograms of which has been seized in Spain, this panel finds that it suggests special circumstances justifying the fear that they may reoffend. The detention of the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš was also extended under Article 123 § 1 (4) of the Code of Criminal Procedure. This panel finds that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, the very fact that [the case] concerns a large number of persons organised in a criminal enterprise for the purpose of trafficking large quantities of cocaine, for which purpose the defendant P.Ć. established a criminal organisation in Croatia, as well as the fact that a venture of trafficking of large quantities of the drug, such as the one smuggled by the defendants, is not undertaken by individuals who are not aware of the trafficking, suggest that the circumstances of the offence are particularly serious. The defendants are charged with acting on the basis of a prepared plan and agreement for permanently trafficking large quantities of cocaine, and in the period between January 2010 and 19 May 2011 they smuggled large quantities of [that drug] for the purpose of further distribution. The undisputed purity of the last shipment of the seized cocaine, amounting to 338.29 kilograms, means that it could have been used for making at least 3,000 doses for individual use ... which on the black market could have endangered the health of a high number of persons. These circumstances of the offence surpass the usual circumstances in which [such offences] are committed, and therefore they suggest its particular gravity.” 45. The applicant appealed to the Supreme Court (Vrhovni sud Republike Hrvatske) against the above decision, arguing that the Split County Court had failed to adduce any relevant reason warranting his continued detention. He pointed out in particular that the individual circumstances of his case had not been examined, such as the fact that he had not had any previous conflict with the law. This called into question the findings of the Split County Court that he could reoffend. He also asked that his detention be replaced by less severe preventive measures. 46. On 15 June 2012 the Supreme Court dismissed the applicant’s appeal as ill-founded, endorsing the decision of the Split County Court. It did not examine the possibility of replacing the applicant’s detention by the application of alternative preventive measures. With regard to the applicant’s specific arguments, the Supreme Court held: “The importance of the reasons making the detention under Article 123 § 1 (3) of the Code of Criminal Procedure necessary and the only appropriate measure for averting the risk of reoffending has not been called into question by the appeal arguments of the defendants S.K. and Vlatko Šoš that they did not have a criminal record. The fact that ... prior to his arrest [Vlatko Šoš] was well-known as a hardworking and decent person who was earning money by working as a car mechanic could be taken into account in the sentencing, in the event of his conviction.” 47. On 13 August 2012 a three-judge panel of the Split County Court again extended the applicant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating its previous arguments and without setting any time-limits for the applicant’s detention. It did not examine the possibility of replacing his detention by the application of less severe preventive measures. 48. The applicant challenged the decision of the Split County Court before the Supreme Court, arguing that the courts had extended his detention throughout the period of his remand by constantly repeating the same phrases and almost identical wording, and without a proper assessment of the individual circumstances of his case. He also asked that his detention be replaced by less severe preventive measures. 49. On 12 September 2012 the Supreme Court dismissed the applicant’s appeal as ill-founded on the ground that there was nothing calling into question the findings of the Split County Court concerning the necessity of his continued detention. It also stressed that, in view of the gravity of the charges and the persisting risk of reoffending, the applicant’s detention could not be replaced by less severe preventive measures. 50. On 22 October 2012 the applicant lodged a constitutional complaint against the above decision. He contended that the lower courts had constantly extended his pre-trial detention throughout the proceedings, always using the same stereotyped formulae and phrases. He considered, therefore, that they had failed to adduce any relevant and sufficient reasons for his continued detention. He pointed out the wording of the decisions extending his detention and the fact that his detention had been extended during the trial without setting any time-limits. 51. On 6 November 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. In particular it held: “The Constitutional Court finds in the case at hand that the impugned decisions were adopted on the basis of the competent courts’ careful assessment of the reasons justifying the extension of the appellant’s t issue is punishable by long-term imprisonment) and that the [competent courts] provided sufficient reasons justifying [the detention].” 52. On 9 November 2012 a three-judge panel of the Split County Court extended the applicant’s detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), without setting any time-limits for the detention. The relevant part of the decision reads: “With regard to the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš the detention was extended under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of [the defendants’] organisation, and the fact that they have allegedly smuggled large quantities of cocaine for the purpose of its further distribution, 338 kilograms of which has been seized in Spain, this panel finds that it suggests special circumstances justifying the fear that they may reoffend. The detention of the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš was also extended under Article 123 § 1 (4) of the Code of Criminal Procedure. This panel finds that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, the very fact that [the case] concerns a large number of persons organised in a criminal enterprise for the purpose of trafficking large quantities of cocaine, for which purpose the defendant P.Ć. established a criminal organisation in Croatia, as well as the fact that a venture of trafficking of large quantities of the drug, such as the one smuggled by the defendants, is not undertaken by individuals who are not aware of the trafficking, suggest that the circumstances of the offence were particularly serious. The defendants are charged with acting on the basis of a prepared plan and agreement for permanently trafficking large quantities of cocaine, and in the period between January 2010 and 19 May 2011 they smuggled large quantities of [that drug] for the purpose of further distribution. The undisputed purity of the last shipment of the seized cocaine amounting to 338.29 kilograms means that it could have been used for making at least 3,000 doses for individual use ... which, on the black market, could have endangered the health of a high number of persons. These circumstances of the offence surpass the usual circumstances in which [such offences] are committed, and therefore they suggest that the charges are particularly serious.” 53. The applicant appealed against the above decision to the Supreme Court. On 28 November 2012 the Supreme Court dismissed his appeal as ill-founded, upholding the decision of the Split County Court. 54. On 25 January 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the wording of its previous decision and without setting any time-limits for the detention. 55. The applicant appealed against the decision on his pre-trial detention to the Supreme Court, arguing that it lacked relevant and sufficient reasons. 56. On 20 February 2013 the Supreme Court found that the applicant’s detention was to be extended only under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). It explained that the 2013 amendments to the Criminal Code provided that the offence at issue was punishable by a prison sentence of between three and fifteen years and no longer by long-term imprisonment. It was therefore not possible to remand the applicant on the grounds of the gravity of the charges since the possibility of imposing a sentence of long-term imprisonment was one of the conditions for extending pre-trial detention under Article 123 § 1 (4) of the Code of Criminal Procedure (gravity of charges). 57. On 20 April 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), relying on its previous reasoning and without setting any time-limits for the detention. 58. The applicant appealed against that decision before the Supreme Court, reiterating that his continued detention had not been based on relevant and sufficient reasons. On 24 May 2013 the Supreme Court dismissed his appeal as ill-founded. 59. Meanwhile, on 17 May 2013, following the expiry of the maximum period of the applicant’s pre-trial detention, a three-judge panel of the Split County Court exceptionally extended this maximum time-limit for his detention for a further six months, relying on section 35 of the Act on the Office for the Suppression of Corruption and Organised Crime (see paragraph 71 below). It held that the time-limit for his detention before the adoption of the first-instance judgment would expire on 19 November 2013. 60. The applicant challenged the extension of the time-limit for his pre-trial detention before the Supreme Court, arguing that such a measure was unreasonable. He pointed out that the first-instance judgment could not be adopted before 19 November 2013 given that so far only the preparatory hearing had been scheduled. The applicant also contended that the impugned decision lacked relevant and sufficient reasons warranting his continued detention on the ground of the risk of reoffending. 61. On 7 June 2013 the Supreme Court dismissed the applicant’s appeal, upholding the decision to extend the time-limit for his pre-trial detention. 62. On 2 August 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating its previous reasoning and without setting a time-limit for the detention. It also held that the applicant’s detention could not be replaced by less severe preventive measures. 63. The applicant challenged that decision before the Supreme Court,, his continued detention was unreasonable. 64. On 9 September 2013 the Supreme Court dismissed the applicant’s appeal, upholding the decision of the Split County Court. 65. On 19 November 2013 the applicant was released from detention as the maximum statutory time-limit for his detention had expired.
| 1 |
test
|
001-182876
|
ENG
|
RUS
|
CHAMBER
| 2,018 |
CASE OF MURUZHEVA v. RUSSIA
| 4 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
|
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
|
5. The applicant was born in 1985 and lives in Moscow. 6. In May 2008 she married R.M. The couple settled in Moscow. 7. On 23 July 2008 and 31 May 2012 the applicant gave birth to two children, a son and a daughter respectively. 8. In January 2014 she and R.M. decided to separate. 9. On 14 January 2014 R.M. took the children to the Republic of Ingushetiya without the applicant knowing. He left them with his parents (the paternal grandparents) and went back to Moscow. 10. On 4 March 2014 the marriage between the applicant and R.M. was dissolved. 11. On 11 March 2014 the applicant applied to the Izmaylovskiy District Court of Moscow (“the District Court”) for a residence order in respect of the children. She also applied for child maintenance from R.M. 12. On 25 June 2014 the District Court decided that the children should reside with their mother, the applicant. It further ordered R.M. to return the children to her and pay child maintenance. The judgment became final on 14 October 2014. 13. However, R.M. refused to comply with the judgment. 14. On 10 November 2014 the District Court issued a writ of execution. 15. On 17 November 2014 the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya refused to institute enforcement proceedings since the debtor, R.M., resided in Moscow. 16. On 24 November 2014 the Izmaylovskiy District Bailiffs’ Service in Moscow opened enforcement proceedings. 17. On 2 February 2015 the enforcement proceedings were transferred to the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya. 18. On 12 February 2015 the applicant challenged the lawfulness of the above-mentioned decision before the District Court. 19. On 8 April 2015 the District Court found the decision of 2 February 2015 to be unlawful. 20. Meanwhile, on 23 March, 2 April, 14 April and 16 April 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service tried to enforce the judgment of 25 June 2014 without success: on 23 March and 16 April 2015 due to the emotional state of the children, on 2 April 2015 because the children were outside the territory of the Republic of Ingushetiya, and on 14 April 2015 because the applicant was absent. 21. On 24 April 2015 the applicant challenged in court the lawfulness of the bailiffs’ actions during the attempt to return the children to her on 16 April 2015, in particular: involvement of the wrong district childcare authority in the enforcement, refusal of a request by her to have the enforcement filmed, refusal to examine an objection by her concerning a psychologist participating in the enforcement, delay in notification of the enforcement, establishment during the enforcement of the applicant’s son’s preferences as to his future living arrangements, as well as the bailiffs’ inaction resulting in the failure to secure enforcement of the judgment of 25 June 2014. 22. On 11 June 2015 the Magasskiy District Court of the Republic of Ingushetiya found the bailiffs’ actions during the attempt to return the children to the applicant on 16 April 2015 to be unlawful. 23. On 17 June 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service restricted R.M.’s travel within the Russian Federation for six months. 24. Meanwhile, according to the Government, on 16 June, 5 July, an unspecified date in July, 15 July and 17 August 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service informed the applicant that the enforcement was scheduled for 22 June, 6 July, 13 July, 27 July and 19 August 2015 respectively. On each of the five occasions R.M. took the children to the premises of the Sunzhenskiy District Bailiffs’ Service. However, since neither the applicant nor her representative were present, the enforcement could not take place. 25. According to the applicant, she was never informed of the enforcement dates scheduled for 22 June, 6 July, 13 July, 27 July and 19 August 2015. 26. It appears from the case file that the notification of 16 June 2015 was sent to R.M.’s address. The notifications of 15 July and 17 August 2015 were sent to the applicant’s address, though there is no evidence to suggest that she received them. The case file contains no evidence that she was notified of the other two scheduled dates for carrying out the enforcement measures either. 27. On 17 September 2015 the enforcement file was returned to the Izmaylovskiy District Bailiffs’ Service in Moscow pursuant to the decision of the District Court of 8 April 2015 (see paragraph 19 above). 28. On 6 October and 20 October 2015 a bailiff from the Izmaylovskiy District Bailiffs’ Service in Moscow ordered R.M. to comply with the judgment of 25 June 2014 by 13 October and 23 October 2015 respectively. He further visited R.M. at his place of residence in Moscow. It was established that the children were living with R.M.’s parents in the Republic of Ingushetiya. 29. On 23 October 2015 the deputy chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of 2,500 Russian roubles (RUB) for failure to comply with the judgment of 25 June 2014. 30. On 3 November 2015 a bailiff from the Izmaylovskiy District Bailiffs’ Service invited R.M. to the bailiffs’ office on 10 November 2015 to provide explanations for his non-compliance with the judgment of 25 June 2014. 31. On 10 November 2015 the bailiff imposed an execution fee on R.M. of RUB 5,000 for failure to comply with the judgment of 25 June 2014. He was ordered to comply by 13 November 2015. 32. On 20 November 2015 the deputy chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed a further administrative fine on R.M. of RUB 2,500 for failure to comply with the judgment of 25 June 2014. 33. On the same day the chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of RUB 1,000 for failure to comply with the lawful demands of the bailiffs. 34. On 14 January 2016 the Commission for the Affairs of Minors and the Protection of Their Rights of the Severnoye Izmaylovo District in Moscow imposed an administrative fine on R.M. of RUB 2,000. 35. On the same day the bailiff temporarily restricted R.M.’s travel in view of his failure to comply with the judgment of 25 June 2014, and ordered him to pay the imposed administrative fines. R.M. was invited to the bailiffs’ office on 19 January 2016 to provide explanations for his reluctance to comply with the judgment of 25 June 2014, and was ordered to comply by 20 January 2016. 36. At the applicant’s request, on 3 February 2016 the bailiff launched a search for the children and restricted R.M.’s right to drive. 37. On 5 February 2016 the chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of RUB 1,000 for failure to comply with the lawful demands of the bailiffs. 38. On 13 April 2016 the bailiff telephoned R.M. and asked him to attend the bailiffs’ office to provide explanations for his non-compliance with the judgment of 25 June 2014. He refused to do so. 39. On 14 April 2016 the bailiff suspended the enforcement proceedings. 40. According to the Government, on 5 May 2016 the bailiff informed the applicant that the enforcement was scheduled for 10 a.m. on 19 May 2016 at the children’s place of residence in the Republic of Ingushetiya. However, since she failed to attend, the enforcement could not be carried out. 41. According to the applicant, she was not informed of the enforcement scheduled for 19 May 2016. 42. It appears from the case file that the notification of 5 May 2016 was sent to R.M.’s address. 43. The judgment of 25 June 2014 remains unenforced to date. The children continue to live with their paternal grandparents in the Republic of Ingushetiya.
| 1 |
test
|
001-178749
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF AMIZHAYEV v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
4. The applicant was born in 1979 and lives in Groznyy in the Chechen Republic. 5. On 23 June 2012 the applicant was arrested in connection with a drug-related offence and placed in custody. 6. On 14 August 2012 the Oktyabrskiy District Court of Groznyy found the applicant guilty and sentenced him to one year’s imprisonment. 7. On 14 November 2012 the Supreme Court of the Chechen Republic quashed the conviction and ordered a retrial. 8. On 30 May 2013 the Oktyabrskiy District Court again convicted the applicant and sentenced him to one year’s imprisonment. The court stated that the “preventive measure [should] remain unchanged until the conviction [had become] final”. 9. On 24 June 2013 counsel for the applicant asked the director of the remand prison to release the applicant since he had already served the one-year sentence. On the same day a judge of the District Court faxed a letter to the director, informing him that the applicant should not be released until the Supreme Court had examined the matter on appeal since the District Court ordered the preventive measure to remain unchanged. 10. On 3 July 2013 the Supreme Court upheld the conviction and the applicant was released.
| 1 |
test
|
001-154535
|
ENG
|
ROU
|
COMMITTEE
| 2,015 |
CASE OF DRĂGUNĂ AND OTHERS v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Johannes Silvis;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 about inadequate conditions of detention.
| 1 |
test
|
001-177571
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,017 |
KAR v. TURKEY
| 4 |
Inadmissible
|
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström
|
1. The applicant, Mr Mesut Kar, is a Turkish national, who was born in 1990 and is detained in T type prison in Izmir. The Turkish Government (“the Government”) were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 27 April 2009 the applicant was arrested by the police on suspicion of membership of a terrorist organisation. 4. On 29 April 2009 the Şırnak Magistrates’ Court ordered the applicant’s pre-trial detention. 5. On 20 November 2009 a bill of indictment was filed with the Diyarbakır Assize Court accusing the applicant of membership of a terrorist organisation. 6. On 19 February 2010 the first hearing was held before Diyarbakır Assize Court. 7. On 2 January 2013 the Diyarbakır Assize Court convicted the applicant as charged and sentenced him to ten years and six months’ imprisonment. The assize court also ordered the applicant’s continued detention.
| 0 |
test
|
001-140401
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF ZIMIN v. RUSSIA
| 4 |
No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
|
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
|
5. The applicant was born in 1972 and lives in Ulyanovsk. 6. On 23 December 2002 the Commercial Court of the Ulyanovsk Region declared V.T., a closed joint stock company (the “Company”), insolvent and appointed the applicant as its liquidator. 7. On 29 June 2005 the Ulyanovsk Regional Department of the Interior opened an investigation into the Company’s insolvency proceedings. On 29 August 2005 the applicant was removed from office. According to the applicant, in the course of the investigation he was repeatedly questioned as a witness. 8. On 29 March 2006 the investigator from the Regional Department of the Interior issued an indictment against the applicant on the charges of fraudulent trading during the Company’s insolvency proceedings and embezzlement. In particular, the applicant was accused of having unlawfully transferred the Company’s real property to a third party. 9. According to the materials in the applicant’s criminal case file, he was duly asked to appear at the investigator’s office to be served with the indictment. The investigator sent the telegram to the applicant’s known address. When the postman tried to deliver the telegram the persons present in the applicant’s flat did not open the door. They claimed that the applicant was not there. They also refused to sign for the delivery of the telegram. The investigator’s subsequent summons remained unanswered by the applicant. He was not found at his place of residence either. The police questioned the applicant’s wife and other relatives, who appeared to be unaware of the applicant’s whereabouts. On 5 April 2006 the applicant’s name was put on the list of wanted persons. 10. On 29 April 2006 the applicant was arrested in Moscow and then transferred to Ulyanovsk. The investigator asked the court to authorise the applicant’s pre-trial detention given that (1) he had absconded, (2) he was charged with a serious offence (embezzlement) and, if found guilty, might be subjected to a custodial sentence exceeding two years, and (3) if released, he might abscond or interfere with the administration of justice. 11. On 30 April 2006 the Leninskiy District Court of Ulyanovsk granted the investigator’s request. In particular, the court noted as follows: “[The applicant] has provided positive references as to his character and has two minor children. However, in the light of the severity of the charges and the fact that he might abscond, [the court] does not consider it possible to apply any restrictive measure other than custody.” 12. The applicant appealed, alleging, inter alia, that the District Court could have applied a less strict preventive measure and that the investigator failed to substantiate his argument that the applicant might abscond. On 11 May 2006 the Ulyanovsk Regional Court upheld the detention order of 30 April 2006 on appeal. 13. On 19 June 2006 the investigator refused to extend the time-limit established for the applicant to be able to study the case file. On 11 July 2006 the First Deputy Prosecutor of the Ulyanovsk Region quashed the investigator’s decision. 14. In the meantime, on 23 June 2006 the District Court extended the applicant’s detention until 29 July 2006, stating as follows: “In view of the severity of the charges and [the applicant’s] character, the court considers that he might abscond if released. The grounds justifying [the applicant’s] detention ... have not ceased to exist. There are no new circumstances that would allow any less restrictive measure to be applied.” 15. The applicant appealed, alleging that the District Court could have considered the application of a less strict preventive measure. On 6 July 2006 the Regional Court upheld the detention order of 23 June 2006 on appeal. 16. On 19 July 2006 the District Court further extended the applicant’s detention until 29 August 2006. The applicant asked to be released, arguing that he had no prior convictions, that he had a permanent place of residence, that he was married with two minor children and that he would not abscond. The court dismissed the applicant’s request, noting as follows: “[The applicant] is charged, [inter alia] with a serious offence and, if found guilty, is liable to a custodial sentence exceeding two years. In the light of the above, and taking into consideration the fact that [the applicant] had earlier been put on the list of wanted persons, [the court] pays special attention to the prosecution’s argument that [the applicant] might abscond, if released... In the light of the above, the court cannot release [the applicant] and considers it necessary to extend his detention.” 17. On 16 August 2006 the Zavolzhskiy District Court of Ulyanovsk scheduled the first hearing of the case for 24 August 2006. The court refused to release the applicant pending trial, noting as follows: “[The applicant] is charged with a number of offences, one of which is considered a serious one. This fact is sufficient to assume that [he] might abscond. There are no other circumstances... that would allow custody to be replaced by another less restrictive measure”. 18. On an unspecified date the prosecution dropped the charge of embezzlement against the applicant. 19. On 29 December 2006 the Zavolzhskiy District Court found the applicant guilty of fraudulent trading and sentenced him to one year and one month’s imprisonment and a fine of 50,000 Russian roubles discharging him from serving the prison sentence. The applicant was released from custody in the courtroom. 20. On 21 February 2007 the Ulyanovsk Regional Court upheld the judgment of 29 December 2006 on appeal. 21. “Preventive measures” or “restrictive measures” can be imposed on a defendant in order to assure the execution of the sentence, if it is subsequently imposed, or for the extradition purposes (Article 97 § 2 of the Russian Code of Criminal Procedure (the “CCrP”)). 22. “Preventive measures” or “restrictive measures” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 98 of the CCrP). 23. The court may remand the defendant in custody provided there are grounds to believe that he might abscond, continue criminal activities, threaten a witness or other parties to the criminal proceedings, destroy evidence or otherwise interfere with administration of justice (Article 97 § 1 of the CCrP). 24. When deciding whether to remand an accused in custody, the competent authority is required to take into account the seriousness of the charge, information on the defendant’s character, his or her profession, age, state of health, family status and other circumstances (Article 99 of the CCrP). 25. The defendant may be remanded in custody if the charge carries a sentence of at least two years’ imprisonment and it is not possible to apply a less severe preventive measure (Article 108 § 1 of the CCrP).
| 0 |
test
|
001-167182
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,016 |
MC KEVITT AND CAMPBELL v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano
|
1. The first applicant, Mr Michael McKevitt, is an Irish national who was born in 1949 and is currently imprisoned in Portlaoise, Ireland. The second applicant, Mr Liam Campbell, is an Irish national, who was born in 1962 and is currently detained in HMP Maghaberry in Northern Ireland. Both applicants are represented before the Court by Mr K. Winters of KRW Law - LLP, a lawyer practising in Belfast. 2. The United Kingdom Government (“the Government”) are represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office. 3. The Government of Ireland were notified of the applications and were asked if they wished to exercise their right to intervene pursuant to Article 36 § 1 of the Convention and Rule 44 of the Rules of Court. However, they did not seek to exercise this right. 4. The facts, as submitted by the parties, may be summarised as follows. 5. At 3.05pm on 15 August 1998 a 500lb bomb exploded in the centre of Omagh, a town in County Tyrone, Northern Ireland. As a result of the explosion, twenty-nine people were killed, including a woman pregnant with twins, and more than three hundred people were injured. In addition, there was extensive damage to property in the town. The incident was the single worst atrocity in the course of the years of violence which occurred in Northern Ireland from the late 1960s onwards. 6. Approximately half an hour before the blast, three warning calls had been made by callers using a code word previously used by an organisation calling itself Óglaigh na hÉireann, otherwise known as “The Real Irish Republican Army” (“the Real IRA”). The callers gave conflicting and misleading information about the location of the bomb. 7. Following the blast, responsibility was claimed by the Real IRA. However, no individual has been convicted of causing the bomb or the consequent deaths, injuries and property damage. 8. Many of the families who suffered as a result of the Omagh bomb brought an action for damages for trespass to the person, intentional infliction of harm and conspiracy to injure against the parties they believed to be responsible for the incident. Those parties included the Real IRA as an organisation and the two applicants, who they believed were responsible for the planning, production, planting and detonation of the bomb. 9. The principal witness of the plaintiffs in the civil action was D.R., an FBI agent who had infiltrated dissident Republican terrorist groups. 10. On 29 September 2006 the High Court ordered that D.R. could give evidence by video link because he was receiving the benefit of an FBI witness protection program in the United States of America and the Police Service of Northern Ireland (“PSNI”) had assessed the risk to his life to be severe if he were to give evidence in Northern Ireland. 11. On 9 March 2007 the plaintiffs indicated that D.R. was no longer available to give evidence by video link. They submitted an affidavit explaining that the FBI was no longer prepared to make him available because of the threat to his security and an unexplained medical condition. In his absence, they sought to rely on evidence he had given in two previous criminal trials. 12. In or around 2003 the first applicant had been convicted by the Special Criminal Court in Dublin of membership of the IRA and directing terrorism during the period from August 1999 to October 2000. D.R. had been the principal witness for the prosecution. His evidence, which described the involvement of the Real IRA in the Omagh bombing, the direct involvement of the first applicant in procurement and training within that organisation, and the presence of the second applicant at army council meetings, was based on three statements made by him between January 2001 and March 2001, and documents disclosed by the FBI and British Security Service, including approximately 2,300 pieces of email traffic between him and his handlers. 13. At the trial D.R. had given evidence over fourteen days. For eleven of those days he was cross-examined by counsel for the first applicant, who attacked his credibility as a witness. D.R. did not rely on the email documentation in his direct evidence and he was not cross-examined in relation to it. 14. In 2001, following a sting operation by the British Security Service, three persons had been arrested by the Slovakian police and extradited to the United Kingdom to stand trial for offences committed under the Terrorism Act 2000. The subsequent criminal proceedings took place at Woolwich Crown Court (for further details see O’Farrell and Others v. the United Kingdom, no. 31777/05, 5 February 2013). Neither applicant in the present proceedings was involved in the criminal trial. However, in the course of those proceedings a tape was produced containing a compilation of conversations between a person named “Karl” and members of the British Security Service. It was clear from the conversations that “Karl” was directing the Real IRA’s operation in Ireland and seeking to procure arms and/or funding from foreign Governments. In the course of the Woolwich proceedings D.R. identified “Karl’s” voice as that of the first applicant. His evidence was supported by that of an Inspector in An Garda Síochána (“the Garda”), the National Police Service of Ireland. 15. The plaintiffs applied for permission to rely on the transcript of evidence and materials disclosed during the Dublin proceedings. However, the first applicant submitted that the introduction of this hearsay evidence would deprive him of the opportunity to cross-examine D.R. and prevent the court from assessing his credibility. 16. The High Court judge heard evidence about the effort made by the plaintiffs and the first applicant to secure D.R.’s attendance to give video link evidence. He accepted that the plaintiffs’ solicitor had made a number of attempts to cause the FBI to alter its view; the plaintiffs’ solicitor had attempted to obtain some written explanation for D.R.’s inability to give evidence but had been unable to do so; any application to the relevant judicial authorities in the United States of America to take the evidence of D.R. would likely be opposed by the FBI; and although the first applicant had applied to the court to institute a request for D.R. to be called for crossexamination under the Hague Convention, that request had been refused by the United States’ authorities. The judge therefore accepted that the plaintiffs and the first applicant had taken every possible step to secure the attendance of D.R. as a witness. 17. The judge further considered whether or not the action in trespass constituted a “criminal charge” in accordance with the autonomous jurisprudence of this Court. However, he decided that there had been no “criminal charge” as the proceedings were classified as civil under domestic law and any award the court could make would be compensatory. Although the plaintiffs’ had stated that the objective of the proceedings was not to obtain compensation but to “see the applicants held to account”, the judge considered that their subjective intention was of “little or no bearing” in deciding whether the proceedings were criminal or civil. The judge therefore held that the protections contained in Article 6 § 3 of the Convention did not apply as of right. 18. The judge then considered whether the evidence could be admitted pursuant to the Civil Evidence (Northern Ireland) Order 1997 (see paragraph 48 below). In answering this question in the affirmative, he noted that although his power to exclude relevant evidence was circumscribed by the 1997 Order (see paragraph 48 below), the court’s obligation to ensure a fair trial within the meaning of Article 6 of the Convention could be achieved by permitting the plaintiffs to admit the evidence and applying the appropriate safeguards contained within the Order. In particular, he indicated that once the evidence was received it would be open to the applicants to submit that he should accord it no weight. 19. The plaintiffs also sought to rely on a copy of the “Karl” tape. Counsel for the first applicant contended that pursuant to the Security Service Act 1989, the tape had been disclosed unlawfully by the Metropolitan Police to the plaintiffs. 20. In a decision dated 22 October 2008 the High Court Judge found that the tape had been lawfully disclosed to the plaintiffs and could therefore be admitted in evidence, although the weight to be given to it would be “a matter for submissions”. 21. At the hearing, the first applicant chose not to give evidence in answer to this case against him. The second applicant had initially entered a defence to the claim but subsequently instructed his solicitors to come off record. 22. The High Court judge first considered the appropriate standard of proof and concluded that it should be the balance of probabilities since the seriousness of the allegation against the applicants alone was not a reason for departing from the civil standard. 23. The judge accepted that the Omagh bombing was part of a campaign of terror involving the use of explosive devices in locations where there was a large number of members of the public. In view of the fact that the warnings were specifically designed to prevent detection of the location of the bomb car before the explosion, the judge was satisfied that those involved in the planning, production, planting and detonation of the bomb recognised the likelihood of serious injury or death from its detonation but had decided to take that risk. 24. The plaintiffs sought to adduce evidence of the first applicant’s conviction by the Special Criminal Court in Dublin for directing terrorism. The judge held that the conviction could not be admitted as evidence that the first applicant had committed the acts which grounded the conviction. However, he found that the conviction could be admitted at common law as evidence of bad character, if probative and relevant. 25. The first applicant mounted an attack on the character of D.R. based in substantial part on answers he gave during cross-examination in the Dublin proceedings. In particular, in one email D.R. had suggested an intention to perjure himself in unrelated proceedings; he had once described himself as a “whore” and a “mercenary”; he had been charged with passing bad cheques; there was evidence to suggest that he had been prepared to facilitate criminal activity as long as there was a suitable financial reward for him; he was paid for the information provided to the FBI and the British Security Service; and he had had a reputation as a smuggler, drug dealer and “bad guy”. 26. In assessing the weight to be attached to the evidence of D.R., the judge identified two separate questions: whether the email material represented a fair and accurate account of the actual traffic that passed between D.R. and his handlers, and whether the statements and emails represented a fair and accurate account of the exchanges between D.R. and the first applicant. Both of those questions required consideration of the Civil Evidence (Northern Ireland) Order 1997. 27. In respect of the first question, the judge made the following observations: The statements which were prepared for the purpose of giving evidence in the Dublin proceedings were not prepared contemporaneously, but the emails represented actual traffic between D.R. and his handlers. In virtually all cases the emails were generated within hours of the end of lengthy meetings, but caution had to be exercised in relation to isolated comments in response to queries raised by handlers where there may have been failures of recollection or misinterpretation. D.R.’s motivation for embarking on his activity was the prospect of financial reward. He had been dishonest in his dealings with money and in representation of circumstances, particularly where his financial interests and reputation were involved. D.R. was engaged under a financial contract with his handlers. Since he had a financial interest in producing material that was likely to be considered significant, care had to be exercised in assessing the material. The extraordinary level of detail, which included identification by name of a significant number of people whom it was highly unlikely that D.R. would previously have known was compelling evidence of an attempt to provide an accurate and comprehensive record of actual meetings. The materials were generated for the purpose of enabling handlers to assess intelligence and there was no reason to think that the content had been manipulated in any particular way. The hearsay evidence of D.R. was decisive in the sense that without it the plaintiffs could not succeed against the first applicant. The applicant had a proper opportunity to investigate the credibility of D.R. He had had the advantage of the disclosures which had been made for the purposes of the criminal trial, including the transcript of cross-examinations. It was recognised that some material might be missing and there was the possibility of human error, having regard to the limited interaction necessary to deal with the encryption of these materials. 28. In light of the above considerations, the judge was satisfied to a very high standard of probability that the exchanges set out in the emails represented actual traffic that occurred between D.R. and his handlers. 29. The judge further considered Article 6 of the Convention and, in particular, the Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009. Although he recognised that this was not a criminal case and the minimum rights set out in Article 6 § 3 were therefore not expressly engaged, he accepted that the entitlement to a fair hearing would often involve consideration of many of the issues identified as minimum rights within Article 6 § 3 and it was therefore necessary to examine whether the admission of the hearsay evidence and the giving of weight to it would render the hearing unfair. In this regard, the judge noted that the guarantee of a fair hearing required observance of the principle of equality of arms and the principle that proceedings as a whole should be adversarial; in other words, each party had to be afforded a reasonable opportunity to present his case under conditions that did not place him at a substantial disadvantage vis-à-vis his opponent, and be given the opportunity to have knowledge of and comment on the evidence adduced by the other party. Nevertheless, the judge noted that in this case the material upon which the plaintiffs relied had long been known to all of the parties. Consequently, the defendants, who had available the disclosure which was made within the criminal trial and the transcript of the extensive cross-examination of D.R. at that trial, had had a proper opportunity to investigate D.R.’s credibility. 30. In respect of the second question of whether the material was an accurate record of events and conversations, the judge made the following observations: There was evidence of dishonesty by D.R. in respect of financial matters and the fact that he was being paid for intelligence should properly cause the court to exercise caution in relation to the accuracy of this material. There was, however, overwhelming evidence that D.R.’s account in relation to attendance at meetings and gatherings was accurate – including evidence from Garda officers involved in surveillance of the first applicant – and he could be confident that the emails represented a reliable record of D.R.’s activities. The Woolwich evidence was strongly supportive of the content of the emails: taken together with the hearsay statement made in the Dublin proceedings that the person identified as “Karl” was in fact the first applicant, the Woolwich evidence would appear to confirm that the first applicant had been actively involved in the procurement of terrorist materials, that he had a leadership role in relation to procurement and was a committed terrorist. 31. The judge was therefore satisfied that he should give considerable weight to the content of the email traffic without offending the first applicant’s fair trial rights under Article 6 of the Convention. 32. The principal evidence against the second applicant was also that of D.R., who had recorded his attendance at meetings of the army council where the second applicant appeared to be in charge. In addition, there was independent telephone evidence which indicated that the drivers on the “bomb run” had phoned the second applicant a number of times on the morning of the Omagh bombing. 33. The judge, having already dealt with the weight to be given to the hearsay evidence of D.R. in considering the position of the first applicant, was satisfied that there was also cogent evidence that the second applicant was a member of the army council of the Real IRA at the time of the Omagh bomb, and that he held an important leadership position in the Real IRA both at that time and subsequently. He was further satisfied that there was cogent telephone evidence demonstrating that the second applicant had been involved in directing the operation and participating in it. 34. The judge therefore found both applicants liable in trespass to the plaintiffs. In reaching this conclusion, he described the applicants’ failure to answer the case against them (the first applicant having elected not to give evidence and the second applicant having not attended the hearing at all, either in person or through representatives – see paragraph 21 above) as “inexplicable” and opined that these failures had made the case against them “overwhelming”. 35. The quantum of damages was assessed separately for each plaintiff depending on the losses suffered, and included financial awards to reflect dependency (the loss of financial support from the deceased); bereavement (a fixed sum of GBP 7,500 payable for grief and trauma following the death of certain specified family members); psychiatric injury to the surviving relatives; loss of earnings; “aggravated damages” to compensate for the injury to feelings flowing from consequences such as the indignity, mental suffering, disgrace and humiliation which may be caused by tortious conduct; and funeral costs. 36. The applicants appealed against the judge’s decision on the ground that he had been wrong to conclude that the appropriate standard of proof was the civil standard of proof on a balance of probabilities. However, the Court of Appeal found that the High Court judge had correctly analysed the authorities and was right to apply the civil standard. A tort was a claim for civil law remedies – the findings of the court gave rise to no criminal sanctions and would not in themselves assist in any prosecution – and did not cease to be such because the conduct giving rise to the tort was also criminal. 37. Counsel for the first applicant also argued that the High Court judge had been wrong to attach the weight he did to the evidence of D.R., since evidence had shown him to be a demonstrable confidence trickster who manipulated information at every turn; that the evidence of the first applicant’s conviction by the Special Criminal Court in Dublin should not have been found to be admissible at common law; and that the judge should not have drawn any adverse inference from the decision of the first applicant not to answer the case against him. 38. However, the Court of Appeal observed that the fact that a witness had been demonstrated to be unreliable and, indeed, mendacious and dishonest on important occasions did not mean that everything he said should be discounted as valueless and unreliable. The judge had made it clear that D.R.’s hearsay evidence had to be approached with care. Moreover, he was evidently alive both to the financial motive to lie and exaggerate and to the evidence from D.R. himself which indicated dishonesty in his own financial affairs. Therefore, on a fair reading of the judgment the judge was fully conscious of serious flaws in D.R. as a witness of truth on some issues. 39. Insofar as the judge had held that the evidence of the first applicant’s conviction by the Special Criminal Court in Dublin could be admitted at common law as evidence of bad character, the Court of Appeal found that he had erred. However, this error did not affect the outcome of the proceedings, as the Woolwich evidence had already established that the first applicant was a committed and active terrorist who was willing to participate in serious terrorist crime. The Dublin conviction therefore added no material weight to the plaintiffs’ case against him. 40. Furthermore, the Court of Appeal found that in the circumstances of what was a relatively strong prima facie case the judge had been fully entitled to draw an adverse inference from the first applicant’s failure to give evidence. The first applicant had clearly had access to material facts but gave no explanation for his failure to call any evidence or go in the witness box. 41. The second applicant appealed on the grounds that the judge should have subjected the hearsay evidence to proper scrutiny in the context of the case against him instead of adopting the findings in relation to the case against the first applicant, especially as he had not been a party to the criminal proceedings in Dublin and had not, therefore, had an opportunity to cross-examine D.R.; that the judge had been wrong to make the evidential leap that his alleged use of a particular mobile telephone connected him to the bomb and placed him in a position of control and command; and that it was wrong of the judge to draw inferences from his absence from the proceedings as he had been unrepresented (his assets were frozen in the Republic of Ireland by the Criminal Assets Bureau and his legal aid had been revoked). 42. However, the Court of Appeal found that the judge had been entitled to reach the conclusion that he did in respect of the evidence of D.R. While his analysis of the evidence in the context of the first applicant’s case was not of itself determinative of the question whether it was reliable evidence against the second applicant, he had been aware of the relevant considerations in determining the strength and weaknesses of the evidence. Moreover, there was some corroboration as the Garda had observed the second applicant and D.R. together and the telephone evidence also connected him to the bombing. Linking the pieces of evidence together, the judge was justified in reaching the conclusion that he did. 43. The Court of Appeal further found that the fact the second applicant had declined to testify meant that he had nothing to contradict the evidence against him, which strengthened that evidence even in the absence of any inference which could be drawn. 44. In a decision dated 7 July 2011 the Court of Appeal dismissed the appeals of both applicants. 45. On 27 July 2012 the applicants were refused permission to appeal to the Supreme Court. 46. A claim for trespass to the person, which may be brought for a wilful or negligent act of direct force, is classified as a civil action under domestic law. It is tried before a civil court, which does not determine whether a criminal offence has been committed in order to assess liability. 47. Where liability for trespass to the person is established, the plaintiff is entitled to claim damages to compensate for his or her loss. The general principle underlying the award of damages for tortious acts is to seek to put the plaintiff in the financial position he or she would have been in had the tort not taken place. 48. The admissibility of hearsay evidence in civil proceedings in Northern Ireland is governed by the Civil Evidence (Northern Ireland) Order 1997. Article 3 of the Order provides that in civil proceedings evidence shall not be excluded on the ground that it is hearsay. 49. Articles 4, 5 and 6 contain safeguards relating to the admission of hearsay evidence: “4. —(1) Rules of court may provide that, where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief. (2) Without prejudice to any other power to adjourn proceedings, where, in accordance with rules of court made by virtue of paragraph (1), the court gives a party leave to call the maker of a statement as a witness, the court may adjourn the proceedings, on such terms as to costs or other matters as it thinks fit, for the purpose— (a) of enabling the witness to be brought before the court; or (b) of giving the party concerned a proper opportunity to investigate the statement or the credibility of the witness. 5. —(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. (2) Regard shall be had, in particular, to whether the party by whom the hearsay evidence is adduced gave notice to the other party or parties to the proceedings of his intention to adduce the hearsay evidence and, if so, to the sufficiency of the notice given. (3) Regard may also be had, in particular, to the following— (a) whether it would have been reasonable and practicable for the party by whom the evidence is adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight. 6. — (3) Where in civil proceedings hearsay evidence is adduced and the maker of the original statement, or of any statement relied upon to prove another statement, is not called as a witness— (a) evidence which, if he had been so called, would have been admissible for the purpose of attacking his credibility as a witness is admissible for that purpose in the proceedings; (b) evidence may, with the leave of the court, be adduced of any matter which, if he had been called as a witness, could have been put to him in cross-examination in relation to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and (c) evidence tending to prove that, whether before or after he made the statement, he made another statement inconsistent with it is admissible for the purpose of showing that he has contradicted himself; and (d) evidence which, if he had been so called, would have been admissible for the purpose of supporting his credibility as a witness is admissible for that purpose in the proceedings, but, in the case of evidence of another statement made by that person, only with the leave of the court; and where evidence of another statement which is admissible by virtue of sub-paragraph (c) or (d) is adduced accordingly, it shall also be admissible as evidence of the matters stated.”
| 0 |
test
|
001-155162
|
ENG
|
SVN
|
ADMISSIBILITY
| 2,015 |
X v. SLOVENIA
| 4 |
Inadmissible
|
André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
|
1. The applicant, Mr X, is a Slovenian national, who was born in 1962 and lives in Sp. Duplek. The chamber decided that the applicant’s, the children’s and their mother’s identity should not be disclosed to the public (Rule 47 § 4 of the Rules of the Court). 2. 3. The applicant is the father of two children, Y, born in 2000, and Z, born in 2002. He was married to their mother, M, but they separated on an unknown date. 4. On 3 September 2003, after a physical conflict between the applicant and M, not for the first time, the children were taken away from them by the Maribor Welfare Authority. 5. According to the judgment in the case of X v. Slovenia (no. 40245/10, 28 June 2012) which concerned the applicant’s complaint about the length of the custody proceedings the facts appear as set out below. 6. On 4 September 2003 the children were placed in the care of a foster family by an interim care order. 7. On 11 February 2005 an ordinary care order was issued by which the children were removed from their parents indefinitely. 8. Between 2003 and 2005 the applicant did not have any contact with his children, and he repeatedly requested the Maribor Welfare Authority to return the children and to allow him to have contact with them. 9. On 17 October 2005 the Ministry of Labour, Family and Social affairs (“the Ministry”) allowed the applicant and M contact with the children once a month. 10. For the first two years the contact was successful, but later became stressful as the applicant and M became impatient and were in conflict during the meetings. In December 2007 the Welfare Authority concluded that continuing contact would not be in the children’s best interest. 11. In October 2008 the applicant confirmed that he did not want to have contact with the children under the arrangement set out in the Ministry’s decision of 17 October 2005. 12. By an interim court order of 19 July 2011 the applicant was again forbidden to have contact with the children. On the basis of expert opinions, the Maribor District Court found that the contact did not have a positive effect on the relationship between the applicant and the children, and that there was no real prospect of the situation improving to such an extent that the children could be returned to the applicant. 13. On an unknown date the applicant lodged an appeal with the Maribor District Court against the interim order prohibiting him from having contact with the children. 14. On 5 June 2012 the Maribor District Court dismissed this appeal. The domestic courts found that contact would not be in the children’s best interests, basing their decision on expert reports as explained in paragraphs 28 and 29 below. 15. The applicant did not lodge an appeal with the Higher Court in connection with the interim order. 16. In parallel with the above, on 9 February 2005 the Maribor Welfare Authority instituted proceedings before the Maribor District Court seeking the withdrawal of the parental rights of the applicant and M in respect of Y and Z. 17. The Maribor District Court ruled in 2005, deciding that the applicant and M should be divested of their parental rights. 18. In 2006, on appeal, the Maribor Higher Court quashed the decision and remitted the case for re-examination, with an instruction that the court should examine further evidence. 19. In 2010 the Maribor District Court found that the withdrawal of parental rights was the only appropriate measure. 20. On appeal, the Maribor Higher Court again quashed the decision and remitted the case for re-examination, finding that the expert opinions on which the decision was based were outdated. 21. On 5 June 2012 the Maribor District Court again decided to withdraw the parental rights of the applicant and M. It found that in 2003 the children, Y and Z, were hospitalised three times; they were neglected and dirty and had haematomas on their bodies. Police intervened several times in the applicant’s and M’s home due to verbal and physical conflicts. Among other things, M tried to burn down their house; she physically attacked the applicant several times; the applicant also beat her and physically punished the children; neither parent took proper care of the children. 22. As regards the children, a court-appointed expert found that they were emotionally attached to their foster parents; they felt safe and well in their home and were determined to stay with them. The children did not ask about the applicant during their stay with the foster parents. They were afraid of him and of being sent back to him; that uncertainty caused them emotional distress and anxiety. They showed fear of losing the safety and stability offered by the foster parents. They also expressed the wish not to have contact with the applicant, as when they met he was rude and constantly complained and spoke badly of the foster parents. They were rejecting the applicant and felt angry and disappointed at him. 23. As regards the applicant, the Maribor District Court found that he verbally attacked the professionals of Maribor Welfare Authority working on the case, and said he did not want to cooperate with them or with the foster parents. The applicant attended contact visits when it was convenient for him, and because of problems in his personal life contact often did not take place for long periods. He declined to have contact in accordance with the decision of the Ministry, and wanted to make his own arrangements. The applicant also despised the children for their positive attitude towards the foster parents. His personality and personal circumstances meant that he was unable to take on parental responsibilities to the benefit of the children. He was not able to see the children’s needs or to prioritise them, as his needs, sorrow, anger and disappointment prevailed. 24. The Maribor District Court concluded that, as the applicant was not capable of fulfilling his parental responsibilities to the children’s benefit, the withdrawal of custody was the most suitable measure at the time to protect the rights and interest of the children and provide them with an appropriate environment for their physical and emotional development. 25. On 4 October 2012 the Maribor Higher Court dismissed the applicant’s appeal and upheld the decision of 5 June 2012. 26. On 14 February 2013 the Supreme State Prosecutor’s Office lodged a request for the protection of legality, stating that the interests of the children were already satisfied when the children were taken from their parents and placed with a foster family, and thus there was no need for the withdrawal of parental rights. 27. On 11 July 2013 the Supreme Court dismissed the request for the protection of legality. 28. As regards the applicant, the Supreme Court found that, according to a court-appointed expert, he was hurt by the separation from his children. However, he was clearly unable to understand the reality of the situation, because of his egocentric way of thinking and his feeling that he was in conflict with the foster parents and the children. The applicant would need to show that he was willing to change his attitude as regards cooperation with the foster family and Welfare Authority. He would also need to show that he understood the need to fulfil the children’s needs and wishes, that contact with them could be rebuilt only gradually, and that he needed to adapt to that situation. However, the expert considered that the applicant was not capable of making these changes. 29. The Supreme Court observed that having been with them for nine years the children had become attached to the foster parents and were afraid of being taken away from them. It concluded that when, as in such a case, there is no real possibility that children could be returned to their parents, it is in the children’s best interests to make their relationship with the foster parents a permanent and stable one. 30. On 29 October 2013 the Constitutional Court refused to accept the applicant’s complaint for consideration. 31. On 3 September 2003 the applicant was fined by the police. The applicant did not submit any further details in this regard. 32. The relevant provisions of the Slovenian Constitution read as follows: “... The state shall protect the family, motherhood, fatherhood, children and young people, and shall create the necessary conditions for such protection.” “Parents have the right and duty to maintain, educate and raise their children. This right and duty may be revoked or restricted only for such reasons as are provided by law in order to protect the child’s interests ...” 33. The following provision of the Marriage and Family Relations Act (Zakon o zakonski zvezi in družinskih razmerjih, (old) Official Gazette of the Socialist Republic of Slovenia no. 15/1976, with amendments) is relevant to the present case: “(1) A parent who abuses parental rights or abandons his child, or has clearly demonstrated by his behaviour that he is not taking care of the child, or seriously neglects his duties in that respect, should be deprived of parental rights by a court decision. (2) Parental rights may be restored to a parent by a court decision if the reasons for its withdrawal no longer exist, unless the child has been adopted. (3) The above matters should be decided by the courts in non-contentious proceedings.” 34. The relevant provision of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 45/08) in so far as relevant, reads as follows: “(1) During the proceedings in ... disputes arising from relationships between parents and children a court may issue, of a party’s or of its own motion, an interim measure for ... the prohibition of the contact visits or for their restriction...
| 0 |
test
|
001-146385
|
ENG
|
HUN
|
CHAMBER
| 2,014 |
CASE OF SZÉL AND OTHERS v. HUNGARY
| 3 |
Preliminary objections dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 13+10-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award
|
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
|
5. The applicants were born in 1977, 1974 and 1971 and live in Budakeszi, Budapest and Gödöllő, respectively. 6. At the material time, the applicants were members of the Hungarian Parliament and the opposition party LMP. 7. On 21 June 2013 Parliament held a final vote on a new law, Bill no. T/7979 on Transfer of Agricultural Lands and Lands of Forestry. The legislative proposal was quite controversial and generated intense reactions among opposition members. In protest during the final vote on the bill, Ms Lengyel placed a small, golden wheelbarrow filled with soil on the table in front of the Prime Minister, while Ms Szél and Ms Osztolykán stretched a banner containing the inscription “Land distribution instead of land robbery!” in front of the Speaker’s pulpit; meanwhile, Ms Lengyel used a megaphone to speak. She had previously delivered two speeches during the detailed debate and one speech during the final debate on the bill, filing three amending motions, and introduced two amending proposals just before the final vote. 8. On 25 June 2013 the Speaker presented a proposal to fine Ms Szél and Ms Lengyel respectively 131,410 Hungarian forints (HUF) (approximately 430 euros (EUR)) and Ms Osztolykán HUF 154,600 (approximately EUR 510) for having seriously disrupted the plenary proceedings, in application of section 49(4) of Act no. XXXVI of 2012 on Parliament. 9. The Speaker proposed that the maximum fine (a third of their monthly remuneration) was to be applied, given the extraordinary situation that had developed during the voting process. The reason given by the Speaker was that the applicants had gravely disrupted the plenary’s work by displaying their poster and using a megaphone. A decision approving the proposal of the Speaker was adopted by the plenary on 26 June 2013, without a debate. 10. A constitutional complaint was filed, concerning a sanction for disruptive conduct, by MP E.N., a member of the opposition party Jobbik, and rejected by the Constitutional Court on 4 November 2013 (decision nos. 3206/2013. (XI.18.) AB and 3207/2013. (XI.18.) AB); see paragraph 16 below). The Constitutional Court found that MP E.N. had been fined under sections 48(3) and (6), 50(1) and 52(2) – rather than section 49(4) – of Act no. XXXVI of 2012 on Parliament. It held in particular that the restrictions imposed on him for conduct falling under the above provisions – that is, “gravely offensive expression” – were in compliance with the Fundamental Law. His complaint in respect of section 49(4) was rejected because this provision, concerning “gravely offensive conduct”, was not applicable in that case. The Constitutional Court went on to observe that there was no remedy available to that complainant against the measure. Lastly, the Constitutional Court held that parliamentary disciplinary law concerned Parliament’s interior business and the MPs’ conduct as parliamentarians, rather than citizens’ rights or obligations; and that therefore no requirement of a remedy against a parliamentary disciplinary measure could be deduced from Article XXVIII(7) of the Fundamental Law.
| 1 |
test
|
001-150837
|
ENG
|
SWE
|
ADMISSIBILITY
| 2,015 |
JOHANSSON v. SWEDEN
| 4 |
Inadmissible
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
|
1. The first applicant, Mr Christer Johansson, is a Swedish national born in 1969 and the second applicant, Ms Annie Johansson, is an Indian national born in 1971. They are residing in Sweden. They were represented before the Court by Ms R. Harrold-Claesson, a lawyer practising in Olofstorp, Sweden, and Mr R. Kiska, a lawyer practising Vienna, Austria. 2 3. The applicants are a married couple who have a son, X, born in 2001. On 24 June 2009, the Social Council (Socialnämnden) of the Region Gotland decided to take X into immediate compulsory public care and the decision was implemented the following day. Initially, the applicants were prohibited from having any contact with X but this prohibition was later revoked. 4. This decision was followed by an application by the Social Council to the County Administrative Court (förvaltningsrätten) of the County of Gotland for compulsory public care of X, which was granted 13 August 2009. The court found that there were psychological and physical care deficiencies in the applicants’ care of X, resulting in his health and development being at risk. 5. The applicants appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm which upheld the lower court’s judgment in full. On 27 January 2010 the Supreme Administrative Court (Högsta förvaltningsdomstolen) refused leave to appeal. 6. By decision of 21 December 2009, which was upheld by the Social Council on 12 January 2010, the applicants’ right to contact X was again limited. The applicants were granted a supervised visit with X, for one hour every fifth week, and a supervised telephone call, for fifteen minutes every two weeks. E-mails and letters from the applicants were also forwarded to X. The applicants were specifically instructed not to discuss the legal process with X, but did not comply with this instruction. 7. On 27 January 2010, the applicants requested the Social Council to revoke the decision to keep X in compulsory public care. On 12 May 2010, the Social Council rejected the request. The decision was appealed against to the County Administrative Court in Stockholm which, on 21 September 2010, found that X was still in need of care and so upheld the Social Council’s decision. 8. On 21 January 2011, the first applicant was convicted by the District Court (tingsrätten) of Gotland of minor narcotics offences and unlawful deprivation of liberty (olaga frihetsberövande) after having abducted X by force. Probation (skyddstillsyn) was ordered, combined with the obligation to undergo therapeutic treatment and two months’ imprisonment, which he had already served in pre-trial detention. The judgment was later upheld by the Svea Court of Appeal (hovrätten). 9. On 8 March 2011, as a consequence of the conviction, the Prosecution Authority (Åklagarmyndigheten) issued a restraining order against the first applicant vis-à-vis X, initially for one year but later extended up to and including 2 March 2013. 10. On 1 July 2011, upon appeal by the applicants, the Administrative Court of Appeal upheld the lower court’s judgment to keep X in public care. It took into consideration the first applicant’s conviction as well as the restraining order. It further considered that, on 26 November 2010, the Social Council had decided to ban all visits and contact between the applicants and X. One, or both, of them had published or provided for publication on the internet confidential information regarding X. The court concluded that the applicants’ ability to care for X had not improved but rather worsened. 11. On 12 January 2011, the Social Council requested the District Court to transfer legal custody (vårdnad) of X from the applicants to a specially-appointed guardian (särskilt förordnad vårdnadshavare). It based its request on the information obtained during the previous proceedings and submitted that, due to the first applicant’s abduction of X, there was a long-term need to limit the applicants’ contact with their son. X was also found to have a need for long-term care. The Social Council further claimed that as long as the applicants had custody of X, it was not possible to keep information regarding him confidential from them and so prevent such information being published on the internet. Considering the complexity of the matter and the applicants’ behaviour towards the social workers, it was not considered possible to transfer custody to X’s foster home parents or a social worker in the near future. Instead, a third party was suggested. 12. On 19 December 2011, the District Court rejected the interim request to appoint a specially-appointed guardian for X and, on 13 June 2012, it rejected the request finally. It took into account the reasons given by the Social Council but also noted that compulsory public care should only be used when it was absolutely necessary and that the aim was that it should cease as soon as was possible. Considering that the applicants had requested the administrative courts to repeal the compulsory care, it could thus not be concluded that a reunion was impossible. Friends and family of the applicants had furthermore stated that they were able to care for their son. In the court’s view, a decision to transfer custody would most likely render the applicants even more angry and frustrated which would rather increase the risk of their interfering in X’s care. In conclusion, it found that it was not in X’s best interest to transfer custody from his parents. 13. The Social Council appealed against the judgment to the Court of Appeal. It submitted a psychiatric evaluation of X, dated 9 August 2012, and performed by a chief physician specialised in child psychology and a psychologist specialised in clinical psychology with focus on neuropsychology. The evaluation stated, inter alia, that X had had nightmares for about one year after his father had abducted him, that he had described the situation to be the worst thing that ever had happened to him, that he had found information about himself and his father on the internet which had made him afraid, that he did not want to live with his parents and that he was found to have a great need to be able to develop in peace and quiet in his foster home. The chief physician was also called as a witness. The Court of Appeal granted leave to appeal. 14. The applicants requested the appellate court to order an additional psychological assessment of X, requested disclosure of certain documents and asked for a number of new witnesses to be heard. Their requests were rejected by the Court of Appeal as it found no reason to order an additional psychological assessment of X and since the new evidence produced by the applicants, as well as the requested documents, aimed to prove circumstances that were not relevant to the case. 15. On 10 December 2012, the Court of Appeal, after having held an oral hearing, reversed the lower court’s judgment and transferred custody of X from the applicants to a specially-appointed guardian. It took into account Article 8 of the Convention and also noted that the possibility to transfer the custody of a child from his or her parents should be used restrictively. However, it found that the applicants had failed in their care of X, both physical and psychological. It specifically pointed to the fact that X had not been allowed to go to school and had been kept isolated from children of his own age. It further considered the applicants’ actions after X had been taken into compulsory public care, in particular the first applicant’s abduction of X and the publication of confidential information on the internet. The court found it clear that the applicants, if they had the possibility, would interfere with X’s care. They were also found to be in denial about their failings in providing X with proper care as well as concerning the results of X’s psychiatric evaluations. The appellate court concluded that the situation was such that custody should be transferred, even taking into consideration the applicants’ right to family life under Article 8 of the Convention. It further found that, considering the applicants’ behaviour, it would be an unreasonable burden to place on the foster home parents to require them to deal with questions regarding the applicants’ contact with X. It therefore considered that the best solution was to appoint an experienced family law advocate as X’s specially-appointed guardian. 16. One of the three legally qualified judges dissented and considered that it was not in X’s best interest to transfer custody from his parents. 17. The applicants appealed to the Supreme Court (Högsta domstolen), maintaining their claims and adding, inter alia, that one of the three legally qualified judges had been biased since he had been working at the County Administrative Court at the time when the question of compulsory public care had been decided. 18. On 25 April 2013, the Supreme Court refused leave to appeal. 19. It follows from Chapter 6, section 1, of the Parental Code (föräldrabalken, 1949:381, hereafter the “Code”) that all children have a right to care, security and a good upbringing. They shall be treated with respect for their person and individuality and may not be subject to corporal punishment or other degrading treatment. 20. A child is under the custody either of both parents or one of them, unless a court has transferred custody to one or two specially-appointed guardians (Chapter 6, section 2 (1), of the Code). Anyone who has custody of a child is responsible for the child’s personal circumstances and for ensuring that the child’s needs under Chapter 6, section 1, are satisfied. The guardian is also responsible for the child having the supervision needed due to the child’s age, development and other circumstances, and should ensure that the child is adequately provided for and receives adequate education (Chapter 6, section 2 (2), of the Code). 21. What is in the best interest of the child shall always be decisive in decisions regarding custody, residence and contact (umgänge) (Chapter 6, section 2a (1), of the Code). 22. If a parent, in his or her care of his or her child, abuses or neglects or in any other way fails in taking care of the child in such a way that would lead to a permanent risk for the child’s health or development, the court shall remove the right of custody (Chapter 6, section 7 (1) of the Code). If the child is under both parents’ custody and what is stated in paragraph 1 applies only to one of them, custody shall be entrusted to the other parent. If that parent also fails in taking care of the child, the court shall transfer the custody to one or two specially-appointed guardians (Chapter 6, section 7 (2), of the Code). 23. When custody of a child has been transferred to one or two specially-appointed guardians, the court may, upon request by one or both parents or the Social Council, transfer it to one or both parents (Chapter 6, section 10 of the Code).
| 0 |
test
|
001-157761
|
ENG
|
ROU
|
CHAMBER
| 2,015 |
CASE OF MICLEA v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Carlo Ranzoni;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits
|
5. The applicant was born in 1989 and lives in Arad. 6. At around 4 a.m. on 8 August 2010, the applicant and his friends were involved in a fight with a group of people outside a bar. S.L., who was inside the bar, called the police. When the police arrived the group of aggressors ran away. The applicant and his friends were taken to the police station to give statements and possibly complain against their aggressors. 7. While he was waiting inside the police station, the applicant saw a police officer who was behaving roughly with an arrestee who had just been brought in. He commented loudly that the police officer represented the State authority and should not hit people. D.C.I., the police officer in question, became angry and asked a colleague, M.C., to “take him [the applicant] to the toilets to teach him how to speak”. The applicant, who resisted entering the toilets, was taken outside and then into a back office where the two police officers, D.C.I. and M.C., handcuffed him to a radiator and started punching and kicking him. Alerted by the applicant’s screaming, another police officer entered and put an end to the hitting. At that point, one of the officers who had assaulted the applicant warned him not to say anything or he would find him and beat him again. The applicant and his friends were then escorted home by police officers. 8. On 8 August 2010 the police were called in order to stop a fight between several people on a street in Arad. By the time the police arrived, the applicant and his friends had had their clothes torn and had already been injured. They were accompanied to the police station to make statements. The police officers took statements from S.L. and D.V. 9. S.L. declared that he had been in a bar when he had seen that his brother, S.N., was involved in a fight outside. He called the police emergency number and then went outside to help his brother. He and his brother received blows to their bodies. He further stated that he did not wish to lodge a complaint against the aggressors at that time but reserved his right to do so later. D.V. stated that when he had left the bar he had seen some people fighting. Someone was throwing stones, one of which hit him in the leg. He stated that he did not wish to lodge a complaint. 10. Afterwards the applicant and his friends were all escorted home by the police in order to avoid further violent incidents. 11. An investigation was opened nonetheless in order to clarify the circumstances surrounding the incident. However, after a discussion on 20 August 2010 with the bar attendant and a sales woman at a nearby store, who said they had not seen or heard anything, the case was closed on 23 August 2010. 12. Later on 8 August 2010, the applicant went to the emergency unit of Arad County Hospital, where he was diagnosed with maxillofacial trauma, and contusion of the lower lip and of the thorax. His injuries were treated. 13. On 9 August 2010 a forensic medical certificate was issued by the Arad County Forensic Service at the request of the applicant. According to the certificate, the applicant had a sutured cut on the lower lip and bruising on the upper lip, bruising on the left side of the chest, two excoriations on the left side of the back, grazes and bruising on the right elbow, right leg and the left knee. The applicant also had two excoriations covered with brown scabs measuring 1 by 0.2 cm to 2 by 0.2 cm on the back of each wrist. The injuries may have been caused by an impact with or on a hard object on 8 August 2010. The injuries would require nine days of medical treatment if no complications developed. 14. On 15 September 2010 the applicant lodged a complaint against the two officers who had assaulted him, accusing them of abusive investigative conduct and bodily harm. He lodged his complaint with both the Arad Police and the Prosecutor’s Office of the Timişoara Military County Court. He requested that S.L., S.N. and K.E., who had been taken to the police station with him, be called to testify as witnesses. 15. On 23 September 2010 the applicant was heard at the Timişoara Military Prosecutor’s Office. He declared that he had been taken to the police station after a street brawl. Once inside the police station, the applicant drew an officer’s attention to his disrespectful behaviour towards someone else. The police officer in question and another colleague of his became angry with him and tried to drag him into the toilets, but he resisted. They then told him to go outside, where one of them, officer D.C.I., punched him in the mouth. He was then handcuffed with his hands behind his back and taken to a room where he was punched and kicked. The applicant further stated that he had suffered severe injuries, for which he was submitting a forensic medical certificate and claiming civil damages from his aggressors. 16. On 27 September 2010 the Timişoara Military Prosecutor’s Office decided that the Prosecutor’s Office of the Arad County Court should deal with the case because the two police officers in question were not members of the military. 17. In February 2011 the applicant, S.L. and S.N. were heard by a prosecutor from the Prosecutor’s Office of the Arad County Court. In a statement dated 1 February 2011, handwritten in front of the prosecutor, S.L. stated that he had been taken to the police station on 8 August 2010 following a dispute with a group of people in the street. Once inside the police station he was taken to the second floor together with his brother. Half an hour later, he overheard through an open window a person screaming with pain outside the building and recognised the applicant’s voice. Afterwards he was taken home together with his brother in a police car. Later that day they met the applicant in front of his house and he told them that he had been handcuffed and beaten up by police officers. The applicant showed them his injuries and the marks on his hands. S.L. declared that he knew for sure that the applicant had been beaten up at the police station because he had seen him when they were leaving the police station. On 8 February 2011 S.L.’s statement was typed on a witness statement form bearing the heading of the Prosecutor’s Office of the Arad County Court and S.L. signed it. In addition to the facts described in the previous handwritten statement, the typewritten statement included the following phrase: “... one of my friends, V., came to me and told me that some ... were beating up my brother and Miclea Alexandru.” In that statement S.L. also mentioned that, after he had heard the applicant shouting outside the police station, he had received on his mobile phone a message from the applicant who was telling him that he was being “beaten by policemen”. At that point he wanted to go outside but he was not allowed to and one hour later he was taken home in a police car together with his brother. 18. On 1 February 2011 S.N. also gave a handwritten statement in front of the prosecutor. He declared that he had been taken to the police station following a street fight. The applicant was with him. After his arrival at the police station, while he was upstairs to give a statement, he heard the applicant screaming outside. Approximately one hour later he was taken home in a police car together with his brother. Later that day he met the applicant in front of his house. The applicant told him and his brother that he had been beaten up by police officers. He showed them the injuries on his lips and hands. Like his brother, S.N. also stated that he knew the applicant had been beaten inside the police station because he had seen him when they were taken home. That statement was subsequently typed on a witness statement form bearing the heading of the Prosecutor’s Office of the Arad County Court and was signed by S.N. on 17 February 2011. 19. On 8 February 2011 the applicant declared that he maintained the account he had given in his initial complaint as well as in his statement of 23 September 2010. 20. On 15 March 2011 the Prosecutor’s Office of the Arad County Court decided to join the applicant’s complaint to two complaints lodged by other individuals who claimed that they had been physically assaulted by the same police officers on a previous date. Subsequently, the prosecutor decided not to institute criminal proceedings for abusive investigative conduct as requested by the applicant, since he had not been under investigation at the relevant time. Lastly, the prosecutor held that the investigation for the three counts of abusive behaviour of which D.C.I. and M.C. were accused would be continued by the Prosecutor’s Office of the Arad District Court, which was the competent authority in view of the defendants’ functions within the police force. 21. On 22 June 2011 an officer in charge of internal affairs at the Arad County Police took statements from the two police officers who had allegedly physically assaulted the applicant. D.C.I. stated that in the early hours of 8 August 2010 he had taken an arrested person to the police station. When he entered the waiting room he saw a group of six people who were drunk, had had their clothes torn and were visibly injured. They were arguing and swearing at each other. When he asked them politely to wait outside, one of them swore at him. M.C. stated that he had accompanied D.C.I. on the night of the incident. When he saw a group of people in the police station waiting room, he asked what had happened to them and they replied that they had been beaten up by some people on the street and were waiting to give statements. Then he asked them to wait outside. 22. On 22 July 2011 the police officer in charge of the investigation took statements from T.I., G.S.S. and B.I.M., three of the police officers who had responded to the emergency call. 23. Officer T.I. stated that he had gone to the scene of the incident accompanied by two police patrols. He found a group of people who claimed to be the injured parties. Amongst them was the applicant. They said that they wished to lodge a criminal complaint against their aggressors, so he accompanied them to the police station. There he took statements from S.L. and D.V., but he did not know whether any of the police officers physically assaulted any of the above-mentioned people. T.I. also stated that after statements had been taken, the applicant had been taken home by officer G.S., while he had accompanied the others home in order to avoid further possible conflicts if they decided to go back to the scene of the incident. 24. G.S. stated that he was a member of one of the police patrols that had been called to the scene of the incident. When he arrived S.L. told him that he had been physically assaulted by a group of people who had then run away. He maintained that he did not recognise any of the aggressors. The officer further stated: “... I accompanied to the police station the person who had been assaulted [S.L.] and Mr D.V., who was also at the scene when the incident took place. The accompanied people had injuries on their bodies, probably caused by the stones with which they had been aggressed and their clothes had also been torn as a result of the incident. ... Subsequently, I was asked by T.I. to accompany home another person involved in the incident in order to avoid other unpleasant incidents, this person was Miclea Alexandru. While I was with Miclea Alexandru and until reaching his home ..., he did not tell me that he had been beaten by a police officer, he had traces of violence on his face, his tee-shirt was torn but I did not ask him where this came from, I assumed it had come from the street fight.” 25. B.I.M. declared that the applicant could not have been assaulted by police officers since he was one of the people who had been injured in the street fight. 26. On 12 January 2012 the Prosecutor’s Office of the Arad District Court decided not to pursue the criminal proceedings with respect to the three counts of abusive behaviour for which officers D.C.I. and M.C. had been investigated. As for the applicant’s complaint, the prosecutor held that the statements given by the applicant and the two persons accompanying him on the day of the incident had been contradicted by the statements of the officers under investigation as well as by those of three other police officers, namely T.I., G.S. and B.I.M. Therefore, it could not be established with certainty that the applicant had been assaulted by the two police officers. 27. The applicant complained against that decision, claiming that the statements of the two police officers and their colleagues were subjective and should have been corroborated by other evidence. He requested again that K.A. (referred to as K.E. in the initial complaint) be called as a witness and gave his address. He added that K.A.’s testimony would have been relevant, since he had witnessed the applicant receiving a punch from D.C.I. outside the police station. 28. On 7 February 2012 the applicant’s complaint against the decision not to bring charges was dismissed by the head prosecutor of the Prosecutor’s Office of the Arad District Court with the same reasoning, namely that the statements of the injured party had not been corroborated by the statements of the alleged perpetrators and their colleagues. 29. The applicant contested the prosecutor’s decision before the court, requesting non-pecuniary damages for the injuries sustained. In his submission before the court, the applicant emphasised that as he had been escorted to the police station by only two officers, the statement of the third officer should not have been taken into consideration. In addition, the applicant complained that the prosecutor had overlooked important evidence. The only pieces of evidence he had taken into account were the statements of the two officers under investigation and the statements of their colleagues, who could not have been impartial. The applicant argued that K.A., who had accompanied him to the police station on the day of the incident, should also have been heard by the prosecutors, as he had partially witnessed the alleged ill-treatment. 30. The applicant’s complaint, together with the other two complaints against the two police officers, were analysed jointly and rejected as manifestly ill-founded by a final decision of the Arad District Court on 18 April 2012. 31. The court considered that the evidence administered during the criminal investigation had sufficed to conclude that “it had not been proven beyond reasonable doubt that on 8 August 2010 the defendants had physically abused [the applicant]”. The court based its verdict on the discrepancies found between the applicant’s account of the events and the statement given by S.L. More specifically, S.L. declared that he had heard the applicant screaming outside the police station, whereas the applicant claimed that he had been beaten inside. S.L. also declared that the applicant had told him that he had been handcuffed with his hands behind his back, whereas the applicant stated that he had been handcuffed to a radiator. In addition, the injuries on the applicant’s body may very well have been caused during the street brawl. That fact had been confirmed by the three police officers who had intervened at the scene, namely T.I., G.S. and B.I.M., as well as by the witness, S.L., who had declared in his statement of 8 February 2011 that he had been told when he was inside the bar that a group of people were “beating up my brother and Miclea Alexandru”.
| 1 |
test
|
001-152688
|
ENG
|
BIH
|
ADMISSIBILITY
| 2,015 |
ALEKSIĆ v. BOSNIA AND HERZEGOVINA
| 4 |
Inadmissible
|
Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
1. The applicant, Mr Tihomir Aleksić, is a citizen of Bosnia and Herzegovina, who in born in 1946 and lives in Belgrade. 2. The Government of Bosnia and Herzegovina were represented by their Agent, Ms M. Mijić. 3. The Serbian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right. 4. The applicant was an officer of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“the SFRY”). The present case concerns his attempt to repossess his pre-war flat in Sarajevo. 5. The detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia in Herzegovina is provided in Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-17, 27 May 2010 and Mago and Others v. Bosnia and Herzegovina, nos. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, §§ 5-8, 3 May 2012. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 1984 the applicant was allocated an occupancy right to a military flat in Sarajevo. 7. On 31 March 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 710,117 Yugoslav dinars (approximately 8,354 German marks (DEM) at the time). 8. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 1998. 9. On 2 February 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to H.G., a member of the Army of the Republic of Bosnia and Herzegovina. 10. On 15 September 1998 the applicant applied for the restitution of his flat in Sarajevo. On 2 March 2000 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. On 8 December 2000 the competent Ministry of the Sarajevo Canton upheld that decision. 11. On 28 May 2002 the restitution commission, set up by Annex 7 to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Peace Agreement”), before which the applicant pursued parallel proceedings, held that he was neither a refugee nor a displaced person within the meaning of Annex 7 and declined jurisdiction. On 2 September 2003 the restitution commission rejected the applicant’s request for reconsideration of his claim. 12. On 31 July 2000 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the Dayton Peace Agreement) about the inability to repossess his pre-war flat. 13. On 6 June 2005 the Human Rights Commission (the legal successor of the Human Rights Chamber) rejected the applicant’s complaint as regards the proceedings before the competent administrative bodies on non-exhaustion grounds (the applicant had failed to inform the Commission about the decisions of 2 March 2000 and 8 December 2000; see paragraph 10 above). The complaint concerning the decisions of the restitution commission was rejected as incompatible ratione personae. The Commission held that, in accordance with Annex 7, the Federation of Bosnia and Herzegovina (against which the applicant had addressed his appeal) could not be held responsible for the decisions of the restitution commission because it had not had jurisdiction to examine them. 14. On 21 November 2005 the applicant initiated proceedings before the Sarajevo Municipal Court (“the Municipal Court”) seeking to establish the validity of a purchase contract of 31 March 1992 and to register his title to the flat in the land register. On 2 April 2008 the Municipal Court concluded that the action had been withdrawn because the applicant had failed to attend a scheduled hearing without justification. 15. On 25 March 2011 the Ministry of Foreign Affairs of the Republic of Serbia informed the Government of Bosnia and Herzegovina that the applicant had not yet been allocated a military flat in Serbia, but that his right to such allocation had been established by the competent body of the Serbian Ministry of Defence. 16. On 22 December 1995 all purchase contracts concluded under the Military Flats Act 1990 were declared void (Zakon o preuzimanju sredstava bivše Socijalističke Federative Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96). Thereafter, the legislation regulating this matter, the Privatisation of Flats Act 1997 (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette of the Federation of Bosnia and Herzegovina nos. 27/97, 11/98, 22/99, 27/99, 7/00, 32/01, 61/01, 15/02, 54/04, 36/06, 51/07, 72/08 and 23/09) and the Restitution of Flats Act 1998 (Zakon o prestanku primjene Zakona o napuštenim stanovima, Official Gazette of the Federation of Bosnia and Herzegovina nos. 11/98, 38/98, 12/99, 18/99, 27/99, 43/99, 31/01, 56/01, 15/02, 24/03, 29/03 and 81/09), underwent numerous changes and all such contracts were declared legally valid. 17. Nevertheless, two categories of buyers are not entitled to repossess their flats and to register their title to them (see section 39e of the Privatisation of Flats Act 1997 and section 3a of the Restitution of Flats Act 1998). The first category concerns those who served in foreign armed forces after the 1992-95 war. The second concerns those who acquired occupancy or equivalent rights to a military flat in a successor State of the SFRY. However, they are now entitled to compensation under section 39e of the Privatisation of Flats Act 1997. Although the compensation was initially envisaged as the refund of the amount paid for the flats in 1991/92 plus interest at the rate applicable to overnight deposits, on 30 March 2012 the Constitutional Court (decision no. U 15/11) declared that method of determining the amount of compensation unconstitutional and ordered the Parliament of the Federation of Bosnia and Herzegovina to amend it in line with Đokić (cited above, §§ 63 and 72). 18. For a more detailed analysis of the relevant domestic law and practice and of the relevant international documents, see Đokić (cited above, §§ 35-45) and Mago and Others (cited above, §§ 53-69). D. Relevant Serbian legislation 19. It has no longer been possible to acquire occupancy rights in Serbia since 1992 (see section 30(1) of the Housing Act 1992, Zakon o stanovanju, Official Gazette of Serbia nos. 50/92, 76/92, 84/92, 33/93, 53/93, 67/93, 46/94, 47/94, 48/94, 44/95, 49/95, 16/97, 46/98, 26/01, 101/05 and 99/11). Instead, current and retired members of the armed forces and current and retired staff of the Ministry of Defence are now entitled to equivalent tenancy rights of unlimited duration on military flats or, in case of a lack of suitable flats, mortgage loans co-financed by the State on condition that they or their spouses or children do not have occupancy or equivalent rights to a flat in any of the former Republics of the SFRY (the Military Housing Ordinance 1994, Pravilnik o načinu i kriterijumima za rešavanje stambenih pitanja zaposlenih u Saveznom ministarstvu za odbranu i Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 30/94, 39/94 and 6/96; the Military Housing Ordinance 1995, Pravilnik o načinu i kriterijumima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 5/95, 18/96, 56/96, 58/96, 42/97 and 9/00; the Military Housing Ordinance 2002, Pravilnik o načinu, kriterijumima i merilima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Ministarstvu odbrane i Vojsci Srbije i Crne Gore, published in an internal gazette of the Ministry of Defence nos. 20/02, 36/03, 34/04 and 29/05; the Military Housing Ordinance 2005, Pravilnik o rešavanju stambenih pitanja u Ministarstvu odbrane, published in an internal gazette of the Ministry of Defence nos. 38/05, 16/08, 26/08 and 39/08; and the Military Pensioners Ordinances 1994 and 2010, Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence nos. 31/94, 19/95, 26/96, 1/97 and 45/08 and Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence no. 34/10). Therefore, those who occupied military flats in Bosnia and Herzegovina before the war have as a rule been required to give up their rights to those flats in order to qualify for a military flat or a loan in Serbia or Montenegro (see sections 6-7 and 87 of the Military Housing Ordinance 1994; sections 7-8 and 74 of the Military Pensioners Ordinance 1994; and sections 6-7 and 85 of the Military Housing Ordinance 1995). 20. Section 39(2) of the Housing Act 1992 provides that the holder of a tenancy right of unlimited duration in respect of a flat may purchase that flat under the same conditions as an occupancy right holder.
| 0 |
test
|
001-183562
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF KLIMNENKO AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)
|
Alena Poláčková;Dmitry Dedov
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised complaints under Article 13 of the Convention.
| 1 |
test
|
001-178551
|
ENG
|
LTU
|
ADMISSIBILITY
| 2,017 |
JURGELAITIS v. LITHUANIA
| 4 |
Inadmissible
|
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak
|
1. The applicant, Mr Gintautas Jurgelaitis, is a Lithuanian national, who was born in 1970 and lives in the village of Žūklijai, in the Šakiai Region. He was represented before the Court by Mr J. Gabraitis, a lawyer practising in Kėpštai. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. At around 2.45 a.m. on 26 February 2011, A.A. was wounded with a knife in the village of Žūklijai. He sustained injuries to the face and abdomen, which were initially categorised as a minor health impairment and later as a severe health impairment. On the same day the Šakiai district prosecutor (hereinafter “the prosecutor”) opened a pre-trial investigation. 4. On the same day the applicant was served with an official notice informing him that he was suspected of having injured A.A. while acting together with another unidentified individual and while being under the influence of alcohol. He was suspected of having caused A.A. a minor health impairment, as defined in Article 138 § 1 of the Criminal Code (see paragraph 22 below). The applicant was questioned and denied having injured A.A. 5. On unspecified dates the prosecutor questioned the victim, A.A., and several individuals who had been with him on the night of the incident. They all stated that that night they had been celebrating a birthday in the house next to the applicant’s. At some point they had decided to go to the applicant’s house to buy more alcohol because they had heard that he was selling it. However, nobody had let them into the house, so they had left. Soon afterwards they had noticed two men following them – one of them had been the applicant and the other had been unknown to them at that time. It was the latter who had assaulted A.A. with a knife; subsequently, in an identification parade, A.A. identified his attacker as S.B. 6. On 17 March 2011 the prosecutor discontinued the pre-trial investigation in respect of the applicant. The prosecutor’s decision stated that during the investigation it had been established that the applicant had not injured A.A. – this had been confirmed by A.A. himself and by other witnesses (see paragraph 5 above). The investigation in respect of the applicant was therefore discontinued on the grounds that his actions had not constituted a criminal offence under Article 138 § 1 of the Criminal Code. The decision stated that a copy of it had been sent to the applicant, who had the right to appeal against it within fourteen days. He did not lodge an appeal. The applicant later submitted to the domestic courts that he had never received a copy of that decision (see paragraph 18 below). 7. On 18 March 2011 S.B. became a suspect in the investigation. In the course of the investigation against S.B., the applicant was questioned as a witness once and participated in four confrontations with S.B., A.A. and two other witnesses. On each of those occasions the applicant signed to confirm that he had been informed about his rights and obligations as a witness, and had been warned that if he gave false testimony he would incur criminal liability under Article 235 of the Criminal Code (see the contents of the protocol for witness testimonies in paragraph 26 below). The applicant stated that on the night of the incident he, his friend K.B. and the suspect, S.B., had gone to the applicant’s house to get alcohol and cigarettes. At some point S.B. had walked away from the house towards a nearby road and soon thereafter the applicant had heard screams coming from that direction. He had gone there with his car, had seen a group of young men beating up S.B. and had gone back to his house because he had not wanted to get involved. He had not seen S.B. assault anyone, nor had he known whether S.B. had had a knife. The applicant repeated a similar account of events, with some changes, in confrontations with S.B. and K.B., and the latter stated that they agreed with the applicant’s version. 8. On an unspecified date S.B. was charged with causing A.A. a severe health impairment, as defined in Article 135 § 1 of the Criminal Code (see paragraph 22 below). 9. On 6 September 2011 the applicant was questioned as a witness at a court hearing. He was warned that if he gave false testimony he would incur criminal liability under Article 235 of the Criminal Code and signed an oath. He was asked whether on the night of the incident S.B. had had a knife, whether the victim and his friends had been armed, and who had attacked whom during the incident. The applicant provided essentially the same account of the events as before (see paragraph 7 above). 10. On 16 December 2011 the Šakiai District Court found S.B. guilty of causing A.A. a severe health impairment, as defined in Article 135 § 1 of the Criminal Code, and sentenced him to six years of imprisonment. The court considered that the victim, A.A., and the witnesses who had been with him on the night of the incident had given consistent statements which it had no reason to doubt (see paragraph 5 above). Furthermore, their account had been corroborated by police officers and was consistent with the items seized at the scene of the incident. The court also held that the applicant, K.B. and S.B. had given conflicting statements and had changed certain details in their statements when questioned on different occasions. Accordingly, the court viewed their testimonies as an attempt to help S.B. avoid criminal responsibility and dismissed them as unreliable. 11. On the same day the Šakiai District Court also instructed the prosecutor to consider whether a pre-trial investigation should be opened in respect of the applicant and K.B. for giving false testimony under Article 235 § 1 of the Criminal Code. 12. On 11 October 2012 the applicant and K.B. were served with official notices informing them that they were suspected of having given false testimony in the proceedings against S.B., as set out in Article 235 § 1 of the Criminal Code. 13. When questioned on the same day, K.B. admitted his guilt. He stated that he had been afraid to testify against S.B. because the latter was a former prisoner who had been carrying a knife and boasting about assaulting people. Therefore, K.B. had been afraid that S.B. might seek revenge against him for unfavourable testimony. The following day the prosecutor discontinued the investigation against K.B. on the grounds that he had not intended to interfere with the criminal proceedings but that he had been afraid to testify against S.B., which was “understandable” in the light of the serious charges against S.B. 14. The applicant was also questioned on 11 October 2012. He explicitly refused a lawyer, denied his guilt and refused to answer questions. On 15 October 2012 the applicant was informed that the investigation had been completed and that he had the right to acquaint himself with the case file, but he refused to do so. On 17 October 2012 the applicant was charged with giving false testimony under Article 235 § 1 of the Criminal Code. The indictment stated that, when questioned as a witness in the criminal proceedings against S.B. (see paragraphs 7 and 9 above), the applicant had lied about not being present at the scene when S.B. had assaulted A.A. and about not knowing whether S.B. had had a knife, whereas it had been established in those proceedings that he had been present and had witnessed the assault. 15. When questioned at the trial, the applicant insisted that the testimony he had given in the criminal proceedings against S.B. had not been false. In addition, he submitted that he should not have been obliged to give truthful testimony in those proceedings because he had been questioned not only about S.B.’s actions but also about his own role in the assault. The applicant submitted that he had been suspected of having taken part in the assault (see paragraph 4 above), and that even though the investigation against him had been discontinued, the domestic law allowed its reopening if new circumstances emerged (see paragraph 25 below). He further submitted that by giving truthful testimony he might have also revealed information about his possible drunk driving on the night of the incident or the possible unlawful sale of alcohol. The applicant therefore argued that convicting him of giving false testimony would be contrary to his right not to incriminate himself. 16. The prosecutor contested the applicant’s arguments and submitted that at the time when the applicant had been called as a witness, it had been established that he had not assaulted A.A., so he had not been questioned about his own actions. The applicant’s testimony had only been relevant for establishing S.B.’s actions on the night of the assault, in order to help the authorities determine all the circumstances of the criminal offence, and there had been no intention to reopen the proceedings against the applicant. 17. On 17 January 2013 the Šakiai District Court found the applicant guilty of giving false testimony. The court held that the material collected in the proceedings against S.B. demonstrated that the applicant had knowingly given false testimony in order to help S.B. avoid criminal liability – the inaccuracy of his testimony had been established by the court in those proceedings (see paragraph 10 above). The court dismissed the applicant’s arguments concerning his right not to incriminate himself. It held that at the time when the applicant had been questioned as a witness, the investigation against him had been discontinued on the grounds that his actions had not constituted a criminal offence (see paragraph 6 above), and that the applicant had been questioned only about S.B.’s actions and not his own. The court also stated that the applicant had not been suspected of any other criminal activity, such as drunk driving or the unlawful sale of alcohol, so his arguments in that respect were also dismissed. The applicant was given a fine of 1,950 Lithuanian litai (LTL, approximately 570 euros (EUR)). 18. The applicant appealed against that judgment. He submitted that he had not been served with a copy of the prosecutor’s decision to discontinue the investigation against him (see paragraph 6 above), so he had continued to regard himself as a suspected accomplice to S.B. The applicant therefore argued that he had had an obvious interest in the outcome of the proceedings and should not have been obliged to give truthful testimony. 19. On 17 May 2013 the Kaunas Regional Court dismissed the applicant’s appeal. It endorsed the lower court’s arguments that the false nature of the applicant’s testimony in the proceedings against S.B. had been established (see paragraph 17 above). It further stated that it was clear from the case file that before each questioning as a witness, the applicant had been informed about his rights and duties, as required by domestic law, and warned that he would be held criminally liable if he gave false testimony (see paragraphs 7 and 9 above and paragraph 26 below), so he had had no grounds to consider himself a suspect. The court also reiterated that the applicant had been called to testify only about S.B.’s actions which he had seen and not about his own role in the assault. However, the Kaunas Regional Court found that the lower court had erred when determining the sentence because it had applied an old version of Article 235 of the Criminal Code. It therefore changed the applicant’s sentence in line with the version of that provision which had been in force at the time when the applicant had given his last testimony in the criminal proceedings against S.B. (see paragraph 9 above), and fined him LTL 15,600 (approximately EUR 4,520). 20. The applicant submitted an appeal on points of law, again arguing that his right not to incriminate himself had been breached. However, on 23 December 2013 the Supreme Court dismissed his appeal. It reiterated that the applicant had been informed about his rights and duties as a witness and warned about criminal liability for giving false testimony, and that he had been questioned about the actions of S.B. and not about his own actions, so it must have been clear to him that his testimony could not have incriminated him. 21. The relevant part of Article 31 of the Constitution provides: “It shall be prohibited to compel anyone to give evidence against himself, or his family members or close relatives.” 22. The relevant provisions of the Criminal Code, valid at the material time and currently, read: “1. Anyone who has injured another person or caused him or her to be ill, if as a result the victim has lost his or her eyesight, hearing, ability to speak, fertility or pregnancy, or sustained another serious mutilation, or contracted a terminal or longlasting illness posing a real threat to his or her life or seriously affecting his or her mental health, or lost a considerable part of his or her professional or general capacity to work, or sustained permanent disfigurement, shall be punished by imprisonment for a term of up to ten years. ...” “1. Anyone who has injured another person or caused him or her to be ill, if as a result the victim has lost a small part of his or her professional or general capacity to work or was ill for a long time but did not suffer the consequences set out in Article 135 § 1 of this Code, shall be punished by restriction of liberty or by detention or by imprisonment for a term of up to three years. ...” “1. Anyone who, during a pre-trial investigation or trial or before the International Criminal Court or another international judicial institution, has submitted a false complaint, application or report of a criminal activity, or given false testimony when questioned as a witness or a victim, or has given false conclusions or explanations when acting as an expert or specialist, or provided a false or knowingly inaccurate translation when acting as an interpreter, shall be sentenced to a term of community service or a fine or restriction of liberty or detention or imprisonment for a term of up to two years. ...” 23 24. Article 80 § 1 of the CCP provides that persons who are to give testimony about their own possibly criminal activity cannot be questioned as witnesses unless they agree to be thus questioned. Article 82 § 3 of the CCP provides that when such persons are questioned, they have the right to legal representation and to apply for status as a suspect, and they are exempted from liability for refusing to testify or giving false testimony. 25. Article 217 § 2 of the CCP allows the reopening of a previously discontinued pre-trial investigation following the discovery of essential circumstances which are relevant for the proper examination of the case and which had not been established at the time the decision to discontinue the investigation had been adopted. 26. The protocol for witness testimonies, adopted by the Prosecutor General on 11 April 2003 and valid, with some amendments, until 29 December 2014, provided that a witness must be informed about his or her right, in line with Article 31 § 3 of the Constitution, not to give evidence against himself or herself, or his or her family members or close relatives (see paragraph 21 above), about his or her rights and obligations as set forth in the CCP (see paragraphs 23 and 24 above), and about criminal liability for giving false testimony (see paragraph 22 above). That protocol had to be signed by the witness to confirm that he or she had been so informed. 27. In its ruling of 31 January 2017 in criminal case no. 2K55699/2017, the Supreme Court, relying on its previous case-law (ruling of 23 June 2009 in criminal case no. 2K-255/2009 and ruling of 16 June 2015 in criminal case no. 2K-348-303/2015), held: “Article 80 § 1 of the CCP provides that persons who are to give testimony about their own possibly criminal activity cannot be questioned as witnesses unless they agree to be thus questioned, in line with the conditions provided for in Article 82 § 3 of the Code of Criminal Procedure ... In accordance with the emerging case-law of the [Supreme Court] ... the prohibition on compelling someone to testify against himself or herself will be violated if a person who is questioned as a witness is in fact suspected of having committed a criminal offence but for some reason has not been recognised as a suspect in line with the CCP. Testimony which has been obtained in violation of Article 80 § 1 of the CCP cannot be accepted as evidence ... under the CCP. Whether the questions submitted to a witness can be regarded as compulsion to testify against oneself, must be decided in accordance with the circumstances of each case.”
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test
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001-141759
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ENG
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LVA
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ADMISSIBILITY
| 2,014 |
ANTONOVS v. LATVIA
| 4 |
Inadmissible
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George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
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1. The applicant, Mr Eduards Antonovs, is a Latvian national, who was born in 1972 and is currently serving a prison sentence in Jelgava. The applicant, who had been granted legal aid, was represented before the Court by Ms J. Averinska, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent at the time, Mrs I. Reine , and subsequently by Mrs K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 2 April 2003 the applicant was arrested on suspicion of murder. 5. On 20 October 2004 the Riga Regional Court (Rīgas Apgabaltiesa) convicted the applicant of murder and burglary and sentenced him to fourteen years’ imprisonment. 6. On 7 April 2005 the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) upheld the judgment of the first-instance court. 7. The applicant lodged an appeal on points of law. He noted that the appellate court had not considered his complaint that his health was deteriorating. The applicant argued that he had contracted an incurable disease in detention, that he could not abide by prison rules because of the deteriorating state of his health, and that he was not receiving the medication he needed. Referring to section 59 (6) of the Criminal Law, he asked for his sentence to be reduced. 8. On 19 May 2005 the Criminal Cases Division of the Senate of the Supreme Court (Augstākās Tiesas Senāta Krimināllietu departaments) in a preparatory meeting rejected the applicant’s appeal on points of law. The Senate noted that it did not have competence to release the applicant from serving his sentence. It referred to section 59 (6) of the Criminal Law and section 364 of the former Code of Criminal Procedure. 9. On 4 April 2003 the applicant was transferred to Riga Central Prison (Rīgas centrālcietums). 10. On 7 April 2003 the applicant underwent a medical examination; a note was made that he smoked and drank alcohol, but did not use narcotics; he also had several tattoos. He was prescribed fluorography, and no pathology was found. A blood test (for HIV and syphilis) was carried out; its results were negative. He was found to be “practically healthy”. 11. On 22 May 2003 the applicant complained to a prison doctor of a cough, cold symptoms and sweating; he was diagnosed with rhinopharyngitis. He was prescribed a five-day course of medication. 12. On 22 September and 2 October 2003 the applicant complained about a cough and cold symptoms. He was diagnosed with rhinopharyngitis and pharyngitis respectively on those occasions, and some medication was prescribed, a five-day course each time. 13. On 9 October 2003 the applicant was transferred to Brasa Prison (Brasas cietums). Although there is no information as to whether a medical examination was carried out when the applicant was admitted to the prison, or whether any tests were done, the applicant’s medical record contains a note made by a prison doctor on the date of admission that the applicant had no complaints, accompanied by the results of a basic health check (blood pressure readings and visual inspection). The applicant was found to be “practically healthy”. 14. On 12 December 2003 the applicant received some vitamins (one per day). 15. On 7 June 2004 the applicant’s lungs were examined; no pathology was found. 16. On 24 February 2005 the applicant complained of stomach pain: an examination was ordered, but no pathology was found. He was prescribed a seven-day course of medication. 17. On 15 March 2005 the applicant complained of skin problems. He was diagnosed with a skin disease and prescribed a ten-day course of medication. At the same time the applicant requested a blood test for the hepatitis C virus (HCV) at his own expense. 18. On 22 March 2005 the test detected the presence of HCV antibodies (anti-HCV) in the applicant’s blood. 19. On 11 and 12 April 2005 the applicant complained of a cold; a prison doctor concluded that he had pharyngitis. He received a three-day and a five-day course of medication; two days later he was prescribed multivitamins. 20. On 18 May 2005 the applicant complained of stomach pain and a prison doctor concluded that he had HCV. He received a ten-day course of liver medication (Carsyl), which was extended for another ten days with another medication (Cholagol) on 8 June 2005. 21. On 16 June 2005 the applicant was transferred to Jelgava Prison (Jelgavas cietums) to serve his sentence. 22. On 17 June 2005 the applicant underwent a medical examination. The applicant was found to be “practically healthy”. A note was made that the applicant was infected with the hepatitis C virus. 23. On 20 June 2005 the applicant visited a prison doctor to request treatment for the HCV (Carsyl or Essenciale forte). His status of health was noted as satisfactory, and it was explained to him that HCV treatment could only be carried out at his own expense. 24. On 19 August 2005 the applicant received a ten-day course of liver medication (Carsyl). 25. On 5 and 23 September 2005 the applicant requested that an examination and a liver biopsy be carried out. They were refused, and on the latter date a note was made in his medical record that he had no objections to this decision. 26. On 5 October 2005 the applicant asked the head of the Jelgava Prison Medical Unit for an in-depth HCV examination and treatment. It was explained to the applicant that in accordance with domestic law (regulation no. 358, paragraph 12) these could only be provided at his own expense. The applicant disagreed, and took the view that the treatment should be paid for by the State. The applicant was prescribed tests (fibrogastroscopy, blood and urine tests) and consultations with a general practitioner and a psychiatrist. 27. On 11 November 2005 the applicant consulted a psychiatrist and was prescribed a seven-day course of medication. 28. On 21 December 2005 the applicant was prescribed a five-day course of medication for bile duct problems. 29. On 17 June 2006 the applicant was prescribed a five-day course of medication for dermatitis. 30. On 20 July 2006 the applicant was prescribed skin medication at his own expense. 31. On 13 February 2007 the applicant underwent a prophylactic check-up and a DNA sample was taken from him. 32. On 26 April 2007 the applicant complained of headache, flu, cough and fever. He was diagnosed as suffering from an upper respiratory tract infection and prescribed a four-day course of medication. 33. On 6 June 2007 another prophylactic check-up was carried out. The conclusion was that he was “practically healthy”. 34. On 28 June 2007 the applicant underwent lung screening; no pathology was found. 35. On 21 April 2008 the applicant complained of fever, headache, and a cough; he was diagnosed with an upper respiratory tract infection and prescribed a four-day course of medication. 36. On 13 September 2008 the applicant was examined by an oculist. 37. On 1 July 2009 the applicant was diagnosed as suffering from an upper respiratory tract infection and was prescribed a four-day course of medication. 38. On 3 July 2009 the applicant underwent a prophylactic check-up. The conclusion was that his state of health was satisfactory. 39. On 26 October 2009 the applicant was prescribed a five-day course of medication for tracheitis. 40. On 21 January 2010 another medical examination was carried out and tests were taken. 41. On 13 July 2005 the Latvian Infectious Diseases Centre (Latvijas Infektoloģijas centrs) replied to the applicant that they could not help if they did not have any medical documents describing the applicant’s illness. The applicant had to approach his prison doctor, who could assign, within the limits of available resources, appropriate examinations to verify any diagnosis. 42. On 9 August 2005 the applicant submitted a complaint to the Minister of Justice, with a copy to the Minister of Health and the Prisons Administration. He stated that he had never used narcotics in his life but that soon after imprisonment he had been “infected with hepatitis C”. He requested that the State re-establish a programme for detecting and treating infectious diseases and that he be allowed to use his own darning needles, slippers and scissors in prison. 43. On 18 August 2005 the Prisons Administration replied that the applicant was not allowed to have these items, pursuant to domestic law. They noted that the applicant did not have objective symptoms requiring treatment for hepatitis C at that time. A reference was made to regulation no. 358, which allowed him to purchase medication at his own expense. 44. On 19 August 2005 the Ministry of Health replied that a diagnosis of the hepatitis C virus was generally confirmed in the Latvian Infectious Diseases Centre, using a range of examinations such as blood tests to detect if the virus was in the body or if only its antibodies were present. If the virus was detected, its genotype and activity were identified. Liver puncture biopsy was further necessary to establish the range and depth of inflammation. Only when the hepatitis C virus diagnosis had been confirmed could a decision be made as regards treatment. From 1 January 2005 medication was available in Latvia to effectively (but not 100%) treat chronic hepatitis C, if a patient did not have any other health problems or contraindications. With reference to regulation no. 1036, paragraph 15.2, it was explained that the Ministry of Justice was responsible for ensuring that medication was available to treat patients with chronic hepatitis C in prisons, therefore the applicant was advised to enquire about it there. At the same time, the Ministry of Health advised that a prison doctor was responsible for assessing convicted persons’ state of health, for providing medical care in accordance with the established diagnosis, and for prescribing medicine within the allocated budgetary resources. If an in-depth examination and special treatment was necessary, a specialist doctor (a hepatologist) from the Latvian Infectious Diseases Centre was invited to assess the patient’s state of health and draw up a treatment plan. The applicant was advised to consult a prison doctor. 45. On 19 August 2005 the Ministry of Justice replied that, taking into account that the applicant was suffering from a serious infectious disease (hepatitis C), he could require the relevant prison authority to take the necessary prophylactic measures if there was a risk of the disease being spread. They also referred to paragraph 2 of regulation no. 358. 46. On 22 August 2005 the applicant submitted a complaint to the Jelgava Court, with a copy addressed to the prosecutor’s office and the Prisons Administration. He noted that he had never used narcotics in his life but that soon after imprisonment he had been “infected with hepatitis C”. He did not request to be released on health grounds, but rather that his state of health be fully assessed by specialists from the Latvian Infectious Diseases Centre, that his sentence be reduced, and that he be transferred to an open prison. 47. On 29 August 2005 a judge sent those complaints back to the applicant with an explanation of the procedure for release on health grounds under section 364 of the Code of Criminal Procedure. 48. On 1 September 2005 the prosecutor’s office forwarded the applicant’s complaint to the head of Jelgava Prison in connection with assessment of his health and his request for his sentence to be reduced. 49. On 9 September 2005 the Prisons Administration replied that in accordance with regulation no. 358 convicted persons received minimum standard of health care. Assistance that was not paid for from the State budget was provided at their own expense. It was noted that the applicant had received the minimum standard of health care, including hepatoprotectives. An in-depth examination was not included in the minimum standard and was not paid for by the State. In addition, as the applicant’s state of health was satisfactory there was no need for the in-depth examination. 50. On 10 October 2005, in response to another complaint by the applicant, the Prisons Administration noted that a doctor was responsible for patient examination, assessment of state of health and for providing treatment; they also repeatedly explained the minimum standard of health care in prisons and that the in-depth examination was not included in the minimum standard (regulation no. 358). This examination and any further treatment could be provided at his own expense (paragraph 12). 51. On 10 and 11 October 2005 the Ministry of Justice responded that only a doctor can establish diagnosis and choose the most adequate therapy. They reiterated that the minimum standard did not include an in-depth examination or treatment; these could be provided at his own expense in accordance with regulation no. 358 (paragraph 12). 52. On 26 November 2007 the Latvian Infectious Diseases Centre informed the applicant that they provided treatment for chronic hepatitis C, but that they were not responsible for arranging for the provision of health care in prisons. The prison doctor was responsible for the applicant’s health care. They informed the applicant about the following expenses in relation to laboratory examinations related to hepatitis C: LVL 42.75, 91.60 and 128.60 for HCV RNA, HCV viral load and HCV genotype respectively (approximately 61, 130 and 183 euros (EUR)). 53. On 23 November 2011 the Ministry of Health replied to the applicant’s enquiry about convicted persons’ health care. They relied on regulation no. 199 and explained that primary medical care was provided by prison doctors and that secondary medical assistance was available upon prescription by prison doctors. The applicant was advised to contact prison doctor. The possibility of making a complaint to the Health Inspectorate (Veselības inspekcija) if a prison doctor did not carry out his or her professional duties was explained to him. 54. Section 138 (1) of the Criminal Law (Krimināllikums) provides that in cases of inadequate performance of professional duties by a medical professional resulting in “serious” (smagi) or “moderate” (vidēja smaguma) “bodily injury” (miesas bojājumi) those professionals may be held criminally responsible. In Latvian criminal law bodily injury is defined as anatomical damage to, or functional impairment of, a person’s tissue, organs or systems caused by physical (mechanic, thermic, electric, acoustic, radiation-related, chemical, biological) or psychological effects or interference (Annex no. 3 to the Law on Entry into Force of the Criminal Law). 55. Section 138 (2) of the Criminal Law provides that in the event of inadequate performance of professional duties by a medical professional resulting in a person’s death or infection with HIV, that professional may be held criminally responsible. 56. Criminal responsibility for inadequate performance of professional duties by a medical professional resulting in infection with the hepatitis B or C viruses was established by way of amendments to section 138 (2) of the Criminal Law effective from 1 July 2009. 57. Section 133 of the Criminal Law provides criminal responsibility for wilful infection with HIV. 58. Criminal responsibility for wilful infection with the hepatitis B or C viruses was established by way of amendments to section 133 of the Criminal Law effective from 1 July 2009. 59. Finally, with effect from 1 July 2009 criminal responsibility for infection with a dangerous disease resulting in serious bodily injury or death was established (section 1331). 60. According to section 59 (6) of the Criminal Law if a convicted person has fallen ill with a severe and incurable illness after the pronouncement of a judgment, a court may release that person from serving the remainder of the sentence. 61. According to section 116 of the Sentence Enforcement Code (Sodu izpildes kodekss), if a convicted person has fallen ill with a severe and incurable illness owing to which he or she is unable to serve the remainder of his or her sentence, the relevant penal institution has to order a medical examination and, on the basis of the results, make an application for release to the appropriate court. 62. The relevant part of section 640 (4) of the Criminal Procedure Law (Kriminālprocesa likums), in force since 1 October 2005, provides that a judge may release a convicted person from serving the remainder of his or her sentence if that person has fallen ill while serving their sentence, taking into account the personality of the convicted person, the nature of the offence, and other circumstances. Before the entry into force of the Criminal Procedure Law, the relevant provision was contained in section 364 of the Code of Criminal Procedure (Kriminālprocesa kodekss). 63. Section 10 of the Medical Treatment Law (Ārstniecības likums), as in force at the material time, provided that the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) was responsible for monitoring the professional quality of medical care in health-care establishments. With legislative amendments effective from 5 October 2007 onwards that task was entrusted to the Health Inspectorate. 64. Under the relevant regulation of the Cabinet of Ministers (no. 218 (2005) entitled “Medicīniskās aprūpes un darbspējas ekspertīzes kvalitātes kontroles inspekcijas nolikums”), effective from 6 April 2005 to 9 February 2008, one of the main functions of the MADEKKI and its successor, the Health Inspectorate, was monitoring the professional quality of medical care in all health-care establishments regardless of their property type and subordination (paragraph 3.1.). Their main tasks included carrying out examinations and providing opinions about the quality of medical care in all health-care establishments, monitoring compliance with the domestic law in health-care establishments and dealing with (individual) applications concerning medical care (paragraphs 4.1., 4.4. and 4.7.). They had the right to request and receive from all health-care establishments or other persons medical documentation, information and documents necessary to carry out examinations, request and receive oral and written explanations from the person who provided medical care or who was responsible for compliance with the compulsory requirements in the institution, and examine cases of administrative offences and impose fines in accordance with the Code of Administrative Violations (paragraphs 5.1., 5.2. and 5.4.). 65. At the relevant time, under the Code of Administrative Violations the MADEKKI or subsequently the Health Inspectorate could impose a fine up to 100 Latvian lati (LVL) (approximately EUR 142) for breaches of the relevant medical care regulations, and up to LVL 250 (approximately EUR 355) for a repeat offence. With effect from 21 July 2010 this fine was increased to LVL 250 (approximately EUR 355) and LVL 500 (approximately EUR 710). 66. In accordance with Annex No. 3 to regulation of the Cabinet of Ministers no. 1036 (2004), effective from 1 April 2005 until 1 January 2007, the following outpatient laboratory tests were carried out free of charge, if prescribed by a general practitioner: - anti-HCV test to establish the presence of antibody in blood serum; - anti-HCV (WB – Western Blot) to confirm the presence of antibody in blood serum; - HCV RNA (nucleic acid) (PCR – polymerase chain reaction) test to determine the presence of the virus itself in blood serum; - anti-HCV IgM (immunoglobulin M). 67. In accordance with paragraph 15.2. of this regulation, the Ministry of Justice was responsible for covering costs for medical care in prisons, apart from medical treatment for those suffering from tuberculosis and HIV/AIDS, which expenses were covered from the State budget. 68. In accordance with Annex No. 6 to regulation of the Cabinet of Ministers no. 1046 (2006), effective from 1 January 2007, the same outpatient laboratory tests were available free of charge as under regulation no. 1036 (2004) at least until 16 May 2009, when amendments as regards the laboratory tests for hepatitis C were made. 69. Regulation of the Cabinet of Ministers no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows: “2. Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by the Cabinet of Ministers. In addition, the Prisons Administration, within its budgetary means, shall provide convicted persons with: 2.1. primary, secondary and tertiary (in part) medical care; 2.2. emergency dental care; 2.3. medical examinations/check-ups; 2.4. preventive and anti-epidemic measures; 2.5. medication and injections prescribed by a (prison) doctor; and 2.6. medical equipment. 3. Detainees shall receive medical care in accordance with paragraph 2 of this regulation, excluding planned inpatient treatment ... Detainees shall be sent to receive inpatient treatment only in acute circumstances... 12. The prison authorities may agree with [a civilian hospital or medical centre] that the latter is to provide consultation and treatment at convicted persons’ ... own expense if they so wish.” 70. Regulation of the Cabinet of Ministers no. 199 (2007), effective from 28 March 2007, provides as follows: “2. [Convicted persons and detainees] shall receive free of charge in prison: 2.1. primary medical care, but not scheduled/planned dental care, 2.2. emergency dental care, 2.3. secondary medical assistance in emergency situations, as well as secondary medical assistance which is provided by prison doctors within their field of expertise, 2.4. the most effective and affordable medicine, prescribed by prison medical practitioners ... 15. Upon application by a [convicted person or detainee], and with the approval of a prison doctor, the prison authorities may agree with [a civilian hospital or medical centre] that the latter is to provide consultations and treatment outside prison territory. Such consultations and treatment are to be paid for by the [convicted person or detainee], including transport and security-related expenses.” 71. On 19 November 2009 the Administrative District Court (Administratīvā rajona tiesa) (in case no. A42398506) adopted a judgment concerning a MADEKKI decision, whereby no shortcomings had been found in medical care as regards the treatment of hepatitis C in a prison. The claimant in that case, by instituting the administrative proceedings, had insisted that he had to be tested for hepatitis C virus (and not only its antibodies, anti-HCV) and that he should receive treatment. The claimant sought the quashing of the 31 October 2005 decision and compensation for distress in the amount of LVL 15,000 as well as compensation for pecuniary loss in the amount of LVL 12,884 (LVL 352 for the costs of laboratory examinations and LVL 12,532 for the costs of treatment) and for physical damage in the amount of LVL 8,000. 72. The court found that the MADEKKI decision (the assessment of the quality of medical care) had constituted “unlawful action by a public authority”, but did not award any compensation. This judgment took effect on 10 December 2009. 73. The court established the following facts: “[8.1] In response to the claimant’s application, on 15 March 2005 [the Latvian Infectious Diseases Centre, hereinafter – the LIC] stated that prison doctors were responsible for providing medical care in prisons, that claimant was obliged to consult them, and that the LIC did not have documents attesting that the claimant was suffering from a chronic condition [hepatitis C virus, hereinafter – HCV]... [8.3] On 19 August 2005 [the claimant was informed that] the Medical Unit of Matīsa Prison and the LIC specialists did not have confirmed data that the claimant was suffering from chronic HCV, but that they had data indicating that the claimant had been in contact with HCV. Tests for HCV to confirm or exclude [the diagnosis] of chronic HCV [did] not correspond to the notion of “acute circumstances” laid down in paragraphs 2 and 3 of regulation no. 358. [8.4] The claimant lodged an application with [the MADEKKI] complaining about the refusal to treat him for HCV in Matīsa Prison and asking for an assessment of the quality of medical care provided to him ... [8.7] On 10 October 2005 the [MADEKKI] drew up a report [in case no.7-25-K-771] about the claimant’s medical care in prison. The report’s conclusions indicate that on 21 December 2000 the LIC laboratory established that a positive result for HCV antibodies (anti-HCV) test in the claimant’s body had been established and that he had HIV infection in stage “C” (Aids); it was also noted that he regularly received antiretroviral therapy for the latter. [8.8] [On 12 October 2005] administrative offence proceedings in case no.7-25-K-771 were terminated ... [8.10] Disagreeing with this decision, the claimant lodged a complaint against it with the head of [the MADEKKI]. By a decision [of 31 October 2005, no.7-25-K-1027/8573], the decision to terminate administrative offence proceedings was left to stand and his complaint was dismissed. [8.11] On 21 December 2005 the Ministry of Justice ... in response to the claimant’s request for LVL 12,884 to be allocated from the budget for his HCV treatment, noted that there were no resources in its budget that could be allocated to treat him ... [8.13] On 1 February 2006 the Ministry of Justice [in response to a repeated request] explained that HCV treatment with antivirus medication was prescribed after an in-depth examination and that specific therapy ... was assigned only according to medical indications. In order to ensure State-guaranteed medical care pursuant to regulation no. 358 for persons in prisons taking into account their needs, these issues have been included in the Green Paper on Medical Care for Prisoners. [8.14] On 13 June 2006 the claimant lodged a claim with the Riga City Central District Court against the Ministry of Justice seeking compensation for pecuniary loss in the amount of LVL 12,884 (LVL 352 for the costs of laboratory examinations and LVL 12,532 for the costs of treatment) and for physical damage in the amount of LVL 17,000. These civil proceedings ... were terminated with a judgment of 26 March 2008, whereby his claim was dismissed.” 74. As regards the claimant’s request for the MADEKKI decision to be quashed and for compensation for distress, the court made the following findings: “[9.1] ... The claimant’s subjective right to request [the MADEKKI’s assessment of quality of medical care provided in prisons] is established under section 22 of the Medical Treatment Law... [9.2] As established by the Administrative Cases Division of the Senate of the Supreme Court in its judgment of 16 October 2008 ... in case SKA-411/2008 (hereinafter – the Senate’s judgment), the law does not specify the purpose of the [MADEKKI] assessment [of the quality of medical care]. In examining [the provisions of the Medical Treatment Law] in their entirety, the Senate considers that it has several purposes – to improve the quality of medical care, a patient can use [a MADEKKI] assessment as one piece of evidence in another set of proceedings concerning medical care, and it gives a person the opportunity to ascertain the quality [of medical care] provided by a given medical institution or doctor when a choice is being made. [A MADEKKI] assessment of the quality of medical care is not binding on anyone, but as a person has a right to receive [such an assessment], it constitutes an action of a public authority. The [MADEKKI’s] obligation to carry out the assessment pursuant to section 22 of the Medical Treatment Law was set out in regulation no.218 (no longer effective from 9 February 2008), paragraph 4.1. which at the [relevant] time provided that one of [the MADEKKI’s] tasks in carrying out its functions [was] to carry out examinations and provide opinions about the quality of medical care ... in [all] health-care establishments ... [9.3] In accordance with order no. 432 of the Cabinet of Ministers of 11 July 2007 ... [the MADEKKI] was merged with the State Pharmacy Inspectorate and the State Sanitary Inspectorate, and ... the Health Inspectorate was established. Pursuant to section 10 of the Medical Treatment Law, as currently effective, the Health Inspectorate is responsible for monitoring of the professional quality of medical care ... in health-care establishments. Accordingly, at present the monitoring of the quality of medical care provided to the claimant comes within the competence of the Health Inspectorate. Taking into account that the assessment of the quality of the claimant’s medical care within these administrative offence proceedings as expressed in [the MADEKKI] report constitutes an action of a public authority, the court, pursuant to section 250 (3) of the Administrative Procedure Law, has to determine whether the action of a public authority complies with procedural and formal criteria and whether it corresponds to provisions of substantive law. [9.4] According to the facts of the case, by lodging the request for an assessment of the quality of his medical care the claimant insisted that he be immediately tested for possible infection with HCV and that he be treated... It can be established from the letters sent by the LIC that its doctors, following regular examinations of the claimant’s state of health in connection with his HIV infection, have established the necessary treatment plan – antiretroviral therapy with efavirenz, zidovudine and lamivudine..., and have regularly informed the head of the Medical Unit of the Prisons Administration about it; however, they have left the claimant’s infection with HCV unattended to and have not taken measures in accordance with the Epidemiological Safety Law – they have not arranged for the necessary laboratory examinations with a view to arriving at an HCV-related diagnosis and treatment. The claimant contends that the prison where he is being held is under an obligation to provide an in-depth examination of his state of health in connection with HCV. At the hearing, a specialist doctor of the [Health] Inspectorate explained that any assignment to undergo a particular examination was issued only in circumstances where there are recommendations for such an examination to be carried out. If a doctor considers that a person’s request for examination is unsubstantiated, he or she may have such an examination at his or her own expense. This procedure applies to all people, with no exceptions. The court considers this view unfounded, as health-care practitioners’ obligation to provide immediate diagnosis and treatment for a person who is infected with HCV arises from provisions of the Epidemiological Safety Law. As regards convicted persons, according to paragraph 2 of regulation no. 358 they receive the minimum standard of health care free of charge ... and also, within budgetary means ... preventive and anti-epidemic measures... It appears from [the case material] that measures envisaged in section 14 (1) (1) of the Epidemiological Safety Law were not carried out in respect of the claimant until 23 August 2005. Pursuant to section 37(1) of the Medical Treatment Law a doctor, within the scope of his/her professional activities, performs illness prophylaxis, diagnosis, treatment and rehabilitation of patients; evaluates illnesses and the functional restrictions to the body caused thereby in terms of activity and participation; and examines the cause of illnesses and the prophylactic possibilities. Taking into account the aforementioned, the court finds that in the present circumstances the conclusions of [the MADEKKI] that no violations had been detected in the patient’s medical care, that the patient had been appropriately examined in response to his complaints, diagnosed and received medical care in accordance with regulation no.358 were unjustified, since in connection with his HCV infection the necessary laboratory tests with a view to specifying diagnosis had not been set up and no treatment had been prescribed. [9.5] ... The court concludes that up to 30 June 2006 the patient did not receive compensation for expenses in relation to treatment of diseases triggered by HCV infection ...” 75. As regards specifically the claimant’s request for compensation for distress, the court left it without examination, as he had not requested it in the pre-trial proceedings. The court made the following findings: “[10] It appears from the complaint [to the head of the MADEKKI] that the claimant did not request compensation for distress ... In accordance with section 278 (1) of the Administrative Procedure Law the court leaves an application without examination (atstāj pieteikumu bez izskatīšanas) if the claimant has not complied with preliminary extrajudicial examination procedures prescribed by law. Pursuant to section 281[of the same Law], if an application is left without examination, the claimant may submit the application to the court anew in compliance with the procedure prescribed by law.” 76. As regards the claimant’s request for compensation for pecuniary loss and physical damage, the court considered that these claims had already been decided in the civil proceedings before the Riga City Central District Court and dismissed. It accordingly terminated administrative proceedings in this respect, as they had the same subject matter and were based on the same facts as had already been examined by another court. 77. The same claimant, after having properly exhausted pre-trial proceedings, instituted another set of administrative proceedings (no. A420416111) requesting compensation for distress caused by an “unlawful action of a public authority”. On 28 February 2013 the Administrative District Court granted that claim in part and imposed an obligation on the Heath Inspectorate (the successor to MADEKKI) to issue a written apology to the claimant. This judgment took effect on 29 March 2013. 78. As regards compensation for distress in the amount of LVL 15,000, the court made the following findings: “[11] Pursuant to section 92 of the Administrative Procedure Law everyone has the right to receive appropriate compensation for pecuniary loss (mantiskais zaudējums) and personal harm (personiskais kaitējums), including distress (morālais kaitējums), caused by an administrative act or action of a public authority. According to section 94 (2) of the same Law, the relevant public authority may comply with the obligation to compensate (atlīdzināšanas pienākums) by restoring the situation which existed before the damage was caused, or if it is not fully or partly possible or adequate, by paying appropriate monetary compensation (atlīdzinājums naudā). According to section 9 of the Law on Compensation for Damage Caused by State Institutions (hereinafter – the Law on Compensation for Damages), distress within the meaning of this Law is personal harm in the form of human suffering that has been caused by a significant [and] unlawful interference (būtisks, prettiesisks aizskārums) with rights or legal interests of an individual. Section 14 (1) of the Law on Compensation for Damages provides that personal harm and distress is determined in proportion to the significance of rights or legal interests interfered with and the severity of the specific interference, taking into account the legal and factual grounds and the reasons for the institution’s action, the victim’s actions and share of the responsibility, as well as other significant circumstances of the particular case. According to section 14 (3), monetary compensation for distress is determined in proportion to the severity of the interference. Section 14 (4) provides that an institution may issue a written or public authority, as independent or supplementary redress [for damage], in circumstances where interference is not severe. It follows from the above-mentioned legal provisions that the ground for compensation for distress is not [interference] but rather significant [and] unlawful interference with rights or legal interests. In turn, if such [interference] has been established, compensation is determined in proportion to the severity of the harm engendered. Harm may be redressed by restoring the situation, issuing an apology or granting monetary compensation. Therefore, compensation for distress, its type and amount are determined by the significance of the interference and the severity of the harm engendered. Accordingly, if significant interference has occurred but no severe harm has been done, all types of the above-mentioned redress may generally [be afforded]. Hence also in such circumstances in determining appropriate compensation it is necessary [that] harm and compensation be proportionate.” 79. The court then went on to consider that the “unlawful action of a public authority” (the MADEKKI decision) did not constitute significant interference with the claimant’s rights and legal interests that would have had any influence on his right to receive medical care in prison and would have called for monetary compensation, in addition to any harm to life or serious harm to health. The court’s reasoning was as follows: “[14]... The court considers that action of a public authority – the MADEKKI decision in the present case, where it assessed the quality of medical care, does not trigger any legal or factual consequences for the claimant... The Senate has on several occasions pointed out that a MADEKKI assessment [of the quality of medical care] is only one of the possible pieces of evidence in a particular case, for example as concerns proceedings for compensation for damage to health. However, a MADEKKI assessment plays neither a decisive nor a determining role in deciding other matters (see the Senate’s decisions of 25 January 2005 in case SKA-76/2005 and the Senate’s judgment of 22 November 2005 in case SKA-378/2005). Therefore, the fact in itself that the MADEKKI has not found any shortcomings in the medical care provided in a prison cannot stand in the way of a decision on a question, for example, relating to the scope of medical care in prison or its availability. The court cannot establish, either from the case material or from the claimant’s statements (answers to the court’s questions during the hearing) ... that the claimant contested an action of a public authority (the particular prison) of not providing him with medical care as required by law ... [15] ... In determining the type and amount of compensation for distress, the court finds that the institution’s action of issuing the 10 October 2005 report and giving its assessment about treatment in prison could not harm the claimant’s life or seriously harm his health ... The MADEKKI report – the assessment of the quality of medical care – did not directly harm the claimant’s health to the extent that the court should have set monetary compensation up to LVL 20,000 pursuant to section 14 (1) of the Law on Compensation for Damages ... However, in determining whether distress has been caused to the claimant by [the fact] that the institution in its report did not provide a full assessment of the quality of medical care, as it has been found ... in the 19 November 2009 judgment, and taking into account the legal characteristics of the report, the court considers that pursuant to section 14 (4) of the Law on Compensation for Damages written apology may be considered independent redress.”
| 0 |
test
|
001-150563
|
ENG
|
ITA
|
ADMISSIBILITY
| 2,014 |
MANISCALCO v. ITALY
| 4 |
Inadmissible
|
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
|
1. The applicant, Mrs Maria Carmela Maniscalco, is an Italian national, who was born in 1952 and lives in Reggio Emilia. She was represented before the Court by Mr L. Golino, a lawyer practising in Rome. 2. The Italian Government (“the Government”) were represented by their Agent, Mrs E. Spatafora, and their Co-agent Mr G. Mauro Pellegrini. 3. The facts of the case are disputed by the parties and may be summarised as follows on the basis of the information available to the Court, without prejudice to the merits of the case. 4. The applicant worked as a director in a subsidiary company of UNICREDIT Bank, until the date she resigned pending disciplinary proceedings brought against her following claims made by the bank in respect of misappropriation of funds by her. The bank also instituted proceedings against the applicant claiming damages and requested precautionary measures (namely, a conservatory seizure - to be distinguished from a precautionary seizure for the purposes of Italian legislation), particularly in connection with transfers to a certain Mr S. 5. Following her resignation the applicant was owed (by UNICREDIT bank) work-related credits including, amongst other things, salary arrears and TFR (spettanza di fine rapporto), a lump sum awarded in compensation at the end of an employment relationship. 6. On 9 October 2009, upon an ex parte request of the bank, the labour judge within the Bologna tribunal (Il Giudice del Lavoro), considered that there existed both a “presumption of sufficient legal basis” (fumus boni iuris) and a “danger in delay” (periculum in mora): the applicant having resigned from her work, could easily dispose of or hide her possessions. It therefore ordered the conservatory seizure (sequestro conservativo) of the applicant’s assets up to a value of EUR 5 million (amounting to the damage claimed by the bank), which reflected any prejudice in connection with transfers made to Mr S. The court fixed a date to hear the parties, namely 23 October 2009, and fixed the deadline for notification of the order at 16 October 2009 (notification occurred on 15 October 2009). 7. According to the enforcement act of the conservatory seizure, dated 15 October 2009, the judicial officer executing the order attached, “within the limits of the law, the sums owed by Unicredit to Mrs Maniscalco, under any title including those connected with the termination of her employment, as well as any deposits, shares, obligations or investment funds, that is any movables up to the amount in respect of which she appears to be a debtor, that is EUR 5 million.” 8. On 23 October 2009 the applicant challenged the labour judge’s decision of 9 October 2009. However, the order was confirmed on 9 December 2009. The court considered in detail the results obtained from the investigation to that date, namely that most suspicious dealings (transfer of funds) had been signed by the applicant. Nevertheless, the court noted that the applicant had not transferred any funds to herself, but to third parties, particularly Mr S. It considered that the bank’s contention that such funds had been transferred on the applicant’s own initiative was ill-founded. Nevertheless, it was clear that the applicant had misappropriated funds contrary to internal bank rules, abusing her power as director of the bank branch. It followed that there was a real risk that the bank would lose such money, and therefore the requisite of fumus boni iuris persisted together with that of periculum in mora. 9. The court also considered that it could not accept the applicant’s request to hear Mr S. (whose relation with the applicant was also of relevance, but that was not a matter to be assessed at that stage). It considered that although Mr S. was the beneficiary of the misappropriated funds, he had an interest in being a party to the proceedings, but he had not been summoned to intervene by any of the parties. Under Italian law a person who has an interest in being a party to the proceedings cannot be heard as a witness. 10. The applicant further challenged the measure on 22 December 2009, asking the court, inter alia, to revoke the conservatory seizure order, in so far as the requisites under Article 671 of the Code of Civil Procedure [COCP] had not been fulfilled, and in the absence of such revocation to limit the conservatory seizure order, in respect of her TFR to the amounts which might be attached according to Article 545 of the COCP. 11. After having heard the parties at a hearing on 10 February 2010, the labour court dismissed the applicant’s challenge by a decision of 19 February 2010 filed in the relevant registry on 24 February 2010. It noted that the applicant had failed to disprove the findings referring to her involvement. Neither did the court accept her contention that only 20% of her TFR could be attached. It rejected the applicant’s argument that in view of Article 545 of the COCP and Article 1246 of the Civil Code (“CC”), it was not possible to attach more than a fifth of her TFR, in the context of the legal relationship between the employer and the employee. The court held that it was so possible in accordance with constant case-law arising from a number of judgments (inter pluribus, the following Court of Cassation judgments: nos. 6214/2004; 9904/2003; 3564/1999; 6387/1997; 6033/1997; 12905/19954873/1995; 10447/1991; 1245/1987), and it had not been disproved by the one, one-off, case cited by the applicant (judgment of the Court of Cassation no. 10629/2006), which was more recent. 12. The attachment of her assets remained in place. 13. On 29 July 2010 the Brescia Tribunal (competent for the enforcement proceedings in the case) upheld the applicant’s plea concerning the limitations on the attachment of her pension fund. The court noted that the fund had been funded partly through voluntary contributions by the employee of part of her salaries (which had to be considered as a voluntary transfer), partly through the TFR, and partly through the obligatory contributions of the employer. Thus, the part of the fund which referred to the sums voluntarily transferred by the applicant could be attached in its entirety but the other two parts which were made up of salaries and pension contributions could only be attached up to a limit of 20%. In practice, this decision unblocked some of the fund and reduced the attachment of the applicant’s pension fund to the global amount of approximately EUR 20,000. 14. This decision was notified on 3 September 2010 and on 8 September 2010 the applicant requested the liquidation of the relevant amount. Such funds were only released six months later, namely on 8 March 2011. 15. In the meantime the labour judge within the Bologna tribunal in the main proceedings had requested the parties to go through mediation with the aim of reaching a settlement. The latter not having been successful, the proceedings were continued and the rest of the assets remained attached. 16. On 13 June 2013 the labour judge within the Bologna tribunal issued a first-instance judgment on the merits of the case, which was filed in the registry on 15 October 2013. It found that the applicant had not been responsible for any misconduct in the transfer of funds to Mr S. Thus, the precautionary interim measure connected with this matter had no longer any useful effect. It further found both the applicant and the bank responsible for damage caused in connection with other matters and ordered the applicant to pay half of the damage incurred, namely EUR 1,626,429. 17. Pending the appeal proceedings, the applicant proceeded to donate part of her immovable property to her children. In June 2014 UNICREDIT bank lodged an application before the domestic court challenging such a donation. 18. The applicant claimed that following the interim measure of 9 October 2009 all her assets were attached. However, no documentation has been submitted to this Court specifying which movable and/or immovable assets had in fact been attached. From vague documentation, namely a mortgage history search on the basis of names (ispezione ipotecaria per dati anagrafici) issued by the land registry, it would appear that an unspecified apartment registered in the applicant’s name was affected by the order of 9 October 2009. The application to the courts lodged by UNICREDIT bank, dated June 2014 (see paragraph 17 above), also makes reference to an enforcement act of the conservatory seizure of 14 October 2009 by which three immovable properties co-owned by the applicant were attached – however, the original enforcement act has not been provided. 19. The Government contested the applicant’s allegations, claiming that she had not substantiated that all her assets had been frozen. According to the Government it was not for them to prove what had not been attached. They conceded, however, that on the basis of the enforcement of the order of 9 October 2009 approximately EUR 75,000 consisting of the applicant’s pension fund had originally been attached. Despite certain documentation, the Government appeared to doubt whether an apartment, where the applicant lived with her family, and of which she owned 50%, had been attached. Even if that were so, the apartment at issue was subject to a mortgage in connection with a loan and thus could in any case not be sold. 20. The relevant articles of the COCP, in so far as relevant, read as follows: “Sums such as salaries, allowances or benefits, including termination of employment sums (TFR), owed by private individuals to their employees, may be seized to the extent allowed by a tribunal or judge. Only one fifth of such sums may be seized for the purposes of taxes owed to the state, province or commune, and in the same measure for any other credit. Seizure in respect of more than one of the abovementioned purposes jointly cannot exceed half the mentioned sums. Without prejudice to any other limitation expressly provided for in specialized legal provisions.” “Once seized the debtor becomes the custodian of the items seized as well as any accessories [...]” “Having heard the parties and omitting any formality which is not essential for an adversarial procedure, the judge proceeds to examine the requirements necessary for the purposes of the requested measure, before accepting or rejecting the request by means of an order. If notification to the defendant may prejudice the coming to be of the measure, the judge may proceed by means of a reasoned decision or if necessary summary reasons. In such a case, by means of the same decision the judge shall fix a date to hear the parties, not later than fifteen days later, and award the applicant a peremptory time period of a maximum of eight days within which to carry out the notification of the application and the decision. At the hearing the judge may, by means of an order, confirm, modify or revoke the measures ordered in the decision.” “On the request of the creditor who has a well-founded fear of losing any guarantee over his claim, the judge may authorise a conservatory seizure of movable or immovable property belonging to the debtor, or of any sums due to the creditor, within the limits allowed by the law for such seizures.” “A conservatory seizure over immovable property is enforced by registering the measure ordered at the relevant land registry (l’ufficio del conservatore dei registri immobiliari del luogo in cui i beni sono situati). Article 559 applies in respect of the custody of the immovable property.” 21. Article 1246 of the Civil Code provides for exceptions to what assets can be set-off, and includes under sub-article 3 “assets which cannot be seized”. 22. Other relevant articles of the CC read as follows: “A creditor may request a conservatory seizure over the debtor’s assets in accordance with the rules of the code of civil procedure. Such a seizure may also be requested in respect of a third party acquirer of the debtor’s assets, in so far as an appropriate action to declare the ineffectiveness of the transfer has been lodged.” “Transfers or any other acts concerning the affected assets may not prejudice the creditor requesting the measure, as provided in the rules for seizure (pignoramento).”
| 0 |
test
|
001-173256
|
ENG
|
MDA
|
CHAMBER
| 2,017 |
CASE OF VASILICIUC v. THE REPUBLIC OF MOLDOVA
| 3 |
Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
|
5. The applicant was born in 1959 and lives in Athens, Greece. 6. Because of the difficult economic situation in Moldova, in 1997 the applicant left that State for Greece where she found employment; she was engaged by a family to take care of a disabled child. She used to visit Moldova on holiday every two to three years and she kept an apartment in Causeni. 7. On 15 September 2008, after a visit to Moldova, the applicant was returning to Greece from Chisinau Airport when she was stopped by customs officers because she had on her twenty-nine pieces of non-identical jewellery such as rings, bracelets, necklaces and pendants. The applicant was wearing seven pieces of the jewellery and the rest were in a jewellery box in her handbag. Since the applicant had failed to declare the jewellery, she was taken to the airport police station. There she stated that she had not been attempting to smuggle the jewellery through customs and that she had honestly believed that no declaration was necessary for goods whose value was less than 5,000 euros (EUR). She also submitted that the jewellery in question had been brought to Moldova from Greece. She was informed that she only had the right to take five pieces of non-identical jewellery out of country, no matter their value. She also submitted that she had not been asked to declare anything by the customs officers. The police drew up a report according to which the applicant had in her possession twenty-nine pieces of jewellery made of precious metals and stones with a total value of 55,582 Moldovan lei (MDL – approximately EUR 3,284). All the jewellery, including the pieces allowed by law to be transported over the border, was seized by the police. 8. The applicant missed her flight and spent two weeks in Moldova during which time she went to the police station on several occasions. There she made an official declaration and signed a formal undertaking to appear before the prosecuting authorities and courts when necessary. She informed the authorities about her intention to leave the country and obtained their permission. She also gave her Greek address and telephone number. 9. On 1 October 2008 the applicant returned to Greece because she could no longer be absent from work. She had no difficulties in leaving the country through the same airport. 10. On 7 October 2008 the Chişinău airport police formally initiated criminal proceedings against the applicant for attempted smuggling of jewellery. The offence was considered to be a minor one (infracțiune ușoară) with a maximum penalty of 6,000 Moldovan lei (approximately EUR 430) or 240 hours community service or imprisonment of two years. The applicant was not aware of the initiation of the criminal proceedings against her. 11. Subsequently, the applicant was summoned to appear before the investigating authorities via her Moldovan address. Since she did not appear, the prosecutors contacted her adult son and a relative of hers and asked them about the applicant’s whereabouts. Both of them stated that the applicant was in Greece and that they did not know when she intended to return to Moldova. It does not appear from the material in the case-file that the prosecutors asked the applicant’s relatives for her contact information in Greece or to inform her that she had to appear before them. 12. On 16 June 2009 the prosecutor’s office applied to the Botanica District Court for a detention order in respect of the applicant. The reason relied upon by the prosecutors was that the applicant had absconded from prosecution when she left the country on 1 October 2008, in spite of her having given a written undertaking to appear when summoned. A public defender was appointed to represent the applicant. On 19 June 2009 the Botanica District Court ordered the applicant’s detention for a period of fifteen days. The reason relied upon by the court was that the applicant had failed to appear before the investigating authorities when summoned. The publicly appointed lawyer did not challenge that decision. 13. The applicant learned of the detention order against her in the summer of 2010 and employed a Moldovan lawyer to challenge it. On an unspecified date the applicant’s representative lodged a habeas corpus application with the Botanica District Court in which it was argued, inter alia, that the applicant had not been aware of the criminal proceedings against her, that she had never been summoned to appear before the prosecutor’s office and that she had not been informed that she could not leave the country. She asked the court to revoke the detention order and, in exchange, promised to appear before the court when necessary and to surrender her passport. 14. On 18 September 2010 the Botanica District Court rejected the applicant’s habeas corpus application relying, inter alia, on the fact that the applicant had formally undertaken to appear before the prosecuting authorities and courts and later failed to abide by the undertaking. The applicant’s representative appealed, arguing, inter alia, that according to the law the undertaking had not been valid because no criminal proceedings had been formally instituted at that time. The appeal was dismissed by the Chişinău Court of Appeal on 30 September 2010. 15. In July 2011, after the communication of the present case to the Government, the Moldovan authorities applied to Interpol for an international arrest warrant for the applicant. As a result, the applicant was arrested in Greece and held in detention pending extradition proceedings for a period of twenty-three days. In the documents ordering the applicant’s arrest and detention, the Greek authorities made specific reference to the detention order issued by the Botanica District Court on 19 June 2009 (see paragraph 12 above). The extradition proceedings ended on 21 September 2011 when the Athens Court of Appeal rejected the Moldovan authorities’ extradition request and ordered the applicant’s release from detention. The Athens Court of Appeal found that according to Article 5 of the European Convention on Extradition, persons suspected of offences in connection with taxes, duties and customs could be extradited only if the Contracting Parties have so decided in respect of any such offence or category of offences. In the absence of any such agreement between Moldova and Greece, the extradition request could not be upheld. It appears that the applicant has not returned to Moldova ever since.
| 1 |
test
|
001-154572
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,015 |
CHYLINSKI AND OTHERS v. THE NETHERLANDS
| 4 |
Inadmissible
|
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
1. A list of the applicants is set out in the appendix. All applicants are represented by Mr Th.O.M. Dieben and Mr G.A. Jansen, lawyers practising in Amsterdam. 2. The facts of the cases, as submitted by the applicants, may be summarised as follows. 3. On 25 November 2011 Mr Chylinski was stopped by police for riding a bicycle in the dark without showing lights. From an identity check it emerged that an alert had been entered in the Schengen Information System by Poland for the purpose of his arrest for surrender. He was provisionally arrested (voorlopig aangehouden) and taken into police custody (inverzekeringstelling) for three days. 4. Questioned by a police officer the same day, Mr Chylinski consented to his surrender to Poland without delay. 5. On 28 November 2011 Mr Chylinski appeared before an investigating judge (rechter-commissaris). He again consented to his immediate surrender to Poland. 6. On the same day the investigating judge ordered Mr Chylinski taken into initial detention on remand (bewaring). The order was in the following terms: “Orders the requested person to be taken into detention on remand and notes that the requested person shall be released as soon as the detention on remand has lasted twenty days and the European arrest warrant has not yet been received.” 7. On 15 December 2011 the public prosecutor (officier van justitie) sought the prolongation by the Amsterdam Regional Court (rechtbank) of Mr Chylinski’s detention on remand, surrender having not yet taken place. 8. A hearing was held the same day. Mr Chylinski, represented by counsel, argued that “special circumstances” within the meaning of section 35(2) of the Surrender Act (Overleveringswet) justifying the prolongation requested did not exist. He took the view that if the Polish authorities did not come to fetch Mr Chylinski, then the Netherlands authorities should effect the transfer to Poland themselves. In his submission, an extension of the time-limits set out in Article 23 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between European Union Member States was permitted only if both the issuing and the executing Member States were prevented by force majeure from effecting the surrender. Should the Regional Court be hesitant to follow this view, he asked the Regional Court to put a preliminary question to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU). 9. The Regional Court gave its decision the same day. It ordered Mr Chylinski to be taken into extended detention on remand (gevangenhouding) for a further ten days from 18 December 2011 and declined to put any preliminary question to the CJEU. Its reasoning included the following: “The public prosecutor has argued that the lack of any earlier transport from Poland constitutes force majeure for him and that he is not under any obligation to take the requested person to Poland. The Regional Court takes the view that the public prosecutor is tasked with the actual surrender. For the actual surrender he is dependent on the Polish authorities as regards transport. The issuing state, being the party with an interest in the surrender, is responsible for the actual transport. If the actual transport cannot take place within the time-limit set by law, then this constitutes force majeure for the public prosecutor. The public prosecutor is under no obligation to take a requested person to the country that issued the European arrest warrant. The time-limits in the Surrender Act covering actual surrender are intended to increase the efficiency and speed of the surrender procedure. This is in the first place an interest of the authorities concerned and additionally an interest of the requested person himself. The interest of the authorities concerned is not harmed since this has come into being by mutual agreement [sic]. The interest of the requested person is harmed. The extent of the harm is however limited since actual surrender can actually take place in short order, namely on 27 December, and can be justified by what has been considered above. In view of the reasons outlined above the Regional Court sees no reason to put any preliminary questions.” No appeal was possible against this decision. 10. Mr Chylinski was surrendered to the Polish authorities at Schiphol (Amsterdam) Airport on 27 December 2011. 11. On 10 December 2011 Mr Milkovics was provisionally arrested on the basis of an alert entered in the Schengen Information System by Hungary for the purpose of his arrest for surrender. He was taken into police custody for three days. 12. The public prosecutor received the relevant European arrest warrant on 12 December 2011. The following day, 13 December 2011, he ordered the extension of the police custody until such time as the Regional Court would give a decision concerning detention on remand. At the same time, however, he ordered the conditional suspension (schorsing) of the police custody. 13. On 15 February 2012 the Amsterdam Regional Court gave a decision ordering Mr Milkovics’s extended detention on remand, which at the same time it conditionally suspended until the date of its eventual decision on the permissibility of surrender. 14. On 29 February 2012 the Regional Court gave a decision finding Mr Milkovics’s surrender to Hungary permissible. Mr Milkovics was taken into detention on remand the same day. 15. On 8 March 2012 the Regional Court gave a decision extending Mr Milkovics’s detention on remand by a further thirty days starting on 10 March 2012. The decision noted that actual surrender had not yet taken place because of “special circumstances”. 16. On 12 March 2012 Mr Milkovics lodged a request for the suspension of his detention on remand. He stated that he wished to be surrendered to Hungary as soon as possible so as to prove his innocence; at all events, even in the event of a conviction the sentence would be unlikely to be more than a suspended prison sentence or a community service order given his clean criminal record and the (in his submission) relatively minor nature of the charges against him. Should the Regional Court be minded not to accede to this request, he suggested that a preliminary question be put to the CJEU. 17. The Regional Court gave its decision on 15 March 2012 after having held a hearing. It dismissed the applicant’s request for suspension of his detention on remand. Its reasoning included the following: “Section 64 of the Surrender Act allows the suspension of detention on remand for the purpose of surrender until the moment at which the Regional Court has permitted the surrender. Only in exceptional circumstances does the Regional Court consider itself empowered to order the suspension of the detention on remand for the purpose of surrender after that decision; an example is the situation in which continued detention would lead to a violation of Article 5 of the Convention. The Regional Court takes the view that no exceptional circumstances are apparent that ought to lead to the suspension of the detention on remand for the purpose of surrender of the requested person. In so finding, the Regional Court notes that the requested person has spent only nineteen days in detention and that actual surrender to the Hungarian authorities is expected to take place very soon, no later than 26 March 2012. The Regional Court therefore cannot see that continuing the detention in remand for the purpose of surrender constitutes a violation of Article 5 of the Convention already now. Nor does the Regional Court see any need to consider the request for suspension of the detention according to the standards applicable to the situation in which the Regional Court has not yet given its decision. Unlike counsel, the Regional Court does not consider the limitation of the possibility of suspension for the purpose of surrender to the period preceding the decision, as laid down in section 64 of the Surrender Act, to run counter to Article 12 of Council Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. That Article provides that the person requested may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding [emphasis in the original]. Clearly the Netherlands legislature has considered the restriction of the possibilities of suspension referred to above necessary to prevent the requested person absconding. Nor is it the case that the Surrender Act rules out the possibility of releasing the requested person from the decision until actual surrender takes place. It is, after all, within the power of the public prosecutor to release the requested person at any time if there should be occasion to do so. Likewise, if the public prosecutor does not seek the prolongation of the detention on remand for the purpose of surrender or if the Regional Court dismisses a request for its prolongation, then the requested person will be released provisionally until actual surrender takes place. There is accordingly no necessity to construe [section 64 of the Surrender Act] in the light of the Framework Decision, nor is there a need for any preliminary questions [to the CJEU].” 18. Mr Milkovics lodged an appeal against this decision with the Amsterdam Court of Appeal (gerechtshof). 19. Mr Milkovics was surrendered to the Hungarian authorities at Schiphol Airport on 26 March 2012, having remained in detention until then. 20. The Court of Appeal held a hearing in the case on 4 April 2012. Mr Milkovics was represented by his counsel. Relying on S.T.S. v. the Netherlands, no. 277/05, ECHR 2011, his counsel asked that the appeal be declared admissible despite Mr Milkovics’s surrender nine days earlier. He challenged the decision of the Regional Court, arguing that Article 5 of the Convention and Articles 6 and 52 § 1 of the Charter of Fundamental Rights of the European Union acted to override section 64(1) of the Surrender Act and introduce a subsidiarity test. Pointing out that no appeal lay to the decision of the Court of Appeal, he again asked for a preliminary question to be put to the CJEU. 21. The Court of Appeal dismissed Mr Milkovics’s appeal on 18 April 2012. Its reasoning included the following: “Given section 64 of the Surrender Act suspension of detention on remand for surrender purposes is possible only as long as no judicial decision has been taken about allowing surrender. This rule admits of exceptions only if there is an exceptional situation, in which there is a danger that the rights guaranteed by Article 5 of the Convention may be violated. There is no such situation in the present case, considering also the brief period that the requested person has spent in detention for surrender purposes in the Netherlands. The system of the Surrender Act and [Council Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States] is based on the assumption that the orders of the judicial authorities of the Member States of the European Union are to be trusted as if they were decisions of the requested Member State itself. The requested person can exercise his rights based on the Convention and related arrangements without limitation in Hungary and will have to approach the Hungarian authorities for that purpose. There is no point to any further assessment by the Netherlands courts in the given circumstances. In view of the above, there is no need to put any preliminary questions.” No appeal was possible against this decision. 22. On 31 July 2011 Mr Targus, having been spotted fishing, was asked to show his fishing licence. From an identity check it emerged that an alert had been entered in the Schengen Information System by Poland for the purpose of his arrest for surrender. He was provisionally arrested and taken into police custody for three days. 23. On 2 August 2011 the investigating judge ordered Mr Targus taken into initial detention on remand. The order was in the following terms: “Orders the requested person to be taken into detention on remand and notes that the requested person shall be released as soon as the detention on remand has lasted twenty days and the European arrest warrant has not yet been received.” 24. On 3 August 2011 the investigating judge gave a decision conditionally suspending Mr Targus’s detention on remand. 25. On 3 October 2011 the Amsterdam Regional Court gave a decision ordering Mr Targus taken into extended detention on remand, which at the same time it conditionally suspended until the date of its eventual decision on the permissibility of surrender. 26. The public prosecutor received the relevant European arrest warrant on 5 August 2011. 27. On 6 December 2011 the Regional Court gave a decision giving permission for Mr Targus’s surrender to Poland in respect of one charge but refusing such permission in respect of a plurality of other charges. Mr Targus was taken back into detention on remand the same day. 28. On 15 December 2011 the public prosecutor sought the prolongation by the Amsterdam Regional Court of Mr Targus’s detention on remand, surrender having not yet taken place. 29. A hearing was held the same day. Mr Targus, represented by counsel, argued that on the same grounds as in the case of Mr Chylinski (see paragraph 8 above) that “special circumstances” within the meaning of section 35(2) of the Surrender Act justifying the prolongation requested did not exist and asked the Regional Court to put a preliminary question to the CJEU under Article 267 of the TFEU. In the alternative, he argued that there was no danger of his absconding since only one charge remained for him to face in Poland, a minor one at that, and he had built a stable existence in the Netherlands with his family. 30. The Regional Court gave its decision the same day. It ordered the prolongation of Mr Targus’s detention on remand for a further ten days from 16 December 2011 and declined to put any preliminary question to the CJEU. Its reasoning on this point was identical to that in the case of Mr Chylinski (see paragraph 9 above). It also found that there were no special circumstances justifying suspending the detention. No appeal was possible against this decision. 31. Mr Targus was surrendered to the Polish authorities at Schiphol (Amsterdam) Airport on 27 December 2011. 32. The following provisions of positive European Union law are relevant to the case: “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.” “Everyone has the right to liberty and security of person.” “1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. ...” “When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding.” “1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned. 2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant. 3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.” 33. In its judgment of 6 October 1982 in Case 283/81 (Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health), the Court of Justice of the European Communities (hereafter ECJ) responded to a request from the Italian Court of Cassation for a ruling as to whether the third paragraph of Article 177 of the EEC Treaty (now Article 267 of the TFEU) laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt. In this connection, the ECJ found it necessary to define the meaning, for purposes of Community law, of the expression “where any such question is raised” in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before it. The ECJ observed the following: “... it must in the first place be pointed out that Article 177 does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article 177. Secondly, it follows from the relationship between the second and third paragraphs of Article 177 that the courts or tribunals referred to in the third paragraph have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of community law is necessary to enable them to give judgment. Accordingly, those courts or tribunals are not obliged to refer to the court of justice a question concerning the interpretation of community law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case.” and gave the following interpretation of Article 177 of the EEC Treaty: “The third paragraph of Article 177 of the EEC Treaty must be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court of Justice or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.” 34. In Case 338/85 Pardini v Ministero del Commercio con l’Estero [1988] ECR 2041, paragraph 11; Case C-159/90 Society for the Protection of Unborn Children Ireland v Grogan [1991] ECR I-4685, paragraph 12; and Case C-176/96, Jyri Lehtonen, Castors Canada Dry Namur-Braine ASBL and Fédération Royale Belge des Sociétés de Basket-ball ASBL (FRBSB), paragraph 19, the ECJ held: “[A] national court or tribunal is not empowered to bring a matter before the Court by way of a reference for a preliminary ruling under Article 177 of the Treaty unless a dispute is pending before it in the context of which it is called upon to give a decision which could take into account the preliminary ruling. Conversely, the Court of Justice has no jurisdiction to hear a reference for a preliminary ruling when at the time it is made the procedure before the court making it has already been terminated.” 35. In its relevant part, the Surrender Act provides as follows: “1. At the request of the public prosecutor, the Regional Court can order the person requested detained on remand at its hearing. 2. Before terminating its examination of the case in the hearing the Regional Court shall decide ex officio ... on the extended detention on remand of the person requested if he is in initial detention on remand or police custody.” “Detention ordered pursuant to section 27 shall – without prejudice to the possibility of further detention on other grounds – be terminated as soon as: a. it is so ordered by the public prosecutor or the Regional Court, whether ex officio or at the request of the person requested or his counsel; b. it has lasted ten days from the day of the Regional Court’s decision, unless the Regional Court has prolonged the detention on the application of the public prosecutor in the meantime.” “1. Prolongation of the detention as referred to in section 33 under b can be for no longer than ten days. 2. In derogation from the first paragraph, the detention can be prolonged for thirty days at a time if: a. in addition, extradition has been requested, or surrender by the International Criminal Court or another international tribunal, and the competent Minister has not yet decided on those requests; b. surrender has been permitted, but actual surrender has not proved possible within the time-limit set for that purpose. 3. The person requested shall be given the opportunity to be heard about the application for prolongation of his detention.” “1. The person requested shall be surrendered as soon as possible after the decision in which surrender has been permitted in whole or in part, but no later than ten days after the date of this decision. The public prosecutor shall decide the time and place after consultation with the issuing judicial authorities. 2. If owing to special circumstances the surrender of the requested person cannot take place within the time-limit set in the first paragraph, a new date shall be determined by mutual agreement. In that event, the surrender shall take place within 10 days of the new date thus agreed. 3. The surrender may exceptionally be postponed as long as serious humanitarian reasons prevent the surrender, in particular as long as travel would be irresponsible in view of the state of health of the person requested. The requesting judicial authority shall be informed of this without delay. The public prosecutor shall, after consulting the requesting judicial authority, determine the time and place at which the surrender can take place. In that event, the surrender shall take place within ten days of the new date thus determined. 5. The detention of the person requested shall be terminated after the time-limits set out in the first through third paragraphs have ended.” “1. In cases in which a decision on detention can or must be taken pursuant to this Act, an order can be given for such detention to be conditionally deferred or suspended (voorwaardelijk opgeschort of geschorst) until the moment of the decision of the Regional Court in which the surrender is permitted. The conditions to be set may purport only to prevent the requested person’s absconding. ...”
| 0 |
test
|
001-177670
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF AMIROV v. RUSSIA
| 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)
|
Dmitry Dedov;Luis López Guerra
|
6. The applicant was born in 1954. He lived in the Republic of Dagestan and was the mayor of Makhachkala between 1998 and 2013. He is currently detained in correctional colony no. 6 in Orenburg Region (“the correctional colony”). 7. In June 2013 the applicant was arrested and placed in custody pending criminal proceedings against him. He suffered from several illnesses, including a urinary condition, a rectal prolapse, hepatitis C, and type 2 diabetes. He was confined to a wheelchair and had to use catheters and enemas to urinate and defecate. 8. On 12 August 2013 he lodged an application with the Court complaining that he was not receiving adequate medical assistance in detention. Four days later the Court indicated to the Russian Government under Rule 39 of the Rules of Court that he should be examined by medical experts. 9. On 27 November 2014 the Court delivered a judgment in the case, finding, inter alia, that there had been violations of Articles 3 and 34 of the Convention on account of the authorities’ failure to provide the applicant with adequate medical care or to comply with the interim measure indicated (see Amirov v. Russia, no. 51857/13, §§ 75, 93, and 94, 27 November 2014). 10. Relying on Article 46 of the Convention the Court held that the authorities should admit the applicant, at that time detained in remand prison no. 4 in Rostov-on-Don, to a specialised medical facility where he should remain under constant medical supervision and should be provided with adequate medical services corresponding to his needs; alternatively, the authorities could place him in a specialised prison medical facility, if the facility could guarantee the requisite level of medical supervision and care. (see Amirov, cited above, § 118). 11. After 27 November 2014, the date of the Court’s judgment in the applicant’s first case, he continued being detained in the remand prison pending the completion of his trial. 12. According to the information from the Government, in 2014 the applicant’s cell was re-equipped to take account of his needs as a wheelchair user. Handrails were installed near his bed and the toilet, and the furniture was put at a lower level in order to be accessible. Wheelchair ramps and a lift were installed in the detention facility. A room for personal-hygiene procedures needed by the applicant was located opposite his cell with all the necessary equipment. 13. In 2015 he was examined by various doctors, such as a general practitioner, a neurologist, a surgeon, a urologist, and a proctologist. He underwent basic medical tests and received the treatment he had been prescribed. The prison doctors found his overall condition to be satisfactory. 14. The applicant’s lawyers noticed, however, that his state of health had worsened. They solicited medical opinions on the treatment required. 15. On 14 July 2015 Dr W., a specialist in neurology, examined the applicant. He noted progressive muscular dystrophy, the development of leg convulsions, and urinary problems. An immediate admission to a specialised hospital for long-term treatment and urological surgery was recommended. The doctor said that further detention in prison would put the applicant’s life at risk. 16. On 30 October 2015 the applicant was examined by a forensic expert, Dr N., who confirmed the deterioration of his medical condition, and noted the development of bedsores. The doctor suggested that the applicant’s state of health might warrant early release on medical grounds and stated that he needed constant medical care. 17. On 22 January 2016 Dr N. assessed the quality of the medical care in the remand prison. He noted the absence of exercise therapy, physiotherapy, and massage, and was concerned that the prison premises were not sterile enough for hygienic procedures. 18. In the meantime, on 27 August 2015 the Military Court of the NorthCaucasus Circuit found the applicant guilty of having organised an act of terrorism and an attempt to murder an investigator in his case. He was sentenced to life imprisonment in a high-security correctional colony. The Supreme Court of Russia upheld the conviction and sentence on 24 March 2016. 19. On 1 April 2016 the applicant was sent to serve his sentence in the correctional colony. 20. He spent the first two weeks of his detention in an ordinary cell in the quarantine wing. According to a letter from the chairman of the Committee for Civil Rights sent to the applicant’s lawyer on 20 April 2016, the cell was not adapted to the needs of a wheelchair prisoner. The applicant depended on his fellow inmates, who assisted him in his daily needs, including helping him to perform enemas on himself. 21. Every day the applicant was taken, handcuffed and blindfolded, to the prison yard for exercise. 22. On 2 April 2016 he was examined by several prison doctors: a tuberculosis specialist, an infectious-diseases specialist, a dentist and a general practitioner. The latter recorded his illnesses, ordered blood and urine tests, and prescribed treatment, comprising of a special diet and drugs. He noted that the applicant needed regular catheterisation and enemas. Examinations by specialists in endocrinology, ophthalmology, gastroenterology, neurology, cardiology, urology, and surgery, and exercise therapy were recommended. 23. The applicant was regularly visited by the prison general practitioner in the quarantine wing and underwent blood and urine tests. The doctor was satisfied with his medical condition and the results of his treatment. 24. On 14 April 2016 the applicant was moved to medical unit no. 56 and placed in cell no. 12. He shared its space of 14 sq. m with one cellmate. The applicant was provided with a wide bed, a sink installed at a low level, and a medical couch, which he used during self-catheterisation procedures. Enemas were carried out in a separate room twice a week with the assistance of the medical unit staff. The custodial authorities continued handcuffing and blindfolding him while he was escorted to the yard. 25. On 11 May 2016 he was examined by several doctors: a general practitioner, an endocrinologist, a neurologist, and a urologist from the civilian hospital in Sol-Iletsk. According to the medical records kept by the doctors, his medical condition was acute. No recommendations for inpatient treatment or urgent medical measures were made. The endocrinologist ordered tests of his thyroid-gland hormones, which were carried out on the same day. The neurologist prescribed exercise. The latter prescription was endorsed by a prison doctor on 19 May 2016. 26. On 23 May 2016 the applicant was again examined by the endocrinologist, who noted, inter alia, the risk due to a low level of thyroid hormones. Another hormone test was prescribed for August 2016. 27. The applicant was examined by a medical board to establish whether he was entitled to early release on medical grounds. The board concluded that his medical condition did not warrant it. 28. From 6 to 8 June 2016 a commission of officials from the Russian Ombudsman’s Office, the Orenburg Ombudsman’s Office, the Orenburg prosecutor’s office, the Federal Service of the Execution for Sentences in Orenburg Region and medical unit no. 56 came to the applicant’s detention facility and examined the quality of his medical care. The commission concluded that it was adequate. 29. On 8 June 2016 the applicant was visited by an exercise-therapy specialist, who taught him exercises to support his health. It appears that this visit was a follow-up to previous visits by the specialist, in April and May 2016. However, the medical record does not disclose particular details of the recommendations made on those two previous occasions. 30. On 4 July 2016 two members of the Orenburg Regional Public Commission for Monitoring the Protection of Human Rights in Detention (Общественная наблюдательная комиссия Оренбургской области) inspected the colony. It appears that by the time of the inspection the applicant had been moved to another cell. The inspectors noted in particular, that the cell was divided into three sections by metal bars and housed six inmates. The applicant’s section measured 10.8 sq. m; it had a bath, a medical couch, a sink, and a bedside table with television set. The toilet was not partitioned from the rest of the cell and the applicant could be observed by his cellmate while using it. The correctional colony lacked wheelchair ramps, so the applicant could not freely access the yard or meeting rooms. He complained that the necessary drugs had had to be supplied by his relatives, owing to a lack of funds, which were to be allocated in the near future. Medical supervision was carried out by the general practitioner as regular examinations by other specialists had not been considered necessary. Allegedly owing to the applicant not having received medical massages, the applicant’s legs started convulsing. He was assisted by his cellmate, who helped him to get into bed. The applicant was not given a special diet. 31. On 11 August 25 October and 16 December 2016, and 19 April 2017 a special medical board of highly qualified civilian and prison doctors, and specialists in cardiology, endocrinology, neurology, and urology examined the applicant. They concluded that there was no need to admit the applicant to a specialist medical facility and that he could continue receiving treatment in the medical unit. The doctors were satisfied with the quality of medical care given to the applicant. 32. In the meantime the applicant’s lawyer complained to the Ombudsman of the Russian Federation of the applicant’s detention conditions and the poor quality of his medical treatment. The complaint was forwarded to the prosecutor’s office for the supervision of detention facilities in Orenburg Region. Having carried out enquiries, on 5 July 2016 the Office replied as follows: “It has been established that on admission to [the correctional colony the applicant] was placed in [a cell of the quarantine wing]. It was designed for two persons and measured 12 sq. m, which satisfied the requirements of the Execution of Sentences Act ... [The applicant’s] cellmate assisted him in his daily needs, which included hygienic procedures and moving around the cell. Accordingly, [the applicant] was not restricted in his rights ... The allegation that [the applicant] was not provided with special conditions [needed in his situation] is not true. His cell in the medical unit is furnished with a specially designed table, a bed and a sink, so he can easily access them and move freely about the cell. [The applicant] is assisted by the medical unit staff members and inmates in his movements within the medical unit, in particular when entering/leaving buildings in a wheelchair, and in his daily needs. As called for by [the applicant’s] disability and illnesses, he is examined by the prison doctors on a daily basis, he receives medical treatment as prescribed to the relevant medical standards, and he is provided with dietary nutrition. In May 2016 [the custodial authorities] provided him with a mattress [to prevent] bedsores. [The applicant] urinates with the help of a catheter which he inserts six to seven times per day (as recommended by [a urologist]). He defecates with the help of enemas performed every three days by medical staff from the medical unit. Detainees, who work in the medical unit, escort [the applicant] to a special room for that procedure and clean it afterwards. The regional medical standard “Procedures for simple medical procedures, desmurgy and immobilisation”, approved by an Order of the Ministry of the Health Care and Social Development of Orenburg Region on 5 March 2010 does not require catheterisation or enemas to be carried out in a sterile room. Sterile catheters and enemas tips are used by [the applicant]. In breach of Article 30 of the Penal Institutions Act (Federal Law no. 5473-1 of 21 June 1993), [the applicant] was escorted for walks handcuffed and blindfolded until 24 May 2016. Moreover, the inquiry, which had been performed earlier, revealed breaches of Article 101 § 7 of the Russian Code on the Execution of Sentences and Articles 10, 11, and 11.1 of the Social Protection of the Disabled in the Russian Federation Act (Federal Law of 24 November 1995 No. 181-FZ). [In accordance with the aforementioned Regulation, the applicant] should have been given the necessary devices (a wheelchair for mobility, an indoor wheelchair, a gel pillow to prevent bedsores, nappies for adults, and urinals). However, the custodial authorities have not provided him with those items. [Moreover,] the detention facility did not take measures to provide the exercise and sport therapy [for the applicant] indicated in his rehabilitation programme. In the light of the above, on 2 June 2016 the prosecutor’s office for supervision of detention facilities in Orenburg issued a formal order to the head of the correctional colony to rectify the identified shortcomings. The order has been ... complied with ... There are no grounds for a further intervention by the prosecutor ...”
| 1 |
test
|
001-183206
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF SALAKHBEKOV AND ABUKAYEV v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
5. In 2008 the applicants applied for recalculation of the social benefits they were entitled to as persons who took part in the clean-up operation at the Chernobyl nuclear disaster site. Their claims were granted by domestic courts. 6. Further developments in their cases are summarised in the Appendix.
| 1 |
test
|
001-157703
|
ENG
|
HUN
|
COMMITTEE
| 2,015 |
CASE OF PINTÉR v. HUNGARY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Elisabeth Steiner;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
4. The applicant was born in 1954 and lives in Csengőd. 5. After the death of the applicant’s father, his second wife brought an action about the inheritance against the applicant on 13 February 2004. 6. At first instance, the court partly found for the applicant on 21 December 2007 but, on appeal, the Szeged Court of Appeal quashed the decision and remitted the case. 7. In the resumed proceedings, the second-instance court quashed a decision again on 22 February 2010, as confirmed by the Supreme Court on 8 December 2010. 8. In the proceedings resumed again, the Bács-Kiskun County Regional Court partly found for the applicant on 27 May 2010. The judgment became final on 4 September 2010.
| 1 |
test
|
001-146388
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF MAKAYEVA v. RUSSIA
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations;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;Inhuman 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 2-1 - Life;Article 2 - Right to life)
|
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
|
7. The applicant was born in 1946 and lives in Grozny, Chechnya. Her son, Mr Apti Zaynalov, was born in 1980. 8. In October 2005 Mr Apti Zaynalov was convicted of belonging to an illegal armed group. In July 2006 he was released from detention and after that date lived in Saratov, working in the construction industry. The applicant often stayed with him in Saratov. 9. On 25 June 2009 the applicant travelled back to Grozny from Saratov. Before her departure Mr Apti Zaynalov told her that he was going to study in Egypt and that he had to go to Moscow to finalise certain formalities. 10. On 26 June 2009 the applicant received a message from her son on her mobile phone saying that he would be flying to Egypt the next day. She did not hear from him again and had assumed that he was in Egypt. 11. The applicant alleged that her son had been abducted in June 2009 by unknown servicemen and had disappeared in July 2009. Below is a summary of her submissions to the Court and to the national authorities. 12. According to the applicant’s submissions of 15 July 2009, on 2 July 2009 an unknown person had contacted the offices of Memorial in Grozny, claiming that a young man called Apti, whose body exhibited signs of torture, had been placed under guard in Achkhoy-Martan Hospital. Staff from Memorial decided to follow up this information, believing that the young man might be Mr Apti Sh., who was considered to be a missing person. 13. On 3 July 2009 Memorial staff member Mr G. had gone to Achkhoy-Martan together with Mr Apti Sh.’s uncle, Mr I. Sh. They had found a patient under guard in the hospital’s surgical department. Mr G. had peeped into the ward and had seen two armed guards wearing camouflage uniform and black caps bearing the letters “K.R.A.” in Cyrillic. Two more guards had been sitting on beds near the door. On a bed near the window there had been a young man who was being assisted by a nurse. He was about thirty years old, had bruises on his face, his head was bandaged, and he was covered by a sheet displaying red stains. Mr I. Sh. realised that the patient was not his nephew. A hospital nurse had allegedly told Mr G. that the patient was twenty-nine years old, that his name was Apti Zaynalov, and that he was from the village of Makhety. He had been brought from Grozny, the medical staff had not been allowed to talk to him, his file contained no personal information, and he had been registered as “unknown”. Judging from his wounds, he might have been subjected to ill-treatment. 14. Later that day Mr G. had contacted a relative of Mr Apti Zaynalov. That relative had showed Mr G. and Mr I. Sh. a photograph of Mr Apti Zaynalov and they had identified him as the patient. 15. On 3 July 2009 the applicant’s elder son, Mr R., had told her that he had received information from Memorial stating that there was a patient resembling Mr Apti Zaynalov under guard in Achkhoy-Martan Hospital. 16. On 4 July 2009 the applicant and Mr R. had visited the Memorial office in Grozny. 17. On 5 July 2009 Mr G. and Mr R. had travelled to Achkhoy-Martan but had obtained no new information. 18. On 7 July 2009 the applicant and Memorial staff member Mrs Natalia Estemirova had been received by the Achkhoy-Martan district prosecutor Mr P. The latter had ordered two officers to go with them to Achkhoy-Martan Hospital in order to conduct an inspection there. Then he had left for a meeting. According to the applicant, the two officers had accompanied her and Mrs Estemirova to the Achkhoy-Martan District Department of the Interior (ROVD). The officers had entered the premises but the applicant and Mrs Estemirova had remained waiting outside. After about an hour the applicant and Mrs Estemirova had returned to the prosecutor’s office. However, they had not been admitted to the premises and had gone from there to the hospital. There they were met by Mr G., who explained to the applicant in which ward Mr Apti Zaynalov was allegedly being held. 19. The applicant had approached the surgical department alone and had seen men in camouflage uniforms at its entrance. She had gone to the maternity department since it offered a good view of the surgical department and, having guessed that the patient was likely to be taken out through the security exit, had stood within seven or eight metres of that exit. Within a few minutes a white Volga car with number 367 on the registration plate had approached the security exit and a couple of minutes later Mr Apti Zaynalov had been led out through the security exit. The applicant claims to have recognised him from his face, his height and his build. There had been stains of brilliant green antiseptic on his head and dark shadows around his eyes. He had been put into the back seat of the Volga car. The car had then approached the main hospital entrance, where two servicemen had got into the car. The Volga car had then driven off and – beyond the gates – had been joined by a black car with number 364 on the registration plate. The applicant had then returned to the surgical department and saw that the ward described by Mr G. was empty. 20. On 8-9 July 2009 the applicant lodged applications with the Prosecutor’s Office of the Chechen Republic, the Achkhoy-Martan Interdistrict Investigative Department and the Investigative Committee at the Prosecutor’s Office of the Russian Federation in the Chechen Republic (“the Investigative Committee”) requesting that an investigation be instituted into her son’s disappearance. 21. To support her submissions the applicant enclosed her own statement, statements by Mrs Estemirova and Mr G., and copies of her applications to the State authorities. 22. According to the applicant’s submissions of 14 September 2009, she had learnt that on 28 June 2009 Mr Apti Zaynalov had arrived in Grozny by train. At the railway station he had taken a taxi driven by Mr Z. Kh. On the way, the taxi driver had stopped at a service station where he and Mr Apti Zaynalov had been apprehended by armed men and driven away. Shortly after Mr Z. Kh. had been apprehended, unidentified armed men had conducted an unauthorised search of his home. 23. On 7 July 2009 Mr S. Kh., Mr Z. Kh.’s father, had lodged an application with the Zavodskoy District ROVD concerning the disappearance of his son. Two deputy heads of the ROVD had allegedly confirmed that he had been detained by the police. 24. On 15 July 2009 Mrs Estemirova had been abducted by unknown persons in front of her house in Grozny. Her body had been found later the same day with gunshot wounds by the side of a road in Ingushetia. 25. On 16 July 2009 Mr Z. Kh. had been released. However, according to the applicant, he and his relatives had been so scared by what had happened to him that they had refused to make any witness statements in relation to the present case. 26. The following information was provided by the parties in reply to the Court’s requests for information and questions concerning the communication. 27. On 7 July 2009 the Achkhoy-Martan District Prosecutor’s Office (“the district prosecutor’s office”) had received an application lodged by the applicant which stated that her son had been ill-treated by unidentified persons and was being held under guard in Achkhoy-Martan Hospital. The applicant stated, in particular, that on 3 July 2009 she had received a phone call from which she learned that her son was being kept under guard in the surgical department of that hospital with haematomas and head wounds. On the same date her application had been transferred to the Achkhoy-Martan ROVD. 28. On 7 July 2009 the ROVD officers had been given explanations by Mr Ts., the deputy director of Achkhoy-Martan Hospital. He had submitted that on 3 July 2009 he had been on duty at the hospital and Mr Apti Zaynalov had not been admitted. It was the first time he had heard this name and it had not been listed in the patients’ register. Furthermore, no patient had been admitted at the hospital under guard. 29. On 9 July 2009 Mr H., the head of the surgical department, had made a similar statement. 30. On the same date Mr D., deputy prosecutor of the Achkhoy-Martan district, had submitted a written statement to the prosecutor of the Chechen Republic. He stated that at approximately 2 p.m. on 7 July 2009 he had received the applicant’s application alleging that her son was under guard in Achkhoy-Martan Hospital with haematomas and wounds. He had forwarded the application to the Achkhoy-Martan ROVD in order that an inspection be conducted. The inspection of the hospital had been carried out by Mr A., the prosecutor’s senior assistant, and M., the head of the criminal investigations department of the ROVD, who had checked all the hospital wards, inspected the hospital register and questioned the medical staff in order to establish Mr Apti Zaynalov’s whereabouts. However, the allegations of his placement in the surgical department of the hospital had not been confirmed. 31. In a written statement of the same date Mr A., the prosecutor’s senior assistant, had confirmed Mr D.’s statement. 32. On 10 July 2009 the Investigative Committee had received the applicant’s application concerning the disappearance of her son, who had allegedly been taken from Achkhoy-Martan Hospital to an unknown destination. 33. On 10 July 2009 the principal physician of Achkhoy-Martan Hospital had been asked to provide information about Mr Apti Zaynalov’s placement in the hospital. According to the reply received, Mr Apti Zaynalov had never been admitted to the hospital. 34. On 14 July 2009 Ms M., a nurse at Achkhoy-Martan Hospital, had submitted her explanations. On 7 July 2009 she had been on duty at the hospital. Mr Apti Zaynalov had not been admitted to the hospital during her duty hours and there had been no patient under guard in the hospital. Ms I., the chief nurse, had made a similar statement. 35. On 15 July 2009, having taken account of the results of the inspection conducted, the Achkhoy-Martan ROVD had decided to refuse to institute criminal proceedings. The applicant had been informed of the decision. 36. According to the Government, the applicant had not provided the investigating authorities with any information about the alleged detention of the taxi driver Mr Z. Kh. The authorities had decided to check the version involving the latter after coming across an article by Mrs Estemirova, published on the Internet, which had linked the disappearance of Mr Z. Kh. to that of Mr Apti Zaynalov. The Government enclosed a copy of the article. 37. On 17 July 2009 Mr S. Kh., Mr Z. Kh.’s father, was asked to make a statement. He explained that his son was a driver and had a Toyota Camry provided by his employer as well as his own car, a GAZ-3102. On Sunday, 28 June 2009, at approximately 9 a.m. Mr Z. Kh. had taken the GAZ-3102 to the service station for repair. At approximately 11 a.m. the same day Mr S. Kh. had called his son on his mobile phone but there was no reply. Later the phone had been switched off. At approximately 4.30 p.m. Mr S. Kh. had gone outside and had seen three cars near Mr Z. Kh.’s house: a silver Lada Priora and two white VAZ-2107s. In the yard of the house there had been about ten armed men, aged between twenty-five and thirty years old, wearing camouflage uniform. They had not been wearing masks and had appeared to be of Chechen ethnic origin. At the time there had been no one in Mr Z. Kh.’s house because his wife and children had gone to visit relatives. When Mr S. Kh. approached the armed men, they had not offered any explanation and had forbidden him to come closer to his son’s house, threatening him with automatic weapons. Mr S. Kh. had called the local ROVD and informed them of the situation. About thirty minutes later the armed men had left, taking Mr Z. Kh.’s Toyota Camry with them. Five or ten minutes later a man who had introduced himself as B. had called Mr S. Kh.’s other son, Mr Sh., and had told him to come to a certain junction to fetch his brother’s car. Ten or fifteen minutes later an investigation team from the ROVD had arrived. They had gone to the junction along with Mr Sh. and had found Mr Z. Kh.’s car there. On the evening of the same day the head of the ROVD had visited Mr S. Kh., and had informed him about the disappearance of Mr Z. Kh. On the date of questioning, Mr Z. Kh. had still been missing. 38. On the same date Mr S. Kh. had informed the investigating authorities that his son, Mr Z. Kh., had just returned home safely. 39. Later that day Mr Z. Kh. had been questioned. He had explained that on 28 June 2009 at approximately 9 a.m. he had gone out in his GAZ-3102 car and, having told his relatives that he was going to a service station, decided instead to go to the Black Sea resort of Gelendzhik for a couple of days, since his wife and children were away. He had been unable to call home because his phone had been lost. In Gelendzhik Mr Z. Kh. spent a few days living with a girl in a tent on the beach. In reply to the investigator’s question why he had not called his family, Mr Z. Kh. replied that while in Gelendzhik he had been drinking a lot and it had slipped his mind. Having returned home, he discovered that his relatives had been worried about him and had informed the authorities about his disappearance. Mr Z. Kh. had confirmed that he had not been a victim of any criminal offence. The fact that his Toyota Camry had been taken from his house and later found in a specified place surprised him. He had no idea who could have done it or for what reason. 40. On 24 July 2009 Mr S. Kh. was questioned again. He confirmed his son’s statements and confirmed that nothing bad had happened to Mr Z. Kh. 41. Following the institution of criminal proceedings into Mr Apti Zaynalov’s disappearance (see below), Mr S. Kh. had been questioned as a witness on 23 September and 15 December 2009. He had confirmed his previous statements and had informed the investigator that on 2 August 2009 his son, Mr Z. Kh., had left for an unspecified European country. Mr S. Kh. said that he had preferred it this way as he had been worried for the latter’s safety. Later his other son, Mr Sh., had also left the Chechen Republic. He had also stated that he had not known of Mr Z. Kh.’s acquaintance with Mr Apti Zaynalov, and his son had never mentioned the latter’s name. 42. On 20 July 2009 the ROVD’s refusal to institute a criminal investigation of 15 July 2009 was quashed. The applicant was informed accordingly. 43. Between 20 and 28 July 2009 requests for information about Mr Apti Zaynalov were sent to various law-enforcement and security services in Chechnya, including the Ministry of the Interior, the Department of the Federal Security Service (the FSB), the Temporary United Alignment of Agencies and Units of the Ministry of the Interior [ОГ ВОГО и П МВД – временная объединенная группировка органов и подразделений МВД] and the Investigative Committee. 44. On 27 and 28 July 2009 the applicant was questioned. She reaffirmed her previous submissions. The applicant stated, inter alia, that in Saratov on 23 June 2009 her son had told her that he was going to Moscow and then to Egypt. He had had no intention of coming to Chechnya. She also submitted that she had learned from Mrs Estemirova that Mr Apti Zaynalov had been taken from Achkhoy-Martan Hospital to a hospital in Gudermes, where he had also been placed under guard. She was later questioned again, and reaffirmed her previous submissions. 45. On 28 July 2009 criminal investigation no. 74032 was instituted into the disappearance of Mr Apti Zaynalov. The applicant was informed of the decision. On the same date the acting prosecutor of Achkhoy-Martan transferred the case file from the Achkhoy-Martan ROVD to the Investigative Committee for further investigation. 46. On 3 August 2009 the case was transferred to department no. 2 of the Chechnya Department of the Investigative Committee investigating cases of high importance. 47. On 30 July 2009 Mr G. from Memorial was questioned. He confirmed that, to his knowledge, the applicant’s son had been detained in Achkhoy-Martan Hospital. 48. Twenty-one doctors and nurses from Achkhoy-Martan Hospital were questioned between 13 and 31 August 2009. Among those questioned were the director of the hospital, his deputy, the head of the surgical ward, anesthesiologists, surgeons, and operational and post-operational nurses. Their submissions were largely concordant and confirmed that an unknown young man had been treated on the surgical ward between 28 June and 7 July 2009, whilst under the guard of unknown armed men. The personnel had not asked the patient’s name, and in his medical file he had been recorded as “unknown”. No information about his admittance had been entered in the hospital’s records. The provenance of the guards had also been unknown, and no one remembered any insignia or marks on their uniforms, except the hospital director who believed that it had been the insignia of the Ministry of the Interior; no one had seen or noted their service badges or IDs or the registration plates of the cars they had used; no one had informed the law-enforcement authorities about a patient with gunshot wounds and trauma to the head. The guards had been armed with automatic weapons, had been of Chechen origin and had spoken in Chechen to the staff of the hospital and to the patient. They had treated the patient correctly and had done most of the everyday care, such as changing, washing and feeding the patient; the doctors and nurses had not spoken to him, had had very little contact with him and, if at all, it had always been in the presence of the guards. Some doctors and nurses were asked if they would be able to describe or identify the guards, or to identify or sketch the patient, but they responded in the negative. The medical file opened for the unknown patient at the hospital disappeared after his departure, as did the bullet extracted from his wound. 49. The hospital director Mr Rizvan Kh. testified on 14 August 2009 that on 28 June 2009 at about 2 p.m. a group of five or six men had arrived to the hospital in two grey VAZ-21110 cars. The men had been dressed in camouflage uniforms bearing the Ministry of the Interior insignia and were armed with Kalashnikov automatic rifles and hand pistols. They had said that they worked for the ROVD, and Mr Rizvan Kh. assumed that they meant the Achkhoy-Martan ROVD. The men had brought in a wounded man, aged around 29, about 170 cm tall, dark-skinned, dark haired. He had a gunshot wound to the right leg, a piercing wound to the abdomen and a head trauma. His wounds had been operated on, and a neurosurgical team from Grozny had been called in to treat his head trauma. The armed guards had forbidden the hospital personnel, including the director, to talk to the patient. The hospital director had presumed that the patient was employed by the security services, perhaps by the Achkhoy-Martan ROVD, since at that time a number of servicemen were being treated at the hospital. For this reason, he had not passed on information about the patient to the police. At about 4 p.m. on 7 July 2009 the guards had removed the patient from the hospital without any warning. At that time the patient had been on the path to recovery, but was not completely healed. 50. On 5 February 2010 the applicant’s counsel lodged an application with the investigating authorities requesting that criminal proceedings be instituted against the staff of Achkhoy-Martan Hospital on the grounds of their failure to inform the relevant authorities that a patient with gunshot wounds had been admitted. On 8 February 2010 this request was refused. 51. On 24 August 2009 Mr M. was questioned. He worked at a service station in Grozny. On 28 June 2009 at approximately 11 a.m. a white GAZ3102 car bearing the registration plates of Mr Z. Kh.’s car had entered the station. Soon afterwards a man wearing a black uniform and armed with a Kalashnikov submachine gun had entered the service station. He had aimed the gun at them and told Mr M. to lie on the floor. He had then taken the driver outside and made him lie down on the ground. Mr M. could hear screaming in Chechen outside and from the talking of approximately six armed men he had grasped that they were tying down a guy who was resisting them. The man in the black uniform had returned and asked for a piece of wire. Mr M. had understood that the men had used it to tie the hands of the passenger in the GAZ-3102 car. At some point he had heard two shots. The men then left in two white Lada Priora cars, taking with them both the passenger and the driver. Later, officers from the checkpoint near the service station had removed the GAZ-3102 car. Later that day and the following day, law-enforcement officers, including investigators, had come to the station and questioned Mr M. about those events. Mr M. would not have been able to identify the passenger, having noted only that he must have been twenty-eight to thirty years old. However, he would probably have been able to identify the driver, whom he described in detail. He might also have been able to identify the man in black uniform. At the end of July 2009, a man had come to the service station and had introduced himself as the brother of the driver apprehended on 28 June 2009. He had said that his brother had been released. 52. On 24 September 2009 the Deputy Prosecutor of Chechnya concluded an internal inquiry into the actions of the Achkhoy-Martan district prosecutor Mr P. and his deputy Mr D. 53. The document summarised the findings as follows: “On 7 July 2009 [the applicant] and Memorial representative Mrs Estemirova personally informed the acting Achkhoy-Martan district prosecutor, Mr P., that on 26 June 2009 [the applicant’s] son, Mr Apti Zaynalov, had been kidnapped in Saratov and that at the time in question he was being held on the surgical ward of Achkhoy-Martan Hospital with numerous wounds and head traumas, guarded by unidentified armed persons. On the same day Mr P. recorded the application and gave it to his deputy Mr D. for transfer to the Achkhoy-Martan ROVD. On 7 July 2009 the deputy district prosecutor Mr D. forwarded [the applicant’s] application to the Achkhoy-Martan ROVD for the conduct of a preliminary inquiry, in line with Sections 144 and 145 of the [Code of Criminal Procedure]. On 7 July 2009 Mr Apti Zaynalov was abducted from Achkhoy-Martan Hospital by unidentified armed men and taken to an unknown destination. On 27 July 2009, further to [the applicant’s] submissions, criminal investigation file no. 74032 was opened by an investigator of the Achkhoy-Martan [department of the Investigative Committee] under Section 105 part 1 [murder] of the [Criminal Code]. On 2 August 2009 the criminal file was transferred for further investigation to department no. 2 of the [Chechnya Department of the Investigative Committee] investigating cases of high importance. The measures undertaken by the investigation department have not resulted in the ascertainment of Mr Apti Zaynalov’s whereabouts or the identification of the persons who committed the crime. From [the applicant’s] explanations it follows that on 7 July 2009 she and Mrs Estemirova from Memorial informed the acting Achkhoy-Martan district prosecutor, Mr P., that on 26 June 2009 her son had been kidnapped in Saratov and was being held on the surgical ward of Achkhoy-Martan Hospital... In their presence Mr P. instructed his deputy Mr D. and a senior assistant Mr A. to go to the hospital together with [the applicant] ... and find out what was happening there. At about 2 p.m. Mr D. and Mr A. walked into the ROVD building, having asked the two women to wait outside. After waiting for over one hour, she and Mrs Estemirova decided to enter the building but were not allowed to. They then went to the AchkhoyMartan district prosecutor’s office ..., but the guards refused to let them enter, saying that there was no one inside. At about 4 p.m. they finally went to Achkhoy-Martan Hospital, where the applicant saw four armed men putting her son into a car. There were no officers from the prosecutor’s office at the hospital. Mr P., the acting Achkhoy-Martan district prosecutor, explained that on 26 June 2009 he had received information from Mr S., the head of the Achkhoy-Martan district [department of the FSB], that an active member of the [illegal armed groups] was being treated at Achkhoy-Martan Hospital, guarded by a group of unknown armed persons. In order to check up on this information, Mr P, his deputy Mr D. and deputy head of the Achkhoy-Martan district [investigative committee] went to Achkhoy-Martan Hospital. There, guarded by two unidentified men dressed in camouflage uniforms, they found a young man aged between 28 and 32 years, between 180 and 185 cm tall, with his head covered in bandages. The guards prevented the prosecutor from entering the room to ascertain the patient’s identity and, brandishing guns, they threatened to kill him. The director of Achkhoy-Martan Hospital, Mr Kh., explained that the patient was being treated by a doctor from another hospital, but refused to make written submissions. These events were not reported by the prosecutors because they believed that the young man was a witness in a criminal case under investigation in the Oktyabrskiy ROVD, and that his anonymity should be preserved in line with the requirements of the criminal procedure because he had disclosed information about the members of the [illegal armed groups]. On 7 July 2009, having accepted [the applicant’s] complaint concerning the presence of her seriously wounded son under the guard of unknown armed persons at Achkhoy-Martan Hospital, Mr P. registered it ... but did not realise that Mr Apti Zaynalov was the person he had seen at the hospital two weeks earlier. He ordered his deputy Mr D. to send the complaint to the ROVD and to go to the hospital in order to find out whether Mr Apti Zaynalov was there. On the evening of 7 July 2009 Mr D. orally informed the prosecutor that Mr Apti Zaynalov was not at the hospital. Deputy district prosecutor Mr D. explained that ... on 7 July 2009 he had gone to Achkhoy-Martan Hospital together with senior assistant Mr A., the head of the Achkhoy-Martan ROVD, Mr Ay., and the head of the [operative criminal department] of the ROVD, Mr M. They examined the register of persons with traumas who had been admitted to the hospital and did not find Mr Apti Zaynalov’s name there. In breach of p. 1.1 of the General Prosecutor’s Directive of 4 October 2007 No. 158 “On the submission of special dispatches and other indispensable information”, the acting Achkhoy-Martan prosecutor, Mr P., failed to inform the [Chechnya] prosecutor about the threat of murder made to him on 26 June 2009 while he was on duty, which constituted a crime against his person. In breach of the requirements set by the General Prosecutor’s Directive of 27 December 2007 No. 212 “On recording and tracking by the prosecutors of information about crimes”, the acting prosecutor of Achkhoy-Martan, Mr P., having on 7 July 2009 received information about a crime, failed to take steps in order to protect citizens against a criminal act and to immediately inform the relevant investigation body. In breach of Section 151 of the [Code of Criminal Procedure], having been given information about kidnapping and the unlawful deprivation of liberty – crimes under Sections 126 and 127 of the Criminal Code – [Mr P.] did not submit that information to the Achkhoy-Martan [district department of the Investigative Committee] but instead, without any reason, instructed Mr D. to forward it to the Achkhoy-Martan ROVD. Improper handling by Mr P. of [the applicant’s] petition facilitated the kidnapping by criminals of Mr Apti Zaynalov from Achkhoy-Martan Hospital, following which his fate remains unknown and a serious crime remains unresolved.” 54. The document concluded that disciplinary proceedings should be instituted against Mr P. for the improper execution of his duties, while his deputy Mr D. should be reprimanded. 55. On 27 April 2010 the Prosecutor’s Office of the Chechen Republic informed the applicant’s counsel in reply to an earlier request, that in the course of a disciplinary investigation it had been established that Mr P., the former acting prosecutor of Achkhoy-Martan, had failed to fulfil his duties when examining the applicant’s application concerning her son’s disappearance. In this connection disciplinary sanctions had been imposed on him. 56. On 7 October 2009 the applicant was questioned as a victim. To her submissions she added that, after having heard from Mr G. that her son had been detained in Achkhoy-Martan Hospital, she had verified the information “through her own source”, unrelated to Memorial. The applicant also stated that she had not known anything about her son’s acquaintance with Mr Z. Kh. She also asked that no further investigative activities at AchkhoyMartan Hospital be conducted involving her participation since, given her state of health, she could not endure the recollection of those traumatic events. 57. On 19 and 20 February 2010 the applicant was again questioned. She submitted that on 17 February 2009 her daughter had shown her a photo of Mr Apti Zaynalov that she had printed off from an Internet page together with the accompanying text. The text alleged that officers of the Ministry of the Interior of the Chechen Republic had apprehended a resident of Ingushetia aged twenty-nine years who had confessed to being a member of an illegal armed group in the Achkhoy-Martan District. Later the applicant had learned from her representatives that the photograph had been changed. The new photograph showed a man standing against the wall with his back towards the camera. The applicant provided the investigating authorities with both print-outs. The investigator then showed her a short video of a man walking out of a cell and subsequently standing facing a wall and asked her whether it was her son. The applicant stated she was positive that it was not her son. 58. On 14 October 2009 the applicant sent a letter to the investigating authorities reiterating her request that they should not conduct any investigative activities requiring her participation due to the emotional impact on her. She stated at the same time that she was not refusing to cooperate with the investigation and had no grievances regarding its conduct. 59. On 1 April 2010 the Investigative Committee suspended the investigation. It was stated in the decision that between 28 June and 7 July 2009 Mr Apti Zaynalov had been anonymously treated in Achkhoy-Martan Hospital under the guard of armed men. The latter, having learned that Mr Apti Zaynalov’s and Memorial’s staff had lodged applications with the law-enforcement agencies, had taken him from the hospital to an unknown destination. Mr Apti Zaynalov’s whereabouts had not been ascertained. 60. On 21 April 2010 the applicant asked a leave to study the case file and lodged a complaint against the decision of 1 April 2010 with a higher prosecuting official. 61. On the same date the applicant’s counsel lodged a complaint against the refusal of 8 February 2010 to institute criminal proceedings against the staff of Achkhoy-Martan Hospital. 62. On 26 April 2010 the Investigative Committee dismissed this complaint. The decision stated, in particular: “...In the course of the investigation it has been established that on 28 June 2009 Mr Apti Zaynalov was abducted by unidentified persons in an unestablished place and then taken with shotgun wounds to Achkhoy-Martan ... Hospital where he underwent treatment for ten days and was then taken away by unidentified armed persons wearing camouflage uniform. So far his whereabouts have not been established. In breach of [an applicable] instruction, the medical staff of [Achkhoy-Martan Hospital] did not inform the Achkhoy-Martan ROVD about the admittance of Mr Apti Zaynalov. [...] In the course of the investigation ... all the staff of Achkhoy-Martan Hospital were questioned. [They] explained that they believed the armed men who were guarding the unidentified patient with gunshot wounds to be policemen, and for this reason had not informed the ROVD of the patient’s admittance. [...] Furthermore, during Mr Apti Zaynalov’s stay at Achkhoy-Martan Hospital the former acting prosecutor of Achkhoy-Martan, Mr P., visited [the hospital] to conduct an investigation. [He] met the former director of the hospital ... and established the fact that Mr Apti Zaynalov was in the hospital under armed guard, but took no further steps to investigate the situation properly. [...] In the circumstances, the failure of the medical staff to inform ... the ROVD of ... Mr Apti Zaynalov’s admittance does not call for an additional investigation since all relevant materials are available in the case file. [...]” 63. On 28 April 2010 the investigation was resumed. 64. In January 2010 the applicant’s counsel appealed to the Staropromyslovskiy District Court of Grozny against the refusal of the investigating authorities to conduct certain investigative activities. 65. On 29 January 2010 the Staropromyslovskiy District Court granted the appeal and declared the refusal unlawful.
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001-165757
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ENG
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DEU
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CHAMBER
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CASE OF MARC BRAUER v. GERMANY
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Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)
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André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
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5. The applicant was born in 1978 and lives in Rheine. 6. On 26 June 2012 the applicant was arrested on the spot for having damaged with a hammer a number of vehicles parked in the Bocholt courthouse’s car park, and resisting a court’s clerk. As a preliminary measure he was confined to a psychiatric hospital. The court appointed defence counsel to the applicant, who had a previous history of psychiatric treatment going back as far as 1999. 7. On Tuesday 18 December 2012, the Münster Regional Court delivered its judgment and ordered the applicant’s confinement to a psychiatric hospital. It held that the applicant could not be held criminally responsible and was mentally ill. According to the court’s psychiatric expert, he was psychotic and aggressive, did not show any awareness of his illness and it was likely that he would commit further, even more serious crimes. 8. When the judgment was delivered in the presence of the applicant, his courtappointed defence counsel and the applicant’s custodian (gesetzlicher Betreuer), the applicant became agitated. He told the courtappointed lawyer that he wished for a change in representation and declared that he wanted to appeal against the decision himself. He was informed that this was not possible on the spot. The presiding judge instructed him about the time and form for lodging an appeal on points of law. He was then returned to the forensic hospital where, when in contact with others, he showed no more signs of agitation. 9. On Friday 21 December 2012 the applicant received a letter from the courtappointed lawyer, dated 19 December 2012, who advised him as follows: “... You already announced immediately after the hearing that you wanted to appeal against the court’s decision and also to mandate new defence counsel. We respect your wish for new counsel and hereby terminate the mandate. Regarding the remedy you wished for, we give the following advice: You may appeal on points of law against the decision of the Münster Regional Court (Bocholt Chamber) within one week after the judgment was delivered, thus until 27 December 2012 at the latest. Appeal on points of law may be lodged either with the record of the registry or in writing. Since you are not at liberty, the special provision of Article 299 of the CCP applies to you. This means that you can make statements relating to appellate remedies to the record of the registry of the District Court in whose district the institution is located. Thus, the Rheine District Court would be competent. According to Article 299 § 2 of the CCP, in order to meet the time-limit it suffices if the record is taken within the time-limit. In your own interest you should take care that the appeal is lodged in time. For the sake of completeness we refer to Article 345 of the CCP which prescribes that the specific grounds of the appeal shall be submitted to the court whose judgment is being contested no later than one month after expiry of the timelimit for seeking the appellate remedy. If the judgment has not been served by the expiry of that timelimit, the timelimit shall start to run upon the service thereof. In your case this may only be done in the form of a notice signed by defence counsel or by an attorney, or to be recorded by the court registry.” 10. Still, on 21 December 2012 the applicant typed and signed an appeal letter to the Rheine District Court and asked the clinic’s staff to post it. This was done on the following day (Saturday 22 December). 11. On Friday 28 December 2012 the applicant’s appeal letter reached the Rheine District Court, and was forwarded to the Münster Regional Court where it was received on 3 January 2013. 12. On 8 January 2013 the Regional Court informed the applicant that his appeal was belated. It underlined that the applicant had been instructed after the judgment’s delivery that an appeal could only be recorded by the registry of the District Court but could not be lodged in writing. 13. On 14 January 2013 the courtappointed lawyer, who had resumed his activity for the applicant, requested a reinstatement of the proceedings in accordance with Article 44 of the Code of Criminal Procedure (Wiedereinsetzung in den vorherigen Stand - see paragraph 19 below) and lodged an appeal on points of law. He explained that the applicant had misunderstood his counsel’s instruction on how to lodge an appeal. The applicant had believed that he was able to choose whether he wanted to lodge the appeal in writing or have it recorded by the registry either at the Rheine District Court or the Münster Regional Court. He could also have expected the appeal, posted on 22 December, to reach the Rheine District Court by 27 December 2012. 14. On 11 March 2013 the Federal Prosecutor General observed, inter alia, that: “He [defence counsel] referred to Article 299 of the Code of Criminal Procedure by using wording which was not per se wrong but potentially misleading because it could be understood that the appeal on points of law might be lodged either (by the applicant himself) with the record of the Rheine District Court’s registry or in writing with the same court.” However, according to the Federal Prosecutor General, the oral instruction on the day of the hearing was sufficient. 15. On 9 April 2013 the court-appointed lawyer submitted that: “... already at the time of trial the applicant was confined to a psychiatric clinic because of his mental illness. It may be that the oral instructions on the right to appeal given after the delivery of the judgment were correct and complete. However, when judgment was passed which ordered his confinement to a psychiatric hospital, the applicant was not in his right mind. Communication between the applicant and his defence counsel was impossible. The applicant was obviously in an exceptional mental state. In such a situation, taking into account the applicant’s psychiatric illness, it must be assumed that he had not understood the oral instructions on the right to appeal which were given immediately after the delivery of the judgment.” 16. On 24 April 2013 the Federal Court of Justice rejected the applicant’s request for reinstatement and consequently dismissed his appeal on points of law as inadmissible because it had been lodged out of time. It held that it was not necessary to examine whether, with regard to the Christmas holidays, the applicant should have expected his letter to be delivered only on 28 December 2012. Rather, it found decisive that the applicant had been expressly instructed on the day of the judgment’s delivery that an appeal could only be lodged with the Rheine District Court to the record of the registry, but not in writing. An accused who misunderstood the oral instruction and therefore lodged an appeal out of time was himself responsible for this. The Federal Court of Justice distinguished the applicant’s case from caselaw which made exceptions for a foreigner who was not defended by counsel. Moreover, the applicant’s defence counsel had given him instructions on the form and timelimit for an appeal. According to the Federal Court of Justice, the content of this letter was not misleading but reflected correctly the applicable law. There was nothing to show that the applicant might not have understood the oral instructions by the presiding judge for mental health reasons. He misunderstood the subsequent written instructions of his defence counsel in the same way. 17. The applicant filed a constitutional complaint to the Federal Constitutional Court. He stated, inter alia, that another lawyer had advised him that his courtappointed defence counsel had been under an obligation to file the appeal on points of law. 18. On 29 June 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint for adjudication, without providing reasons (no. 2 BvR 1243/13).
| 1 |
test
|
001-159760
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF KLEYN v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - Competent court);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
|
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1969 and lived, prior to his conviction, in Chelyabinsk. 6. On 29 December 2000 the applicant was arrested on suspicion of double murder. He remained in custody pending the investigation and trial. 7. On 13 September 2001 the Chelyabinsk Regional Court found the applicant guilty of murder, accessory to murder and attempted fraud, and sentenced him to twenty-three years’ imprisonment. The court comprised one professional judge and two lay judges. 8. On 12 April 2002 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal. 9. On 23 July 2004 the applicant lodged a supervisory-review complaint challenging the lawfulness of his conviction. He alleged, inter alia, that the trial court had not been a tribunal established by law, given that the lay judges who considered his case had been appointed to the tribunal in contravention of the applicable legislation. 10. On 22 December 2004 the Kopeysk Town Court of the Chelyabinsk Region reduced the applicant’s sentence by seven months, in compliance with the latest amendments to the Russian Criminal Code. 11. On 29 April 2005 the Presidium of the Supreme Court of the Russian Federation received the case file for supervisory review. 12. On 15 June 2005 the Presidium quashed the judgments of 13 September 2001 and 12 April 2002 and remitted the matter to the Chelyabinsk Regional Court for fresh consideration. Referring to the case of Posokhov v. Russia (no. 63486/00, § 41, ECHR 2003IV), the Presidium noted that the lay judges had not been authorised to consider the applicant’s case, which had affected the lawfulness and well-foundedness of the applicant’s conviction. Lastly, the Presidium ordered that the applicant be detained pending a new trial. 13. On 22 July 2005 the Regional Court fixed the preliminary hearing for 1 August 2005 noting that the measure of preventive detention previously imposed on the applicant “should remain unchanged”. The parties did not inform the Court of the outcome of the hearing of 1 August 2005. It appears that it was re-scheduled. 14. On 5 August 2005 the Regional Court held a preliminary hearing of the case. The applicant and his lawyer attended the hearing and made submissions to the court. The applicant asked the court to release him on an undertaking not to leave his place of residence. He noted that he had already served over four years of the earlier imposed prison sentence which rendered the further extension of his pre-trial detention unnecessary. The prosecutor discerned no change in the applicant’s situation that would be in favour of the applicant’s release and asked the court to extend the applicant’s detention pending trial. The court fixed the new trial for 18 August 2005 noting that the measure of preventive detention previously imposed on the applicant “should remain unchanged”. In particular, the court noted as follows: “Deciding on the preventive measure and having heard the parties to the proceedings, the court considers that the remand of the [defendants] in custody during preliminary investigation as a restrictive measure has been lawful and justified. There are no grounds to replace it with a more lenient measure ... in view of the gravity of the charges and the defendants’ character.” 15. On 18 August 2005 the Regional Court opened the trial and on 19 September 2005 it found the applicant guilty as charged and sentenced him to twenty-two years and three months’ imprisonment. The time already served by the applicant was set off against the newly imposed sentence. The court found that the applicant and Sh. had killed V. and Sk. in an attempt to fraudulently obtain the proceeds from the sale of a flat owned by V. The court comprised a single judge. The applicant was represented by a lawyer. 16. On 23 June 2006 the Supreme Court upheld the conviction on appeal. The applicant and his lawyer were present at the hearing and made submissions to the court. On 13 October 2005 the Supreme Court upheld the decision of 5 August 2005 on appeal.
| 1 |
test
|
001-140015
|
ENG
|
NOR
|
CHAMBER
| 2,014 |
CASE OF LILLO-STENBERG AND SÆTHER v. NORWAY
| 4 |
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
|
5. The applicants were born in 1962 and 1964 respectively. They live in Oslo. The first applicant is a musician and the second applicant is an actress. They are both known to the public in Norway. 6. On 20 August 2005, the applicants married in a private ceremony which took place outdoors on an islet in the municipality of Tjøme in the Oslo fjord, approximately 100 km south of the capital. 7. Subsequently, the weekly magazine Se og Hør, hereafter “the magazine”, published a two-page article about the wedding, accompanied by six photographs. One photograph showed the bride, her father and her bridesmaids arriving at the islet in a small rowing boat; another showed the bride being brought to the groom by her father on the islet, surrounded by people; and yet another photograph showed the bride and the groom returning to the mainland on foot by crossing the lake on stepping stones. In the last photograph, the bride was barefoot with her wedding dress raised above her knees to avoid getting the dress wet. There was also a photograph of a couple and their baby who were wedding guests. Finally, there were two old photographs: one of the applicants framed in a heart and one of the second applicant and the applicants’ young son attending a musical festival one month earlier. 8. The article described the ceremony, the applicants and some of the guests. It stated, inter alia, that the ceremony was touching; that several guests could not hold back their tears when the bride arrived at the islet and a male voice choir starting singing the song “To live is to love”; and that a party took place after the ceremony in the garden of a named guest house. It also stated that the applicants’ manager had informed the magazine that the applicants did not wish to comment on their wedding. 9. The applicants brought compensation proceedings against the magazine before Oslo District Court (Oslo tingrett) and invoked, among other things, the right to respect for private life under section 390 of the Penal Code and Article 8 of the Convention. It was not in dispute that the magazine was not invited to the wedding and that the photographs were taken without the applicants’ knowledge approximately 250 meters from the islet. 10. By judgment of 22 November 2006 the Oslo District Court found for the applicants and ordered the magazine to pay them each 50,000 Norwegian kroner (NOK). In addition, the editor responsible was ordered to pay each applicant NOK 15,000 and the journalist and the photographer were ordered to pay each applicant NOK 5,000. 11. The magazine appealed to the Borgarting High Court (lagmannsrett), which by judgment of 13 February 2008 upheld the judgment. 12. The magazine appealed to the Supreme Court (Høyesterett), which by judgment of 2 September 2008 found against the applicants, by three votes to two. 13. Mr Justice U. gave the following reasons, which in the main were endorsed by the two other members of the majority: “I have concluded that the appeal should be allowed. (34) In recent years the Supreme Court has considered legal questions relating to violation of privacy in the judgments Rt-2007-687 (Big Brother) and Rt-2008-489 (Plata). My argument is based mainly on these judgments. As follows from the judgments, section 3-6 of the Damages Act concerning redress for violation of privacy must be read in conjunction with section 390 of the Penal Code. The provision in section 3-6 refers, at any rate primarily, to violation of section 390. In my view, there is no need to consider whether, as contended by [the applicants], there may be cases that are covered in principle by Article 8 of the European Convention on Human Rights but not by "privacy" under section 390 of the Penal Code. Nor will I examine whether this is a discussion of terminology or of facts. (35) I have already described the content of the article. There is no doubt that the case concerns information ‒ which I am using as a general term to refer to both text and pictures ‒ that taken as a whole is relevant to the issue of privacy. There is no reason for me to evaluate individual elements on the basis of whether or not they impinge on the concept of privacy. The article as a whole contains information about the couple and their child in addition to information about the wedding. The relationships within the family and between the family and their friends are clearly of a personal nature. (36) Thus the question under consideration is whether a violation of privacy took place, cf. section 390 of the Penal Code. There would have been no question of violation of privacy if consent to publication had been obtained, cf. paragraph 62 of the judgment in the Big Brother case. In this case it has been clearly established that the couple had not been informed beforehand that there were plans to publicise the wedding, nor were they asked for their consent. However, the journalist, Mr S, contacted [the first applicant’s] manager on Monday, immediately before the article went to press. The manager said that the couple did not wish to comment on the wedding. A little later the same day Se og Hør was contacted and informed that the couple did not consent to publication, but the reply was that the magazine was already in the press. It has thus been clearly established that the article was published without the couple’s consent. I would add that I see nothing in the article indicating that the couple had given the magazine permission to report on the wedding in return for payment. On the contrary, the article stated at the end that the two celebrities did not wish to comment. (37) The next question is whether the article was unlawful. This question must be decided on the basis of an overall evaluation of the article, cf. paragraph 64 of the Big Brother judgment with further references. In my assessment of legality I also refer to the Big Brother judgment, citing, as was done in the Plata judgment, paragraphs 57 and 58: ‘... When the penal provision applies to violation of privacy, this necessarily implies that the issue that arises is that of legality. This again implies that the publication must be assessed as a whole, in the actual context and situation, where protection of privacy must be weighed against freedom of expression, cf. Bratholm og Matningsdal, Part Three, 1998, page 222, of the Penal Code and comments, and further references. ... The European Convention on Human Rights is incorporated into internal Norwegian law in the Human Rights Act. Both Article 8 relating to respect for private and family life and Article 10 relating to the right to freedom of expression are central to the present case. The principles that must be weighed in this case are similar to those that must be weighed under section 3-6, first paragraph, of the Damages Act and section 390 of the Penal Code, and in the present situation these provisions should be interpreted in such a way that their content is in compliance with Articles 8 and 10 of the European Convention on Human Rights.’ (38) Reference is also made in paragraph 72 of the Big Brother judgment to the summing up by the European Court of Human Rights in the von Hannover judgment: ‘... The conclusion must naturally be read in conjunction with the rest of the judgment. The issue throughout is the balancing of the right to privacy against the principle of freedom of expression. The central issue with respect to protection of privacy is therefore whether the published article contributes to a debate of public interest. In other words, the particular importance of protection under Article 10 of the Human Rights Convention lies in the relevance of the information in question to public debate. With respect to publication of details referring exclusively to an individual’s private life, and particularly to the private relationship between two persons who do not occupy positions in politics or in society, this is clearly outside the area that the provisions relating to freedom of expression are intended to regulate.’ (39) Both [applicants] are well-known figures, but neither of them has had a prominent role either in the public administration or in any other public body. Thus the provisions of Article 10 have no particular weight with respect to the magazine article in question, which clearly has a purely entertainment value. In the assessment of legality, protection under Article 8 of the Human Rights Convention is the most relevant principle to be weighed. (40) I will now examine the circumstances in the present case in relation to the issue of legality. As mentioned above, an overall assessment of the magazine article shows that it concerns the subjects’ private life, and the question is whether in spite of this there are grounds for saying that it does not constitute a violation of privacy. A wedding is a very personal act. At the same time it also has a public side. A wedding is a public affirmation that two persons intend to live together, and has legal consequences in many different sectors of society. Thus information about a wedding does not in itself involve a violation of privacy if it is given in a neutral form and based on a reliable source, cf. paragraph 80 of the Big Brother judgment. (41) The judgment of the Court of Human Rights in the case of von Hannover and the subsequent judgment of the Supreme Court in the Big Brother case have premises that seem to go far in support of protection against the use of pictures and texts concerning an individual’s private life. It is therefore necessary to examine the facts on which the judgments were based. Paragraph 49 of the von Hannover case concerns a series of photographs of the aggrieved party. In its evaluation of the application of the law in the case at hand, the court stated in paragraphs 68 and 69: ‘... The Court finds another point to be of importance: even though, strictly speaking, the present application concerns only the publication of the photos and articles by various German magazines, the context in which these photos were taken ‒ without the applicant’s knowledge or consent and the harassment endured by many public figures in their daily lives cannot be fully disregarded (see paragraph 59 above). In the present case this point is illustrated in particularly striking fashion by the photos taken of the applicant at the Monte Carlo Beach Club tripping over an obstacle and falling down ... It appears that these photos were taken secretly at a distance of several hundred metres, probably from a neighbouring house, whereas journalists’ and photographers’ access to the club was strictly regulated ... ... The Court reiterates the fundamental importance of protecting private life from the point of view of the development of every human being’s personality. That protection ‒ as stated above ‒ extends beyond the private family circle and also includes a social dimension. The Court considers that anyone, even if they are known to the general public, must be able to enjoy a “legitimate expectation” of protection of and respect for their private life ...’ (42) Paragraph 59 states: ‘Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution.’ (43) Thus the way in which the photos were published and the constant photographing ‒ often by photographers who followed her around ‒ constituted harassment of the aggrieved party and also an invasion of privacy. The situation was similar to some extent in the Big Brother case. Se og Hør ran several articles featuring photos taken from different sources together with speculation and gossip. The magazine also described the relationship between the parties during their life together, which was an invasion of their private life as a couple. (44) The right to protection of privacy is no weaker for well-known cultural personalities than it is for others, despite the fact that their photos are published in magazines and newspapers and on the internet in connection with their professional lives. It could be said that in the case of such individuals it is even more important to ensure that their private lives and personal relationships are protected. (45) A wedding is a very significant personal experience for the bridal couple, an experience that includes their families, friends and other persons close to them. The wedding ceremony and celebrations are therefore clearly part of private and family life and thus in principle should be protected. However, in my opinion this consideration is only one aspect of the case. (46) As mentioned above, a neutral description of two individuals’ wedding is not unlawful. (47) Neither the text nor the photos in the disputed magazine article contain anything unfavourable to the couple. The article contains no criticism, nor is there anything in the content that could weaken their reputations. (48) Furthermore, although the couple’s relationships with close friends are part of their private life, I cannot see that in this context the naming of a few of the participants constitutes a violation. Nor is it particularly unusual to write that the ceremony was “moving, and several of the guests couldn’t hold back their tears when a men’s choir sang ...”. (49) The article contains no photos of the actual wedding ceremony. It is therefore not possible for me to have any views on whether such photos, including close-ups, would have to be regarded in a different light from those featured in the article. Photos in such a situation would clearly have more personal significance than photos showing the bridal couple arriving at or leaving the place where the marriage took place. (50) I shall now examine more closely the way the wedding was conducted. The bride arrived at the islet in a rowing boat, with six bridesmaids on board. There she was greeted by her future husband and by a men’s choir singing a hymn. After the ceremony the bride and groom had to step from rock to rock in order to reach the shore, which the bride accomplished in bare feet. As pointed out in paragraph 50 of the von Hannover judgment, the concept of private life is comprehensive, and includes ‘a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’. However, a certain amount of weight must be given to the fact that the wedding was organised in a very unusual way, and took place in an area that is accessible to the public under the Outdoor Recreation Act and that is easily visible. As already mentioned, the photos do not show the most personal part of the wedding, the actual marriage ceremony. (51) As mentioned above, the photos were taken of a wedding in a place accessible to the public. It can be assumed that even in August there are large numbers of people on Tjøme, which is one of the most popular locations for holiday cottages and recreation in Norway. Furthermore, many of the arrangements were such as to attract attention from third parties, for example the arrival of the bride in an open boat and the presence of a men’s choir singing a hymn on the islet. The arrangements were also spectacular in themselves. In spite of the fact that all individuals, including celebrities, are entitled to protection against being photographed even in public places, I consider that this must be taken into account in the assessment of legality. (52) The photos were taken from a headland about 200-250 metres from the islet where the ceremony was being held, and a 300- to 400-millimetre zoom lens was used. For the bridal couple, however, the situation would not have been any better if the photography had taken place somewhere closer, or from a place where the photographer and journalist could have been seen by the wedding party. This could have disturbed the whole wedding. Nor was the photographing in the nature of a breach of confidence, as it would have been if for example any of the participants had published personal photos taken during or in connection with the wedding. The situation would also have been different if the photos had been taken of events taking place in a closed area where the subjects had reason to believe that they were unobserved, cf. paragraph 68, second sub-paragraph, of the von Hannover judgment. (53) The article contained a photo of [the second applicant] together with the couple’s under-age child. During the proceedings the focus has been on the photos related to the wedding, and it has not been contended that the use of the photo of the under-age child puts the case in a different light. The photo had previously been published in Aftenposten, and it has not been contended that consent was lacking on that occasion. For these reasons I shall not examine the particular questions raised by the use of a photo of an under-age child without the necessary consent of the parents. (54) Thus it must be concluded that the article did not involve unlawful violation of privacy. (55) [The applicants] have contended as an alternative that the photos were used in a way that conflicts with the provisions of section 45c of the Copyright Act relating to the right to control the use of one’s image. In my view these provisions should also be read with the reservation that there could be a conflict of principles and in conjunction with Articles 8 and 10 of the Human Rights Convention. The conclusion would then be the same as that of my principal assessment. (56) The Court therefore allows the appeal. However, the case raises difficult and uncertain legal questions, clarification of which is in the public interest, cf. section 20-2, third paragraph, a, of the Code of Civil Procedure. No award of costs should therefore be made.” 14. Mr Justice T. gave the following reasons which in the main were endorsed by the other member of the minority: “(58) I am substantially in agreement with the first-voting judge’s general interpretation of section 3-6 of the Damages Act and section 390 of the Penal Code. However, when weighing the right to privacy against the principle of freedom of expression in this specific case, I have arrived at a different conclusion, since I consider that in the present case the appellants have violated the right to privacy under section 390 of the Penal Code. (59) I will first examine whether the subject of the article in Se og Hør can be considered to be ‘a personal matter’ in the meaning of section 390. (60) I agree with the first-voting judge that information that a marriage has been contracted between two named individuals can be published without being in conflict with the provisions of section 390 of the Penal Code. However, this is not the issue in the present case. The article in Se og Hør also describes in words and pictures details of the arrangements in connection with the wedding ceremony. (61) Weddings have always been a subject of general interest in the sense that those close to the bridal couple consider them important and wish to participate. It is also usual for the couple to wish to share the event with others. For these reasons there should in principle be no reason why the press should not report a wedding ceremony that takes place in full public view, and where no special arrangements have been made to indicate that the ceremony is private. (62) However, today it is not unusual for the couple to wish to share their wedding and its arrangements only with those closest to them, and often to give the event a personal touch. They are entitled to protect themselves from publicity in such cases as well, and this includes withholding permission for the press to publish the event. In my view the desire to hold a private wedding should be respected in the sense that the wedding ceremony should be regarded as a personal matter within the meaning of section 390. (63) A private wedding ceremony may take different forms. For example, a wedding held in a private home provides a clear signal to third parties that the marriage is a personal matter that may not be reported in the form published by Se og Hør without the bridal couple’s prior consent. (64) In my view all the relevant circumstances indicate that in the present case the wedding was a private event. The wedding party was held at a hotel on Tjøme, which in this context is clearly a private area. The islet where the events reported by Se og Hør, and the marriage itself, took place is a relatively short walk away and directly linked with the hotel’s property. In my opinion the fact that there is a general right of public access to the islet under the Outdoor Recreation Act does not prevent this part of the wedding from also being of a clearly private nature. It follows from the von Hannover judgment that protection of privacy also applies to places to which the public has access. Furthermore, consent to the use of the islet had been obtained from the landowner. Thus the arrangement as a whole indicated that the couple wished to restrict the wedding to themselves and their guests. From this perspective the event must be considered to be a personal matter within the meaning of section 390. (65) For these reasons I consider that Se og Hør published in words and pictures a number of details relating to a personal matter. Firstly, the magazine published details of the arrangements for the ceremony, which have been described more fully by the first-voting judge. I regard these as the personal touch that the bridal couple had wished to give their wedding and that in my view underlines the private nature of the wedding. Secondly, the article included a description of the guests and the couple’s families, together with the names of well-known figures. In this connection the names of guests with children were also given, and pictures were shown of the children and their parents. (66) Like the first-voting judge, I consider that it has been clearly demonstrated that the opposite parties’ consent had not been obtained. (67) The next question is whether the publication is legal and justified despite the fact that the subject of the article is a personal matter. It follows from paragraph 72 of Rt-2007-687 that the main question to be weighed is whether ‘the article contributes to a debate of public interest. In other words, the particular importance of the principle of protection under Article 10 of the European Convention on Human Rights lies in the sphere of public debate’. I agree with the first-voting judge that this wording cannot be interpreted in such a way that it does not rule out that the publication of personal matters is justified in cases where it does not contribute to public debate. However, when matters of a personal nature such as those in question here are published, they must have at least a minimum of public interest if the invasion of privacy is to be considered legitimate. In the present case the publication was a celebrity article written for the sole purpose of entertainment. Although the desire to entertain is in itself legitimate, its nature does not justify overriding the affected parties’ desire to protect their privacy. In this connection I place special emphasis on the fact that getting married is a very significant occasion in a person’s life, and that therefore the activities celebrating it ‒ the marriage ceremony and the wedding party ‒ will for most people be one of the most important events of their lives, and will often be associated with strong emotions. (68) The fact that the opposite parties are well-known cultural figures in Norway has no bearing on the assessment. Well-known persons also have the right to respect for personal matters of the kind we are dealing with here. I find support for this view both in Rt-2007-687, cf. paragraph 74, and in the von Hannover judgment ..., cf. paragraph 67. (69) Although this has not influenced my view of the case, I would also like to comment on Se og Hør’s use of a zoom lens. The zoom lens enabled the journalist and the photographer to take close-up pictures of the bridal couple and their guests that make it look as if they were actually at the event themselves, when in fact they were hidden from those who were being observed. It seems likely that the reason for using this technique was that the journalist and photographer were aware that the bridal couple would have reacted to their presence on the islet and this might have resulted in the marriage ceremony being moved inside the hotel. Using a zoom lens because of the personal and private nature of the event resembles the use of a hidden camera, which is a factor that also weighs against the appellants. (70) For these reasons I am of the opinion that the article in Se og Hør cannot be justified on the basis of an assessment of legality, and that the opposite parties are entitled to redress for pain and suffering from the appellants. With regard to the amount of redress, the opposite parties have demanded that the amount decided by the Court of Appeal should be maintained. I have no objections to the amounts decided on. Since I know that I am in the minority, I will not formulate a final conclusion.” 15. The relevant provision of the Penal Code reads as follows: Any person who violates another person’s privacy by giving public information about personal or domestic relations shall be liable to fines or imprisonment for a term not exceeding three months. Sections 250 and 254 shall apply correspondingly. If the misdemeanour is committed in a printed forum, an order for confiscation may be made in accordance with section 38. A public prosecution will only be instituted when it is requested by the aggrieved person and required in the public interest.
| 0 |
test
|
001-168930
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF TOMINA AND OTHERS v. RUSSIA
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicants are Russian nationals. They owned rooms in a dormitory building in the municipality of Samara. The municipality reclaimed the building, and the applicants’ title to the real property in question was annulled as a result of civil proceedings brought against them by a prosecutor on behalf of the municipality. According to the Government, the judgment has not been enforced and the applicants continue to reside in the rooms they had bought. 6. Ms Vasyukhina and Mr Vasyukhin (application no. 45173/08) submitted that they had never moved into the rooms as they were occupied by other individuals. 7. In 1993 a State-owned enterprise called Samaraavtotrans was privatised and reorganised into a joint-stock limited liability company called Stroitel. The privatisation plan was approved by the municipality and the Regional Property Fund signed the plan on its behalf. In accordance with the privatisation plan, all residential buildings previously listed on Samaraavtotrans’s balance sheet were to be transferred to the municipality, while the administrative buildings were to be taken over by Stroitel. The privatisation plan referred to a building located at no. 61 Yunykh Pionerov Avenue, Samara, as an administrative building (used for non-residential purposes), and it was transferred to Stroitel. 8. As a result of a number of reorganisations of Stroitel, the title to the building in question was transferred to the closed joint-stock company, Stroitel-M. Subsequently, separate rooms in the building were resold to third parties, including the applicants. The information concerning the applicants’ titles to the property can be found in the appendix below. According to the title deeds, the applicants were owners of non-residential premises. 9. The applicants moved into the rooms and resided there. 10. On 23 August 2002 the Samara Region Commercial Court found the Samaraavtotrans privatisation plan and the agreement of 10 November 1993 – which the Regional Property Fund and Stroitel had entered into, and which partly concerned the transfer of the title to the building to Stroitel – null and void. 11. On an unspecified date the Promyshlenniy district prosecutor, acting in the interests of the municipality, brought an action against Stroitel, Stroitel-M and the owners of the rooms in the former dormitory building, including the applicants. Referring to the invalidation of the privatisation of Samaraavtotrans, the prosecutor submitted that the subsequent transactions relating to the building were also null and void, and asked the court to return the title to the building to the municipality. 12. According to the applicants, on 27-28 October 2003 the Promyshlenniy District Court of Samara (“the District Court”) dismissed the prosecutor’s claim. On 20 January 2004 the Samara Regional Court (“the Regional Court”) quashed that judgment and remitted the matter to the District Court for fresh consideration. 13. On 14 June 2005 the District Court dismissed the prosecutor’s claim. On 2 August 2005 the Regional Court upheld the judgment of 14 June 2005 on appeal. 14. On 18 May 2006 the Presidium of the Regional Court quashed the judgments of 14 June and 2 August 2005 by way of supervisory review, and remitted the matter to the District Court for fresh consideration. The Presidium noted that the lower courts had erroneously applied substantive and procedural laws when deciding the matter. 15. On 14-19 November 2007 the District Court allowed the prosecutor’s claim in full. The court recognised that the owners of the rooms were bona fide purchasers, but ordered that the title to the building be transferred to the municipality. The municipality, the true owner of the building, had not authorised the purchase of the rooms in the building by their current owners. Accordingly, the sale of the building in the absence of authorisation by the municipality meant that the municipality had lost possession against its will, and could recover its property from bona fide purchasers. 16. On 12 February 2008 the Regional Court upheld the District Court’s judgment of 1419 November 2007 on appeal. 17. The applicants in the present application, Mr Vitaliy Vasyukhin and Ms Darya Vasyukhina, were minors at the relevant time. 18. On an unspecified date, acting on their behalf, the applicants’ mother sued Mr B. (the person who had sold the rooms to the applicants) for damages. 19. On 10 December 2010 and 16 June 2011 the Oktyabrskiy District Court of Samara granted her claims and awarded damages in the amount of 600,000 Russian roubles (RUB) to each of the applicants. On 10 February and 4 July 1011 the Regional Court upheld the above-mentioned judgments on appeal. 20. On an unspecified date a bailiff initiated enforcement proceedings. On 4 March 2014 he discontinued the enforcement proceedings, noting that it was impossible to establish Mr B.’s whereabouts or identify his assets, if any such assets existed. 21. It appears that the enforcement proceedings in respect of the judgment of 16 June 2011 are still pending.
| 1 |
test
|
001-167118
|
ENG
|
UKR
|
CHAMBER
| 2,016 |
CASE OF IRINA SMIRNOVA v. UKRAINE
| 3 |
Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for home;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
|
6. The applicant was born in 1940 and lives in Donetsk. 7. In the end of November 2001 the applicant was visited by two unfamiliar men, V.S. and A.N., who offered to buy half of the flat she lived in for 700 United States dollars (USD). It was a one-bedroom flat, measuring 43.3 square meters, recently privatised and acquired in equal shares by the applicant and her adult son, Y. The applicant refused to sell her half of the flat. According to her, the price offered was extraordinarily below the market value. In any event, she had no reason to sell the flat, which had been her long-established home for several decades. In response, V.S. and A.N. warned the applicant that she would regret her decision, because Y., (who was married and lived elsewhere), had offered the other half of the flat as a gift to V.S. If the applicant refused to sell her half for the price, which was offered to her, or to exchange it for a smaller flat on the outskirts of the city, V.S. would move into the flat and create intolerable living conditions for her. 8. Subsequently the applicant learned that on 18 December 2001 Y. had signed a notarised gift deed in which he transferred his title to half of the flat (which was not as divided into allocated parts of the whole) to V.S. 9. From November 2002 A.N., V.S. and their acquaintances started regularly visiting the applicant’s flat, demanding that she sell. According to the applicant, on numerous occasions they broke the locks, insulted and harassed her and caused damage to her property. Subsequently a part and then the entire of V.S.’s share in the flat was formally acquired by A.N. as a gift, whose value amounted to 5,602 Ukrainian hryvnias (UAH) according to the gift certificates. However, irrespective of this transfer, A.N. and V.S. continued to act in concordance in demanding the applicant move out and sell her share. 10. For instance, on 23 November 2002 A.N. and V.S. broke the locks on the entrance door when the applicant was away, entered the flat and, upon the applicant’s arrival, reiterated their demands that she sell her share. As the applicant protested against their presence in the flat and their overall conduct, a conflict emerged, in the course of which A.N. hit the applicant in the chest inflicting a bruise and causing soft tissue swelling. 11. On 26 November 2002 A.N., V.S. and several strangers broke into the applicant’s flat again. As they were irritated by the barking of the applicant’s dog, V.S. started kicking her and chased her out. Subsequently the applicant found her dog’s dead body in a garbage container. 12. Also on an unspecified date in November 2002 V.S. arrived in the flat after 11 p.m. (when the applicant was already asleep) and opened the balcony door, holding it open for some four hours notwithstanding the freezing temperature outside. In response to the applicant’s subsequent reprimands, he explained that he wished for her to catch a cold as she had been disagreeable. 13. On 15 December 2002, when the applicant’s daughter was visiting the applicant, V.S. arrived in the flat again. A conflict emerged, in the course of which V.S. hit the applicant on the head and stomach, inflicting concussion and blunt trauma of the abdominal wall. He also hit the applicant’s daughter on the head and other parts of the body, inflicting cerebral concussion and bruising of legs and arms. As a result of the conflict, the applicant and her daughter had to seek medical assistance for their injuries and the applicant received inpatient hospital treatment. 14. Subsequently V.S. and A.N. started installing in the flat from two to six strangers without the applicant’s consent. These tenants, mostly young males, behaved in a discourteous way. In particular, they organised loud parties; frivolously used, damaged and stole the applicant’s belongings; created insanitary conditions; carelessly used electricity, gas and appliances, frequently left the entrance door open, and ignored requests to contribute towards the maintenance charges on the flat. 15. On numerous occasions the applicant attempted to drive the tenants away or to call them to order. Her efforts resulted in conflicts, in the course of which she was harassed and intimidated. Her attempts to replace the locks on the entrance doors to prevent unauthorised entry into the flat resulted in them being broken and in the tenants, who frequently changed, moving in again, in spite of her discontent. As she was unable to withstand such living conditions and was afraid for her life and limb, the applicant effectively moved out, contending herself with odd living arrangements. However, she paid short visits to the flat regularly, to supervise the situation. 16. In the beginning of June 2003 V.S. drove his car onto the footpath, where the applicant was standing waiting for a bus, scaring and nearly hitting her. 17. On 11 July 2003 at about 9.20 a.m. V.S. again arrived in the flat, when the applicant was in it, and demanded that she surrender her share. A conflict emerged, in the course of which V.S. punched the applicant in the stomach, causing her physical pain. 18. On three further occasions (30 July 2004, 5 August and 1 December 2005) the applicant was severely beaten by V.S., twice accompanied by his acquaintance A.L. The applicant suffered physical pain and bruising. On 30 July 2005, in addition to that, she also sustained a second concussion, which necessitated inpatient treatment. 19. On various dates the applicant learned that A.N. and V.S. had also acquired ownership of shares in numerous other flats in Donetsk and that they had behaved similarly with the co-owners of these flats, inducing them to sell their shares on unfavourable terms. 20. On 16 October 2003 the Voroshylivsky district prosecutor instituted civil proceedings on the applicant’s behalf, seeking rescission of the gift deed between Y. and V.S. and the eviction of the latter on the grounds that the gift deed had been executed without the applicant’s consent. 21. On 12 November 2003 the Voroshylivsky District Court of Donetsk (hereafter “the Voroshylivsky Court”) allowed this claim, having found, in particular, that Article 113 of the Civil Code of Ukraine of 1963 did not authorise the transfer of title to a part of shared property, which had not been divided into allocated parts and that it also obliged co-owners of a shared property to seek the consent of their counterparts before carrying out transactions in it. 22. On 5 February 2004 the Donetsk Regional Court of Appeal (hereinafter “the Regional Court”) quashed this judgment following an appeal by the applicants’ opponent and dismissed the prosecutor’s claim, having found that, unlike in the case of selling part of a shared property, giving it as a gift to a third party did not require the co-owners’ consent. 23. On 10 August 2004 the Supreme Court of Ukraine dismissed the applicant’s and the prosecutor’s requests for leave to appeal in cassation against the Regional Court’s judgment. The judgment became final. 24. On 5 October 2004 the applicant instituted civil proceedings seeking the dispossession of V.S. (joined by A.N., when he acquired part of V.S.’s share and replaced by him, when he acquired the entire share), of his share in the flat, regard being had to his unlawful conduct towards her, the impossibility of joint use of the flat, and his refusal to pay his share of the maintenance costs. She further sought a judicial rescission of their right to occupy the flat and compensation for the costs she had borne on the flat with their shares. The defendants lodged a counterclaim, alleging, in particular, that the applicant had been interfering with their personal life and belongings, provoking conflicts, harassing them and creating intolerable living conditions, which made it impossible for them to fulfil their desire to settle in the flat. They sought damages from the applicant for this conduct and demanded that the flat be divided into allocated parts. 25. On 21 June 2005 the District Court allowed the applicant’s claim in part and dismissed her opponents’ counterclaim. In particular, referring to Article 365 of the new Civil Code of Ukraine of 2003, it ordered the dispossession of A.N. (by then the owner of half the flat) of his share against payment by the applicant of compensation in the amount of UAH 5,602. The court noted, in particular, that there was extensive evidence that the defendants had allowed numerous strangers to live in the flat; that the applicant had been harassed; and that the flat’s appliances and the applicant’s belongings had been misused and damaged. It further concluded that, regard being had to the flat’s size and layout, it was not possible for the co-owners to use it jointly in a harmonious manner or to have it reasonably divided into two independent halves for each of them to use separately. At the same time, A.N.’s dispossession in return for fair compensation would not put him at a substantial disadvantage, since he had another registered residence and predominantly used the disputed flat for subletting to other persons. The court next found that, since A.N. had received the flat as a gift, fair compensation would be the payment of the indicative price (UAH 5,602) declared by the parties as that share’s value in the latest gift deeds. Finally, the court found that A.N. and V.S. had no longer any right to occupy the flat and ordered partial reimbursement of the maintenance costs incurred by the applicant on the flat. 26. On 20 October 2005 the Regional Court, having reviewed the case on appeal by the applicant’s opponents, upheld the judgment with respect to the reimbursement of the costs borne on the flat by the applicant and the revocation of V.S.’s right to occupy it, as he no longer owned any share in the flat. It then quashed the ruling to dispossess A.N., having noted that, according to the expert assessment, the market value of the disputed flat had been appraised at UAH 147,756, which meant that value of half the flat had been UAH 73,878. The court further stated that the applicant’s claim for dispossession of A.N. and revocation of his right of occupancy had not been based on any legal provision. The relevant part of the judgment read as follows: “Neither the provisions of the Housing Code of Ukraine nor those of the Civil Code of Ukraine of 2003, which the applicant cites as the basis for her claims, nor the Property Law of Ukraine, envisage dispossession of the owner of his or her property and his or her eviction from a flat owned by him or her on the grounds cited by the applicant.” 27. The applicant appealed in cassation. She noted, in particular, that A.N. and V.S. had acquired shares in a number of Donetsk flats and had deliberately created intolerable living conditions for their co-owners in order to obtain the flats in their entirety on terms grossly unfavourable to the other co-owners. She further alleged that, having no other residence and being a victim of constant harassment, she had abandoned the flat and had been requesting refuge from various acquaintances. 28. On 2 December 2005 the district prosecutor also lodged a cassation appeal on the applicant’s behalf, in which he corroborated her submissions that the defendants had been harassing her, had been using the flat in bad faith and had forced the applicant, a senior lady, to leave the dwelling she had occupied for many years. He also alleged that the sum proposed by the applicant in compensation for the defendants’ share in the flat had been fair, as it had been equal to the flat’s value indicated in the gift deeds on the basis of which A.N. had received the disputed share. 29. On 11 January 2006 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal. 30. On 22 January 2006 it likewise rejected the prosecutor’s request for leave to appeal and the Regional Court’s judgment became final. 31. On numerous occasions between 2002 and 2007 the applicant complained to the Voroshylivsky district police in Donetsk (“the district police”) about various instances of verbal and physical harassment, damage to and taking of her property and attempts by V.S. and A.N. to extort her share in the flat. 32. On various dates police officers arrived in the applicant’s flat in response to her calls for help. They examined the situation, questioned the applicant and her opponents, and subsequently refused to institute criminal proceedings (in particular, 22 January, 7 February and 24 December 2002; 22 and 24 January, 22 February, 5 and 22 March, 15 July, 30 August, 18 September, 12, 16 and 24 October, 4, 15 and 19 November and 5 December 2003; 1 June, 3 and 9 August and 15 November 2004, 20 January, 23 July, 6 August, 19 November, 13 and 28 December 2005; and 4 and 31 March and 16 and 27 July 2006). In their refusals, the police noted that the prosecution of A.N., V.S. and their acquaintances was unwarranted since the relevant facts disclosed the existence of a chronic domestic conflict between lawful occupants of a flat, who attempted to engage the police in resolving their private disagreements. The hostilities took place inside the household and did not breach the public peace. Both parties had accused each other of provoking conflict and it was not evident, which party had in fact assaulted the other and which had acted out of selfdefence. In any event, during these conflicts the applicant had sustained no serious damage to her health and had not presented any evidence that her belongings had in fact been taken or damaged by the accused individuals. It was not possible to exclude that she had falsified the disappearance of her belongings in order to compromise the unwanted tenants. The police further recommended that the applicant resolve the dispute concerning the use of the flat in civil proceedings and assured her that “pre-emptive conversations” had been had with the purported offenders to foster respectful conduct on their part. On several occasions the police had issued official warnings to them, advising them of the impermissibility of antisocial behaviour. 33. On 30 January 2003 the prosecutor’s office quashed a decision not to institute criminal proceedings in connection with the injuries caused to the applicant on 15 December 2002. On several occasions the applicant enquired about the status of these proceedings and received no reply. In 2006 the applicant was informed that the investigation had been suspended. 34. On 19 October 2005 the head of the district police instructed his officers to place the applicant’s flat on the police register for frequent visits with a view to preventing any offences and infringements of applicable law. He noted, in particular, that the investigations had confirmed the applicant’s allegations concerning A.N.’s and V.S.’s disruptive conduct. In particular, it had been established that they had been allowing numerous tenants to live in the co-owned flat, who had brought it into a decrepit and insanitary state. The persons who had been occupying the flat had also taken the applicant’s personal belongings without her authorisation and had used her furniture, equipment and appliances in a careless manner, as a result of which these objects were deteriorating. Moreover, these persons had interfered with the applicant’s ability to access the flat by changing the locks and thus effectively precluding her from living there. He also acknowledged that numerous pre-emptive conversations and warnings given by the police had not brought about any improvements. 35. On several other occasions (in particular, 28 February 2006, 4 September 2006, 19 February 2007 and 6 March 2007) the Ministry of the Interior in Donetsk acknowledged, in response to the applicant’s further complaints, that her allegations concerning A.N.’s and his associates’ interference with her home had some basis. They further assured the applicant that her address had been placed on the police register for frequent visits. 36. On 18 July 2006 the applicant lodged a private criminal complaint against V.S., A.N. and A.L. with the Voroshylivsky Court. Relying on Articles 125 and 126 of the Criminal Code of Ukraine, she alleged that the defendants had systematically beaten and verbally harassed her. In this respect the applicant referred to the incidents of 23 November and 15 December 2002, 30 July 2004 and 5 August 2005 (see paragraphs 10, 13 and 18 above). She also submitted that, in her view, these incidents had to be approached not as isolated instances of ill-treatment, but as episodes of systematic and premeditated criminal conduct by an organised criminal association functioning with a view to extorting flats from Donetsk residents. She submitted that the same individuals had engaged in similar conduct visà-vis a number of other co-owners of properties in the city. Accordingly, she requested the District Court’s assistance in transmitting her complaints to the public law-enforcement authorities with a view to instituting criminal proceedings concerning extortion and coercion. 37. On various dates five other residents of Donetsk joined the proceedings, alleging that the same defendants had acquired shares in their flats and had been pressurising and terrorising them with a view to extorting the remaining shares. 38. On 19 December 2006 Judge M. of the Voroshylivsky Court decided that the applicant’s and other complainants’ allegations disclosed an appearance that serious crimes, warranting institution of public criminal proceedings, had been committed. Accordingly, the judge instituted criminal proceedings on suspicion of fraud, extortion, coercion, circumvention of the law and several other crimes, and transferred the case to the Donetsk regional prosecutor for investigation. 39. On 24 January 2007 the prosecutor’s office appealed against this decision, alleging that applicable law did not authorise judges to institute public criminal proceedings in the above circumstances. 40. On 27 March 2007 the Regional Court upheld the prosecutor’s office’s appeal and returned the case to the Voroshylivsky Court to be examined by another judge with respect to the complaints which could be addressed in private prosecution proceedings. 41. Subsequently (23 August 2007) Judge P. of the Voroshylivsky Court returned the applicant’s and other complainants’ submissions without examination. She found that the injured parties had failed to comply with the rules on territorial jurisdiction and with other unspecified procedural requirements. 42. On 26 July 2007 the regional police instituted criminal proceedings in respect of a complaint about extortion lodged by a certain A.C., who had allegedly been forced to abandon her flat on account of the intolerable living conditions created by the co-owners of her flat. 43. On 15 August 2007 the police joined the applicant’s complaints concerning extortion to the aforementioned criminal proceedings. 44. On the same date A.N., V.S. and A.L. were arrested and placed in custody. 45. On various further dates complaints by eleven other individuals relating to the same persons’ misconduct were joined to the proceedings. 46. On 29 December 2007 deputy head of the regional prosecutor’s office signed the bill of indictment in respect of A.N., V.S. and A.L. charging them, in particular, under Article 189 § 4 of the Criminal Code, with extorting property in an organised group and transferring the case to the Kyivskiy District Court of Donetsk (hereafter “the Kyivskiy Court”) for trial. 47. On various dates in 2008 the defendants were released from custody pending trial. 48. On 24 May 2011 the Kyivskiy Court acquitted all the defendants of the charges under Article 189 of the Criminal Code. It noted, in particular, as follows: “... The court comes to a conclusion that the basis of the present criminal proceedings is the existence of a private-law dispute between the defendants and the injured parties concerning the use of shared property, which the injured parties demand to resolve by way of criminal proceedings in view of their extremely antagonistic relationship with the defendants.” 49. On 27 February 2012 the Regional Court quashed this verdict on appeal by the prosecution and the injured parties and remitted the case for retrial. 50. On 17 April 2012 the defendants were rearrested and placed in custody. 51. On 12 October 2012 the Kyivskiy Court found that all the defendants were guilty of extortion under Article 189 § 4 and sentenced them to eleven, ten and eight years’ imprisonment respectively. It also ordered the confiscation of all their personal property. The court found, in particular, that the case-file contained sufficient evidence that the episodes of the applicant’s harassment (listed in paragraphs 10, 12-13 and 1618 above) had indeed taken place. It also awarded the applicant UAH 35,273.47 in pecuniary and UAH 30,000 in non-pecuniary damage to be paid jointly and separately by the defendants. 52. On 6 March 2013, following an appeal by the defendants, the Regional Court upheld this verdict on appeal concerning all points, except one episode unrelated to the applicant’s case. 53. On 18 September 2014 the Higher Specialised Civil and Criminal Court rejected the cassation appeals lodged by A.N. and V.S.
| 1 |
test
|
001-180889
|
ENG
|
ITA
|
ADMISSIBILITY
| 2,018 |
GUISO AND CONSIGLIO v. ITALY
| 4 |
Inadmissible
|
Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo
|
1. The applicants, Mr Paolo Guiso (“the first applicant”) and Mr Alessando Guiso (“the second applicant”) are Italian nationals who were born in 1962 and 1960 respectively. Mrs Vincenza Consiglio (“the third applicant”) was an Italian national who was born in 1929. She died on 2 February 2008. The first and second applicants are her heirs, and expressed their wish to pursue the proceedings before the Court. They were represented before the Court by Mr. P. Guiso, a lawyer practising in Nuoro. 3. The applicants were the joint owners of various parts of different plots of building land in Nuoro. 4. The plots in question – measuring a total surface area of 13,614 square metres – were recorded in the land register as Folio no. 43, parcel nos. 1141, 1147, 1148, 1339, 1136, 1137, 1143, and 1146. 5. By different orders issued between March and October 1991 Nuoro City Council approved a project to build a residential complex on the applicants’ land. 6. By four orders issued on 18 October 1991 by the mayor of Nuoro, through an expedited procedure and on the basis of a public interest declaration, the Nuoro municipality was authorised to take possession of the above-mentioned plots of land, with a view to subsequently expropriating them. The deadline for issuing a formal expropriation order was 31 December 1995. 7. In November 1991 the authorities took physical possession of the land and began the building works. 8. By an order issued on 12 December 1995 by Nuoro City Council, the deadline for issuing the expropriation order was extended to 31 October 1996. 9. By an order of 21 August 1996 Nuoro City Council further extended the deadline for issuing the expropriation order. 10. On 11 October 1996 an expropriation order was issued in respect of the land. 11. On 24 January 1997 the applicants lodged an application with the Sardinia Regional Administrative Court (“the Regional Administrative Court”), contesting the lawfulness of the mayor’s orders of 18 October 1991 and the orders extending the deadline for issuing the expropriation order. 12. By a judgment of 12 May 1999 the court found that the orders extending the deadline for issuing the expropriation order had been unlawful, and that the expropriation order of 11 October 1996 had consequently also been unlawful. 13. On 22 November 2000 the applicants applied to the Regional Administrative Court for compensation for their being unlawfully deprived of their property, relying on the same court’s judgment of 12 May 1999. In this connection, they sought an amount equal to the property’s market value on the date when the land had been irreversibly altered, plus a sum reflecting an adjustment for inflation and statutory interest. They further contended that the application of the “constructive expropriation” rule, which was likely to be applied in their case, had been found by the Court to be incompatible with Article 1 of Protocol No. 1 to the Convention. 14. On an unspecified date the court ordered an expert valuation of the land. A report produced in September 2004 stated that the affected surface area of the land was equal to 13,614 square metres, and that the market value of the land in May 1996 had been 122.32 euros (EUR) per square metre. 15. By a judgment of 24 January 2005 the court found that, pursuant to the constructive expropriation rule (occupazione appropriativa), the applicants were no longer the owners of the land, which had become the property of the Nuoro municipality following completion of the public works. It dismissed the applicants’ argument that the constructive expropriation rule was incompatible with Article 1 of Protocol No. 1 to the Convention. However, the court conceded that, as the transfer of property had been unlawful, the applicants were entitled to compensation. In this connection, it relied on the expert report which had assessed the market value of the land at EUR 122.32 per square metre. However, the court did not award compensation reflecting the market value, but instead proceeded to make an award based on the criteria contained in Article 5 bis of Legislative Decree no. 333 of 11 July 1992, as amended by Law no. 662 of 1996. All amounts were to be adjusted for inflation and include statutory interest from the date the occupation of the applicants’ land had ceased to be lawful, which the court identified as 1 January 1996. 16. On 24 May 2005 the applicants lodged an application with the Consiglio di Stato. They contested the lower courts’ legal classification of how they had been deprived of their property and complained that the reduction in their compensation was incompatible with their right to property. They claimed, inter alia, that they were entitled to compensation corresponding to the market value of the land, and a sum for loss of enjoyment of the land. They also complained about the fact that the award would be subject to taxation. 17. On 16 February 2006 the Nuoro municipality paid the applicants the amounts due under the judgment of the Regional Administrative Court. The sum they received jointly amounted to EUR 429,814.64. Tax at a rate of 20% was deducted at source from these sums. 18. On 2 February 2008 the third applicant died. 19. On 2 October 2009 the Consiglio di Stato issued a decision declaring that it did not have jurisdiction to decide the applicants’ claim. 20. The applicants lodged an application with the Court of Cassation in order to settle the issue of jurisdiction. 21. On 12 January 2011 it ruled, sitting as a full court (Sezioni Unite), that the administrative courts had jurisdiction to decide the applicants’ claim for compensation, as the issue at stake concerned the unlawful exercise of public authority. 22. On an unspecified date the applicants resumed their appeal before the Consiglio di Stato. They contested the lower courts’ legal classification of how they had been deprived of their property and complained that the reduction in their compensation was incompatible with their right to property. They asked the court to award an amount corresponding to the property’s market value. They also complained about the fact that the award would be subject to taxation. 23. By a judgment delivered on 12 July 2011, filed with the registry on 2 November 2011, the Consiglio di Stato confirmed that the applicants had been deprived of their property unlawfully. It further drew on the Constitutional Court’s judgment no. 349 of 24 October 2007, whereby Article 5 bis of Legislative Decree no. 333 of 11 July 1992, as amended by Law no. 662 of 1996, had been declared unconstitutional, and held that the applicants were entitled to compensation corresponding to the full market value of the property, minus what had already been paid to them under the judgment of the Regional Administrative Court. The court further stated that the applicants were entitled to a sum reflecting an adjustment for inflation as well as statutory interest from the date that they were deprived of their property. It also awarded them EUR 50,000 in compensation for non-pecuniary damage. The court stated that it lacked jurisdiction to examine the complaint about prospective taxation. 24. On 25 May 2012 the Nuoro municipality paid the applicants the remaining amounts due to them under the judgment of the Consiglio di Stato, which amounted to EUR 480,757.76. Tax at a rate of 20% was deducted at source from these sums. 25. The relevant domestic law and practice concerning constructive expropriation is to be found in Guiso-Gallisay v. Italy ((just satisfaction) [GC], no. 58858/00, §§ 18-48, 22 December 2009). 26. In judgments nos. 348 and 349 of 22 October 2007, the Constitutional Court held that national law had to be compatible with the Convention as interpreted by the Court’s case-law, and consequently declared Article 5 bis of Legislative Decree no. 333 of 11 July 1992, as amended by Law no. 662 of 1996, unconstitutional. 27. In judgment no. 349 it noted that the insufficient level of compensation provided for by Law no. 662 of 1996 was contrary to Article 1 of Protocol No. 1 to the Convention and Article 117 of the Italian Constitution, which required compliance with international obligations. 28. A number of changes in domestic law occurred following the Constitutional Court’s judgments. Section 2/89(e) of the Finance Act (Law no. 244) of 24 December 2007 established that, in cases of constructive expropriation, the compensation payable had to correspond to the market value of the property in question and could not be reduced. 29. Law no. 413 of 30 December 1991 (hereinafter “Law no. 413/1991”) was created, inter alia, to broaden the tax base and streamline, facilitate and strengthen tax administration. 30. The relevant parts of section 11(5) provide that capital gains (plusvalenza) on compensation for expropriation or unlawful forms of acquisition of property (somme dovute per effetto di acquisizione coattiva conseguente ad occupazione di urgenza divenute illegittime) paid to individuals not operating a business are taxable under the Consolidated Income Tax Act (Testo Unico delle Imposte sui Redditi). 31. As to the practical means of enforcement of the tax, section 11(7) provides that when paying the compensation mentioned in section 11(5), including, inter alia, compensation for constructive expropriation (risarcimento danni da occupazione acquisitiva) the authorities entrusted with making the payment (enti eroganti) must deduct tax at source at a rate of 20% from the entire sum. It is open to the taxpayer to opt for ordinary taxation in his or her annual tax return, in which case the sum deducted at source will be considered as an advance on the final tax payment due.
| 0 |
test
|
001-139906
|
ENG
|
UKR
|
COMMITTEE
| 2,014 |
CASE OF KHAYNATSKYY AND OTHERS v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Ann Power-Forde;Helena Jäderblom
|
6. On the dates set out in the appended tables domestic courts and labour disputes commissions delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time. 7. Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues.
| 1 |
test
|
001-183569
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF NAUMKIN AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
|
Alena Poláčková;Dmitry Dedov
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3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings. They also raised other complaints under the provisions of the Convention.
| 1 |
test
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001-168832
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ENG
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GBR
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ADMISSIBILITY
| 2,016 |
WRIGHT AND BROWN v. THE UNITED KINGDOM
| 4 |
Inadmissible
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Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
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1. The applicants, Mr Eric Wright and Mr James Brown, are Irish nationals who were born in 1960 and live in Londonderry, Northern Ireland. They are represented before the Court by Mr P. MacDermott of MacDermott, McGurk & Partners Solicitors, a lawyer practising in Londonderry. 2. The United Kingdom Government (“the Government”) are represented by their Agent, Ms A. McLeod of the Foreign and Commonwealth Office. 3. By letter dated 21 March 2014 the Government of Ireland were notified of the applications and were asked if they wished to exercise their right to intervene pursuant to Article 36 § 1 of the Convention and Rule 44 of the Rules of Court. However, they did not seek to exercise this right. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The first applicant was arrested by the army at 07.25 on 1 January 1977 in relation to two attacks on army patrols in Londonderry. He was handed over to the police at 10.15 and he was visited by his father and examined by a police surgeon shortly thereafter. No injuries or complaints were noted. 6. From 12.02 to 12.57 the first applicant was interviewed by two detectives. During this interview he admitted that he was a member of Fianna na h’Eireann, a proscribed Republican organisation, and had acted as a lookout during the two attacks. 7. A second interview took place between 14.45 and 17.12 the same day, and during this interview the first applicant allegedly signed a statement admitting membership of a proscribed organisation; again admitted to acting as a lookout during the two attacks; and sketched the area showing where he and others had been situated during the attacks. His father was admitted to the interview room at 16.51 and shown the statements of admission. 8. That evening the first applicant was again medically examined and no complaints or injuries were noted. 9. The second applicant was arrested by the army at 20.55 on 7 December 1976 in relation to the same two attacks on army patrols. He was transferred to police custody at 00.40 on 8 December 1976. 10. During his first interview, which took place between 00.40 and 01.15, he admitted to being a member of Fianna na h’Eireann. 11. He was medically examined at 01.40 and no complaints or injuries were noted. 12. He was again interviewed under caution between 09.15 and 10.30 and during this interview he confirmed that he was a member of a proscribed organisation and admitted to being a lookout during one of the attacks. He further indicated the location of this incident by reference to a map. 13. The second applicant was visited by a relative at 10.30. He was interviewed again from 11.50 to 13.00, and from 15.00 onward. During the second of these interviews he made a written confession in which he admitted to acting as a lookout during both attacks and carrying shotgun cartridges across the border into the Republic of Ireland. 14. At 19.30 on 8 December 1976 he was visited by his parents, who declined to countersign his confessions. He was medically examined on the evening of 9 December 1976 and again on the morning of 10 December. On both occasions he denied any ill-treatment and no relevant sign of injury was detected. 15. The applicants’ trial took place from 15 to 18 December 1977. The first applicant was charged with one count of membership of a proscribed organisation, two counts of conspiring to communicate information likely to be of use to terrorists, one count of causing grievous bodily harm and one of attempting to cause grievous bodily harm. He entered “not guilty” pleas to all counts. However, he was found to be guilty as charged and sentenced to ten years’ imprisonment. He did not appeal against conviction and his application for leave to appeal against sentence was dismissed on 17 February 1978. 16. The second applicant pleaded “guilty” to one count of belonging to a proscribed organisation, two counts of conspiracy to communicate prohibited information, one count of unlawful possession of ammunition and one count of possessing ammunition without a licence. He pleaded not guilty to one count of conspiracy to cause an explosion and one count of conspiracy to discharge a firearm. He was found to be guilty as charged and sentenced to a total of ten years’ imprisonment. He did not appeal against either conviction or sentence. 17. On 18 October 2011 the applicants’ cases were referred to the Court of Appeal in Northern Ireland by the Criminal Cases Review Commission (“CCRC”) on the grounds that there was a real possibility that the Court of Appeal would consider that the manner in which they were detained and interviewed involved significant breaches of the Judges’ Rules (see paragraph 27 below) and of other protections which they should have enjoyed (namely, access to a solicitor before or during the police interviews and the presence of a family member or independent adult); that in consequence of those breaches the admissions made were unreliable and/or inadmissible; and that in the circumstances their convictions were unsafe. 18. Judgment was delivered by the Court of Appeal on 23 May 2012. The court noted that at the time of the applicants’ trial confessions made in breach of the Judges’ Rules were admissible under the emergency provisions legislation (see paragraph 25 below) unless obtained by torture or inhuman or degrading treatment. 19. In respect of the first applicant, the court held that although the confessions had been obtained in breach of the Judges’ Rules because he had not had access to a solicitor, independent adult or family member, in light of the statutory background it could not conclude that the admission of the confessions rendered the conviction unsafe. In particular, it noted that the confessions were not contradictory or inaccurate, they were not challenged at trial, and the conviction was not appealed. The first applicant’s appeal was therefore dismissed. 20. The court also found no evidence that the second applicant’s conviction was unsafe. In reaching this conclusion, it noted that he had pleaded “guilty” to most of the offences and had not challenged the admissibility or reliability of his confessions in contesting the two counts to which he pleaded “not guilty”. The second applicant’s appeal was also dismissed. 21. On 7 September 2012 the Court of Appeal certified that the following point of law of general public importance was involved in the decision which ought to be considered by the Supreme Court: “Where in a trial conducted in accordance with the then applicable statutory emergency provisions a young person was convicted of an offence on the basis of a confession admitted at the time of trial by virtue of the statutory emergency provisions but in circumstances in which such a confession would otherwise have been excluded as having been obtained in a manner which contravened the Judges’ Rules, the Administrative Directions on Interrogation and the Taking of Statements and the RUC Code and where such confession was obtained in circumstances which did not provide safeguards subsequently and currently considered to be necessary to avoid a miscarriage of justice, does such conviction fall to be considered as unsafe?” 22. However, the Court of Appeal refused to grant leave to appeal to the Supreme Court. 23. On 7 February 2013 the Supreme Court also refused permission on the grounds that the application did not raise an arguable point of law which it ought to consider and that there was no real possibility that the court would find the convictions to be unsafe. 24. Section 10 of the Criminal Appeal Act 1995 provides that: “Where a person has been convicted of an offence on indictment in Northern Ireland, the Commission— (a) may at any time refer the conviction to the Court of Appeal, and ... ... ... (2) A reference under subsection (1) of a person’s conviction shall be treated for all purposes as an appeal by the person under section 1 of the 1980 Act against the conviction.” 25. Section 6 of the 1973 Act provided that: “(1) In any criminal proceedings for a scheduled offence a statement made by the accused may be given in evidence by the prosecution in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of subsection (2) below. (2) If, in any such proceedings where the prosecution proposes to give in evidence a statement made by the accused, prima facie evidence is adduced that the accused was subjected to torture or to inhuman or degrading treatment in order to induce him to make the statement, the court shall, unless the prosecution satisfies them that the statement was not so obtained, exclude the statement or, if it has been received in evidence, shall either continue the trial disregarding the statement or direct that the trial shall be restarted before a differently constituted court (before whom the statement in question shall be inadmissible).” 26. The effect of section 6 was to suspend the rules and practice governing the admissibility of confessions for the period during which the legislation was in force. However, immediately following the implementation of the legislative changes, judges dealing with cases governed by the 1973 Act declared that they retained a discretion to exclude what was, by statute, otherwise admissible evidence (see, for example, R v. Corey & Others, NIJB, December 1973). 27. A note preceding the Judges’ Rules indicated they did not affect the principles: “(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even though he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so. ... ... ... (e) That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary. The principle set out in paragraph (e) above is overriding and applicable in all cases. Within that principle the following Rules are put forward as a guide to police officers conducting investigations. Non-conformity with these Rules may render answers and statements liable to be excluded from evidence in subsequent criminal proceedings.” 28. The Administrative Directions accompanied the Judges’ Rules. Paragraph 4 provided that, as far as practical, children and young persons should only be interviewed in the presence of a parent or guardian or, if that was not possible, a person who was not a police officer and was of the same sex as the child. Home Office guidance indicated that this requirement should be seen as applying to anyone under the age of seventeen. 29. Pursuant to paragraph 7(a), a person in custody should be allowed to speak on the telephone to his solicitor or to his friends provided that no hindrance was reasonably likely to be caused to the process of investigation or to the administration of justice. 30. The police code applicable at the relevant time provided that: “Police pursuing inquiries involving children and young persons must bear in mind that where at all possible children and young persons should be interviewed in the presence of a parent/guardian or other adult friend, and that the venue selected for the interview should not be one which could be calculated to intimidate, unduly embarrass or frighten the person interviewed.” 31. In HM Advocate v McLean [2009] HCJAC 97, 2010 SLT 73 the High Court of Justiciary (sitting with seven judges) had held, notwithstanding the decision of the Grand Chamber in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, that it was not a breach of Article 6 § 1 of the Convention read in conjunction with Article 6 § 3(c) for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor, since the guarantees otherwise available under the Scottish system were sufficient to avoid the risk of any unfairness. 32. However, in Cadder the Supreme Court unanimously found that McLean had been incorrectly decided as the High Court of Justiciary had erred in its interpretation of Salduz. The Grand Chamber’s judgment was to be understood as laying down two statements of principle: that access to a lawyer should be provided as from the first interrogation of a suspect; and that the rights of the defence would be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer were used for a conviction. There was room for a certain flexibility in the application of these requirements but they did not permit a systematic departure from it. 33. Furthermore, the Supreme Court did not accept that the guarantees otherwise available under the Scottish system were sufficient to secure a fair trial. Those guarantees were commendable but were, in truth, incapable of removing the disadvantage that a detainee would suffer if, not having access to a solicitor for advice before he was questioned by police, he made incriminating admissions or said something which enabled the police to obtain incriminating evidence from other sources which was then used against him at his trial. 34. That being said, the Supreme Court indicated that where incriminating statements made during police interrogation without access to a lawyer were used for a conviction, it would only be appropriate to quash that conviction if it was clear that there was insufficient evidence for it without the evidence of the police interview, or taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them. 35. Finally, the Supreme Court held that, in the interests of legal certainty, the ruling should not permit the reopening of closed cases, but rather should only apply to those cases which had not yet gone to trial, to cases where the trial was still in progress, and to appeals that had been brought timeously. For all closed cases it was a matter for the Scottish Criminal Cases Review Commission to decide whether the cases should be referred back to the Appeal Court and for that court to decide what course it ought to take if a reference were to be made to it by the Commission.
| 0 |
test
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001-150792
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ENG
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RUS
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CHAMBER
| 2,015 |
CASE OF MIFOBOVA v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind)
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Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
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5. The applicant was born in 1958 and lives in Magadan. 6. In April 2008 the administration of Magadan Region forwarded for review to the Magadan Regional Psychoneurological Clinic (MRPC) letters sent by the applicant to the President of the Russian Federation, the governor of the region, and 11 other administrative bodies. In these letters the applicant alleged in particular that she had a “special relationship” with the mayor of Magadan, that she was destined to protect people in high office, and that she was being persecuted by employees of the mayor’s office. 7. On 17 April 2008 the Chief Psychiatrist of the MRPC asked the Magadan Town Court to order an involuntary psychiatric examination of the applicant. The relevant part of the request read: “[T]he resident psychiatrists concluded that [the applicant’s letters] are morbid (delusional) and that she suffers from a mental disorder. The content of the letters reveals high levels of emotional stress, crystallised delusions, and the probability of unlawful actions against the persons involved in the delusions. The MRPC attempted to persuade the applicant to undergo a psychiatric examination voluntarily, but she refused. Her son suffers from a chronic mental disorder manifested as paranoid schizophrenia. [Accordingly] a judicial authorisation of the applicant’s psychiatric examination under sections 24-25 of the Psychiatric Assistance Act 1992 [is requested] ...” 8. On 28 April 2008 the Magadan Town Court returned the application for involuntary psychiatric examination. 9. On 11 October 2008 after a heated argument in the town hall, the applicant was brought to the police station and then transferred to the MRPC for urgent treatment. 10. On 13 October 2008 a clinical psychiatric evaluation report was issued by the panel of three psychiatrists in the MRPC. The applicant was diagnosed with paranoid schizophrenia and paranoid syndrome. The panel noted in particular her belief that she had an affectionate relationship with the mayor of Magadan (attempting to contact him directly by phone and in person), her sense of being persecuted by the mayor’s assistants, and the intense arguments during her visits to the town hall. 11. Involuntary hospitalisation of the applicant was recommended in the light of her persistent refusal to commit herself to hospital voluntarily, her failure to acknowledge her medical condition, and the risk of significant damage to her health through aggravation of her psychiatric condition in the absence of psychiatric assistance. 12. The MRPC submitted the application for involuntary treatment to the Magadan Town Court under Article 29 c of the Law of the Russian Federation on Psychiatric Assistance and Guarantees of Citizens’ Rights related to its Administration of 1992 (Psychiatric Assistance Act 1992). 13. On 17 October 2008 the Magadan Town Court terminated proceedings on the MRPC’s application because the applicant had agreed to undergo the necessary treatment voluntarily and had signed the consent form in the courtroom. The MRPC representative thus withdrew the application for involuntary treatment. 14. Between 17 October 2008 and 26 December 2008 the applicant was an in-patient in the MRPC, following a course of anti-schizophrenia treatment. 15. In a letter of 6 May 2010, the Magadan Mayor’s Office asked the Chief Psychiatrist of the MRPC to take “prophylactic measures” within his competence in respect of the applicant. The letter stated that she persistently stalked employees of the Mayor’s Office, demanded that unspecified payments be made to her, and insulted and threatened individuals dealing with her. 16. On 19 May 2010 a psychiatrist examined the applicant and established that she had not been following her medication treatment, with the result that her schizophrenia was at an acute stage. The psychiatrist recommended involuntary hospitalisation and issued the corresponding medical referral. 17. On 20 May 2010 the applicant was interned in the MRPC. 18. On 21 May 2010 a clinical psychiatric evaluation report was issued by the panel of three psychiatrists at the MRPC. The applicant was diagnosed with progressive paranoid schizophrenia. The panel took special note of her general medical and clinical history, with the greatest emphasis focussed on the events of 2008 and the treatment she received. In respect of developments since 2008 the report read: “On 20.05.2010 at 15:50 the patient Mrs Mifobova was transported to the MRPC under a referral by the psychiatrist Mr Ya. due to changes in her mental state, her expression of delusional ideas of relations, grandeur and persecution. Hospitalised involuntarily ... [Further follows the detailed personal, family and social profile of the applicant and her medical history in 2008] ... Currently admitted to the MRPC due to progression of her psychiatric symptoms to an acute stage. During examination the following were identified: delusional ideas of relations, persecution, grandeur, exceptional importance. A lack of any objective attitude regarding her condition and statements was observed. Having regard to the above, the panel concluded that Mrs Mifobova suffers from a chronic mental disorder in the form of paranoid continuous schizophrenia and needs involuntary treatment in the MRPCV under subsections (a) and (c), Section 29 of the Psychiatric Assistance Act 1992.” 19. The application for involuntary treatment was submitted by the MRPC to the Magadan Town Court under Section 29 a and c of the Psychiatric Assistance Act of 1992, on the grounds of significant damage to her health due to the aggravation of her psychiatric condition in the absence of psychiatric assistance, posing an immediate danger to herself and others. 20. On 24 May 2010 the Magadan Town Court made phone calls to the applicant’s son, Mr L., and Mrs B., a representative of the municipal Department of Healthcare of Magadan, summoning them to attend the hearing and to act as the applicant’s representatives. 21. Mrs B’s rights and duties under the letter of authority of 21 January 2010 issued by the Department of Healthcare were described as follows: “... Mrs B is entrusted with representing the interests of the Department of Healthcare of the Magadan Mayor’s Office in relation to all institutions, organisations, and commercial enterprises, and also to litigate in all judicial institutions with all the rights of a plaintiff, defendant or a third party ...” 22. On 26 May 2010, after considering the testimony of the applicant and the MRPC’s representative, medical evidence, written statements from the witnesses and documentary evidence, the Magadan Town Court ordered the involuntary hospitalisation of the applicant. 23. Present at the hearing were a representative of the hospital, a prosecutor, a representative of the municipal social services, and the applicant. The applicant’s legal representative Mr L. (her son, who also suffered from schizophrenia) was notified about the hearing, but did not appear. The trial record indicated that none of the parties objected to the hearing being held in his absence, including the applicant, who stated that she had “told him not to open the door to anyone”. 24. The hearing record indicates that Mrs B (designated as a representative of a party having an interest in the proceedings) took part in the examination of the applicant (addressing one question to the representative of the MRPC), stated that there were grounds for involuntary hospitalisation, but did not take part in the closing arguments. 25. In reaching the decision to order involuntary treatment of the applicant, the Town Court noted the applicant’s long history of suffering from a chronic psychiatric disorder and her acute state of schizophrenia at the material time; her inability to control her behaviour; her lengthy exposure to harsh weather conditions while seeking encounters with the mayor on the street; the absence of anyone able to provide her with the necessary care; the appearance and behaviour of the applicant in the courtroom; the answers given to the questions addressed to her; her previous history of in-patient psychiatric treatment and the lack of any prospect of improvement outside of a specialised facility. 26. Only the operative part of the judgment was delivered during the hearing and the applicant was never served with the full text of the judgment. 27. On 10 June 2010, during her stay in the MRPC, the applicant lodged an appeal against the judgment. Since she had not been served with a copy of it, the appeal claims had to be confined to general statements concerning the absence of reasons for her internment. The appeal contained a request to be provided with a lawyer for the appeal proceedings, because the applicant was allegedly not allowed to use the phone in the MRPC or otherwise contact a representative of her choice. 28. The applicant was notified of the scheduled appeal hearing by the medical personnel, but was not transferred from the hospital to the courthouse in order to participate in it. 29. On 6 July 2010 the Magadan Regional Court held a hearing in the presence of the MRPC’s representative and a prosecutor. No other party participated in the hearing, the record indicating in respect of the applicant that she “was duly informed about the date and time of the hearing, but did not appear”. The applicant’s request to be represented by a lawyer was neither specifically mentioned nor addressed in any way. After hearing the testimony of the hospital’s representative and the opinion of the prosecutor, and reviewing the written evidence, the Regional Court upheld the lower court’s authorisation in full, explicitly stating that “the arguments in the statement of appeal are essentially analogous to those examined [by the lower court]”. 30. On an unspecified date in 2010 the applicant was released from the MRPC. 31. During the applicant’s stay in the MRPC the medical personnel of the facility kept a treatment record, logging all the events considered significant. In the relevant parts it read : “... 28.05 Still certain about her convictions, mental process is blurred. Resists dissuasion. Considers appealing against the Town Court’s authorisation. ... 05.07.2010 Informed [her] about her appeal hearing on 06.07.2010. [She] enquired whether she would be participating in the hearing ...”
| 1 |
test
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001-140931
|
ENG
|
RUS
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ADMISSIBILITY
| 2,014 |
RYAZANOV v. RUSSIA
| 4 |
Inadmissible
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Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
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1. The applicant, Mr Konstantin Vladimirovich Ryazanov, is a Russian national who was born in 1975 and lives in the town of Kamensk-Uralskiy in the Sverdlovsk Region. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev and subsequently by V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3. On 3 November 2000 the applicant and his brother stole some copper cable from a car park and then went to a river bank nearby to strip it and prepare it for sale. After following their tracks, the police arrested the brothers, who at that very moment were burning the cable jacket. On the same day the police drew up a report detailing the circumstances of their arrest, together with a crime scene inspection record. 4. The applicant and his brother were questioned and cross-examined by an investigator immediately after the events and both confirmed their involvement in this incident of theft. Later on that day, they were released against an undertaking not to leave their town of residence during the proceedings. 5. On 29 January 2001 the brothers were caught red-handed removing one hundred metres of copper cable from the basement of a block of flats. The police officers drew up a crime scene inspection record and an arrest record describing the circumstances of the arrest. In the presence of attesting witnesses they seized the applicant’s bag containing the freshly removed copper cable. 6. Shortly afterwards the brothers were taken to the police station. A police officer drew up an “explanation” record, which set out the reasons for the arrest. 7. According to the applicant, in the police station he was put in a small, dark, overcrowded cell. A few hours later he was called for an interview, during which the police officers ill-treated him, forcing him to make a confession. They allegedly punched him in the back, put a gas mask over his face preventing him from breathing, and stood on his hand. Eventually he signed several blank sheets of paper. The applicant claims that he did not have any visible injuries on his body as a result of the ill-treatment and that he did not undergo any medical examinations in that connection after the events. The applicant did not bring any complaints in connection with the alleged ill-treatment before competent domestic authorities. 8. On 30 January 2001 the applicant’s brother confessed to ten incidents of theft committed together with the applicant on 3 November, 1, 4, 13, 18, 19, 30 (2 incidents) and 31 December 2000 and 29 January 2001. The confessions were made in the presence of attesting witnesses at the locations at which the offences had been committed. 9. Subsequently, the investigating authorities accused the applicant and his brother of additional incidents of theft of copper cable. In total, the investigation brought charges in respect of fifty counts of theft allegedly committed on 3 November, 1 (two incidents), 4 (two incidents), 7 (two incidents), 9, 11, 13, 15 (two incidents), 16 (four incidents), 18 (five incidents), 19, 20 (three incidents), 21 (three incidents), 23 (two incidents), 24, 30 (three incidents) and 31 (four incidents) December 2000, and 2, 9, 11, 12, 22, 26 (two incidents), 28 (four incidents) and 29 January 2001. 10. On 22 August 2002 the Krasnogorskiy District Court of the Town of Kamensk-Uralsk in the Sverdlovsk Region (“the District Court”) examined the applicant’s criminal case. 11. During the hearing, which was held in the presence of two defence counsel, the brothers admitted their involvement in the incidents of 3 November 2000 and 29 January 2001, but denied any participation in the rest of the incidents. They also stated that the investigating authorities had put pressure on them on 29 January 2001, forcing them to sign blank sheets of paper. The relevant part of the record of that hearing reads as follows: “... Prosecutor: What incidents of theft do you admit [were committed by you]? [The applicant]: I admit to the incident of [3] November committed in the car park, but I don’t agree with the legal classification of our actions. I consider that we committed an attempted crime as we were caught near the place of the incident and at the moment of the arrest we had not [yet] stripped the cable ... [The applicant]: I also admit to the incident of 29 January 2001. I do not admit the remaining incidents of theft. We were interviewed in breach of the Criminal Procedure Code of Russia. The prosecutor: What do you mean, in breach of? [The applicant]: Formal charges had not been brought against me and also I was forced to sign blank sheets of paper ...” 12. At the court hearing of 22 August 2002 the prosecutor withdrew the charges in respect of forty incidents of theft allegedly committed on 1, 4, 7 (two incidents), 9, 11, 15 (two incidents), 16 (four incidents), 18 (four incidents), 20 (three incidents), 21 (three incidents), 23 (two incidents), 24, 30 and 31 (three incidents) December 2000 and 2, 9, 11, 12, 22, 26 (two incidents) and 28 (four incidents) January 2001 owing to lack of evidence. 13. On 28 August 2002 the District Court convicted the applicant and his brother of multiple counts of theft and attempted theft committed by an organised criminal group. The court established the applicant’s involvement in ten incidents of theft committed on 3 November, 1, 4, 13, 18, 19, 30 (2 incidents) and 31 December 2000 and 29 January 2001. The applicant was sentenced to five years’ imprisonment. 14. The court’s findings in respect of the applicant’s involvement in the incident of 3 November 2000 were based on the self-incriminating statements given by the brothers during the cross-examination of 3 November 2000, and confirmed by them in person at the trial court hearings; the statements of the attesting witnesses and police officers, according to which on 30 January 2001 the applicant’s brother had confessed to the thefts and indicated the block of flats where they had stripped the wires; the crime scene record of 3 November 2000; the police report of 3 November 2000; and material evidence such as a hand cart and a plastic bag full of copper wires. 15. The applicant’s conviction in respect of the incidents of theft of 1, 13 and 19 December 2000 rested on the statements of his brother given on 30 January 2001 at the locations of the thefts and in the presence of attesting witnesses and a police officer; the statements of these attesting witnesses and the police officer given in court; and the crime scene inspection records of 1, 13 and 19 December 2000. 16. The court’s conclusions regarding the applicant’s involvement in the incidents of 4 and 18 December, the two incidents of 30 December and the incident of 31 December 2000 were based on the statements of the applicant’s brother of 30 January 2001 given at the locations of the thefts and in the presence of attesting witnesses and a police officer, and the statements of these attesting witnesses and the police officer given at the trial court hearings. 17. The conviction concerning the incident of 29 January 2001 rested on the statements of the applicant and his brother admitting their involvement in the incidents of theft, given by them in person at the trial court hearings; the crime scene inspection record; and the arrest record of 29 January 2001, which confirmed that the brothers had been caught red-handed. It was also supported by the court statements of the attesting witnesses and the police officers confirming the applicant’s brother’s confession of 30 January 2001, and material evidence such as a plastic bag containing copper wires. 18. The relevant part of the decision reads as follows: “[The applicant and his brother], acting in concert and as an organised criminal group, committed repeated thefts and attempted thefts aggravated by unlawful entry to premises. The crimes were committed in the town of Kamensk-Uralsk in the following circumstances: [description of ten incidents of theft]. At the court hearing the [applicant] partially admitted his guilt, stating that on 3 November 2000 he and his brother, equipped with a hand cart and pliers, had gone to a [parking area], removed the copper wires located there and then gone to a river bank to burn the jackets [off the wires]. At the river bank they had been caught by police. On 29 January 2001, at night time, together with his brother, he had removed a telephone cable from the basement of a block of flats in order to sell it. Shortly afterwards [he and his brother] had been arrested by the police. He had not committed any other offences. At the court hearing [the applicant’s brother] partially admitted his guilt, stating that on 3 November 2000 he and his brother had gone to a [car park]. There they had removed copper wires and then walked down to a river bank around 30-40 metres away to strip the cable. When they were burning and stripping the wires, they had been apprehended by the police. On 29 January 2001, at night time, together with his brother, he had found a door open leading into the basement of a block of flats. They had gone inside and [the applicant] had removed copper wires. [The applicant’s brother] had stripped them and put them in his bag. Then they had been arrested by the police. He had not committed any other offences. The court has assessed the evidence in the present case. It is convinced that the guilt of [the applicant and his brother] is confirmed by the statements of the witnesses and the other pieces of evidence gathered by the investigating authorities. When questioned in court, [the first witness] stated that in December 2000 a police officer had invited her to be an attesting witness. In her presence a man had said that together with his brother he had removed wires from near a block of flats located at [address of the block of flats]. The man had also pointed to another house and stated that they had also removed wires there. The man had given his statements in her presence and in the presence of another attesting witness, her neighbour. [The first witness] signed the relevant investigation record. When questioned in court, [the second witness] stated that around December 2000, near a block of flats located at [address of the block of flats], he had performed the duties of an attesting witness. Police officers had introduced a young man to him; that man had stated that, together with his brother, he had removed a cable from the basement of a block of flats nearby. [The second witness] signed the relevant investigation record. When questioned in court, [the third witness] stated that around eighteen months earlier he had attended investigative measures as an attesting witness. During the relevant procedural action a man had told him that he and his brother had removed a cable from a block of flats located at [address of the block of flats]. When questioned in court, [the fourth witness] stated that around two years earlier, near his house, police officers had invited him to play the role of an attesting witness. A man had confessed to the theft of cabling from near entrance no. 6 of a block of flats nearby. Police officers had not instructed that man what to say. The man had spoken voluntarily. [The fifth witness] did not appear before the court. The statements she had given at the preliminary investigation stage were read out. She stated that in January 2001 she had been out walking with an acquaintance when police officers had invited them to act as attesting witnesses. They had agreed. They had seen a man standing near a car. He had said that he had removed a cable from the basement of the block of flats located at [address of the block of flats]. He had stated that they had then burned the cable, stripped it and sold it. The man had said all this of his own volition. No one had put pressure on him. When questioned in court, [the police officer who had been present at the investigative action of 30 January 2001] stated that at the preliminary investigation stage the brothers had given self-incriminating statements of their own volition in respect of all the offences. The court casts no doubt on the validity of the witness evidence because it was consistent and collaborated by other pieces of evidence ... The arrest of the accused persons in possession of the stolen wires is confirmed by the arrest record of 3 November 2000. According to this record, when patrolling a territory, police officers found an open junction box with no wires inside. There were footprints and cart tracks in the snow nearby that led towards a river. On the river bank the police found the accused, who were stripping wires. During cross-examination the [applicant and his brother] confirmed that on 3 November 2000 they had stolen copper wiring from near a parking area. The confiscated cart and bag of copper wires were examined during the preliminary investigation and added to the case file as pieces of concrete evidence. Later the bag of wires was given for storage to one of the victims of their crimes ... During the investigative activities, the [applicant’s brother], of his own volition, indicated the locations where the crimes had been committed. Stolen cables confiscated from [the applicant] at the stage preliminary investigation stage were placed in a storage room at the Krasnogorsk Department of the Interior. An analysis of the evidence shows that the statements of the accused persons were aimed at hindering the investigation. In the court’s opinion, in refusing to admit their guilt the accused persons were attempting to avoid criminal liability ... The court accepts the classification of the offences suggested by the prosecutor. The brothers, acting as an organised criminal group, committed thefts and an attempted theft aggravated by unlawful entry to premises...” 19. According to the applicant, the trial court hearing records were inaccurate, but he never made any request for them to be amended. 20. The applicant and his brother appealed against sentence. They complained that their conviction was unfounded. No complaints were made by the brothers about a lack of legal assistance. 21. On 18 October 2002 the Sverdlovsk Regional Court examined the case on appeal and upheld the applicants’ conviction on seven counts of theft committed on 3 November, 1, 4, 13, 18 and 31 December 2000 and 29 January 2001. 22. The court dropped the charges relating to the incident of theft of 19 December 2000 and the two incidents of theft of 30 December 2000, as the damage caused by the brothers in those incidents was insignificant and therefore could not lead to a prosecution. 23. On 27 May 2003 the Sverdlovsk Regional Court refused to reopen the case by way of supervisory review. 24. Article 21 of the Constitution provides that no one may be subjected to torture, violence or any other cruel or degrading treatment or punishment. 25. Article 48 provides that everyone has a right to qualified legal assistance. It also provides that an arrested or detained person or a person accused of a criminal offence has a right to legal representation from the moment of his or her arrest, placement into custody, or the bringing of charges. 26. Article 51 provides that no one is obliged to give evidence against himself or herself or a spouse or close relative. 27. Article 116 § 1 of the Criminal Code of the Russian Federation of 13 June 1996 provides that the application to another person of physical force which has caused physical pain but has not resulted in any damage to health is punishable by a fine, compulsory or correctional labour, or detention for a period of up to three months. 28. Article 286 § 3 (a) of the Criminal Code provides that actions on the part of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens, committed with violence or the threat of violence, are punishable by three to ten years’ imprisonment, with a prohibition on occupying certain posts or engaging in certain activities for a period of three years. 29. Article 47 of the Code of Criminal Procedure of the Russian Federation (“the Code”), as in force at the material time, provided that a lawyer must be called to take part in a case at the moment when charges were brought or, if a person suspected of a criminal offence was arrested or detained before charges were brought against him, at the moment when the arrest record or a detention decision was read out to him. 30. Article 50 of the Code established that an accused could refuse legal assistance at any point in the criminal proceedings. If the accused was charged with criminal offences punishable by the death penalty, such a refusal was not binding on a court, an investigator or a prosecutor. 31 Article 3, 108 and 109 of the Code required that a competent authority institute criminal proceedings if there was a suspicion that a crime had been committed. That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction. The decision whether or not to institute criminal proceedings had to be taken within three days of the first report on the relevant facts. 32. No criminal proceedings could be brought in the absence of a corpus delicti (Article 5). Where an investigating body refused to open or terminated a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed to a higher-ranking prosecutor or to a court (Articles 113 and 209). 33. During criminal proceedings, persons who had been granted victim status could submit evidence and file applications, had full access to the case file once the investigation was complete, and could challenge appointments and appeal decisions or judgments in the case. At an inquest, the close relatives of the deceased were to be granted victim status (Article 53).
| 0 |
test
|
001-177521
|
ENG
|
MNE
|
ADMISSIBILITY
| 2,017 |
KOLOSOV v. MONTENEGRO
| 4 |
Inadmissible
|
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
|
1. The applicant, Mr Vladimir Andreevich Kolosov, is a Russian national who was born in 1961 and lives in Aprelevka (Russian Federation). He was represented before the Court by Mr Y. Aksaev, a lawyer practising in Moscow (Russian Federation). 2. The Montenegrin Government (“the Government”) were represented by their Agent, Ms V. Pavličić. 3. Notified under Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court of their right to intervene in the present case, the Russian Government expressed no wish to do so. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On an unspecified date the applicant’s wife filed divorce papers with the competent court in Moscow, also seeking the division of property. 6. On 27 January 2011 she applied to the Court of First Instance (Osnovni sud) in Kotor (Montenegro) for an interim measure prohibiting the applicant from disposing of two apartments (zabranjuje otuđenje i opterećenje nepokretnosti) in Budva (Montenegro) until the proceedings in Moscow had ended. 7. On 1 February 2011 the court, in the absence of both the applicant and his representative, approved the measure, which was duly registered in the Budva real estate register. On 18 February 2011 the applicant received the relevant decision, which also contained information that he could appeal to the High Court, through the court in Kotor, within three days. 8. On 21 February 2011 the applicant allegedly sent his appeal by express mail and it was received at the High Court (Viši sud) in Podgorica on 28 February 2011 by a named court officer. The applicant submitted a copy of a Pony Express delivery company envelope to the Court with a date of 21 February 2011. It was addressed to the High Court in Podgorica, with a waybill number of 11-8895-0367 marked on it. 9. On 18 March 2011 the High Court found that the applicant had sent his appeal on 22 February 2011 and rejected it (odbacio) as out of time. 10. On 17 June 2011, the proceedings in Moscow ended with a friendly settlement. 11. On 22 June 2011 the applicant wrote to the High Court, maintaining that he had appealed on 21 February 2011 and had therefore been in time. He enquired about the basis for the High Court’s conclusion that the appeal had been sent on 22 February 2011. 12. On 7 September 2011 one of the three High Court judges dealing with the applicant’s case informed the president of the High Court that there was proof in the case file that the appeal had been sent on 22 February and that the High Court had not taken other documents submitted by the applicant into account, namely “a receipt, a bill and a fax sent on 21 February 2011”. 13. On 30 November 2011 the applicant’s ex-wife waived her rights in respect of the property in Montenegro and requested that the interim measure be revoked and deleted from the real estate register. 14. On 16 December 2011 the applicant informed the courts in Kotor and Podgorica about the termination of the proceedings in Moscow and requested that the interim measure be revoked. 15. On 10 January 2012 the court in Kotor revoked the measure (ukida se privremena mjera). 16. On 30 April 2012 the applicant tried to sell his property in Budva, but could not as the interim measure was still in the register. It transpired that the court in Kotor had not transmitted the relevant decision to the Budva real estate registry. 17. On 15 May 2012 the Court of First Instance in Kotor requested that the real estate registry in Budva delete the measure. 18. On 25 May 2012 the registry issued a decision to strike out the interim measure in respect of one of the apartments, which was executed on 3 December 2013. On 10 July 2014 the registry issued a decision to strike out the interim measure in respect of the other apartment, which was executed on 4 August 2014. 19. Section 108(2) of the Civil Procedure Act (Zakon o parničnom postupku; published in the Official Gazette of the Republic of Montenegro nos. 22/04, 28/05 and 76/06, and Official Gazette of Montenegro no. 73/10) provides, inter alia, that submissions sent by post are considered as having been lodged with the relevant court on the day of posting.
| 0 |
test
|
001-148174
|
ENG
|
LVA
|
CHAMBER
| 2,014 |
CASE OF LIEPIŅŠ v. LATVIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms)
|
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
6. The applicant was born in 1965. 7. The relevant facts of the case, as submitted by the parties, may be summarised as follows. 8. On 11 December 2002 the Jēkabpils District Court (Jēkabpils rajona tiesa) found the applicant guilty of aggravated theft. The judgment of the District Court did not indicate that the applicant had a lawyer. 9. The applicant was given a prison sentence of two years. Having taken into account the applicant’s seven prior convictions the District Court imposed a final prison sentence of three years and six months. 10. On 24 January 2003 the Zemgale Regional Court (Zemgales apgabaltiesa) partially upheld the applicant’s appeal against the above-mentioned first-instance judgment. The judgment of the District Court indicated that the applicant’s lawyer, G.L., had participated. 11. The Regional Court reclassified the charge as theft of a small amount and reduced the prison sentence to six months, reducing the final prison sentence to three years and one month accordingly. 12. On 27 January 2003 the applicant lodged an appeal on points of law against the appeal judgment with the Criminal Cases Division of the Senate of the Supreme Court. On 14 February 2003 he supplemented his appeal. 13. The Government submitted, and the applicant did not argue otherwise, that in his appeal on points of law the applicant had not expressed a wish to participate in the cassation hearing. 14. At its preparatory session on 20 February 2003 the Senate of the Supreme Court decided to accept the appeal for review on points of law and scheduled the hearing for 11 March 2003. 15. On 21 February 2003 the Senate of the Supreme Court wrote to the applicant informing him that the cassation hearing had been scheduled for 11 March 2003. The notification was also addressed to the lawyer, G.L. 16. The letter also stated that the applicant had the right to participate in the cassation hearing. However, in the event of non-appearance by the parties the hearing could be held in their absence. 17. On 27 February 2003 the applicant made a request to participate in the cassation hearing “in order to provide the necessary explanations”. 18. As submitted by the Government, on 3 March 2003 the applicant’s request was received at the registry of the Senate of the Supreme Court. 19. On 4 March 2003 V.E., a judge of the Senate of the Supreme Court, wrote to the director of Daugavpils Prison, where the applicant was held at the time, in the following terms: “Concerning [the applicant’s] request about the possibility of participating in the court hearing of 11 March, please inform [him] that it is impossible to ensure [his participation]. He made no such request in his appeal on points of law. His request to participate in the hearing of 11 March was received at the Supreme Court only on 3 March. [A]s escorts from the Daugavpils Prison to Riga depart only on 4 and 12 [March], it is no longer possible to organise his transport to the hearing of 11 March.” 20. On 11 March 2003 the hearing took place before the Senate of the Supreme Court. 21. The only party present was the public prosecutor. Neither the applicant nor his lawyer participated. 22. The decision of the Senate of the Supreme Court dated 11 March 2003 indicated, inter alia, that the Senate had heard the prosecutor’s opinion that the lower court’s judgment should be left unmodified. 23. The Senate of the Supreme Court upheld the appeal judgment and dismissed the applicant’s appeal on points of law. That decision was final. 24. On 11 February 2004 the Jēkabpils District Court, in view of the amendments to the Criminal Law (Krimināllikums), which were applicable retroactively, decided that the applicant should be released from prison as he had already served his sentence.
| 1 |
test
|
001-170857
|
ENG
|
RUS
|
CHAMBER
| 2,017 |
CASE OF LASHMANKIN AND OTHERS v. RUSSIA
| 3 |
Remainder inadmissible;Violation of Article 13+11 - Right to an effective remedy (Article 13 - Effective remedy) (Article 11 - Freedom of assembly and association;Article 11-1 - Freedom of peaceful assembly);Violation of Article 11+10 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) (Article 10 - Freedom of expression-{General};Article 10-1 - Freedom of expression);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. On 19 January 2009 Mr Stanislav Markelov, a well-known human rights lawyer, and Ms Anastatsia Baburova, a journalist, were shot dead in Moscow. 6. The applicant and Mr A. decided to hold a commemoration “picket” (“пикет”) near the Memorial to the Victims of Political Repression in Yuri Gagarin Park, Samara, on 31 January 2009. The location was symbolic, and was chosen by them to emphasise that, in their opinion, the murders of Mr Markelov and Ms Baburova were cases of politically motivated repression. 7. On 27 January 2009 the applicant and Mr A. notified the Samara Town Administration of the date, time, place and purposes of the “picket”. The event was scheduled to take place from noon to 2 p.m. on 31 January 2009, with seven people expected to take part. 8. On the same day the Samara Town Administration sent a telegram and a letter to the applicant, refusing to approve the venue. The town administration noted that Yuri Gagarin Park was a popular place of recreation and many families would be walking there with their small children on Saturday, 31 January 2009. The “picket” might pose a danger to their health and life. They proposed that the organisers change the location and time of the event. They also warned the applicant and Mr A. that they might be held liable under Article 20.2 § 1 of the Administrative Offences Code for a breach of the established procedure for conducting public events. According to the Government, a copy of the Mayor’s decree of 7 October 2007 listing the locations in Samara suitable for public events was attached to the letter. The Government did not submit a copy of the letter or the decree. 9. Given that the location and date were important to them, and fearing that holding the event at the chosen location without the authorities’ approval might result in arrests and administrative proceedings against the participants, the applicant and Mr A. decided to cancel the seven-person “picket” they had planned. Instead, the applicant held a solo “picket”, for which no notification was required. 10. On 12 February 2009 the applicant challenged the decision of 27 January 2009 before the Leninskiy District Court of Samara. He complained that the decision had amounted to a ban on the event, because the authorities had not proposed any alternative venue or time for it. 11. On 3 April 2009 the Leninskiy District Court rejected his complaint. It found that in its decision of 27 January 2009 the Samara authorities had merely proposed that the applicant should change the location and time of the event, rather than imposing a ban on it. That decision had therefore not violated the applicant’s rights. It had also been lawful. On 3 June 2009 the Samara Regional Court upheld the judgment of 3 April 2009 on appeal, finding that it had been lawful, well reasoned and justified. 12. The applicant is a gay rights activist. 13. On 13 August 2009 the applicant, together with Ms F. and Mr B., notified the Prefect of the Northern Administrative District of Moscow of their intention to hold a “picket” from 1 to 2 p.m. on 24 August 2009 in front of the Prefect’s office on Timiryazev Street, which twenty-five people were expected to attend. The aim of the event was to call for the Prefect’s resignation “in connection with his efforts to incite hatred and enmity towards various social groups, and his failure to comply with electoral laws”. 14. On 17 August 2009 the Prefect of the Northern Administrative District of Moscow refused to approve the venue, noting that another public event was planned at the same location from 1 to 2 p.m. on 24 August 2009. 15. On 20 August 2009 the applicant, Ms F. and Mr B. lodged a new notification proposing to hold the event at any time between 10 a.m. and 7 p.m. on 24 or 25 August 2009. An official from the Prefect’s office stamped the notification with a seal that bore the following inscription in red: “to be handed to the applicant personally”. 16. According to the applicant, on 21 August 2009 he went to the Prefect’s office to collect the decision. However, the official refused to hand over the decision, explaining that it had been dispatched by post. The applicant never received the letter and had to cancel the event. 17. On 26 August 2009 the applicant challenged the Prefect’s refusal to approve the venue before the Koptevskiy District Court of Moscow. 18. On 30 October 2009 the Koptevskiy District Court rejected the applicant’s complaints. It found that by his decision of 20 August 2009 the Prefect had agreed to the holding of the “picket” on 25 August 2009 from 1 p.m. to 2 p.m. That decision had been sent to the applicant by post. The letter had not been delivered because the applicant did not live at the indicated address. The applicant’s argument that the stamp indicated that the decision was to be handed to him personally was unconvincing. As Russian law did not establish any procedure for notifying applicants of such decisions, the Prefect’s office had been entitled to choose any notification method, including sending the decision by post. The fact that the letter had not been delivered did not render the authorities’ actions unlawful. Lastly, the court found that the applicant had not proved that the Prefect’s office had refused to give him the decision when he had gone to collect it, although there is no evidence in the judgment that the Prefect’s representative contested that matter. 19. The applicant appealed. He submitted, in particular, that the Prefect’s office had at first informed him that the decision would be handed over to him personally, but had then refused to give it to him. The letter containing that decision had not arrived at the local post office until the day of the planned event. Even if he had received the letter, it would no longer have been possible to hold the event. 20. On 25 February 2010 the Moscow City Court upheld the judgment on appeal, finding that it had been lawful, well reasoned and justified. 21. On 13 August 2009 the applicant, together with Ms F. and Mr B., notified the Prefect of the Central Administrative District of Moscow of their intention to hold a “picket” from 1 to 2 p.m. on 24 August 2009 in Novopushkinskiy Park, with twenty-five people expected to take part. The aims of the event were the same as those of the “picket” in the Northern Administrative District of Moscow. 22. On the same day a deputy prefect of the Central Administrative District of Moscow informed the applicant that another public event was planned at the same location and time, and proposed that another venue be chosen. 23. On 20 August 2009 the applicant, Ms F. and Mr B. stated their readiness to accept another venue for their event, and proposed five alternative sites for the Prefect to choose from. 24. On the same day the deputy prefect refused to approve any of the locations proposed by the applicant, noting that the applicant, Ms F. and Mr B. were the organisers of another “picket” at the same time in the Northern Administrative District of Moscow. 25. On 26 August 2009 the applicant challenged that refusal before the Taganskiy District Court of Moscow. He submitted, in particular, that the deputy prefect’s finding that he was the organiser of another “picket” on the same day in the Northern Administrative District of Moscow was incorrect, because the authorities had not agreed to that “picket”. 26. On 2 November 2009 the Taganskiy District Court rejected his complaint. It found, in particular, that the proposal to change the location of the “picket” was lawful because a presentation of the new IKEA catalogue had been planned in Novopushkinskiy Park at the same time. The refusal to agree to the “picket” at other venues had also been lawful because the applicant had submitted two notifications in respect of “pickets” at two different locations, in the Central and Northern Administrative Districts, to be held at the same time. Although the applicant had indeed been informed by the Prefect of the Northern Administrative District that he could not hold a “picket” at the proposed location, he could still have held a “picket” at another venue in the Northern Administrative District. Had he done so, it would have been impossible for him to organise a “picket” to be held in the Central Administrative District at the same time. The refusal to agree to the “picket” in the Central Administrative District had therefore been well reasoned. 27. The applicant appealed. He submitted, in particular, that domestic law made no provision for a public event to be banned on the ground that two notifications had been lodged by the same person. The refusal to approve the “picket” had therefore been unlawful. He had lodged two notifications with the aim of proposing alternative venues for the event. If both of them had been approved, he would have chosen one of the approved sites. He relied on Article 31 of the Constitution and Article 11 of the Convention. 28. On 6 April 2010 the Moscow City Court upheld the judgment of 2 November 2009 on appeal, finding that it had been lawful, well reasoned and justified. 29. The two applicants are Mr Ponomarev (the first applicant) and Mr Ikhlov (the second applicant). 30. The applicants decided to commemorate the anniversary of the murder of Mr Stanislav Markelov and Ms Anastatsia Baburova (see paragraph 5 above). 31. On 24 December 2009 the first applicant, Ms A. and Mr S. notified the Moscow Government of their intention to hold a march and a meeting on 19 January 2010 in the centre of Moscow, which 400 people were expected to attend. The aims of the march and the meeting were as follows: “To commemorate the human rights lawyer Stanislav Markelov, the journalist Anastasia Baburova and other victims of ideological and political terror; To protest against politically and ideologically motivated murders, against racism, ethnic and religious hatred, and against recourse to chauvinism and xenophobia in politics and social life.” 32. The second applicant intended to attend the march and the meeting. 33. On 11 January 2010 the Moscow Security Department replied that, in accordance with the Public Events Act, the notification had to be submitted no earlier than fifteen days and no later than ten days before the intended public event. As the organisers had submitted their notification outside that time-limit, they were not allowed to hold the march and the meeting. 34. On 13 January 2010 the applicants challenged the decision of 11 January 2010 before the Tverskoy District Court. They submitted that the date of the meeting and the march was very important for them because it was the anniversary of the murders. No other date would have the same impact. The time-limit for lodging a notification fell between 4 and 9 January 2010. However, because of the New Year and the Christmas holidays, the days from 1 to 10 January were officially non-working days, so it was not possible to lodge a notification within the time-limit established by law. The applicants had accordingly lodged the notification on 24 December 2009, that is fifteen working days before the intended march and meeting. Any other interpretation of the domestic law would mean that no public events could be held in the period from 10 to 21 January every year. They also argued that the Moscow Security Department had not observed the three-day time-limit for a reply established by the domestic law. 35. On 27 February 2010 the Tverskoy District Court rejected the applicants’ complaints. It found that the decision of 11 January 2010 had been lawful. The applicants had not observed the time-limit for lodging a notification established by domestic law and were not therefore entitled to hold the march and the meeting. Moreover, given that they had later been allowed to hold a “picket” on the same day, their freedom of assembly had not been violated. 36. The applicants appealed. They reiterated their previous arguments and added that the “picket” approved by the authorities was not an adequate substitute for a meeting and a march. Firstly, the authorities had agreed to an event with 200 people attending instead of 400. And secondly, and more importantly, the use of sound amplifying equipment was not allowed during a “picket”, which had prevented the organisers and participants from making public speeches. 37. On 10 June 2010 the Moscow City Court upheld the judgment of 27 February 2010 on appeal, finding that it had been lawful, well reasoned and justified. 38. The three applicants are Mr Ponomarev (the first applicant), Mr Ikhlov (the second applicant) and Mr Udaltsov (the third applicant). 39. On 5 March 2010 the first and third applicants notified the Moscow Government of their intention to hold a march and a meeting on 20 March 2010. The aim was “to protest against violations of the civil and social rights of the residents of Moscow and the Moscow Region in the spheres of town planning, land distribution, environmental conditions, housing and communal services, and judicial protection”. The march was scheduled to start at 2.30 p.m. at Tverskoy Boulevard, from where the participants were to march to Pushkin Square. The notification stated that the participants would cross Tverskaya Street by the underground passage. A meeting would be held at Pushkin Square from 3.30 to 5 p.m. It was expected that 300 people would take part in the march and the meeting. The second applicant intended to attend the meeting and the march. 40. The Moscow Government forwarded the notification to the Moscow Transport Department, which concluded on 10 March 2010 that the march was likely to cause traffic delays and disrupt public transport when it crossed Tverskaya Street. It was therefore necessary to change the route of the march. The Moscow Transport Department then forwarded the notification to the Moscow Security Department. 41. On 12 March 2010 a deputy head of the Moscow Security Department proposed that the applicants should cancel the march and hold a meeting at Bolotnaya Square in order to “avoid any interference with the normal functioning of the public utility services, the activities of commercial organisations, traffic or the interests of citizens not taking part in public events”. 42. On 15 March 2010 the first and third applicants asked the Moscow Security Department either to propose an alternative route for the march or to agree to hold the meeting in Pushkin Square, in which case they were ready to forgo the march. They argued that the Moscow Security Department had not advanced any reasons in support of their finding that the march and the meeting might interfere with traffic or the activities of commercial organisations. They also noted that two meetings had recently been held in Pushkin Square and had not caused any disruption. 43. The Moscow Security Department replied that the march and the meeting in Pushkin Square had not been given official approval, and warned the applicants that measures would be taken to prevent them from holding the events. 44. On 15 March 2010 the applicants challenged the decision of 12 March 2010 before the Tverskoy District Court of Moscow. They submitted that the Moscow Government had not observed the statutory time-limit of three days for giving a reply and had failed to propose an alternative venue for the march. The Moscow authorities had not put forward weighty reasons for their proposal to cancel the march and change the venue of the meeting. Neither the march nor the meeting would have interfered with the normal life of the city if held at the location chosen by the applicants, because no blocking off of traffic would have been necessary. They reiterated that two meetings had recently been held in Pushkin Square with official approval; they had gone ahead without any trouble or disruption of normal life for residents. The applicants asked for an injunction for the Moscow Government to agree to the meeting and the march. They also requested that their complaint be examined before the planned meeting date. 45. According to the Government, the applicants’ complaint, sent by post, was received by the District Court on 19 March 2010. 46. At about 3.30 p.m. on 20 March 2010 about 300 people, including the applicants, gathered in Pushkin Square. The police issued a warning, through loudspeakers, that the meeting was unlawful and that the participants should disperse. The meeting was then dispersed by force by the police and many of those present were arrested. 47. On 9 April 2010 the Tverskoy District Court rejected the applicants’ complaints, finding that the decision of 12 March 2010 had been lawful. The text of the judgment did not contain any reply to the applicants’ argument that the Moscow Government had not observed the statutory timelimit of three days for a reply. 48. On 23 September 2010 the Moscow City Court quashed the judgment of 9 April 2010 on appeal and allowed the applicants’ complaints. It found that the District Court had not examined whether there existed a factual basis for the finding that the meeting and the march planned by the applicants would interfere with the normal life of the city. The Moscow Government had not submitted any evidence in support of that finding. The decision of 12 March 2010 had not therefore been well reasoned. At the same time, it was impossible to allow the request for an injunction to agree to the meeting and the march because the planned date had passed months ago. 49. On 20 October 2010 the Moscow Government lodged an application for supervisory review of the judgment of 23 September 2010. It argued that it had submitted evidence in support of the decision not to agree to the march and the meeting planned by the applicants, in the form of a letter from the Moscow Transport Department dated 10 March 2010 stating that the march might cause delays in public transport when it crossed Tverskaya Street. He further argued that it would be difficult for 300 participants to cross Tverskaya Street by the underground passage, which was always crowded with passers-by and street vendors. An alternative venue for the meeting had been proposed. 50. On 1 November 2010 the applicants submitted in reply that the march had been scheduled during a weekend, when vehicular and pedestrian traffic was insignificant. Crossing Tverskaya Street by the underground passage would therefore not have caused any inconvenience to passers-by or street vendors or their clients, or caused delays in public transport. In any event, traffic in the centre of Moscow was often blocked by the authorities to permit the staging of sports or cultural events. 51. On 12 November 2010 the Presidium of the Moscow City Court quashed the appeal judgment of 23 September 2010 and upheld the judgment of 9 April 2010 rejecting the applicants’ complaints. It found that the Moscow Government’s refusal to agree to the march and the meeting had been lawful and well reasoned. It would have been impossible for the participants in the march to cross Tverskaya Street by the underground passage, which was always crowded with passers-by and street vendors. The participants would therefore have had to cross the road, thereby delaying public transport. To protect the interests of citizens who did not take part in public events, the Moscow Government had proposed an alternative venue for the meeting, at the same time requiring the organisers to cancel the march. That decision had not violated the applicants’ rights. 52. According to the applicants, at the end of the hearing of 12 November 2010 only the operative part of the judgment had been read out by the bailiffs. The reasoned judgment had never been read out publicly and had been sent to the applicants by post on 16 March 2011. The applicants’ account was disputed by the Government, who submitted that the entire text of the judgment had been read out publicly at the end of the hearing. 53. The four applicants are Ms Yefremenkova (the first applicant), Mr Milkov (the second applicant), Mr Gavrikov (the third applicant) and Mr Sheremetyev (the fourth applicant). 54. The applicants are gay human rights activists. 55. On 15 June 2010 the applicants notified the St Petersburg Security Department of their intention to hold a Gay Pride march and a subsequent meeting on 26 June 2010, the anniversary of the start of the gay rights movement in the United States of America (“the USA”) on 26 June 1969. The march and the meeting were scheduled to take place in the centre of St Petersburg, with 500 to 600 people expected to attend. The aim was “to draw the attention of society to the violations of the rights of homosexuals, and the attention of society and the authorities to the widespread discrimination that exists against homosexuals and to homophobia, fascism and xenophobia”. 56. On 17 June 2010 the St Petersburg Security Department refused to allow the meeting and the march. It noted that the route chosen by the applicants was a busy road with many parked cars, and construction work was under way. The march might therefore obstruct road and pedestrian traffic and distract drivers, which might in turn cause road accidents. Moreover, another meeting had already been approved in the same place at the same time. Finally, the applicants’ meeting was scheduled to take place in the vicinity of the Constitutional Court building. In accordance with section 8 of the Public Events Act it was prohibited to hold public events in the vicinity of court buildings. The Security Department proposed that the applicants change the venue of their march and meeting, and warned them that if they failed to obtain the authorities’ approval for another venue they would not be entitled to organise the planned events. 57. On 18 June 2010 the applicants proposed two alternative venues for the march and subsequent meeting. They also informed the Security Department of their readiness to abandon the march and simply hold a meeting, and proposed a location for the meeting. 58. On 21 June 2010 the St Petersburg Security Department again refused to agree to the meeting and the march. It found that the venues chosen by the applicants were not suitable for the following reasons: one of the locations was not large enough to accommodate 600 people, and the participants would hinder access to a bus stop, a shop and a bicycle rental service. Moreover, “Youth Day” celebrations were planned in the nearby park. At another venue the march might obstruct the traffic and cause traffic jams on the road which government delegations and guests would be taking on 26 June 2010 to attend the celebrations of the 300th anniversary of the town of Tsarskoe Selo. Moreover, the march might hinder citizens’ access to their homes or shops. Lastly, on the same day the end of the school year would be being celebrated by students on the nearby campus. The third location proposed by the applicants was not suitable either, because celebrations to mark the end of the school year would be held there too. The Security Department proposed that the applicants change the venue of the march and meeting. 59. The first applicant was informed about that decision on the evening of 22 June 2010 and received a copy of it on the morning of 23 June 2010. 60. On 23 June 2010 the applicants proposed three new alternative venues to the St Petersburg Security Department, for either a march and a meeting or a meeting only. 61. On the same day the St Petersburg Security Department refused to approve the meeting and the march for a third time. It found that the applicant’s reply had been submitted outside the time-limit established by section 5 of the Public Events Act. That section provided that a reply to the authorities’ proposal to change the location of the event should be submitted no later than three days before the intended event. Having missed that deadline, the applicants were not entitled to hold the meeting and the march on 26 June 2010. 62. Despairing of obtaining official approval for a march and a meeting, on 22 June 2010 the applicants notified the Administrations of the Petrogradskiy, Tsentralniy, Moskovskiy and Vasileostrovskiy Districts of St Petersburg of their intention to hold a “picket” with the same aims on 26 June 2010. In each Administrative District a location was chosen to accommodate about forty participants. 63. On the same day the Petrogradskiy District Administration refused to agree to the “picket” because cultural and sports events were scheduled to be held at the location chosen by the applicants. Moreover, the applicants had not obtained the consent of the private sports complex in whose grounds the intended “picket” was to take place. The Moskovskiy District Administration refused to agree to the “picket” because a rock festival and a circus inauguration event were scheduled to take place at the location chosen by the applicants. The Vasileostrovskiy District Administration did not allow the “picket” because a film was scheduled to be shot in that district all day, including at the location selected by the applicants. Lastly, on 23 June 2010 the Tsentralniy District Administration also refused to agree to the “picket” because another (unspecified) event had already been approved at the same location and time as the applicants’ event. Each District Administration proposed that the applicants change the location or time of their “picket”. 64. On 26 June 2010 the Young Guard, the youth wing of the progovernment party United Russia, organised a meeting in support of “family and traditional family values”. That meeting was approved by the authorities and was held at one of the locations which, when proposed by the applicants for their Gay Pride march, had been rejected as unsuitable by the St Petersburg Security Department’s decision of 17 June 2010. 65. On 24 June 2010 the first applicant challenged the St Petersburg Security Department’s decisions of 17 and 21 June 2010 before the Smolninskiy District Court of St Petersburg. She complained that the Security Department had refused, for various reasons, to approve any of the venues proposed by the organisers for the march and the meeting. It was significant that the authorities alone were in possession of full and updated information about all construction work and other events planned in the city. That being so, the authorities themselves should have proposed a venue where the march and the meeting could take place. They had not, however, made any such proposal, confining their decisions to rejecting all the numerous locations proposed by the organisers. The first applicant also complained of discrimination on account of sexual orientation. 66. The first hearing was scheduled for 2 July 2010. 67. On that day the first applicant submitted additional arguments in writing. She complained that the Security Department’s decision of 23 June 2010 had been unlawful and had also not been well reasoned. She argued, firstly, that the applicants’ reply to the Security Department’s proposal to change the venue had been submitted within the three-day timelimit established by the Public Events Act. To be precise, it had been lodged on 23 June 2010, three days before the intended march, which was scheduled for 26 June 2010. Secondly, the applicants could not have replied earlier because they had not received the Security Department’s decision of 21 June 2010, requiring them to change the venue, until 23 June 2010. The first applicant further submitted that the reasons advanced by the Security Department in its decisions of 17 and 21 June 2010 had not been sufficient. The Security Department had referred to certain inconveniences that might be caused by the march and the meeting, such as obstructing the traffic, or to other events planned in the city on the same day. However, under section 12 of the Public Events Act it was the authorities’ responsibility to take steps to ensure that public order was respected and that public events could proceed smoothly, including by regulating or blocking traffic. She also referred to the Constitutional Court’s decision of 2 April 2009 (see paragraphs 255 to 259 below), which held that neither logistical difficulties that might be encountered by the authorities, nor a certain level of disruption of the ordinary life of citizens, could serve as a valid reason for refusing to approve a public event. 68. On 13 July 2010 the Smolninskiy District Court rejected the first applicant’s complaints. It found that the Security Department had provided reasons for its decisions of 17 and 21 June 2010 refusing to agree to the meeting and the march. Domestic law did not impose an obligation on an authority refusing to approve a location or time for a public event to propose an alternative location or time. As to the decision of 23 June 2010, the court found that it had also been lawful as the first applicant had missed the deadline for replying to the proposal to change the venue. She had not proved that she had been notified belatedly of the decision of 21 June 2010; the list of her incoming calls showing that she had indeed received a call from the Security Department late in the evening of 22 June 2010 could not serve as proof of the belated notification. Lastly, given that the Security Department had not banned the meeting and march planned by the first applicant, but had merely required her to change the venue, her freedom of assembly had not been breached. 69. On 30 August 2010 the St Petersburg City Court upheld the judgment on appeal, finding that it had been lawful, well reasoned and justified. 70. On different dates in August, September and November 2010 the first applicant challenged the refusals of the authorities of the Petrogradskiy, Tsentralniy, Moskovskiy and Vasileostrovskiy Districts of St Petersburg to allow the “pickets”, arguing that the refusals had not been substantiated by weighty reasons and that the district authorities had not proposed alternative venues for the “pickets”. She also complained of discrimination on account of sexual orientation. 71. On 6 October 2010 the Leninskiy District Court of St Petersburg held that the decision of 23 June 2010 of the Tsentralniy District Administration had been unlawful. It found that the other event to which the District Administration had referred in its decision was due to finish before the applicant’s “picket” was due to begin. The authorities’ refusal had not therefore been well reasoned. Further, relying on the Constitutional Court’s decision of 2 April 2009, the District Court found that, when refusing to approve a venue chosen by the organisers, the district administration had an obligation to propose an alternative venue. No other venue had been proposed, however. 72. On 18 October 2010 the Petrogradskiy District Court of St Petersburg held that the Petrogradskiy District Administration’s decision of 22 June 2010 had been unlawful. It found that the reasons advanced by the district authorities for their refusal to allow the “picket” at the location and time chosen by the applicants had been valid. In particular, it had been established that on 26 June 2010 the location in question was the meeting point for the departure of children to sports camps. An assembly in favour of homosexual rights “would not have furthered the development of their morals”. By contrast, the requirement to obtain the consent of the private sports complex in the grounds of which the intended “picket” was to take place had no basis in domestic law. Nor could concerns for public order and the safety of the participants serve as a valid reason for the refusal to allow the event, because it was the joint responsibility of the authorities and the organisers to guarantee public order and the safety of all involved. At the same time, the district authorities had not proposed an alternative location or time for the “picket”, which it was obliged to do pursuant to the Constitutional Court’s decision of 2 April 2009. The failure to propose an alternative location or time had deprived the first applicant of any opportunity to have the event approved. Lastly, the District Court noted that it was no longer possible to remedy the violation of the first applicant’s rights because the planned date had passed months earlier. On 25 November 2010 the St Petersburg City Court upheld that judgment on appeal. 73. On 24 November 2010 the Moskovskiy District Court of St Petersburg held that the decision of the Moskovskiy District Administration of 22 June 2010 had also been unlawful. Although the district authorities’ refusal to approve the location and time of the “picket” chosen by the applicants had been well reasoned, the district authorities had not fulfilled their obligation to propose an alternative location or time for the event. The court ordered the District Administration to propose a suitable alternative location and time for the “picket”. On 17 January 2011 the St Petersburg City Court upheld that judgment on appeal. 74. On 6 December 2010 the Vasileostrovskiy District Court of St Petersburg held that the decision of 22 June 2010 of the Vasileostrovskiy District Administration had also been unlawful. It found that the district authorities should have found out precisely at which locations the film shooting was scheduled to take place. Depending on that information, they should either have agreed to the “picket” being held at the location chosen by the applicants or have proposed an alternative location. 75. On 10 June 2011 the second, third and fourth applicants and Mr T. notified the Vasileostrovskiy District Administration of their intention to hold a Gay Pride march and a meeting on 25 June 2011, which 100 people were expected to attend. The aim of the meeting and the march was “to draw the attention of society and the authorities to the violations of the rights of gays, lesbians, bisexual and transgender people and to the need to introduce a statutory prohibition on discrimination on account of sexual orientation or gender identity”. 76. On 14 June 2011 the Vasileostrovskiy District Administration refused to agree to the march and the meeting. They found that the events would hinder the passage of pedestrians and vehicles and might also distract drivers, causing road accidents. Moreover, a guided tour of the district for children was planned on 25 June 2011 and the applicants’ meeting would disrupt it. The district authorities proposed another location for the meeting and the march, and informed the applicants that the area would be closed to traffic for their convenience. 77. On 16 June 2011 the applicants replied that the venue proposed by the district administration was unsuitable, because it was located in an industrial area among factories and warehouses and was difficult to reach. They proposed an alternative venue for the two events, which they said was separated from the road by a five-to-fifteen-metre-wide row of trees, which ruled out any risk of road accidents or hindrance to traffic. They would not be in the way of passers-by either, because there was a parallel pedestrian path which would remain free for passage. Lastly, the participants would cross the road at traffic lights, using a pedestrian crossing, which would make it unnecessary to close the area to traffic. 78. On 20 June 2011 the Vasileostrovskiy District Administration again refused to approve the venue chosen by the applicants, pointing out that work to install a temporary amusement park would be going on there. They also reiterated their arguments concerning the obstruction of traffic and the risk of road accidents. The district administration insisted that the applicants should organise the march and the meeting at the location proposed in the letter of 14 June 2011. 79. On 21 June 2011 the applicants agreed to hold the meeting and the march at the location proposed by the district authorities. 80. On the same day the Vasileostrovskiy District Administration refused to allow the march and the meeting at that location. The reason given was that the nearby power station was expecting a delivery of spare parts for boilers on 25 June 2011. The authorities proposed that the applicants choose another location for the march and the meeting. 81. On 12 September 2011 the third and fourth applicants challenged the Vasileostrovskiy District Administration’s decisions of 14, 20 and 21 June 2011 before the Vasileostrovskiy District Court of St Petersburg. They submitted that the reasons given by the district authorities for refusing to allow the meeting and the march were not convincing. They also complained of discrimination on account of sexual orientation. 82. On 14 November 2011 the Vasileostrovskiy District Court allowed the applicants’ complaints, finding that the Vasileostrovskiy District Administration’s decisions had not been well reasoned. It was the authorities’ and the organisers’ joint responsibility to ensure public order and the safety of participants and passers-by during the meeting and march. In their letter of 16 June 2011 the applicants had set out the measures they intended to take to avoid accidents and disruption to traffic. The district authorities had disregarded those arguments and insisted that the march should take place at a location of their choosing. However, before proposing that location the district authorities had not checked whether the location was suitable and available. As a result, when the applicants agreed to the location, the district authorities had refused to approve it, on the ground that it was unavailable. That refusal had been unlawful. The court ordered that the district administration give the meeting and the march planned by the applicants their approval. 83. On 12 January 2012 St Petersburg City Court examined the case on appeal. It quashed the decision ordering the Vasileostrovskiy District Administration to allow the meeting and the march, as the date scheduled for the events had passed months before. It was therefore no longer possible to remedy the violation of the applicant’s rights. The court upheld the remainder of the judgment of 14 November 2011, finding that it had been lawful, well reasoned and justified. 84. On 14 June 2011 the second, third and fourth applicants and Mr T. notified the St Petersburg Security Department of their intention to organise a Gay Pride march and a subsequent meeting on 25 June 2011 in the centre of St Petersburg, which 300 people were expected to attend. The aim of the meeting and march was the same as that of the events in the Vasileostrovskiy Administrative District. 85. On 15 June 2011 the St Petersburg Security Department refused to allow the meeting and the march, noting that along the route chosen by the applicants the pavement was narrow and the traffic heavy. The applicants’ march might therefore obstruct traffic and pedestrians and distract drivers, causing accidents. The proposed meeting venue was not suitable either, because a rehearsal for the Youth Day festivities would be taking place there on 25 June 2011. There was also a children’s playground nearby. The Security Department proposed that the applicants should hold the march and the meeting in the village of Novoselki, in the suburbs of St Petersburg. 86. On 20 June 2011 the applicants replied that the location proposed by the Security Department was unsuitable because it was located in a remote and sparsely populated village surrounded by a forest, 20 kilometres from the city centre. They proposed three alternative locations for the march and the meeting or for the meeting only and agreed to reduce the number of participants to 100 people. 87. On 21 June 2011 the St Petersburg Security Department again refused to approve the meeting and the march. A Harley Davidson motorbike parade was scheduled to take place at one of the proposed locations; the second location would be occupied by anti-drug campaigners; and the third location was not suitable because of landscaping work in progress there. The Security Department insisted that the applicants should hold the march in the village of Novoselki or propose another venue for approval. 88. On 12 September 2011 the third and fourth applicants challenged the St Petersburg Security Department’s decisions of 14 and 21 June 2011 before the Smolnenskiy District Court of St Petersburg. They complained that the refusals to allow the meeting and the march had not been substantiated by sufficient reasons. In particular, the police could have taken measures to control the traffic and thereby prevent road accidents. As to the Youth Day rehearsals, the motorbike parade and the anti-drug campaign, the Security Department could have proposed another time for the meeting and the march which would not have clashed with those events. The landscaping work had not been scheduled to last the entire day, so it would have been possible to organise the meeting after it was finished. The applicants further argued that any assembly in a public place inevitably caused a certain level of disruption to ordinary life. The public authorities and the population had to show a degree of tolerance towards peaceful assemblies in crowded places, because otherwise it would be impossible to hold an assembly at a time and location where it would draw public attention to social or political issues. Lastly, they submitted that the venue proposed by the Security Department was unsuitable because it was located in a sparsely populated area in the middle of a forest. It was therefore not the right venue to draw the attention of society and the authorities to the violation of homosexuals’ rights, because there would be no representatives of the authorities or the general public present. The applicants also complained of discrimination on account of sexual orientation. 89. On 3 October 2011 the Smolnenskiy District Court rejected the applicants’ complaints. The court held that domestic law did not impose any obligation on the authorities to submit evidence in support of their finding that the location chosen by the organisers was unsuitable. The reasons advanced by the authorities for refusing to approve a location were subjective and therefore not amenable to judicial review. It was significant that the St Petersburg Security Department had not banned the march and the meeting planned by the applicants. The proposal for a change of location had not breached the applicants’ rights. The applicants’ argument that the venue proposed by the Security Department was not suitable was unfounded. 90. On 12 January 2012 the St Petersburg City Court upheld the judgment on appeal, finding that it had been lawful, well reasoned and justified. 91. On 25 June 2011 the applicants participated in a Gay Pride march in the centre of St Petersburg. They were arrested and charged with the administrative offence of breaching the established procedure for the conduct of public events. 92. The five applicants are Mr Labudin (the first applicant), Mr Kosinov (the second applicant), Mr Khayrullin (the third applicant), Mr Grigoryev (the fourth applicant), and Mr Gorbunov (the fifth applicant). 93. On 28 April 2010 the first applicant, together with Mr O., notified the Kaliningrad Town Administration of their intention to hold a “picket” on 5 May 2010 from 5 to 6 p.m. on the pavement in front of the Kaliningrad Regional Interior Department headquarters. A hundred people were expected to attend. The aim of the event was to “support [President] Medvedyev’s national policy directed at fighting corruption, reforming the [police] system, detecting ‘werewolves in epaulettes’ (“оборотни в погонах”) and eradicating crime”. The other applicants intended to join in the “picket”. 94. On 30 April 2010 the Kaliningrad Town Administration refused to agree to the “picket”. They referred to the risk of terrorist acts during the Victory Day celebrations on 9 May and the days immediately preceding them, and proposed that the “picket” be held on any day after 9 May 2010. 95. On 5 May 2010 the first applicant and Mr O. agreed to postpone the event. They notified the authorities that it would be held on 14 May 2010 at the same location. 96. On 7 May 2010 the Kaliningrad Town Administration again refused to allow the “picket”. They pointed out that in recent times terrorist acts in the vicinity of police buildings, as well as other unlawful acts against police officers and members of the Federal Security Service, had become more frequent in Russia. Attempted terrorist acts had been committed by both professional terrorists and mentally unstable people. A “picket” in front of Department of the Interior headquarters might therefore be dangerous to the police and the participants. They proposed two alternative locations for the event. 97. On 11 May 2010 the first applicant and Mr O. replied that they considered the reasons given by the authorities for the change of venue unconvincing. No terrorist acts had ever been committed in the Kaliningrad Region. It was the responsibility of the police to prevent terrorist acts. They therefore insisted that the “picket” should take place in front of the Kaliningrad Regional Department of the Interior headquarters, but agreed to hold it across the road from the headquarters. They requested that the police take increased security measures to ensure the safety of the participants. 98. On 12 May 2010 the Kaliningrad Town Administration refused yet again to allow the “picket”. They noted that there was heavy traffic at the proposed location and maintained that the “picket” would block the passage of pedestrians. Moreover, given the risk of terrorist acts in the vicinity of buildings occupied by law-enforcement authorities, it would be impossible to ensure the safety of the event. They insisted that the “picket” should be held at one of the locations proposed by the authorities in their letter of 7 May 2010. 99. According to the Government, on the same day the first applicant was informed by telephone that he could come to the Administration headquarters to collect the Administration’s decision. According to the applicants, the first applicant received the decision of 12 May 2010 on 14 May 2010 in the afternoon. He therefore had no time to inform the participants that the event had not been given official approval. 100. Shortly before the beginning of the “picket”, which was scheduled to start at 5 p.m. on 14 May 2010, the first applicant was summoned to appear at the Kaliningrad Town Administration offices at 5 p.m. At the same time he was warned that if he went anywhere near the Kaliningrad Regional Interior Department headquarters he would immediately be arrested. The first applicant went to the Town Administration offices at the appointed time to discuss the organisation of the “picket”. 101. Meanwhile, at about 5 p.m. the third, fourth and fifth applicants went to the Kaliningrad Regional Interior Department headquarters as planned, where they were immediately arrested and taken to the Tsentralniy District police station, where they were held until the next morning. 102. The first applicant was later charged with organising an unlawful public event, an offence under Article 20.2 § 1 of the Administrative Offences Code. The third, fourth and fifth applicants were charged with disobeying a lawful order of the police to stop an unauthorised “picket”, and with breaching the established procedure for conducting public events, offences under Articles 19.3 § 1 and 20.2 § 2 respectively of the Administrative Offences Code. 103. By judgments of 25 and 28 June and 9, 12 and 13 July 2010 a Justice of the Peace of the 2nd Court Circuit of the Tsentralniy District of Kaliningrad discontinued the administrative proceedings against the applicants for lack of evidence of an offence. The Justice of the Peace found that the “picket” had not in fact taken place. There had been no mass gathering of people, waving of placards, public speeches or voicing of demands on issues related to political, economic, social or cultural life in the country or issues related to foreign policy. Although several people, unaware of the fact that the “picket” had not been approved, had indeed approached the Kaliningrad Regional Interior Department headquarters, they had been immediately arrested by the police. The applicants had not therefore organised or participated in an unauthorised public event and had not committed an offence under Article 20.2 §§ 1 and 2 of the Administrative Offences Code. Accordingly, the order of the police to stop an unauthorised picket and to leave the vicinity of the Kaliningrad Regional Interior Department headquarters had been unlawful and had breached the applicants’ freedom of movement. The applicants could not therefore be considered as having disobeyed a lawful order of the police and were not guilty of an offence under Article 19.3 § 1 of the Administrative Offences Code. 104. On 26 July 2010 the applicants challenged the Kaliningrad Town Administration’s refusals to allow the “picket” before the Tsentralniy District Court of Kaliningrad. 105. On 22 December 2010 the Tsentralniy District Court held that the Kaliningrad Town Administration’s refusals to agree to the “picket” had been lawful. The administration had found that the applicants’ “picket” might block the passage of vehicles and pedestrians and cause road accidents. It was also established that the Kaliningrad Regional Interior Department had warned the local authorities about the risk of terrorist acts and recommended that public events should not be authorised, especially at times when the police were busy ensuring public order at festive celebrations. The town administration had no legal obligation to verify that information. 106. On 23 March 2011 the Kaliningrad Regional Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified. 107. The four applicants are Mr Zhidenkov (the first applicant), Mr Zuyev (the second applicant), Ms Maryasina (the third applicant), and Mr Feldman (the fourth applicant). 108. On 5 March 2011 the second and third applicants notified the Kaliningrad Town Administration of their intention to hold a meeting on 20 March 2011 at Victory Square in the centre of Kaliningrad, which 500 people were expected to attend. The aim of the meeting was to protest against a police state and demand the resignation of Prime Minister Putin. 109. On 9 March 2011 the Kaliningrad Town Administration refused to allow the meeting, explaining that on 20 March 2011 Victory Square was to be cleaned after the winter. They proposed that the meeting be held in a park in a residential district. 110. On 10 March 2011 the third applicant replied that the location proposed by the administration was unsuitable because it was too far from the town centre and lacked visibility. She suggested two alternative venues in the town centre for the meeting. 111. On 11 March 2011 the Kaliningrad Town Administration replied that spring cleaning and refurbishment work was scheduled at both of the locations suggested by the third applicant, and insisted that the meeting should be held in the park proposed by the authorities in their letter of 9 March 2011. 112. On 14 March 2011 the third applicant reiterated that the location proposed by the administration was unsuitable. She then proposed holding a “picket” instead of a meeting and reducing the number of participants to fifty. She suggested two possible locations for the “picket”: Victory Square and another location in the town centre. 113. On 17 March 2011 the Kaliningrad Town Administration refused to agree to the “picket”, reiterating that Victory Square was being cleaned and explaining that landscaping work was being carried out at the other location suggested by the third applicant. They again insisted that the “picket” should be held in the park mentioned in their letter of 9 March 2011. 114. On the same day the third applicant reiterated her argument that the park was unsuitable and proposed yet another location for the “picket”. That proposal was not examined by the Kaliningrad Town Administration until 21 March 2011, when they again insisted that the “picket” should be held in the park they had proposed. 115. On 20 March 2011 the applicants went to Victory Square and saw that no cleaning or other work was in progress there. They therefore decided to organise a “gathering” (“собрание”) of about twenty people to protest against what they described as a police state. The gathering lasted for about an hour. According to the Government, the police issued a warning that the gathering was unlawful and required the participants to disperse. According to the applicants, no warning was given to the participants. The gathering was eventually dispersed by force. 116. On the same day the applicants were charged with breach of the established procedure for conducting public events, an offence under Article 20.2 § 2 of the Administrative Offences Code. 117. By judgments of 21, 25 and 26 April 2011 the Justice of the Peace of the 2nd Court Circuit of the Tsentralniy District of Kaliningrad found the applicants guilty as charged. She found that they had taken part in a gathering which had not received official approval from the authorities. Their argument that no approval was required for gatherings had no basis in domestic law. Section 7 of the Public Events Act provided that all events, except “gatherings” and “pickets” involving only one participant, required prior approval by the authorities (see paragraph 226 below). As the gathering of 20 March 2011 had involved more than one participant, the authorities’ approval had been required. However, the Kaliningrad Town Administration had refused to approve a meeting or a “picket” planned by the applicants, and no notification of a gathering had been submitted by them. The gathering of 20 March 2011 had therefore been unlawful. The Justice of the Peace ordered the first, second and fourth applicants to pay a fine of 500 Russian roubles (RUB, about 12 euros (EUR)) each, and the third applicant to pay a fine of RUB 1,000 (about EUR 24). The Justice of the Peace also warned the applicants that if they failed to pay the fines within thirty days they might be charged with non-payment of an administrative fine, an offence under Article 20.25 of the Administrative Offences Code, punishable with either a doubling of the fine or up to fifteen days’ administrative arrest. 118. The applicants appealed. They submitted that the Justice of the Peace had incorrectly interpreted section 7 of the Public Events Act. It was impossible to hold “a gathering involving one person”, as the Public Events Act defined a “gathering” as “an assembly of citizens” (see paragraph 219 below). It was therefore logical that the phrase “involving one person” referred to “pickets” only and did not concern “gatherings”. They were therefore not required to notify the authorities about the gathering. 119. By judgments of 20, 22 and 27 June and 6 July 2011 the Tsentralniy District Court of Kaliningrad upheld the judgments of 21, 25 and 26 April 2011 on appeal, finding that they had been lawful, well reasoned and justified. 120. On 27 October 2011 the Tsentralniy District Court of Kaliningrad found that the Kaliningrad Town Administration’s refusals to agree to the meeting and the “picket” had been lawful and well reasoned. On 18 January 2012 the Kaliningrad Regional Court upheld the judgment on appeal. 121. The four applicants are Mr Nagibin (the first applicant), Mr Yelizarov (the second applicant), Mr Batyy (the third applicant) and Ms Moshiyan (the fourth applicant). 122. The applicants are supporters of the “Strategy-31” movement. “Strategy-31” is a series of civic protests in support of the right to peaceful assembly guaranteed by Article 31 of the Russian Constitution. The protests are held on the 31st of every month with thirty-one days, in Moscow and about twenty other Russian cities, such as St Petersburg, Arkhangelsk, Vladivostok, Yekaterinburg, Kemerovo and Irkutsk. 123. “Strategy-31” was initiated by Mr E. Limonov, founder of the National Bolshevik Party and one of the leaders of The Other Russia, a coalition of opposition movements. It was subsequently supported by many prominent Russian human rights organisations, including the Moscow Helsinki Group, the Memorial Human Rights Centre, and other public and political movements and associations. 124. The applicants are the leaders of the Rostov-on-Don section of the movement. 125. On 2 June 2009 the first and third applicants notified the Rostovon-Don Town Administration of their intention to organise a “picket” from 7 to 9 p.m. on 12 June 2009 (Russia Day, a national holiday) in the centre of Rostov-on-Don, near the Lenin monument in front of the Rostov-on-Don Town Administration headquarters. About thirty people were expected to attend. The aim of the event was to protest against the ineffective economic policies of the Prime Minister, Mr Putin, and the resulting increase in unemployment, as well as against violations of press freedom, persecution of political prisoners, lack of independence of the judiciary, and lack of free elections and political pluralism. They intended to collect signatures in support of a petition calling on Mr Putin to resign. 126. On 4 June 2009 the Rostov-on-Don Town Administration refused to agree to the “picket” on the grounds that festivities would be taking place at the location chosen by the applicants. It further reasoned: “Your picket and your slogan ‘Russia against Putin’ might trigger a hostile reaction from the many supporters of one of the leaders of the Russian State and fuel unrest that might jeopardise the safety and health of the participants in the picket.” 127. The town administration further noted that there were reasons to believe that some of the participants in the meeting might commit breaches of public order, as had already happened at meetings held by other organisers. They therefore proposed that the applicants hold their “picket” near the Sports Centre. 128. On 8 June 2009 the first and third applicants agreed to hold the event near the Sports Centre. According to the applicants, they had accepted the authorities’ proposal because a rock concert had been scheduled near the Sports Centre at the same time, which would attract large numbers of people and thereby make their protest visible. 129. On the same day the Rostov-on-Don Town Administration refused to agree to the “picket”, noting that a rock concert was scheduled to take place in the Sports Centre. The area round the Sports Centre would therefore be occupied by the spectators and their cars. The authorities therefore proposed that the applicants hold their event from 3.30 to 5.30 p.m. According to the applicants, they were informed of that decision on 10 June 2009. 130. The applicants decided to cancel the “picket” because at that time the area near the Sports Centre would be deserted and few people could reasonably be expected to see it. Moreover, given that only two days remained before the planned event, the applicants had insufficient time to inform the participants and the mass media about the change of time. 131. The third applicant held a solo “picket” instead. Twenty minutes after the start of the solo “picket” he was arrested and taken to a police station. 132. On 3 September 2009 the first and third applicants challenged the Rostov-on-Don Town Administration’s decisions of 4 and 8 June 2009 before the Sovetskiy District Court of Rostov-on-Don. 133. On 25 September 2009 the Sovetskiy District Court of RostovonDon rejected their complaints, finding that the Rostov-on-Don Town Administration’s decisions had been lawful. By not replying to the authorities’ proposal of 8 June 2009 the applicants had failed to fulfil their obligation to cooperate with the town administration. Moreover, the applicants had not proved that their rights had been breached by the Administration’s decisions. On 19 November 2009 the Rostov Regional Court upheld that judgment on appeal, finding that it had been lawful, well reasoned and justified. 134. The applicants notified the Rostov-on-Don Town Administration of their intention to hold meetings in the centre of Rostov-on-Don, near the Lenin monument, on 31 October 2009, 31 March, 31 May, 31 July and 31 August 2010. 135. The Rostov-on-Don Town Administration refused to allow the meetings, giving the following reasons. The meeting of 31 October 2009 was not possible, because another event was planned at the same venue and time, and all other central locations were also occupied. As to the meeting of 31 March 2010, the town administration referred to heavy pedestrian traffic round the Lenin monument and the inconvenience the meeting would cause to the citizens. The meetings of 31 May and 31 August 2010 were not agreed to because “pickets” organised by the Young Guard, the youth wing of the pro-government party United Russia, were scheduled to take place near the Lenin monument on those same days. The meeting of 31 July 2010 was not approved because a gathering of members of the Liberal Democratic Party of Russia was planned at the same location and time. 136. On 18 October 2010 the first and second applicants notified the Rostov-on-Don Town Administration of their intention to hold a meeting from 6 to 7 p.m. on 31 October 2010 in the centre of Rostov-on-Don, near the Lenin monument, which fifty people were expected to attend. 137. On 19 October 2010 the Rostov-on-Don Town Administration refused to allow the meeting. They noted that another event was scheduled to take place at the same location and time. It therefore proposed that the applicants hold their meeting near the Sports Centre. 138. On 23 October 2010 the first applicant replied that the venue proposed by the Town Administration was unsuitable because it was located in a deserted area far from the town centre. He notified the town administration that they would like to take part in the other event near the Lenin monument, and asked for information about its aims and the names of the organisers. 139. On 28 October 2010 the Rostov-on-Don Town Administration replied that it was not possible to hold two public events at the same location, because the applicants’ meeting might disrupt the other event. They warned the applicants that if they held a meeting near the Lenin monument they might be charged with organising an unlawful public event. 140. At 6 p.m. on 31 October 2010 the applicants and other persons went to the Lenin monument, where a public event organised by the Young Guard, the youth wing of the pro-government party United Russia, was in progress. By 6.30 the Young Guard’s event was over. 141. According to the Government, the police issued a warning to those people who remained near the Lenin monument that their continuing meeting was unlawful and required the participants to disperse. The meeting was then dispersed by force by the police. 142. At about 6.45 the second and third applicants were arrested near the Lenin monument and taken to the Leninskiy District police station; they arrived there at 8.30 p.m. At the police station administrative arrest reports and administrative offence reports were drawn up. The administrative offence reports mentioned that the second and third applicants were charged with disobeying a lawful order of the police, an offence under Article 19.3 § 1 of the Administrative Offences Code. The second applicant was also charged with breach of the established procedure for the conduct of public events, an offence under Article 20.2 § 2 of the Administrative Offences Code. Afterwards the applicants were placed in a police cell, where they remained until 10.20 a.m. the next day. 143. On 1 November 2010 the Justice of the Peace of the 9th Court Circuit of the Pervomayskiy District of Rostov-on-Don found, by two separate judgments, the second applicant guilty of offences under Articles 19.3 § 1 and 20.2 § 2 of the Administrative Offences Code. He found that the second applicant had taken part in an unauthorised public event and had refused to obey an order by the police to follow them to a police station. He ordered the second applicant to pay a fine of RUB 2,000 (about EUR 47). By judgments of 24 November and 14 December 2010 the Pervomayskiy District Court upheld the judgments of 1 November 2010 on appeal. 144. On 1 November 2010 the Justice of the Peace of the 2nd Court Circuit of the Leninskiy District of Rostov-on-Don also found the third applicant guilty of an offence under Article 19.3 § 1 of the Administrative Offences Code, in that he had attempted to prevent the police from arresting the organisers of the unlawful public event, in particular by grabbing the police officers by their uniforms and screaming. The third applicant was ordered to pay a fine of RUB 500 (about EUR 12). The third applicant appealed. He complained, in particular, that his arrest and detention had been unlawful. On 16 December 2010 the Leninskiy District Court of Rostov-on-Don upheld the judgment of 1 November 2010 on appeal. It found, in particular, that the third applicant’s arrest and detention had been lawful under Article 27.5 of the Administrative Offences Code. 145. On 17 May 2011 the Pervomayskiy District Court of RostovonDon found that the Rostov-on-Don Town Administration’s refusals to approve the meeting planned by the applicants had been unlawful. Only ten people had been expected to attend the Young Guard event, while the applicant’s meeting had been attended by fifty people. There was sufficient space to accommodate both events near the Lenin monument. Moreover, the events overlapped in time only for half an hour, from 6 to 6.30 p.m. The Rostov-on-Don Town Administration’s argument that it was not possible to hold the two events at the same location was therefore unconvincing. Moreover, the location near the Sports Centre proposed by the Town Administration was indeed isolated and would not therefore permit the applicants’ meeting to attain its purposes. The District Court ordered the Town Administration to approve a meeting near the Lenin monument on a date to be chosen by the applicants. 146. On 14 July 2011 the Rostov Regional Court upheld the judgment on appeal. It however overturned the order to approve a meeting on a date to be chosen by the applicants, finding that such an order was contrary to the principle of separation of powers between the judicial and the executive. The District Court had thus unduly interfered with the executive’s discretion to approve public events provided by law. 147. On 16 December 2010 the first applicant notified the RostovonDon Town Administration of his intention to organise a “picket” on the theme “Russia against Putin”, from 6 to 7 p.m. on 31 December 2010 in the centre of Rostov-on-Don, near the Lenin monument, which fifty people were expected to attend. 148. On 17 December 2010 the Rostov-on-Don Town Administration refused to agree to the “picket”, on the following grounds: “The theme of the public event you plan to hold, “Russia against Putin”, aspires to create ... a negative image of a State official of the Russian Federation you allege is unpopular in Russia. This allegation is false and misleading for the population, as it contradicts the results of many all-Russia opinion polls according to which V. V. Putin inspires confidence in at least a majority of the polled citizens of the country. A picket with such a title would therefore amount to an action the sole purpose of which is to harm another person, which is contrary to Article 10 of the Civil Code of the Russian Federation”. 149. The town administration further added that the New Year tree had been put in place and the New Year fair was scheduled to take place at the location chosen by the applicant. The “picket” might thus interfere with the New Year celebrations and inconvenience the merchants. 150. On 24 December 2010 the first applicant agreed to change the theme of the event, notified the administration that it would be called “Strategy 31” and asked them to give it their approval. 151. On 27 December 2010 the Rostov-on-Don Town Administration refused to allow the “picket”. They found that by modifying the title the organisers had changed the purpose of the event, so a new notification should have been submitted. They also reiterated that no public events were possible near the Lenin monument until 14 January 2011 because of the New Year tree installed there and the New Year celebrations scheduled to take place nearby. 152. On 29 December 2010 the first applicant challenged the decisions of 17 and 27 December 2010 before the Pervomayskiy District Court of Rostov-on-Don. 153. On 31 December 2010 the Pervomayskiy District Court of Rostovon-Don found that the decision of 17 December 2010 had been lawful and had not violated the applicant’s rights. The sole purpose of a public event entitled “Russia against Putin” was to harm another person. By contrast, the decision of 27 December 2010 had been unlawful. The requirement to submit a new notification had no basis in domestic law. Moreover, no celebrations were scheduled to take place near the Lenin monument from 6 p.m. to 7 p. m. on 31 December 2010. The finding that the “picket” might hinder the New Year celebrations had therefore been unsubstantiated. No other valid reasons for the refusal to allow the “picket” had been given. 154. At 6 p.m. that same day the first applicant and some other people gathered near the Lenin monument. They were surrounded by many policemen, whose number considerably exceeded their own. 155. At about 6.30 p.m. the police gave the first applicant a written warning which, referring to the decision of 27 December 2010 by the Rostov-on-Don Town Administration, stated that the “picket” was unlawful and that the organisers might be therefore held liable for extremist activities. The first applicant showed the police the court judgment of 31 December 2010 by which the decision of 27 December 2010 had been overturned. The police replied that the judgment was not yet final and warned the participants that they would be arrested if they started to chant slogans or wave banners. The protesters were forced to end the “picket”. 156. On 11 January 2011 the first applicant appealed against the judgment of 31 December 2010. He argued that the town administration’s decision of 17 December 2010 had violated his freedom of expression by prohibiting him from criticising Prime Minister Putin. The town administration also appealed, arguing that its decision of 27 December 2010 had been lawful, as the “picket” could have caused the New Year tree to be knocked over and created a fire hazard. 157. On 28 February 2011 the Rostov Regional Court upheld the judgment of 31 December 2010 on appeal, finding that it had been lawful, well reasoned and justified. 158. On 16 March 2010 the second and fourth applicants notified the Rostov-on-Don Town Administration of their intention to organise a meeting from 6 p.m. to 7.30 p. m. on 31 March 2010 in the centre of Rostov-on-Don, near the Lenin monument, which fifty people were expected to attend. 159. On 18 March 2010 the Rostov-on-Don Town Administration refused to allow the meeting, because pedestrian traffic in the area was dense in the evening and the applicants’ meeting might cause inconvenient disruptions. They proposed that the applicants hold their meeting near the Sports Centre. 160. On 22 March 2010 the second and fourth applicants replied that the proposed venue was unsuitable because it was located in a deserted place far from the town centre. They asked the authorities how many participants they could bring together without obstructing pedestrian traffic near the Lenin monument. 161. On 25 March 2010 the Rostov-on-Don Town Administration declined to engage in dialogue on the question of freedom of assembly. 162. The first, second and fourth applicants challenged the RostovonDon Town Administration’s decision of 18 March 2010 before the Sovetskiy District Court of Rostov-on-Don. 163. On 27 July 2010 the Sovetskiy District Court of Rostov-on-Don rejected their complaint, finding that the decision of 18 March 2010 had been lawful. 164. On 6 September 2010 the Rostov Regional Court quashed the judgment of 27 July 2010 and remitted the case for fresh examination before the Sovetskiy District Court. 165. On 7 October 2010 the Rostov-on-Don Town Administration argued that the area around the Lenin monument was one of the most crowded places in the town. In the rush hour 30 to 70 people per minute passed by the Lenin monument. Some of them might be distracted by the applicants’ meeting, thereby hindering the passage of other pedestrians. Moreover, the applicants had distributed leaflets calling on the town’s population to take part in the meeting. The possibility could not be ruled out, therefore, that more than fifty people would attend the meeting. That might have created a danger for public safety. By contrast, the venue near the Sports Centre was larger and could therefore accommodate more participants without disrupting pedestrian traffic or jeopardising public safety. 166. On 3 November 2010 the Sovetskiy District Court allowed the second and fourth applicants’ complaints, finding that the decision of 18 March 2010 had been unlawful. The Rostov-on-Don Town Administration had not provided valid reasons for its proposal that the meeting venue should be changed. Moreover, they had failed to refute the applicants’ argument that the proposed location near the Sports Centre would not serve the purposes of the meeting. The court ordered the Rostovon-Don Town Administration to allow a meeting of fifty people near the Lenin monument from 6 p.m. to 7.30 p.m. on the 31st of the first month with thirty-one days following the entry into force of the judgment. The court rejected the first applicant’s complaints, however, finding that he had no standing to complain to a court because he had not signed the notification of 16 March 2010. His intention to participate in the meeting was irrelevant. It also rejected the applicants’ complaints about discrimination on the basis of political opinion. The fact that other meetings had been allowed at the same location was not sufficient to prove discrimination against the applicants. 167. On 20 January 2011 the Rostov Regional Court upheld the judgment on appeal. 168. On 22 February 2011 the applicants received a writ of execution. 169. On 16 March 2011 the applicants notified the Rostov-on-Don Town Administration of their intention to hold a meeting from 6 p.m. to 7.30 p.m. on 31 March 2011 in the centre of Rostov-on-Don, near the Lenin monument, to be attended by fifty people. They enclosed the writ of execution. 170. On 18 March 2011 the Rostov-on-Don Town Administration approved the meeting. 171. On 30 March 2011 the Interior Department of the Rostov Region, referring to the threat of terrorist or extremist acts, ordered the police to enclose the location near the Lenin monument with metal barriers, with two entry checkpoints. It further ordered that the participants in the meeting be searched with the aid of metal detectors. 172. On 31 March 2011 the police gave a written warning to the fourth applicant. It stated, in particular, that the meeting venue would be closed off with barriers. All participants would be searched at the entry checkpoints. If a person refused to be searched, he or she would not be allowed to enter the enclosed area. As the approved number of participants was fifty people, only fifty people would be allowed to enter. If more than fifty people tried to attend the meeting, the police would not let them in. 173. According to the applicants, the location near the Lenin monument was often used for meetings and other public events, but it was never fenced off on such occasions, and the entry of participants or passers-by was never restricted. 174. When the participants arrived at the Lenin monument at 6 p.m. they saw that the location had been fenced off with metal barriers. It is visible on the photographs of the event submitted by the applicants that police buses were parked along the barriers so that passers-by could not see what was going on in the enclosed area. Moreover, all passers-by were diverted by the police to another road. About 200 police officers were present. Although the enclosed area measured about 3,000 sq. m, only fifty people were allowed to enter and attend the meeting, after being searched at an entry checkpoint. According to the applicants, many would-be participants were not let in. 175. The first, third and fourth applicants complained to the Pervomayskiy District Court, claiming that the police had acted unlawfully and violated their freedom of assembly. In particular, the police were not entitled to limit the number of participants at the meeting. The venue near the Lenin monument could easily accommodate up to 800 people and the town administration had itself previously organised public events there with more than 100 participants. There was therefore no justification for limiting the number of participants to fifty people. Fencing the area off with metal barriers, blocking it with police buses, diverting the passers-by to other roads, searching the participants and not letting some of them in, had all also been unlawful and unjustified. The security measures taken by the police had made the meeting invisible to the public and thereby deprived it of its purpose. The reference by the police to the risk of terrorist attacks was unsubstantiated. There was no evidence that such a risk was higher on 31 March 2011 than on any other day. On 5 April 2011, for example, just five days later, an official public event had been held near the Lenin monument and the area had not been fenced off. 176. On 28 July 2011 the Pervomayskiy District Court rejected the applicants’ complaints. It found that the number of participants had been determined by the applicants themselves and had then been approved by a final judgment. The police had merely enforced that judgment, acting in accordance with the writ of execution. The enclosing of the venue had been justified by security considerations. The court also found that the first and third applicants had no standing to complain to a court, as they had not been parties to the judicial proceedings which had ended with the judgment of 20 January 2011 and had not been mentioned in the writ of execution. The fact that in the notification of 16 March 2011 they were listed as organisers of the meeting of 31 March 2011 was irrelevant. 177. On 22 September 2011 the Rostov Regional Court upheld the judgment on appeal, finding that it had been lawful, well reasoned and justified. 178. At 9.04 a.m. on 18 July 2011 the first, third and fourth applicants notified the Rostov-on-Don Town Administration of their intention to hold a meeting from 6 to 8 p.m. on 31 July 2011 near the Lenin monument in front of the Rostov-on-Don Town Administration building in the town centre. One hundred people were expected to attend. They specified that if that venue was already occupied they would agree to hold the meeting in front of the cinema fifty metres from the Lenin monument. The aim of the meeting was to protest against the violations by the town administration of the freedom of assembly guaranteed by Article 31 of the Russian Constitution, and against fraudulent practices in the elections to the State Duma. 179. On 20 July 2011 the Rostov-on-Don Town Administration refused to approve the meeting, stating that notification of another public event at the same location had already been submitted. The holding of two meetings at the same location might create tension and conflict. The authorities proposed that the applicants hold their meeting near the Public Library. 180. On 21 July 2011 the applicants replied that the Public Library was not a suitable venue, because it was too far away from the Town Administration, which was the target of their protest meeting. Moreover, the area in front of the Public Library was occupied by a large flowerbed and could not accommodate such a large meeting. It appears that they did not receive any reply. 181. On the same day, 21 July 2011, the applicants challenged the town administration’s decision of 20 July 2011 before the Pervomayskiy District Court of Rostov-on-Don, repeating the arguments stated in their letter of 21 July 2011 and adding that they had submitted their notification on the first day submissions were open, four minutes after the opening of the town administration offices. It was impossible for anyone else to have submitted a notification before them. As to the possible tensions with the people attending the other meeting, the applicants noted that on 31 May 2011 two meetings, each attended by a hundred people, had been held simultaneously near the Lenin monument without any trouble or incidents. 182. On 28 July 2011 the Pervomayskiy District Court found that the Rostov-on-Don Town Administration’s decision of 20 July 2011 had been unlawful. Firstly, the authorities had not proved that it was impossible to hold the two events simultaneously. A series of “pickets” organised by the Young Guard, the youth wing of the United Russia party, from 10 a.m. to 8 p.m. every day from 1 July to 15 August 2011, had been allowed by the town administration. There was however no information as to whether the “pickets” had been held as announced, that is for ten hours every day for a month and a half. In any event, according to the notification, the Young Guard’s “pickets” involved no more than twenty participants, while 100 people were to attend the applicants’ meeting. The venue near the Lenin monument had sufficient capacity to accommodate both events, especially taking into account that the applicants were willing to hold the event in front of the cinema, some distance from the Lenin monument. Secondly, the court found that the area outside the Public Library proposed by the town authorities, was not large enough to accommodate all the participants in the applicants’ meeting. A copy of that judgment was made available to the applicants on 2 August 2011. 183. On 31 July 2011 the applicants held a meeting near the Lenin monument, in spite of obstruction from the authorities and the police. 184. On 29 August 2011 the Rostov Regional Court quashed the judgment of 28 July 2011 and rejected the applicants’ complaint. It found that the Rostov-on-Don Town Administration’s decision of 20 July 2011 had been lawful and well reasoned. As another public event had been scheduled at the same time and place as that chosen by the applicants, the town administration had proposed using the area outside the Public Library. This was a busy location in the town centre. The applicants had not explained how the flowerbeds would prevent them from gathering there. 185. At 9.07 a.m. on 16 August 2011 the first and fourth applicants notified the Rostov-on-Don Town Administration of their intention to hold meetings from 6 to 8 p.m. on 31 August, 31 October and 31 December 2011, and 31 January and 31 March 2012, in the centre of Rostov-on-Don, near the Lenin monument, which one hundred people were expected to attend. They specified that the location near the Town Administration and the dates were important to them, and stated that if that location was occupied they would agree to hold the meetings in front of the cinema fifty metres from the Lenin monument. The aim of the meetings was to protest against violations by the town administration of the freedom of assembly guaranteed by Article 31 of the Russian Constitution, and against fraudulent practices in the elections to the State Duma. 186. On 18 August 2011 the Rostov-on-Don Town Administration refused to approve the meetings. Regarding the meeting of 31 August 2011, they noted that notification of another public event at the same location had already been submitted. The holding of two meetings at the same location might create tension and conflict. They therefore proposed that the applicants’ meeting be held near the Public Library. As to the remaining meetings, the Town Administration found that the applicants had submitted the notifications too early, outside the time-limits established by the law. 187. On 19 August 2011 the first and fourth applicants replied that the venue outside the Public Library was unsuitable because it was too far away from the town administration, which was the target of their protest meeting. It was also not large enough to accommodate a meeting of 100 people. It appears that they did not receive any reply. 188. The applicants then challenged the town administration’s refusal to approve the meeting of 31 August 2011 before the Pervomayskiy District Court of Rostov-on-Don, repeating the arguments stated in their letter of 19 August 2011 and adding that they had submitted their notification on the first day submissions were open, nine minutes after the opening of the town administration offices. It was impossible for anyone else to have submitted a notification before them. As to the possible tensions with the people attending the other meeting, the applicants noted that on 31 May 2011 two meetings, each attended by 100 people, had been held simultaneously near the Lenin monument without any trouble or incident. Finally, they complained that between October 2009 and July 2011 they had submitted eleven notifications, all of which had been rejected by the Rostov-on-Don Town Administration for various reasons. 189. On 26 August 2011 the Pervomayskiy District Court of RostovonDon rejected their complaints and found that the Rostov-on-Don authorities’ decision of 18 August 2011 had been lawful and well reasoned. Another person had notified the authorities of his intention to conduct a public opinion poll on 31 August 2011 at the same place and time. It was impossible to hold two public events simultaneously at the same place as altercations might arise between the participants. The alternative venue proposed by the authorities was a busy square in the town centre. It was large enough to accommodate the meeting and would serve the required purpose. 190. On 29 September 2011 the Rostov Regional Court upheld the judgment on appeal, finding it lawful, well reasoned and justified. 191. Meanwhile, also before the Pervomayskiy District Court, the applicants challenged the refusal to approve the meetings of 31 October and 31 December 2011 and 31 January and 31 March 2012. They complained that they had been subjected to discrimination on account of their political views. The Mayor of Rostov-on-Don was a member of the United Russia party. Events organised by that party or its youth wing had always been allowed to proceed. The Rostov-on-Don Town Administration had approved a series of “pickets”, to be held every day from 1 July to 15 August 2011, for a total of 460 hours, despite the fact that the notification had been submitted by the Young Guard outside the statutory time-limit. A similar notification submitted by the applicants concerning a series of “pickets” with a total duration of twenty hours, however, had been rejected by the town administration. 192. On 12 September 2011 the Pervomayskiy District Court rejected the applicants’ complaints as unsubstantiated. It found that the applicants’ notification was different from that submitted by the Young Guard, which concerned a single public event that lasted many days and was therefore allowed by law, while the applicants’ notification concerned a series of separate “pickets”, each of which required a separate notification to be submitted within the legal time-limit. The applicants had not observed that time-limit. There was therefore no evidence of discrimination on account of political opinion. It was also significant that the applicants were not members of any political party. 193. On 20 October 2011 the Rostov Regional Court upheld that judgment on appeal, finding it lawful, well reasoned and justified. 194. In October and December 2011 the applicants notified the Rostovon-Don Town Administration of their intention to hold meetings on 31 October and 31 December 2011 near the Lenin monument in the town centre. The authorities agreed to the meeting on 31 October, but not to the one on 31 December, because a New Year tree had been installed near the Lenin monument. 195. At 9.10 a.m. on 16 January 2012 the first applicant notified the Rostov-on-Don Town Administration of his intention to hold a meeting from 6 to 8 p.m. on 31 January 2012 in the centre of Rostov-on-Don, near the Lenin monument, which 150 people were expected to attend. He specified that the location and time were important to him, but if the location was already occupied he would agree to hold the meeting in front of the cinema, fifty metres from the Lenin monument. The aim of the meeting was to protest against violations by the Town Administration of the freedom of assembly guaranteed by Article 31 of the Russian Constitution, and against fraudulent practices in the elections to the State Duma. 196. On 18 January 2012 the Rostov-on-Don Town Administration refused to approve the meeting, because notification of a public event at the same location had already been submitted by someone else. The holding of two public events at the same location might create tension and conflict. They therefore proposed that the applicants’ meeting be held near the Public Library. 197. On 19 January 2012 the first applicant replied that the location near the Public Library was unsuitable and that it was important for him to hold the meeting in front of the Town Administration. He also stated that he had been the first to enter the town administration building on the morning of the first day of the time-limit. No one could have submitted a notification before him. 198. Having received no reply, on 25 January 2012 the first applicant challenged the Rostov-on-Don Town Administration decision of 18 January 2012 before the Pervomayskiy District Court, repeating the arguments set out in his letter of 19 January 2012. He also asked the court to examine the video recordings of the town administration building’s entrance cameras, which would prove that he had been the first to enter the building and submit a notification. 199. On 27 January 2012 a deputy head of the Rostov-on-Don Town Administration informed the first applicant that the entrance cameras had been switched off from 8.30 to 9.30 a.m. on 16 January 2012 for technical reasons. 200. On 30 January 2012 the Pervomayskiy District Court rejected the first applicant’s complaints. It found that Mr B. had submitted his notification before the first applicant had, at 9 a.m. As it was impossible to hold two public events at the same location, the town administration had agreed to Mr B.’s event and proposed an alternative venue to the first applicant. That venue was in a busy area of the town centre and therefore suited the purposes of the meeting. The decision of 18 January 2012 had therefore been lawful and well reasoned. 201. On 31 January 2012 the first applicant appealed. He submitted, in particular, that the town administration had not proved that Mr B. had lodged his notification before him. His request for the entry camera recording had been refused. He asserted that he had been the first to enter the administrative building on the morning of 16 January 2012 and to get an entry pass. He had not seen Mr B. at the reception. If Mr B., a member of the pro-government United Russia party, had been allowed to enter without an entry pass, that in itself showed discrimination on account of political opinion. He further submitted that Mr B.’s event, the purpose of which was to inform the population about various youth organisations in the region, was not a public event within the meaning of the Public Events Act and therefore did not require any notification or agreement. According to the applicant, it was possible for him to hold his meeting in front of the cinema at the same time as Mr B.’s information event near the Lenin monument. Referring to the Constitutional Court’s decision of 2 April 2009, he requested that his appeal be examined before the date of the intended meeting. 202. On 31 January 2012 the first applicant went to the Lenin monument at 6 p.m. and remained there for an hour. The location remained empty. Neither Mr B. nor anyone else was there to hold the information event approved by the town administration. 203. On 22 March 2012 the Rostov-on-Don Regional Court upheld the judgment of 30 January 2012 on appeal, finding that it had been lawful, well reasoned and justified. 204. The applicants notified the Rostov-on-Don Town Administration of their intention to hold meetings on 31 March, 31 May, 31 July and 31 August 2012. 205. The Rostov-on-Don Town Administration refused to give the meetings their approval, giving the following reasons. The meetings of 31 March and 31 July 2012 were not approved because public events organised by the Young Guard were scheduled to take place near the Lenin monument on the same days. The notification of the meeting of 31 May 2012 was not examined. The meeting of 31 August 2012 was not approved because celebrations of the start of the school year were to take place near the Lenin monument. 206. On 10 December 2012 the State Duma adopted at first reading a draft law which, in particular, prohibited adoption of children of Russian nationality by US citizens. 207. On 17 December 2012 the official daily newspaper Rossiyskaya Gazeta announced that the second reading was scheduled for 19 December 2012. 208. According to the applicant, he read on various online social networks that many people intended to stage solo “pickets” on 19 December 2012 in front of the State Duma to express their opposition to the draft law. The format of solo “pickets” was chosen because there was no longer time to observe the minimum statutory three-day notification period for other types of public events. 209. The applicant decided to hold his own solo “picket”, and at around 9.15 a.m. positioned himself, holding a banner, in the vicinity of the State Duma at some distance from other protesters. 210. According to the applicant, he was arrested by the police several minutes later and brought in a police van to the nearby police station. At 10.30 a.m. the police drew up a report stating that the applicant had been escorted to the police station so that a report on an administrative offence could be drawn up. An arrest report, drawn up at the same time, stated that the applicant had arrived at the police station at 10.30 a.m. The applicant made a handwritten note on both reports that he was in fact arrested at 9.30 a.m., when he was put into the police van. 211. At the police station the applicant was charged with participating in a public event held without prior notification, in breach of Article 20.2 § 2 of the Code of Administrative Offences. The report on the administrative offence indicates that the offence was committed at 10 a.m. The applicant made a handwritten statement that he could not have committed an offence at that time because he had been in the police van since about 9.30 a.m. 212. The applicant was released at 1.20 p.m. 213. On 15 January 2013 the justice of the peace of 369 Court Circuit of the Tverskoy District of Moscow convicted the applicant as charged and sentenced him to a fine of RUB 20,000 (about EUR 495). The justice of the peace found it established, on the basis of police reports, that the applicant had taken part in a “picket” involving fifty people. That “picket” had been unlawful, because no notification had been submitted by the organisers, as required by Russian law. The applicant had waved a banner, thereby attracting the attention of passers-by and journalists assembled for the occasion. He had not complied with the police order to stop picketing. 214. In his appeal statement the applicant complained, in particular, that his arrest had been unlawful. 215. On 20 February 2013 the Tverskoy District Court of Moscow upheld the judgment on appeal.
| 1 |
test
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001-167040
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ENG
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NLD
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ADMISSIBILITY
| 2,016 |
MUSTAFIĆ-MUJIĆ AND OTHERS v. THE NETHERLANDS
| 4 |
Inadmissible
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Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
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1. A list of the applicants is appended to this decision. The applicants are all represented by Ms L. Zegveld and Mr T. Kodrzycki, lawyers practising in Amsterdam. 2. Ms Mehida Mustafić-Mujić is the widow of the late Mr Rizo Mustafić. Ms Alma Mustafić and Mr Damir Mustafić are the daughter and son, respectively, of the late Mr Rizo Mustafić. Mr Hasan Nuhanović is the son of the late Mr Ibro Nuhanović and the brother of the late Mr Muhamed Nuhanović. 3. Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović died on or shortly after 13 July 1995 in what has come to be known as the Srebrenica massacre. 5. The Socialist Federative Republic of Yugoslavia (SFRY) was made up of six republics, Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. Slovenia and Croatia declared their independence from the SFRY on 25 June 1991 following referenda held earlier. Thereupon the Presidency of the SFRY ordered the JNA (Jugoslovenska Narodna Armija/Југословенска народна армија, or Yugoslav People’s Army) into action with a view to reasserting the control of the federal government. 6. Other component republics of the SFRY followed Slovenia and Croatia in declaring independence. Eventually only Serbia and Montenegro were left to constitute the SFRY’s successor state, the Federal Republic of Yugoslavia (FRY). Hostilities ensued, largely along ethnic lines, as groups who were ethnic minorities within particular republics and whose members felt difficulty identifying with the emerging independent states sought to unite territory that they inhabited with that of republics with which they perceived an ethnic bond. 7. By its Resolution 743 (1992) of 21 February 1992, the Security Council of the United Nations set up a United Nations Protection Force (UNPROFOR) intended to be “an interim arrangement to create the conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis”. Although UNPROFOR’s mandate was originally for twelve months, it was extended; UNPROFOR (later renamed UNPF, the name UNPROFOR coming to refer only to the operation in Bosnia and Herzegovina) continued in operation until late December 1995. Troop-contributing nations included the Netherlands. 8. Bosnia and Herzegovina declared independence on 6 March 1992 as the Republic of Bosnia and Herzegovina. Thereupon war broke out, the warring factions being defined largely according to the country’s pre-existing ethnic divisions. The main belligerent forces were the ARBH (Armija Republike Bosne i Hercegovine, or Army of the Republic of Bosnia and Herzegovina, mostly made up of Bosniacs and loyal to the central authorities of the Republic of Bosnia and Herzegovina), the HVO (Hrvatsko vijeće obrane, or Croatian Defence Council, mostly made up of Croats) and the VRS (Vojska Republike Srpske/Војска Републике Српске, or Army of the Republika Srpska, also called the Bosnian Serb Army, mostly made up of Serbs). 9. It would appear that more than 100,000 people were killed and more than two million people were displaced. It is estimated that almost 30,000 people went missing; in 2010, approximately one-third of them were still so listed. 10. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace (“the Dayton Peace Agreement”, adopted in Dayton, Ohio, USA) entered into force. 11. The bulk of the JNA withdrew from Bosnia and Herzegovina in May 1992, leaving behind units whose members were nationals of Bosnia and Herzegovina with their weapons and equipment. These became the backbone of the VRS. In its operations the VRS obtained the assistance of paramilitary units, most of which were composed of Serbs but some of which comprised non-Serbs including nationals of countries outside the former SFRY. 12. The municipality of Srebrenica in eastern Bosnia is constituted of a number of towns and villages, among them Potočari and the town of Srebrenica from which the municipality takes its name. Before the outbreak of the war its population was almost entirely Bosniac and Serb, Bosniacs outnumbering Serbs by more than three to one. It is now part of the Republika Srpska. 13. Being an obstacle to the formation of the Republika Srpska as a continuous territorial entity as long as it remained in the hands of the central government of the Republic of Bosnia and Herzegovina, Srebrenica came under VRS attack already in the course of 1992. 14. It appears that the central government of the Republic of Bosnia and Herzegovina refused to countenance any evacuation of Srebrenica’s civilian population, since that would amount to the acceptance of “ethnic cleansing” and facilitate the surrender of territory to the VRS. 15. On 16 April 1993 the Security Council of the United Nations adopted, by a unanimous vote, a resolution (Resolution 819 (1993)) demanding that “all parties and others concerned treat the eastern Bosnian town of Srebrenica and its surroundings as a safe area which should be free from any armed attack or any other hostile act.” 16. By July 1995 the Srebrenica “safe area” was an enclave surrounded by territory held by the VRS. It contained ARBH combatants, most of them disarmed, and civilians. The latter numbered in their tens of thousands, mostly Bosniacs; these included by then, in addition to the local residents, persons displaced from elsewhere in eastern Bosnia. 17. There was also an UNPROFOR presence within the enclave, nominally consisting of some four hundred lightly-armed Netherlands air-mobile infantry, known as Dutchbat (from “Dutch” and “battalion”). In fact, however, Dutchbat was under-strength by this time, troops returning from leave having been prevented by the VRS from rejoining their unit. In July 1995 Dutchbat’s leadership consisted of its commander, Lieutenant Colonel Karremans; its deputy commander, Major Franken; and other commissioned and non-commissioned officers including Warrant Officer Oosterveen who was in charge of personnel matters. 18. On 10 July 1995 the Drina Corps of the VRS attacked the Srebrenica “safe area” in overwhelming force, overrunning the area and taking control despite the presence of Dutchbat. 19. In the early afternoon of 11 July the VRS entered the town of Srebrenica meeting little resistance from either the ARBH or UNPROFOR. By this time the civilian population had left the town. A throng of civilians consisting of women, children and mostly elderly men were converging on the Dutchbat compound in the village of Potočari. The Dutchbat commander estimated the number of civilians inside the compound at 15,000. 20. At the UNPF Commander’s request, the acting UNPROFOR Commander then issued instructions to Dutchbat, ordering them to enter into negotiations with the VRS to secure an immediate ceasefire. He ordered Dutchbat to concentrate their forces in the Potočari compound and to “take all reasonable measures to protect refugees and civilians in [their] care”. He added that Dutchbat should “continue with all possible means to defend [their] forces and installation from attack”. This was “to include the use of close air support if necessary”. 21. That night, as meetings were taking place between the Dutchbat Commander and General Mladić, a column of Bosniac men, possibly numbering as many as 15,000, started to move out of the enclave in the direction of Tuzla. 22. In the morning of 12 July a meeting took place between General Mladić and Lieutenant Colonel Karremans. Among other matters discussed, General Mladić threatened to shell the Dutchbat compound in retaliation if air power was used against the VRS. He also demanded to see all the men between the ages of 17 and 60 because, as he alleged, there were “criminals” in the crowd gathered at Potočari and he would need to question each of them. It was also arranged that the civilian population would be transported by bus to Kladanj, the nearest town in the hands of the government of the Republic of Bosnia and Herzegovina. 23. In the early afternoon of the same day the VRS entered Potočari in force and the deportation of the civilians began, beginning with those outside the compound. VRS soldiers separated the men (between the ages of approximately 16 and 65) from the women, children and elderly who were allowed to board the buses. Major Franken instructed civilian representatives to draw up a list of all the men between the ages of 16 and 65 both inside and outside the compound. The resulting list eventually included 239 names. He later explained that his intention had been to forward the information to the International Committee of the Red Cross and other authorities, so as to keep track of the men. He also explained afterwards that he had protested to the VRS about the separation of the men from the others, but had relented upon being told that the men would not be harmed and would simply be questioned as prisoners of war in accordance with the Geneva Convention. 24. On 13 July 1995 Lieutenant Colonel Karremans was instructed by the UNPROFOR command in Sarajevo to ensure that Dutchbat left the enclave together with locally recruited United Nations staff. Lieutenant Colonel Karremans informed General Mladić accordingly. Lieutenant Colonel Karremans interpreted these instructions so as to include staff of the non-governmental organisation Médecins Sans Frontières. Major Franken drew up a list of the persons concerned, which came to comprise 29 names. It was later learned that the Médecins Sans Frontières leadership had given Major Franken the names of persons who were related to its staff members but who were not actually employed by that body for inclusion on that list, misrepresenting them as staff members. 25. Also on 13 July 1995 Dutchbat personnel in Potočari turned men out of the compound. Once the men had left the compound they were taken prisoner by the VRS. Dutchbat personnel later stated that they had believed the VRS would treat the men in accordance with the Geneva Conventions. 26. In the days that followed, Bosniac men who had fallen into the hands of the VRS were killed. Others managed to evade immediate capture and attempted to escape from the enclave; some succeeded in reaching safety but many were caught and put to death, or died en route of wounds, or were killed by landmines. It is now generally accepted as fact that upwards of 7,000, perhaps as many as 8,000 Bosniac men and boys died in this operation at the hands of the VRS and of Serb paramilitary forces. 27. The remains of the victims were buried in mass graves. In the years that followed, attempts were made to hide evidence of the massacre by re-burying remains in secondary mass graves in remote locations. 28. Mr Rizo Mustafić was employed by Dutchbat as an electrician. On 11 July 1995 he sought refuge on the compound in Potočari with his wife and children. Although he did not hold a United Nations identity pass, he was placed on the list of 29 locally recruited United Nations staff who would be allowed to leave with Dutchbat on account of the length of his service. Nevertheless, on 13 July 1995 Warrant Officer Oosterveen – who was unaware of the existence of the list of 29 – ordered Mr Rizo Mustafić to leave the compound with the other refugees. Warrant Officer Oosterveen was later reprimanded by Major Franken for this “incredibly stupid mistake”. 29. Mr Muhamed Nuhanović was the younger brother of the applicant Mr Hasan Nuhanović. The latter was at that time employed as an interpreter for Dutchbat and for that reason his name was on the list of 29 United Nations employees who would be evacuated with Dutchbat. It appears that Mr Muhamed Nuhanović had intended to join the column of Bosniac men breaking out on foot in the direction of Tuzla, but had changed his mind and sought the protection of Dutchbat on the compound at Potočari on the strong urging of Mr Hasan Nuhanović. Both Mr Hasan Nuhanović and Mr Muhamed Nuhanović asked Major Franken to place Mr Muhamed Nuhanović on the list of United Nations staff. Major Franken asked the battalion security and intelligence officer whether a UN pass could be made on the compound but was told that this was not possible: such passes came from the United Nations office in Sarajevo. Major Franken then refused to place Mr Muhamed Nuhanović on the list, reasoning that he would compromise the safety of legitimate United Nations staff members by including among their number a person who did not meet the relevant criteria. Major Franken ordered Mr Muhamed Nuhanović to leave the compound. 30. Mr Ibro Nuhanović, the father of Mr Hasan Nuhanović and Mr Muhamed Nuhanović, acted as the refugees’ representative and attended the meeting between Lieutenant Colonel Karremans and General Mladić on 12 July 1995. He was permitted for this reason by Major Franken to stay in the compound and leave with Dutchbat. However, when Mr Muhamed Nuhanović was ordered to leave the compound Mr Ibro Nuhanović elected to leave with him. 31. It is known that all three, Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović, were killed after having left the compound, either by VRS or by Serb paramilitary forces. Their remains were found buried in mass graves on various dates in 2007, 2010 and 2011. 32. On 5 July 2010 the applicants lodged a criminal complaint in writing with the public prosecutor (officier van justitie) to the Arnhem Regional Court (rechtbank). The complaint included a request for a criminal investigation to be initiated into the alleged complicity of Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen in genocide or alternatively in war crimes committed by the VRS against Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović. Their argument was that Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen had exposed the three men to the likelihood of death at the hands of the VRS in full awareness of their probable fate. The complaint made made reference to, inter alia, Articles 1 and 2 of the Convention. The public prosecutor acknowledged receipt on 12 August 2010. 33. On 31 August 2010 the applicants’ counsel, Ms Zegveld, wrote to the public prosecutor asking for the applicants to be allowed to make statements. On various dates in 2011 she submitted information including inter alia statements made by witnesses in the parallel civil proceedings (see below), and excerpts from the debriefing report (see paragraph 65 below) and the report of the Secretary General of the United Nations (see paragraphs 81-83 below). 34. On 17 November 2011 the public prosecutor wrote to Ms Zegveld informing her that the Public Prosecution Service (Openbaar Ministerie) had decided to enter into “particular reflection” (nadrukkelijke reflectie) on the results of the investigation up to that point with a view to deciding whether a full criminal investigation was called for. On 12 January 2012 this was followed up by a letter informing Ms Zegveld that a national reflection chamber (nationale reflectiekamer) had been appointed to consider the case. 35. On 7 May 2012 Ms Zegveld wrote to the public prosecutor stating that she had been contacted by the NOS (Nederlandse Omroep Stichting, Netherlands Broadcasting Foundation), a domestic public service radio and television broadcaster, who had apparently been informed that the reflection chamber had recommended that the prosecution go ahead. She asked the public prosecutor to confirm this. 36. On 9 May 2012 the NOS published a press item to the effect that the national reflection chamber had recommended the prosecution of Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen. The press item cited unnamed sources and added that the Public Prosecution Service was refusing to give any details. 37. On 7 June 2012 the public prosecutor confirmed to Ms Zegveld that the reflection chamber had expressed an opinion but declined to give any details. 38. On 11 July 2012 Ms Zegveld wrote to the public prosecutor complaining that two years had passed since the criminal complaint had been lodged and asking that a decision be taken. 39. On 7 March 2013 the public prosecutor wrote to Ms Zegveld informing her of his decision not to bring any prosecution. The reasoning on which this decision was based included the following: “In this matter, I have examined in depth the sources to which you refer in your criminal complaint as well as other sources for the presence of inculpating and disculpating material in relation to the complaint. An analysis has been made of the operational and factual context within which the impugned conduct has taken place and the legal framework within which this conduct must be considered. Important sources from which I have drawn are: the criminal complaint; the Srebrenica archive of the Regional Public Prosecution Service (arrondissementsparket) Eastern Netherlands (Arnhem) and the National Office of the Public Prosecution Service (parket-generaal); the account of the facts resulting from the Srebrenica debriefing (Feitenrelaas Debriefing Srebrenica) (22 September 1995); the defence report Debriefing Srebrenica (4 October 1995); the parliamentary letters concerning Srebrenica; the reports of the Secretary General of the United Nations (27 November 1995 and 12 November 1999); the final report and the hearings of the parliamentary committee of inquiry, Missie zonder Vrede (Mission without Peace) (2003); the NIOD report [NIOD Institute for War, Holocaust and Genocide Studies (NIOD Instituut voor Oorlogs-, Holocaust- en Genocidestudies, ‘NIOD’): Srebrenica: Reconstruction, background, consequences and analyses of the fall of a ‘safe’ area] (2002); the case-law of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) (among others, Krstić, Popović. Blagojević and Tolimir); the evidence given by, among others, members of the Netherlands armed forces before the ICTY; the evidence given in the [applicants’ parallel civil proceedings] against the Netherlands State; the correspondence of Hasan Nuhanović published in the daily newspaper Trouw. There has, at various times, been broad internal consultation on the results of the various parts of the investigation and the analyses and further investigative measures have been ordered and carried out. In the factual investigation no witnesses have been heard. The investigation was followed and monitored by a steering group consisting of members of the Regional Public Prosecution Service Eastern Netherlands, the National Organised Crime Prosecution Service (landelijk parket), the Public Prosecution Service at the Arnhem-Leeuwarden Court of Appeal (ressortsparket), and the National Office of the Public Prosecution Service.” The decision takes ten pages to describe the events leading up to and surrounding the fall of the Srebrenica enclave to the VRS and the deaths of Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović. It continues: “3. Criminal responsibility 3.1 General It must be noted at the outset that the (deadly) violence to which Rizo Mustafić, Ibro Nuhanović and Muhamed Nuhanović were exposed after they had left the compound on 13 July 1995 constitute conduct that can be qualified as one or more of the crimes penalised in the Genocide Convention (Implementation) Act (Uitvoeringswet Genocideverdrag) and the War Crimes Act (Wet Oorlogsstrafrecht) and also that these crimes were committed by the VRS. ... 3.2 Culpable involvement in the killing of the victims named in the criminal complaint Muhamed Nuhanović ... [Major] Franken, as deputy battalion commander, after a sub-list of the UNMO with names of local staff had been placed before him, struck out the name of Muhamed Nuhanović. He did so deliberately, because, as he later informed the Netherlands UNMO officer and Hasan Nuhanović, he did not wish any names to appear on that list of persons who did not hold a UN pass and did not belong to the local staff of an international organisation. [Major] Franken was entitled to consider the possibility that the VRS would check the convoy that was due to leave the compound with care – he had pertinent knowledge – and that in so doing they would discover that Muhamed Nuhanović was being evacuated unduly (ten onrechte) with the local staff. [Major] Franken has stated that he feared for the lives of the persons who did hold a UN pass, which might, in the event of [Muhamed Nuhanović’s] discovery, be in danger of VRS reprisals. In the given circumstances of that moment and the powerless position in which Dutchbat found itself, this weighing of interests is not unreasonable. Moreover, [Major] Franken did, as he could be expected to in the given circumstances, have the possibility to forge a UN pass on the compound checked. However, a staff officer of section S2 (intelligence and security) informed him that this was not possible, because only access passes could be made on the compound and not UN passes as well. In this actual and acute situation in which [Major] Franken was faced with a grave dilemma in which each of the choices to be made could cost the lives of one or two people, [Major] Franken weighed the interest of the local staff more heavily than that of Muhamed Nuhanović. He made a very difficult choice between these interests, but nonetheless one that can be condoned, after having had a possible alternative investigated. In this connection, it should be observed that [Lieutenant Colonel] Karremans had received from his line of command the instruction to negotiate with the VRS about the evacuation. In view of Dutchbat’s task – and the responsibilities thereto pertaining – [Lieutenant Colonel] Karremans and [Major] Franken gave their attention to the collective, more specifically to the position of the women, children, wounded, local staff in the service of the UN or other international organisations (for example Médecins Sans Frontières). He tried in vain to carry out these instructions by negotiating with Mladić about the evacuation in order that Dutchbat ensure the evacuation or accompany it. The position of Dutchbat to impose its will was however an impossible one, considering the events of that day and the preceding days. It turned out impossible to accompany or actually exercise any supervision, despite Dutchbat’s attempts, since attempts to do so were made impossible by the VRS. There was therefore no alternative course of action as regards the refugees in general, nor in respect of individual cases. The decision concerning the position of Muhamed Nuhanović was taken at a time when the evacuation of the refugees was still in full swing. Muhamed Nuhanović left the compound with the last of the refugees. The local staff that was in the service of the UN or other international organisations remained behind. The conduct of [Lieutenant Colonel] Karremans and [Major] Franken in relation to Muhamed Nuhanović must also be considered in this light. The involvement of [Lieutenant Colonel] Karremans was no more than indirect. It appears from the sources studied that he was aware that [Major] Franken had been approached with the request to allow Muhamed Nuhanović to remain on the compound. [Lieutenant Colonel] Karremans was aware that [Major] Franken had turned this request down. There are however no indications from which it would follow that [Lieutenant Colonel] Karremans was involved in the decision-making on this point. [Major] Franken’s decision was compatible with his instruction relating to the local staff that would in due course be evacuated together with Dutchbat. There was therefore no reason for [Lieutenant Colonel] Karremans to countermand [Major] Franken’s decision, the less so since this instruction as such was not contrary to any legal rule. It does not appear that [Warrant Officer] Oosterveen was aware of Muhamed Nuhanović’s presence on the compound and the decision-making regarding his position. I am of the view, on the above grounds, that there is no criminal reproach to be made against [Lieutenant Colonel] Karremans, [Major] Franken and [Warrant Officer] Oosterveen in this matter. Ibro Nuhanović As a member of the committee of representatives of the local population Ibro Nuhanović together with [Lieutenant Colonel] Karremans attended a meeting with Mladić. There, the impression was given that Ibro Nuhanović was entitled to safe passage. He was therefore permitted to remain on the compound to be evacuated together with Dutchbat. After [Lieutenant Colonel] Karremans had agreed with Mladić that local staff would be allowed to be evacuated with Dutchbat, he ordered his staff, in his capacity of battalion commander, to draw up a list with the names of local staff possessing a UN pass. In so doing he gave the instruction that only those employees enjoyed protected status. [Lieutenant Colonel] Karremans did not concern himself further with the composition of the list and was under the impression that Ibro Nuhanović had been granted safe passage. When Ibro Nuhanović made moves to leave the compound, it was brought to his attention by [Major] Franken that he had safe passage and could remain on the compound. Ibro Nuhanović did not wish to leave his wife and son alone and left the compound together with them. His wife and son did not have safe passage. It must be recognised that Ibro Nuhanović took this decision in dramatic circumstances. I realise that Ibro Nuhanović’s decision can be traced to [Major] Franken’s decision not to allow Muhamed Nuhanović to be evacuated together with Dutchbat. Since this decision by [Major] Franken – as I have set out above – does not incur any criminal reproach, Ibro Nuhanović’s decision to leave the compound and his consequent death cannot be impugned in a criminal sense to [Lieutenant Colonel] Karremans or [Major] Franken. As regards [Warrant Officer] Oosterveen, no involvement could be established in Ibro Nuhanović’s leaving the compound. In this respect, no criminal reproach attaches to him. Rizo Mustafić Also in respect of Rizo Mustafić, the gist of the [applicants’] reproach is that Rizo Mustafić left the compound by the fault of [Lieutenant Colonel] Karremans, [Major] Franken and [Warrant Officer] Oosterveen, because he could not be evacuated together with the battalion. [Warrant Officer] Oosterveen was given duties outside the compound on 12 July 1995. He was not aware that a list of names of local staff had been composed that in all probability included the name of Rizo Mustafić. In the morning of 13 July 1995 he met Rizo Mustafić on the compound more or less by coincidence. That meeting was brief and consisted only of Rizo Mustafić’s statement ‘We stay here’, to which [Warrant Officer] Oosterveen replied ‘That is not possible, everyone has to leave with the exception of UN staff’. That reply corresponded to his knowledge that the battalion command had given the instruction that only local staff possessing a UN pass could be evacuated with Dutchbat and that the other local staff was to be treated in the same way as the refugees. That instruction was not contrary to any legal rule. In the evening of 13 July 1995, after all refugees had left the compound, [Warrant Officer] Oosterveen told [Major] Franken about the meeting that morning with Rizo Mustafić. [Major] Franken took [Warrant Officer] Oosterveen to task for an immense blunder. [Major] Franken considered Rizo Mustafić to be a person who could count on special protection. That was when [Warrant Officer] Oosterveen first heard of the ‘list of 29’ and understood that Rizo Mustafić was on it. [Lieutenant Colonel] Karremans did not see Rizo Mustafić during those days. He only noticed Rizo Mustafić’s absence after 13 July 1995 and it surprised him that Rizo Mustafić had not remained on the compound. [Lieutenant Colonel] Karremans considered him to be a kind of permanent employee and had not realised that Rizo Mustafić did not possess a UN pass. As regards [Warrant Officer] Oosterveen, it appears that he only informed Rizo Mustafić of what he had understood from the information given by the battalion command. [Lieutenant Colonel] Karremans and [Major] Franken have displayed no conduct of criminal relevance in this matter. Accordingly, no criminal blame attaches to [Lieutenant Colonel] Karremans, [Major] Franken and [Warrant Officer] Oosterveen in respect of the killing of Rizo Mustafić either. On the basis of the events surrounding the departure of Rizo Mustafić from the compound I conclude that in the final analysis there must have been a dramatic misunderstanding.” and further includes: “The criminal complaint paints a picture in which [Lieutenant Colonel] Karremans, [Major] Franken and [Warrant Officer] Oosterveen removed the loved ones of your clients without any concern for their fate. On the basis of the results of the investigation into the facts, it is however possible to consider that this picture is not tenable: the interests and the safety of the refugees have at all times guided the decisions taken, in so far as that could safely be done within the framework in which the Dutchbat leadership had to discharge their duties.” 40. On 3 April 2014 the applicants lodged a complaint under Article 12 of the Code of Criminal Procedure (Wetboek van Strafvordering) about the failure to prosecute Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen. They complained that the time taken for the public prosecutor to come to a decision had been excessive; that the investigation had been flawed in that it had been limited to information already available to the public; that the applicants had not been sufficiently involved, and in particular that they had not been heard; that the opinion of the reflection chamber – which in their submission favoured prosecution – had been ignored; that the decision not to prosecute was politically motivated; and that substantive criminal law had been misapplied. 41. On 19 May 2014 the applicants wrote to the Court of Appeal (gerechtshof) challenging the presence of a military member in the chamber that was to decide their complaint and asked that the case be heard by a regular civilian chamber of the Court of Appeal. They cited the fear that a serving officer would lack independence from the Ministry of Defence. They alleged that the Ministry of Defence had in the past obstructed investigations that might have led to criminal proceedings against Dutchbat members at an earlier stage. 42. On 23 October 2014 the Challenge Chamber (wrakingskamer) of the Court of Appeal dismissed the challenge. It found that there was no objective reason to doubt the independence and impartiality of the military member. It also pointed out that if the prosecution of Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen were to be ordered by a civilian chamber of the Court of Appeal, the defence might well be in a position to challenge that order on the ground that it had not been given by a tribunal invested by law with the necessary competence. 43. On 28 August 2014 the public prosecutor who had earlier refused to order the prosecution submitted an official report (ambtsbericht). As relevant to the case, he argued that the Netherlands lacked jurisdiction within the meaning of Article 1 of the Convention, because as of 11 July 1995 “effective control” of the Srebrenica enclave had been exercised by the VRS not Netherlands armed forces. The length of the proceedings was acceptable given the sheer quantity of factual information to be examined and the painstaking consultation process that had taken place within the Public Prosecution Service. Information submitted by the applicants had been examined, as had information obtained by the Public Prosecution Service of its own motion; against the background of the information available there had been no perceived need for the applicants themselves to be heard in person. The opinion of the national reflection chamber was a purely internal document. The public prosecutor’s position was therefore that the complaint about his decision not to prosecute should be dismissed. 44. On 13 November 2014 a hearing took place before the Military Chamber of the Court of Appeal. The Military Chamber included as its military member an officer of the Royal Navy (Koninklijke Marine) holding titular flag rank and qualified for judicial office. 45. Two advocates general (advocaten-generaal) to the Court of Appeal submitted a position paper (standpunt) in which they endorsed the position of the public prosecutor that Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen were not criminally liable and stated the view that a prosecution was bound to end in an acquittal. 46. On 5 December 2014 the Military Chamber of the Court of Appeal gave an interlocutory decision finding that the file was incomplete. It reopened the investigation and ordered the Public Prosecution Service to add to the file the official record drawn up by the Royal Military Constabulary (Koninklijke Marechaussee) of statements taken from certain named Dutchbat members and the debriefing report of 22 September 1995. 47. On 26 January 2015 the applicants submitted written comments protesting that these documents had been deliberately drawn up so as to avoid any prosecutions but nonetheless highlighting particular statements contained in them. 48. On 29 April 2015 the Military Chamber of the Court of Appeal gave its decision dismissing the applicants’ complaint. Its reasoning, as relevant to the case before the Court, was the following (translation published by the applicants; emendations by the Court; footnotes omitted; emphasis in the original): “Procedural documents 3.1 Overview of the documents Both the original charges and the complaint are accompanied by many appendices. The written responses and pleadings from the lawyers of the Defendants have also been accompanied by many exhibits. The Advocates General have only submitted an official message from the Chief Public Prosecutor for the district Oost-Nederland [i.e. Eastern Netherlands] dated 28 August 2014. In addition, a great deal of relevant information is available in the public domain via internet. In particular, the Court of Appeal mentions the following information, but this list is not exhaustive: -the report entitled ‘Srebrenica: een “veilig” gebied’ (Srebrenica: a ‘safe’ area), from [NIOD], with the accompanying component studies; -the parliamentary documents on the subject of ‘Srebrenica’ (Lower House of Parliament, Parliamentary Years 1997-2003, 26 122); -documentation from the parliamentary enquiry into the course of events in Srebrenica (Lower House of Parliament, Parliamentary Years 2001-2003, 28 506); -statements made by witnesses before the International Criminal Tribunal for the former Yugoslavia (ICTY); -pronouncements [i.e. judgments] of the ICTY and the International Court of Justice (ICJ); -pronouncements in the civil cases brought by the Plaintiffs [i.e. the applicants] against the Kingdom of the Netherlands; -pronouncements in the civil case brought by the Mothers of Srebrenica Foundation [i.e. Stichting Mothers of Srebrenica] and others against the Kingdom of the Netherlands and the United Nations. The parties have also drawn on these sources; the Court of Appeal therefore feels at liberty to use such documentation in arriving at its decision. The following documents were also submitted by the Advocate General in response to the interim decision: -the testimony of witnesses 2nd Lieutenant R., Sergeant Major S., 1st Lieutenant K, [Warrant Officer] Oosterveen and Corporal D. given before the [Royal Military Constabulary] on 2 August 1995 (official record no. P13/1995-JD); - ‘The Account of the Facts in connection with the Srebrenica debriefing’, with appendices, dated 22 September 1995. Included with a letter from the lawyers for the Plaintiffs dated 26 January 2015 was also: -an email message dated 5 December 2015 from a person of unspecified sex who claims to be a Dutchbat III veteran and wishes to remain completely anonymous. ... Expediency 5. In his [advisory opinion], the Chief Advocate General notes that it is not, or insufficiently, evident what general interest would currently be served with the criminal prosecution of the Defendants. On behalf of the Plaintiffs, [the applicant’s counsel Mr] Sluiter has argued that this is an improper ground for non-prosecution. There is no scope for a discretionary dismissal, since International law obliges the Netherlands to prosecute the most serious crimes. The Court of Appeal agrees with [Mr] Sluiter that the margins for a discretionary dismissal are narrow in the case of very serious offences that have had a serious impact on the national or international rule of law. But International law does not permit the categorical exception called for by [Mr] Sluiter. Article 53 of the Statute of the International Criminal Court (ICC) describes the Prosecutor’s authority to institute a discretionary dismissal in so many words. If there are justifiable reasons to assume that an investigation would not be in the interests of a proper administration of justice, or if prosecution would not be in the interests of the proper administration of justice, the Prosecutor is at liberty to reject a request for an investigation or refrain from prosecution. The supervision of such a discretionary dismissal by the Pre-Trial Chamber is more strictly regulated than it is under Dutch criminal procedure, because - in the case of the ICC - a non-prosecution decision must first be confirmed by the Pre-Trial Chamber. Nonetheless, this does not affect the basic principle of policy-making discretion for the Prosecutor under the watchful eye of the Courts. Interim conclusion on the basis of the formal standpoints 6. All that which the Court of Appeal has considered and decided, leads it to the opinion that: -one the one hand there are no formal obstacles to prosecution, but -on the other hand, prosecution is by no means a foregone conclusion. The Court of Appeal must therefore consider the complaint on its own substantive merits. Substantive appraisal of the complaint ... 7.3.3 In the opinion of the Court of Appeal, the Public Prosecution Service could have carried out a more extensive investigation. A number of concrete possibilities to that end were summarized in [Ms] Zegveld’s letter to the acting Chief Public Prosecutor dated 25 July 2011. The question is then: should there have been a further investigation? 7.3.4 The Plaintiffs have submitted that when a crime causing a fatality occurs, Article 2 of the [Convention] obliges the Public Prosecution Service to institute an effective investigation on its own initiative. In the view of the Plaintiffs, based on [Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001], they should have been involved in that investigation. ... The Plaintiffs ... ascribe too broad a scope to the [Hugh Jordan judgment]. In that [judgment], the European Court of Human Rights said: ‘In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.’ The examples given are the right to be notified of a decision not to prosecute, and access to the case file. But that does not imply that they must be involved in the investigation. In addition, the jurisprudence [of] the European Court of Human Rights (on the obligation to institute an effective official investigation) always relates to deadly force exercised by public servants themselves. That is not the situation in this case. The primary and heaviest responsibility lay and lies [with] the Bosnian Serbs, not [with] Dutchbat in general or the Defendants in particular. In the opinion of the Court of Appeal, this does not mean that the Public Prosecution Service was not under an obligation to institute an effective investigation, but this circumstance does matter when appraising the criteria that such an investigation must satisfy. Whichever way you look at it, complicity in a statistically minor part of a crime cannot be compared with responsibility for the crime itself. 7.3.5 As the Plaintiffs themselves state, the facts of the Srebrenica drama have been thoroughly investigated in the past. They themselves cite the NIOD report, the investigation by the Van Kemenade Commission and the parliamentary enquiry. The Court of Appeal supplements this list with the investigations carried out by the [ICTY] in a large number of cases to date, and the information which became available during the civil proceedings, including - in particular - the statements of the Plaintiffs and Defendants themselves. In her letter of 7 March 2013, the Chief Public Prosecutor gives an overview of the sources referenced by the Public Prosecution Service. The Plaintiffs argue that the Public Prosecution Service’s investigation, on the basis of these sources, cannot be qualified as effective since it was based only on public information and cannot therefore (italicised by the Court [of Appeal]) lead to the identification and punishment of those responsible. The Court of Appeal is unable to follow the rationale of this argument. Historical and criminal investigations are not mutually exclusive; they overlap and can have a mutually beneficial effectiveness. On the basis of these sources, they were able to submit an extensive, detailed and argumented Complaint. It is perfectly clear who they had in their sights as suspects, and why. If the Public Prosecution Service had concurred with the Plaintiffs’ interpretation of the underlying facts, and with their standpoint with regard to the expediency of prosecution, it would certainly have proceeded to seek a prosecution on the basis of the material available. ... 7.4 Re c: defective decision-making The Plaintiffs are correct in contending that the Public Prosecution Service failed to explicitly include the advice of the National Reflection Chamber in its argumentation of the decision not to seek prosecution. It was under no obligation to do so, but it is detrimental to the depth and the testability of the ultimate decision. In particular, that failure somewhat obscures the judgement on the question of the expediency of prosecution. Accordingly, the Court cannot constrain itself to the generally requested limited judicial review of this aspect of the decision, but - if prosecution is technically feasible - it will need to supersede the Public Prosecution’s judgement by its own. 7.5 Re d: the feasibility of possible prosecution In contrast to its opinion-forming about the expediency of prosecution, the Court of Appeal must fully test the decision taken about the feasibility of prosecution. This means that the Court of Appeal must give thorough consideration to the facts and the context surrounding them. 7.6 For a good understanding, the Court of Appeal makes the following comments. Contrary to what the Plaintiffs seem to assume, a Complaint of this nature is not a two-party dispute between the Plaintiffs and the Public Prosecution Service. The Defendants are likewise party to these proceedings; they have the right to be shielded from frivolous prosecution for very serious offences. The [Military Chamber of the Court of Appeal] must take all these interests into account, and this calls for a more thorough testing than the Plaintiffs seem to advocate. ... War crimes and crimes against humanity; the executions ... 9.2 In appraising the Complaint, it is particularly important to ascertain whether any executions took place before the Plaintiffs’ family members left the compound and - if so - on what scale, and whether the Defendants knew about such acts at the moment when the Plaintiffs’ family members left the compound. 9.3 In the opinion of the Court of Appeal, the material available does not support the assumption that the Defendants knew about the executions which had taken place elsewhere. In that respect, it can be noted that most of those executions must have taken place after the Defendants’ family members left the compound on 13 July 1995. ... The crimes of which the Defendants are accused 11.1 Complicity in genocide The most far-reaching accusation that the Plaintiffs make against the Defendants is that the latter were complicit in the genocide committed by the Bosnian Serbs. As the Plaintiffs themselves acknowledge, the settled case law of the international criminal tribunals, and the [ICTY] in particular, [is] that complicity in genocide entails actual knowledge of the genocidal intention of the principal offenders. Conditional intent or recklessness is not sufficient. The Plaintiffs submit that the Dutch criminal courts will be less stringent. ... The [Military Chamber of the Court of Appeal] does not share the Plaintiffs’ standpoint. With their case law and legal precedents, the international tribunals, which - by virtue of their composition and the large number of cases they deal with - are the foremost experts with regard to the interpretation and application of international criminal law, have developed a stable and carefully deliberated system with regard to the various forms of participation in genocide. That case law is applied, without exception, to the suspects who are called to account for their involvement in crimes committed during the war in the former Yugoslavia before the [ICTY]. In the opinion of the Court of Appeal, this balance of the system would be disturbed if the Dutch criminal courts, which operate on the periphery of this large volume of cases, were to base their judgements on criteria that diverge from those used by the [ICTY]. With regard to a suspect, this would lead to an indefensible form of arbitrariness. The Court therefore opts to follow the judgement given by the [ICTY] on this point. There was no actual knowledge among the Defendants of the genocidal intentions of the Bosnian Serbs, a fact that the Plaintiffs also recognize. The Court of Appeal therefore considers conviction on the grounds of complicity to genocide to be impossible, and prosecution to be pointless. For that reason, and in that respect, the Complaint must be deemed rejected. 11.2 Complicity in war crimes and murder Alternatively, the Plaintiffs argue that the Defendants are guilty of complicity in war crimes or, as a further alternative, complicity in murder. Conditional intent - that is to say the conscious acceptance of a significant chance that someone’s actions will have a particular consequence - is sufficient as a basis for complicity in war crimes. Knowledge of the executions within Dutchbat, in particular the Defendants’ knowledge 12.1 From the statements they made to the [Royal Military Constabulary], it transpires that on 13 July 1995 1st Lieutenant K., , 2nd Lieutenant R. and Sergeant Major S. found the bodies of nine men, all aged approximately 40, in a meadow near a stream. They had all apparently been executed. 2nd Lieutenant R. took some photos at the scene with a disposable camera. 2nd Lieutenant R. has testified that he came across Defendant [Lieutenant Colonel] Karremans, by coincidence, and reported the discovery to him. [Lieutenant Colonel] Karremans’s reaction was lukewarm, and he said that he would report it up the chain of command. At approximately 16.00 hours on 13 July 2013, Private G. witnessed the execution of one person near the building that was known as the ‘White House’. News of his observation was said to have reached [Lieutenant Colonel] Karremans via the normal hierarchical channels. Defendant [Major] Franken remembers this report. 12.2 Defendant [Warrant Officer] Oosterveen, in the company of Corporal D., also saw nine or ten bodies in woodland near a stream at approximately 14.45 hours on 13 July 1995. According to Corporal D., it looked like a summary execution. Corporal D. took some photos of the situation with [Warrant Officer] Oosterveen’s camera. [Warrant Officer] Oosterveen afterwards discussed his findings with 2nd Lieutenant R.; In [Warrant Officer] Oosterveen’s opinion, it must have been two separate locations. The Account of the Facts also contains further observations which in all probability relate to executions : on p. 231 (12 July, afternoon, at the ‘interrogation houses’), on p. 235 (that may possibly be the same incident and/or the incident reported by Private G.), on p. 233 (12 July, the transport to a house of ten Muslim men between the ages of 30 and 50, the arrival of a lorry as evening fell followed by shots heard in the immediate vicinity of the house and the departure of the lorry), on p. 240 (13 July, when male refugees were taken out of sight and pistol shots were heard from the direction in which they had been taken). There are also a number of reports of shots, which were interpreted by the Dutchbat servicemen as being executions. Defendant [Warrant Officer] Oosterveen has declared that the servicemen who were in the compound in the evening and at night heard shots now and again. This was not the clatter of a battle, but shots spaced at intervals; to execute people. This was on 12 or 13 July. It was not necessary to report it, everyone could hear it. It is not apparent whether or not these findings were reported to battalion command. 12.3 Generally, the Account of the Facts includes a large number of reports of deaths that are not attributable to executions but are more likely to relate to the victims observed by 2nd Lieutenant R. or [Warrant Officer] Oosterveen and their companions. It is not clear whether those observations were reported to the Defendants. 12.4 The facts set out above correspond to those established by the Court of Appeal in The Hague during the civil proceedings brought by the Plaintiffs against the State118. In those proceedings, the Court of Appeal combined all these facts (as ‘the knowledge of Dutchbat’) to form the basis for its opinion that Dutchbat should not have sent the Plaintiffs’ family members away from the compound. In the opinion of the [Military Chamber of the Court of Appeal], this conclusion cannot be transferred ‘as is’ to the appraisal of the complex of facts on their merits under criminal law. The issue here is one of each Defendant’s personal responsibility, and the facts cannot simply be swept together. The situation is entirely different when establishing the civil responsibility of the State for the conduct and actions of Dutchbat. 12.5 On the grounds of the foregoing, the Court [of Appeal] feels that the following can be established in regard to the knowledge of the Defendants. -Defendant [Lieutenant Colonel] Karremans was aware of the findings of 2nd Lieutenant R. and his companions and of Private G. He also knew of the existence of the list of able-bodied men drawn up on [Major] Franken’s instructions. He was indeed aware of the segregated transport of the men. -Defendant [Major] Franken had instructed that a list be made of all the able-bodied men among the refugees in the compound. He knew about Private G.’s report, and he knew about the findings of 2nd Lieutenant R. or those of [Warrant Officer] Oosterveen. He was also aware of the segregated transport of the men. - Defendant [Warrant Officer] Oosterveen had himself reported the observations described in par. 12.2. He, too, was aware of the segregated transport of the men. The departure of the Plaintiffs’ family members from the compound Muhamed Nuhanović ... 13.4 Whatever the case, there is no indication that the knowledge gained by Defendant [Major] Franken extended any further than the facts set out in par. 12.5. The question to be answered is: should that knowledge not have made him realize that, after leaving the compound, Muhamed would have run a significant risk of being murdered. The Court of Appeal feels that that it not the case. There was no indication at all that Muhamed had acted as if he was a war criminal vis-à-vis the Bosnian Serbs, or that they might have been targeting him for any other reason. The Court of Appeal refers to the finding of the [ICTY] cited in par. 10.4 - and adopts that judgement - that a number of ‘opportunistic killings’ took place in Potočari, not murder on a large scale. They took place elsewhere and - more importantly - at a later time. On the basis of the foregoing, the Court of Appeal is of the opinion that it is highly unlikely that a criminal court dealing with the case at any later date would convict Defendant [Major] Franken. For that reason, and in that respect, the Complaint should also be rejected. 13.5 For the sake of completeness, and strictly speaking superfluously, the Court of Appeal will discuss the emergency situation invoked on behalf of Defendant [Major] Franken. In short, [Major] Franken would not risk allowing Muhamed to pass through as a local employee, something he knew to be untrue, because this might endanger the evacuation of the other local employees. On the basis of his experience that the VRS inspected convoys meticulously, and knowing that every detail had to be completely correct, he assumed that he would be taking an enormous risk when the VRS carried out its almost inevitable inspection and found someone with no valid papers or papers that were questionable. ... 13.5.5 In the opinion of the Court of Appeal, there is a very good chance that a criminal court dealing with the case at any later date would uphold the claimed emergency if the opportunity arose. Dutchbat servicemen and any other person left in the compound were completely dependent on the VRS. The idea that Muhamed would have been safe there as long as the UN flag was raised, as Plaintiff Nuhanović claimed during the hearing, is not realistic. As evidenced by the taking over of the observation posts, the VRS had no respect at all for that flag; they came into the compound as and when it suited them, and they carried out meticulous inspections. In the Court’s opinion it would indeed have been critically dangerous if the VRS had discovered that Dutchbat had tampered with a list of employees. Seen in that light, the Court of Appeal therefore concludes that it is not of decisive importance whether or not it would have been possible to make a UN pass for Muhamed on site; despite having been discussed at length between the parties, this is not a question to which a clear-cut answer can be given. Bearing in mind that the complaints procedure is also designed to ensure that defendants are shielded from frivolous prosecution, this would be a further reason to reject the Complaint. 13.6.1 Insofar as the Plaintiff accuses Defendant [Lieutenant Colonel] Karremans of complicity in the offences committed by Defendant [Major] Franken, the comments made above in respect of [Major] Franken apply by analogy. Ibro Nuhanović ... 14.3 It has been established that Ibro Nuhanovic could have remained in the compound, and left together with Dutchbat. Defendant [Major] Franken explicitly told him so. Under the difficult circumstances of that moment, Ibro chose to leave together with his wife and youngest son. That was a brave decision, one for which he deserves to be respected. But in the opinion of the Court of Appeal, it was indeed his decision, and it was not an inevitable one. He could have remained, as did the Plaintiff. It is distressing to note, but he must have had a good idea of what awaited himself and his family, and known that he would be unable to save his son by going with him. 14.4 In the civil proceedings, the Court of Appeal in The Hague decided that the State had not acted unlawfully vis-à-vis Ibro, but that his death was imputable to the State as a result of unlawful actions vis-à-vis Muhamed. Whatever the case may be, there are insufficient grounds to hold the Defendants responsible under criminal law. 14.5 For that reason, and in that respect, the Complaint should also be rejected. Rizo Mustafić ... 15.3 The Court of Appeal is of the opinion that [Warrant Officer] Oosterveen made a stupid mistake which had terrible consequences. But the Court can find no evidence of intent, neither direct nor indirect. In the opinion of the Court of Appeal, the Plaintiffs’ assertions with regard to a duty of care and the failure to verify Mustafić’s status would justify, at best, a prosecution for negligent homicide. But such an offence is already statute-barred because of the passage of time. 15.4 Insofar as the Plaintiffs argue that [Warrant Officer] Oosterveen should have told absolutely no-one that he had to leave the compound, that which the Court of Appeal considered and decided under par. 13.5 applies by analogy, assuming that [Warrant Officer] Oosterveen believed in good faith that Mustafić had no special right to remain in the compound. 15.5 The circumstance that the civil court held the State liable for the fact that ‘Dutchbat’ erroneously sent Mustafić away, does nothing to alter this standpoint. Under civil law, an employer can certainly be held liable for mistakes, even stupid mistakes, made by his employees, while the employee himself may not be liable under criminal law. 15.6 The punishability [i.e. criminal liability] of Defendants [Lieutenant Colonel] Karremans and [Major] Franken on the basis of [section] 9 of the War Crimes Act is not at issue, because [Warrant Officer] Oosterveen cannot be accused of any of the offences listed in [section] 8 of the same Act. Moreover, this was not a question of intentionally allowing some offence to be perpetrated. 15.7 The Court of Appeal responds as follows, insofar as the Plaintiffs accuse [Lieutenant Colonel] Karremans and [Major] Franken that they acted in violation of their legal duty by failing to draw up a watertight evacuation plan. In the first place, no plausible evidence of any kind has been put forward to show that Mustafić was the victim of an administrative failure. His name was certainly on the correct list. People cannot be prevented from making stupid mistakes, neither in a civilian organisation nor in the military; in this case, [Warrant Officer] Oosterveen made the mistake of interfering in a matter which did not concern him and about which he had insufficient information. In the second place, even if this were to be different, the maximum possible offence for which Defendants [Lieutenant Colonel] Karremans and [Major] Franken could have been prosecuted would have been negligent homicide. 15.8 On the grounds of the foregoing, and in that respect, the Complaint should be rejected. Final conclusion 16. Given the above considerations, all components of the Complaint should be rejected.” 49. In anticipation of civil proceedings which he intended to bring against the State of the Netherlands, Mr Hasan Nuhanović sought and obtained from the Regional Court of The Hague an order for a preliminary hearing of witnesses (voorlopig getuigenverhoor). Warrant Officer Oosterveen, Major Franken and Lieutenant Colonel Karremans gave evidence under oath or affirmation. None of them refused to answer any questions. Other witnesses included Major General Van Baal (by this time Lieutenant General Van Baal, Inspector General of the Armed Forces (Inspecteur-Generaal der Krijgsmacht)), who in 1995 had been the deputy commander of the Royal Army (plaatsvervangend bevelhebber der landstrijdkrachten); Dr J.J.C. Voorhoeve, who had been Minister of Defence (Minister van Defensie) at the relevant time; and Major De Haan of the Netherlands Royal Army (Koninklijke Landmacht), who had been present in the capacity of United Nations military observer (UNMO). 50. The Mustafić family and Mr Hasan Nuhanović each brought civil proceedings against the State of the Netherlands. They submitted that the State was accountable for the actions of Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen that had led to the deaths of Mr Rizo Mustafić and Mr Ibro Nuhanović and Mr Muhamed Nuhanović, respectively. 51. The two cases were considered in parallel, first by the Regional Court of The Hague and then by the Court of Appeal of The Hague. 52. At first instance, the Regional Court held that the matters complained of were imputable to the United Nations alone. Dutchbat had been under United Nations command and control; furthermore, the events complained of had taken place in Bosnia and Herzegovina, a sovereign State over which neither the United Nations nor the Netherlands had jurisdiction. 53. The Mustafić family and Mr Hasan Nuhanović appealed to the Court of Appeal of The Hague. 54. The Court of Appeal delivered two interlocutory judgments on 5 July 2011 (ECLI:NL:GHSGR:2011:BR0132 (Mustafić) and ECLI:NL:GHSGR:2011:BR0133 (Nuhanović)). In both cases it found, inter alia, that regardless of whether Dutchbat could, or should, have saved any other men, the State had committed a tort (onrechtmatige daad) by requiring Mr Rizo Mustafić and Mr Muhamed Nuhanović, respectively, to leave the compound instead of allowing them to be evacuated as UN staff. As relevant to the case now before the Court, the State had failed to prove, firstly, that possession of a UN pass was a necessary condition for safe passage out of the enclave; and secondly, that the State had failed to prove that such a pass could not have been created on the compound. As regards Mr Ibro Nuhanović, the Court of Appeal recognised that it had been his own decision to leave the compound with his son, but that decision was an understandable consequence of forcing Mr Muhamed Nuhanović to leave and therefore also attributable to the State. In finding that these actions constituted torts attributable to the State, the Court of Appeal applied the law of the Republic of Bosnia and Herzegovina. 55. The Court of Appeal ordered the hearing of witnesses on a point of procedure not relevant to the case before the Court. 56. In two essentially identical judgments on the merits delivered on 26 June 2012 (LJN BW9014 (Mustafić) and ECLI:NL:GHSGR:2012:BW9015 (Nuhanović)), the Court of Appeal overturned the judgments of the Regional Court and held the Netherlands State liable in tort for the damage caused to the appellants as a result of the deaths of their relatives. 57. The State lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). 58. On 6 September 2013 the Supreme Court delivered two judgments (Nuhanović, ECLI:NL:HR:2013:BZ9225, and Mustafić-Mujić and Others, ECLI:NL:HR:2013:BZ9228) dismissing the State’s appeal and holding obiter dictum that the responsibility of the State under Article 1 of the Convention was engaged. 59. A plurality of investigations and reports into the Srebrenica massacre and the events surrounding it was officially ordered. Those most relevant to the case before the Court are described below, together with the official or political reactions to them. 60. After the battalion had returned to the Netherlands, its members were individually debriefed. The instruction to the officer in charge of the debriefing was to hear all Netherlands service personnel who had been present in the Srebrenica enclave between 6 and 21 July 1995 individually, the discussions to focus on all possible indications of war crimes and military-operational aspects, and the opportunity was to be offered to present matters not strictly belonging to either of those categories. 61. Twenty-five debriefing teams were formed, most of which consisted of both Royal Military Constabulary (Koninklijke Marechaussee) and Royal Army (Koninklijke Landmacht) members. Four debriefing teams consisted of Royal Army members only. They interviewed 451 individuals between late August and the end of September 1995. 62. Individual service personnel were informed beforehand that the information concerning their personal experiences would be permanently classified confidential (Staatsgeheim confidentiëel) and that their personal debriefing reports would never be made accessible to their colleagues and commanders. 63. The officer in charge of the debriefing team reached a prior agreement with the public prosecutor of the Arnhem Regional Court (rechtbank) that the debriefing team would not report any criminal acts that came to their knowledge. However, individual service personnel were informed beforehand that the debriefing team might forward to THE ICTY any statements reflecting violations of international humanitarian law which they had observed. 64. Of the statements collected, 212 were forwarded to NIOD for use in the report then under preparation (see below). 65. A condensed and anonymised summary of findings (Feitenrelaas, “Account of the facts”) was transmitted to the Lower House of Parliament by the Minister of Defence (Lower House of Parliament, Parliamentary Year 1999-2000, 26 122, no. 18). In the covering letter, the Minister stated that the Board of Procurators General (College van procureurs-generaal) had decided on the information available that no prosecutions or further criminal investigations were required. 66. In a decision given on appeal on 19 January 2011 (ECLI:NL:RVS:2011:BP1317), the Administration Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) held that the Minister of Defence was not obliged under the Government Information (Public Access) Act (Wet Openbaarheid van Bestuur) to publish the actual statements made by individuals. 67. In November 1996 the Netherlands Government commissioned the State Institute for War Documentation (Rijksinstituut voor Oorlogsdocumentatie, “RIOD”) to investigate “the events before, during and after the fall of Srebrenica”. The purpose was that the materials thus collated should provide “insight into the causes and events that had led to the fall of Srebrenica and the dramatic events that followed”. 68. The report was presented on 10 April 2002 by RIOD’s successor institution, the NIOD Institute for War, Holocaust and Genocide Studies (NIOD Instituut voor Oorlogs-, Holocaust- en Genocidestudies, a body born of a merger between the Netherlands Institute for War Documentation (Nederlands Instituut voor Oorlogsdocumentatie) and the Centre for Holocaust and Genocide Studies (Centrum voor Holocaust- en Genocide Studies)). In the original Dutch it runs to 3,172 pages not including appendices. An English-language version (entitled Srebrenica: Reconstruction, background, consequences and analyses of the fall of a ‘safe’ area) exists. It is intended to be a historical account, not to offer political conclusions or judgments. 69. It is stated in the introduction to the report that the Netherlands Government granted NIOD access to all the source material in its possession (including minutes of Cabinet meetings) and Government employees were relieved of their duty of secrecy. NIOD obtained information, most of it unclassified, from foreign government sources. It attempted, with mixed success, to obtain information from authorities of countries and entities in the former SFRY. It also made use of statements by eyewitnesses including, among others, Dutchbat members and survivors of the massacre. 70. The events surrounding the departure of Mr Rizo Mustafić and Messrs Ibro and Muhamed Nuhanović from the compound at Potočari are described in detail. Persons interviewed included, among others, Lieutenant Colonel Karremans, Major Franken and Mr Hasan Nuhanović; documentary information referred to includes letters written by Mr Hasan Nuhanović to figures in Netherlands public life. 71. The findings contained in the NIOD report induced the incumbent Government to take political responsibility. On 16 April 2002 it announced its resignation. 72. On 16 December 2015 the Minister of Defence informed the Speaker of the Lower House of Parliament (Voorzitter van de Tweede Kamer der Staten-Generaal) in writing that NIOD had agreed to make a survey of sources and scholarly writings on the subject of the fall of the Srebrenica enclave that had become available since the publication of its report of April 2002. According to a press release published by NIOD itself, this survey was to focus on: “International political decision-making about supplying air support (air strikes and close air support) to UNPROFOR, which included Dutchbat, preceding and during the fall of the Srebrenica enclave, and, specifically, possible agreements about those decisions at the end of May 1995 between France, the United Kingdom, and the United States of America; Advance knowledge by Western intelligent services about the Bosnian-Serb attack on the safe area Srebrenica and the exact goal of the attack.” NIOD expected to publish its findings in September 2016, after which the Government would decide how to proceed further. 73. The Government’s resignation led to a debate in the Lower House of Parliament (Tweede Kamer der Staten-Generaal), which decided to hold a parliamentary enquiry (parlementaire enquête) in order to establish individual political, military and official responsibility. 74. In the course of this enquiry witnesses were heard. These included Major Franken, Lieutenant Colonel Karremans, Major General Van Baal and Dr Voorhoeve. Separate transcripts of their evidence were submitted to Parliament (Parliamentary Documents, Lower House of Parliament, Parliamentary Year 2002-2003, 28 506, no. 5). 75. The report (Lower House of Parliament, Parliamentary Year 2002–2003, 28 506, nrs. 2–3) was presented on 27 January 2003. It runs to 463 pages, mostly taken up by summaries and excerpts of evidence taken from participants in the various decision-making processes, both domestic and foreign. 76. The report finds that the decision to participate in the international intervention in the former Yugoslavia was inspired partly by humanitarian motives and partly by the desire, felt by both the Government and Parliament, for the Netherlands to play an active role in promoting international peace and security. However, the decision to deploy a lightly-armed air-mobile infantry battalion to an embattled “safe area” had been inspired by wishful thinking rather than by considerations of feasibility. Moreover, the United Nations and foreign governments had not shared intelligence to the extent necessary. 77. The UNPROFOR mandate had been lacking in scope and clarity; in particular, although it had not explicitly included the protection of local populations, this had been an underlying intention. Dutchbat’s light armament had been appropriate to its stated mission, namely peacekeeping, and had therefore not contributed to the disaster. 78. Over time self-defence had taken on a greater importance than the fulfilment of UNPROFOR’s mandate and UNPROFOR’s power to deter by its presence had been eroded. The United Nations were primarily to blame for this. Moreover, the UNPROFOR Commander was responsible for the failure to order air strikes in time for them to be effective. 79. The report finds that the battalion leadership ought to have considered allowing a greater number of civilians into the compound in Potočari. At the same time it echoes paragraph 473 of the report of the Secretary General of the United Nations in suggesting that the VRS might then have shelled the compound, killing thousands. 80. The Bosnian Serb side alone was to blame for the crimes committed. However, the Dutchbat leadership ought to have been clearer in communicating their misgivings about the possible fate of the men to the UNPROFOR commanders; similarly, the Netherlands Government ought to have kept themselves informed of developments. Dutchbat had been faced with the difficult decision whether to protect the women and children or the men. Ultimately however it was in any event unlikely that Dutchbat would have been able to prevent the massacre. 81. On 30 November 1998 the General Assembly of the United Nations adopted a resolution (A/RES/53/35) in which, among other things, it requested the Secretary General (§ 18): “... to provide, by 1 September 1999, a comprehensive report, including an assessment, on the events dating from the establishment of the safe area of Srebrenica on 16 April 1993 under Security Council resolution 819 (1993) of 16 April 1993, which was followed by the establishment of other safe areas, until the endorsement of the Peace Agreement by the Security Council under resolution 1031 (1995) of 15 December 1995, bearing in mind the relevant decisions of the Security Council and the proceedings of the International Tribunal in this respect, and encourages Member States and others concerned to provide relevant information ...” 82. The Secretary General’s report was distributed to the General Assembly on 15 November 1999. The report runs to 113 pages not including its annexes. 83. The following is taken from the final section of the report, entitled “XI. The fall of Srebrenica: an assessment”: “A. Role of the United Nations Protection Force in Srebrenica 470. In the effort to assign responsibility for the appalling events that took place in Srebrenica, many observers have been quick to point to the soldiers of the UNPROFOR Netherlands battalion as the most immediate culprits. They blame them for not attempting to stop the Serb attack, and they blame them for not protecting the thousands of people who sought refuge in their compound. 471. As concerns the first criticism, the Commander of the Netherlands battalion believed that the Bosniacs could not defend Srebrenica by themselves and that his own forces could not be effective without substantial air support. Air support was, in his view, the most effective resource at his disposal to respond to the Serb attack. Accordingly, he requested air support on a number of occasions, even after many of his own troops had been taken hostage and faced potential Serb reprisals. Those requests were not heeded by his superiors at various levels, and some of them may not have been received at all, illustrating the command and control problems from which UNPROFOR suffered throughout its history. However, after he had been told that the risk of confrontation with the Serbs was to be avoided, and that the execution of the mandate was secondary to the security of his personnel, the battalion withdrew from observation posts under direct attack. 472. It is true that the UNPROFOR troops in Srebrenica never fired at the attacking Serbs. They fired warning shots over the Serbs’ heads and their mortars fired flares, but they never fired directly on any Serb units. Had they engaged the attacking Serbs directly it is possible that events would have unfolded differently. At the same time, it must be recognized that the 150 fighting men of Dutchbat were lightly armed and in indefensible positions, and were faced with 2,000 Serbs advancing with the support of armour and artillery. 473. As concerns the second criticism, it is easy to say with the benefit of hindsight and the knowledge of what followed that the Netherlands battalion did not do enough to protect those who sought refuge in its compound. Perhaps the soldiers should have allowed everyone into the compound and then offered themselves as human shields to protect them. This might have slowed down the Serbs and bought time for higher-level negotiations to take effect. At the same time, it is also possible that the Serb forces would then have shelled the compound, killing thousands in the process, as they had threatened to do. Ultimately, it is not possible to say with any certainty that stronger actions by Dutchbat would have saved lives, and it is even possible that such efforts could have done more harm than good. Faced with this prospect and unaware that the Serbs would proceed to execute thousands of men and boys, Dutchbat avoided armed confrontation and appealed in the process for support at the highest levels. 474. It is harder to explain why the Dutchbat personnel did not report more fully the scenes that were unfolding around them following the enclave’s fall. Although they did not witness mass killing, they were aware of some sinister indications. It is possible that if the members of the battalion had immediately reported in detail those sinister indications to the United Nations chain of command, the international community might have been compelled to respond more robustly and more quickly, and that some lives might have been saved. This failure of intelligence-sharing was also not limited to the fall of Srebrenica, but an endemic weakness throughout the conflict, both within the peacekeeping mission, and between the mission and Member States.” and “E. Role of the Security Council and Member States 488. With the benefit of hindsight, one can see that many of the errors the United Nations made flowed from a single and no doubt well-intentioned effort: we tried to keep the peace and apply the rules of peacekeeping when there was no peace to keep. Knowing that any other course of action would jeopardize the lives of the troops, we tried to create — or imagine — an environment in which the tenets of peacekeeping — agreement between the parties, deployment by consent, and impartiality — could be upheld. We tried to stabilize the situation on the ground through ceasefire agreements, which brought us close to the Serbs, who controlled the larger proportion of the land. We tried to eschew the use of force except in self-defence, which brought us into conflict with the defenders of the safe areas, whose safety depended on our use of force. 489. In spite of the untenability of its position, UNPROFOR was able to assist in the humanitarian process, and to mitigate some — but, as Srebrenica tragically underscored, by no means all — the suffering inflicted by the war. There are people alive in Bosnia today who would not be alive had UNPROFOR not been deployed. To this extent, it can be said that the 117 young men who lost their lives in the service of UNPROFOR’s mission in Bosnia and Herzegovina did not die in vain. Their sacrifice and the good work of many others, however, cannot fully redeem a policy that was, at best, a halfmeasure. 490. The community of nations decided to respond to the war in Bosnia and Herzegovina with an arms embargo, with humanitarian aid and with the deployment of a peacekeeping force. It must be clearly stated that these measures were poor substitutes for more decisive and forceful action to prevent the unfolding horror. The arms embargo did little more than freeze in place the military balance within the former Yugoslavia. It left the Serbs in a position of overwhelming military dominance and effectively deprived the Republic of Bosnia and Herzegovina of its right, under the Charter of the United Nations, to self-defence. It was not necessarily a mistake to impose an arms embargo, which after all had been done when Bosnia and Herzegovina was not yet a State Member of the United Nations. Once that was done, however, there must surely have been some attendant duty to protect Bosnia and Herzegovina, after it became a Member State, from the tragedy that then befell it. Even as the Serb attacks on and strangulation of the ‘safe areas’ continued in 1993 and 1994, all widely covered by the media and, presumably, by diplomatic and intelligence reports to their respective Governments, the approach of the members of the Security Council remained largely constant. The international community still could not find the political will to confront the menace defying it. 491. Nor was the provision of humanitarian aid a sufficient response to ‘ethnic cleansing’ and to an attempted genocide. The provision of food and shelter to people who have neither is wholly admirable, and we must all recognize the extraordinary work done by UNHCR and its partners in circumstances of extreme adversity, but the provision of humanitarian assistance could never have been a solution to the problem in that country. The problem, which cried out for a political/military solution, was that a State Member of the United Nations, left largely defenceless as a result of an arms embargo imposed upon it by the United Nations, was being dismembered by forces committed to its destruction. This was not a problem with a humanitarian solution. 492. Nor was the deployment of a peacekeeping force a coherent response to this problem. My predecessor openly told the Security Council that a United Nations peacekeeping force could not bring peace to Bosnia and Herzegovina. He said it often and he said it loudly, fearing that peacekeeping techniques would inevitably fail in a situation of war. None of the conditions for the deployment of peacekeepers had been met: there was no peace agreement — not even a functioning ceasefire — there was no clear will to peace and there was no clear consent by the belligerents. Nevertheless, faute de mieux, the Security Council decided that a United Nations peacekeeping force would be deployed. Lightly armed, highly visible in their white vehicles, scattered across the country in numerous indefensible observation posts, they were able to confirm the obvious: there was no peace to keep. 493. In so doing, the Security Council obviously expected that the ‘warring parties’ on the ground would respect the authority of the United Nations and would not obstruct or attack its humanitarian operations. It soon became apparent that, with the end of the cold war and the ascendancy of irregular forces — controlled or uncontrolled — the old rules of the game no longer held. Nor was it sufficiently appreciated that a systematic and ruthless campaign such as the one conducted by the Serbs would view a United Nations humanitarian operation, not as an obstacle, but as an instrument of its aims. In such an event, it is clear that the ability to adapt mandates to the reality on the ground is of critical importance to ensuring that the appropriate force under the appropriate structure is deployed. None of that flexibility was present in the management of UNPROFOR.” 84. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (also known as the International Criminal Tribunal for the Former Yugoslavia or ICTY) was created by United Nations Security Council Resolution 827 (1993) (UN Doc. S/RES/827 (May 25, 1993). In its present redaction, the Statute of the ICTY (annexed to that Resolution), in its relevant part, reads as follows: “1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. 2. The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.” “1. No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 2. A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if: (a) the act for which he or she was tried was characterized as an ordinary crime; or (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted. 3. In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.” 85. Several individuals have been charged before the ICTY in connection with the Srebrenica massacre, among them Major General Radislav Krstić who shortly after the fall of Srebrenica was appointed to command the VRS’s Drina Corps. 86. Among the witnesses heard in the trial of Major General Krstić were Lieutenant Colonel Karremans and Major Franken. Neither invoked the privilege against self-incrimination or refused to answer any questions. Other witnesses included three UNMOs who had been present at the fall of Srebrenica, including Major De Haan. 87. On 2 August 2001 the ICTY’s Trial Chamber delivered a 260-page judgment finding Major General Krstić guilty of genocide, persecutions and murder and sentencing him to forty-six years’ imprisonment. The judgment gives a detailed description of the events surrounding the fall of Srebrenica to the VRS and the massacre that followed. 88. Major General Krstić appealed against his conviction and sentence. He did not challenge the Trial Chamber’s description of events, focusing instead on the nature and extent of his criminal responsibility. Ultimately the Appeals Chamber found that, absent proof of genocidal intent, Major General Krstić had not been a principal perpetrator of the crimes committed. It did, however, find him guilty of aiding and abetting genocide and crimes against humanity and reduced his sentence to thirty-five years. 89. The ICTY has handed down final judgments convicting and sentencing several individuals besides Major General Krstić in connection with the Srebrenica massacre, all of them former VRS members. Mr Radovan Karadžić has been convicted at first instance; his case is pending before the Appeals Chamber. The trial of General Mladić is still ongoing; judgment is expected to be delivered in November 2017. 90. The provisions of domestic law which are relevant to the case are the following: Article 4 “Netherlands criminal law shall apply to military personnel who commit any punishable act outside the Netherlands.” “The following persons are liable as accessories (medeplichtigen) to an indictable offence (misdrijf): 1. those who intentionally assist in the commission of the indictable offence; 2. those who intentionally provide the opportunity, means or information necessary to commit the indictable offence.” “1. The provisions of the present Act shall apply to crimes that are committed in time of war or that are criminal only in time of war, as set out in: ... 3o sections 4-9 of the present Act; ... 2. In the case of an armed conflict that cannot be described as war and in which the Netherlands is involved either for the purpose of individual or collective self-defence or to restore international order and security, sections 4-9 shall apply by analogy and We [i.e. the Crown; that is the Monarch together with the responsible Minister] may determine by order in council (algemene maatregel van bestuur) that the other provisions of the present Act shall apply in whole or in part. 3. The expression ‘war’ shall be understood to include civil war.” “Without prejudice to the relevant provisions of the Criminal Code and the Military Criminal Code (Wetboek van Militair Strafrecht), Netherlands criminal law shall apply to: 1o anyone who commits the indictable offence set out in [section] 8 outside the Realm in Europe; ... 4o any Netherlands national who commits an indictable offence as referred to in section 1 outside the Realm in Europe.” “1. Anyone who commits a violation of the laws and customs of war shall be liable to a term of imprisonment not exceeding ten years ... 2. A term of imprisonment not exceeding fifteen years ... shall be imposed: 1o if the criminal act is liable to result in someone else’s death or cause them severe bodily injury; 2o if the criminal act involves inhuman treatment; 3o if the criminal act involves forcing someone else to do something, not to do something or suffer something to happen; 4o if the criminal act involves looting. 3. Life imprisonment or a temporary term of imprisonment not exceeding twenty years ... shall be imposed: 1o if the criminal act results in someone else’s death or causes them severe bodily injury or involves rape; 2o if the criminal act involves violence by a plurality of persons acting in concert (geweldpleging met verenigde krachten) against one or more persons or violence against a dead, sick or injured person; 3o if the criminal act involves the destruction, damaging, putting beyond use or hiding, by a plurality of persons acting in concert, of any property belonging to someone else in whole or in part; 4o if the criminal act set out under 3o or 4o of the preceding paragraph is committed by a plurality of persons acting in concert; 5o if the criminal act is an expression of a policy of systematic terror or unlawful action (wederrechtelijk optreden) against the entire population or a particular group thereof; 6o if the criminal act involves the breaking of a promise or the breaking of an agreement entered into as such with the opposing party; 7o if the criminal act involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party.” “The same punishment as threatened against the acts referred to in the previous section shall be imposed on whoever deliberately allows such an act to be committed by a subordinate.” Section 1 “... 3. The Code of Criminal Procedure shall apply unless this Act deviates from it.” Section 8 “... 2. Within the Arnhem Court of Appeal a multi-judge chamber, to be called the Military Chamber, shall have exclusive competence to consider appeals against appealable judgments of the Military Chambers of the Regional Court mentioned in section 3 [i.e. the Arnhem Regional Court]. This Chamber shall also consider complaints under Article 12 of the Code of Criminal Procedure.” Article 12 “1. If the perpetrator of a punishable act is not prosecuted, or if the prosecution is not pursued to a conclusion, then anyone with a direct interest (rechtstreeks belanghebbende) may lodge a written complaint with the Court of Appeal within whose area of jurisdiction the decision has been taken not to prosecute or not to pursue the prosecution to a conclusion. ...” “1. If the complaint falls within the Court of Appeal’s jurisdiction, the complainant can be admitted [de klager ontvankelijk is], and if the Court of Appeal finds that a prosecution ought to have been brought or pursued to a conclusion, the Court of Appeal shall order the prosecution to be brought or pursued in respect of the fact to which the complaint relates. .... 2. The Court of Appeal may also refuse to give such an order for reasons relating to the general interest. 3. The order may also include the direction [last] that the public prosecutor shall make the request referred to in Article 181 [i.e. a request to the investigating judge [rechter-commissaris] for investigative measures] or that the person whose prosecution is being sought shall be summoned for trial. 4. In all other cases the Court of Appeal shall ... dismiss the complaint.” Article 148 “1. The public prosecutor shall be charged with the investigation of criminal acts which are triable by the regional court to which he is appointed, as well as the investigation, within the area of that regional court’s jurisdiction, of criminal acts triable by other regional courts or district courts. 2. To that end, he shall give orders to the other persons charged with [such] investigation. ...” “1. A person in whose service a subordinate carries out his task shall be liable for damage caused to a third party by a fault (fout) of the subordinate, if the likelihood of the fault has been increased by the assignment to carry out that task and the person in whose service the subordinate, by dint of the legal relationship between them and the subordinate, had authority (zeggenschap) over the conduct constitutive of the fault. ... 3. If the subordinate and the person in whose service he was are both liable for damage caused to a third party, then as between them the subordinate does not need to contribute in making good the damage, unless the damage was the result of a deliberate act (opzet) or conscious recklessness (bewuste roekeloosheid “1. Everyone lawfully summoned for that purpose shall be obliged to give evidence. ... 3. A witness may be excused (zich verschonen) from answering a question put to him if in so doing he would expose himself, or one of his relatives in the ascending or the descending line or ex transverso, whether connected by blood or by marriage, or his spouse or former spouse, or registered partner or former registered partner, to the jeopardy of being criminally convicted of an indictable offence (misdrijf).” “In the cases in which the law permits witness evidence to be given, a preliminary hearing of witnesses can be ordered without delay at the request of the interested party before the court is seized of the case itself. ...” “The provisions governing the hearing of witnesses shall apply by analogy to the preliminary hearing of witnesses.” “1. From the time when [the parliamentary enquiry] is first announced, all Netherlands nationals, all Netherlands residents and all who are staying within the territory of the Kingdom, and all legal persons based within the territory of the Kingdom, shall be obliged to obey an order of the Committee of Inquiry to allow it to see, copy or otherwise take cognisance of all documents in their possession and which the Board reasonably considers it necessary to see, copy or otherwise take cognisance of in order to fulfil its task. 2. The persons mentioned in the first paragraph shall in addition be obliged to obey a summons issued by the Committee of Enquiry to be heard as a witness or an expert. ...” “Except in the case of section 25 [sc. perjury or subornation of perjury] statements made before a Committee of Enquiry, or on its orders, can never constitute proof in a court of law, whether against the person who made them or against third parties.” 91. The Supreme Court has held that the Parliamentary Enquiries Act does not vouchsafe a right to be excused the duty to answer questions to witnesses who, by their answers, would risk prosecution (judgment of 8 July 2003, ECLI:NL:HR:2003:AF5456). 92. Section 68(2) of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie) provides that the benches of the Military Chamber of the Arnhem Court of Appeal shall consist of two (civilian) judges of the Court of Appeal and one military member. Section 9 of the Military Criminal Procedure Act provides that the military member shall be a serving officer holding the rank of captain (kapitein ter zee, Royal Navy), colonel (kolonel, Royal Army), group captain (kolonel, Royal Air Force) or higher, who is also qualified for judicial office; he is promoted to the titular rank of commodore (commandeur, Royal Navy), brigadier (brigadegeneraal, Royal Army) or air commodore (commodore, Royal Air Force) if he does not already hold that substantive rank. Their qualifications and legal position are governed by the Judiciary (Legal Position) Act (Wet rechtspositie rechterlijke ambtenaren), which also applies to civilian judges. 93. Section 68(2) of the Judiciary (Organisation) Act further provides that the military members of the Military Chamber of the Arnhem Court of Appeal participate as judges on an equal footing with their civilian colleagues and are subject to the same duties of confidentiality (sections 7 and 13 of that Act) and functional independence and impartiality (section 12); and also that they shall be subject to the same scrutiny of their official behaviour as civilian judges (sections 13a–13g). The latter involves review of specific behaviour by the Supreme Court (Hoge Raad), initiated, at the request of an interested party or proprio motu, by the Procurator General (procureur-generaal) to the Supreme Court. 94. The military members are appointed by Royal Decree (Koninklijk Besluit) after nomination by the Minister of Security and Justice (Minister van veiligheid en justitie) in agreement with the Minister of Defence (section 9 § 1 of the Military Criminal Procedure Act). 95. In the Netherlands Public Prosecution Service, reflection chambers are informal structures convoked at the request of a public prosecutor (or on the orders of the hierarchy of the service) when a public prosecutor is faced with a particularly difficult case. Their purpose is to assist mature reflection by the public prosecutor. They have no official status and their proceedings are not public. The public prosecutor charged with the particular case remains solely responsible for his or her decision to prosecute or not as the case may be, subject to review by the Court of Appeal in the event of a complaint under Article 12 of the Code of Criminal Procedure. 96. In its relevant part, the Agreement between the Government of Bosnia and Herzegovina and the United Nations on the status of the United Nations Protection Force (signed in Sarajevo on 15 May 1993) provided as follows: “VI. Status of the members of UNPROFOR ... Jurisdiction ... 45. ... (b) Military members of the military component of UNPROFOR shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offences which may be committed by them in Bosnia and Herzegovina.”
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001-163610
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ENG
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AZE
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COMMITTEE
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CASE OF SOLTANOV AND OTHERS v. AZERBAIJAN
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Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
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Carlo Ranzoni;Khanlar Hajiyev
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4. The applicants’ dates of birth and places of residence are given in the Appendix. 5. The applicants stood as candidates in the parliamentary elections of 7 November 2010 and applied for registration as candidates in various single–mandate electoral constituencies (see Appendix). They were either self-nominated or nominated by various political parties (see Appendix). 6. As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, the applicants on various dates submitted sheets containing the signature of more than 450 voters collected in support of their candidacy to their respective Constituency Electoral Commissions (“ConECs”). 7. Before a decision by a ConEC on registering an applicant as a candidate, the signature sheets and the other registration documents submitted by the applicants had first to be verified by special working groups (işçi qrupu) established by the ConECs. None of the applicants were invited to participate in the examination of their sheets of signatures by the ConEC working groups. 8. The ConECs on various dates (see Appendix) issued decisions to refuse the applicants’ requests for registration as a candidate after the ConEC working groups had found that some of the voter signatures were invalid and that the remaining valid signatures had numbered fewer than 450. Signatures were found to be invalid on several grounds in each case, including: (a) falsified or repeat signatures (“signatures made repeatedly by the same individuals who had already signed sheets in the name of other individuals”); (b) incorrect personal information on voters (birth date, identity card number, and so on); (c) signatures by persons whose identity cards had expired; (d) signatures belonging to voters registered outside the constituency; (e) uncertified corrections in signature sheets; (f) signatures claimed to have been obtained “by deceptive means”; and (g) unspecified “other grounds”. 9. None of the applicants were invited to the ConEC meetings where decisions to refuse their requests for registration were taken. In each case, despite the requirements of the law, all the relevant working group documents (expert opinions, minutes of the meeting, records and tables of the results of the examination), as well as the ConEC decision itself, were only made available to the applicants after the decision to refuse their registration had been taken. In many cases, some of the documents were never made available to the applicants or were only made available to them as late as during the subsequent judicial proceedings in the Baku Court of Appeal. 10. Each applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decisions. They made some or all of the following complaints: (a) the findings of the ConEC working groups that such large numbers of signatures were invalid had been factually wrong, unsubstantiated, and arbitrary. Some of those findings of fact could easily have been rebutted by simply contacting the voter in question and confirming the authenticity of his or her signature. However, the ConECs had not taken any steps to corroborate their findings with any reliable evidence, such as contacting and questioning a number of voters randomly selected from the group whose signatures were suspected of being false. There were no specialist handwriting experts among the members of the ConEC working groups and therefore their findings on the authenticity of some signatures had been highly subjective and arbitrary; (b) the ConEC decisions to declare the signatures invalid had been arbitrary and in breach of the substantive and procedural requirements of the law. Relying on various provisions of the Electoral Code, the applicants argued that unintentional and rectifiable errors in the signature sheets could not serve as a reason to declare a voter signature invalid. If the errors found could be rectified by making the necessary corrections, the Electoral Code required the ConEC to notify the particular candidate of this within twentyfour hours and to provide him or her with an opportunity to make corrections in the documents before deciding on his or her registration as a candidate. The ConECs had, however, declared large numbers of signatures invalid in the case of each applicant on the basis of easily rectifiable errors, without informing the candidates in advance and giving them an opportunity to make the necessary corrections; (c) the procedure followed by the ConECs had also breached other requirements of the Electoral Code. Contrary to the requirements of Article 59.3, the applicants had not been informed in advance of the time and place of the examination of the signature sheets and their presence had not been ensured. Contrary to Article 59.13 of the Electoral Code, the applicants had also not been provided with a copy of the minutes of the examination of the validity of the signature sheets at least twenty-four hours prior to the ConEC meeting dealing with their respective requests for registration. Subsequently, none of the applicants had been invited to the ConEC meetings, which had deprived them of the opportunity to argue for their position; (d) some of the grounds for invalidation were not provided by law and therefore to declare signatures invalid on those grounds had been unlawful. For example, the Electoral Code did not allow the invalidation of a signature merely because the voter’s identity document had recently expired. Likewise, it had been unlawful to invalidate signatures on unspecified and unexplained “other grounds”, because the Electoral Code provided for an exhaustive list of clear grounds for declaring signatures invalid and did not give electoral commissions any discretionary power to introduce any other grounds for that purpose; (e) in some cases, various local public officials and police officers had applied undue pressure on voters or signature collectors to “withdraw” their signatures on the grounds that they had been tricked to sign in the candidate’s favour “by deceptive means”. 11. Enclosed with their complaints to the CEC, some of the applicants submitted statements by a number of voters affirming the authenticity of their signatures. However, those statements were not taken into consideration by the CEC. 12. The CEC arranged for another examination of the signature sheets by members of its own working group. None of the applicants was invited to participate in that examination process. The CEC working group found in each case that large numbers of signatures were invalid and that the remaining valid signatures were below the minimum required by law. 13. In each case, the number of signatures found to be invalid by the CEC working group differed from the number given by the particular ConEC working group, with the differences often being significant. Furthermore, in almost every case, the grounds for declaring signatures invalid given by the CEC had been different from the grounds given for the same signature sheets by the ConEC. In most cases a certain number of the total signatures were also declared invalid on the grounds that they had “appeared” to have been falsified, that is, “made by the same person in the name of other people” (“ehtimal ki, eyni şəxs tərəfindən icra olunmuşdur”). 14. On various dates, the CEC also rejected the applicants’ complaints (see Appendix). None of the applicants were invited to attend the CEC meeting dealing with their complaint. Moreover, in each case, all the relevant CEC documents (including the working group documents) were only made available to the applicants after the CEC decision had been taken, while in some cases such documents were never given to them at all, or were given as late as at the stage of judicial appeal proceedings. 15. On various dates, each of the applicants lodged an appeal with the Baku Court of Appeal against the decisions of the electoral commissions. They reiterated the complaints they had made before the CEC concerning the ConEC decisions and procedures. They also raised some or all of the following complaints concerning the CEC’s decisions and procedures: (a) contrary to the requirements of electoral law, the CEC had failed to notify them of its meetings and ensure their presence during the examination of the signature sheets and their complaints; (b) contrary to the requirements of electoral law, some or all of the relevant CEC documents had not been made available to them, depriving them of the opportunity to mount an effective challenge to the CEC decisions; (c) the decisions of the electoral commissions had been based on expert opinions that had contained nothing more than conjecture and speculation (for example, that the signatures had “appeared” (“ehtimal ki”) to have been falsified), instead of properly established facts; (d) in those cases where the applicants had submitted additional documents in support of their complaints, the CEC had ignored those submissions and failed to take them into account. 16. Relying on a number of provisions of domestic law, and directly on Article 3 of Protocol No. 1 to the Convention, the applicants claimed that their right to stand for election had been infringed. 17. On various dates (see Appendix), the Baku Court of Appeal dismissed appeals by the applicants, finding that their arguments were irrelevant or unsubstantiated and that there were no grounds for quashing the decisions of the CEC. 18. The applicants lodged cassation appeals with the Supreme Court, reiterating their previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the cases and had delivered unreasoned judgments. 19. On various dates (see Appendix), the Supreme Court dismissed the applicants’ appeals as unsubstantiated, without examining their arguments in detail, and found no grounds to doubt the findings of the electoral commissions or of the Baku Court of Appeal. 20. In addition to the applicants in applications nos. 30362/11, 30581/11, 30728/11 and 30799/11, at the material time their representative Mr Intigam Aliyev was representing twentyseven other applicants in cases concerning the 2010 parliamentary elections and a number of applicants in other cases before the Court. Mr Aliyev himself is the applicant in application no. 66684/12. 21. In August 2014 the prosecution authorities launched an investigation into the activities of a number of NGOs, including the Legal Education Society, an NGO headed by Mr Aliyev. 22. On 7 August 2014 the Nasimi District Court issued a search warrant authorising the search of Mr Aliyev’s office in the Legal Education Society and seizure of “legal, financial, accounting and banking documents, letters and contracts, reports on execution of grant contracts and tax documents relating to [the organisation’s] establishment, structure, functioning, membership registration, receipt of grants and other financial aid, and allocation of granted funds, as well as computers, disks, USB keys and other electronic devices storing relevant information ...” 23. On 8 August 2014 Mr Intigam Aliyev was arrested after questioning by an investigator of the Prosecutor General’s Office in connection with the criminal proceedings instituted against him under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code. On the same day, the Nasimi District Court ordered his detention pending trial. He remains in detention while the criminal proceedings against him are pending. The circumstances relating to Mr Aliyev’s arrest and detention are the subject of a separate application brought by him before the Court (application no. 68762/14). 24. On 8 and 9 August 2014 the investigation authorities conducted a search of Mr Aliyev’s home and office pursuant to the Nasimi District Court’s search warrant of 7 August 2014, seizing, inter alia, a large number of documents from his office, including all the case files relating to the pending proceedings before the Court, which were in Mr Aliyev’s possession and which concerned over 100 applications in total. The files relating to the present cases, which, it appears, included copies of all the documents and correspondence between the Court and the parties, were also seized in their entirety. No adequate inventory of the seized document files relating to the Court proceedings was made in the search and seizure records of 8 and 9 August 2014. 25. On an unspecified date Mr Aliyev lodged a complaint with the Nasimi District Court, claiming that the search had been unlawful. He complained that the investigator had failed to register each seized document as required by the relevant law and had taken the documents without making an inventory. He further complained about the seizure of the documents and files relating to the ongoing court proceedings before the Court and the domestic courts. 26. On 12 September 2014 the Nasimi District Court dismissed Mr Aliyev’s claim. It held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic court, it found that they could not be returned to the applicants at this stage of the proceedings. Following an appeal, on 23 September 2014 the Baku Court of Appeal upheld the first-instance court’s decision of 12 September 2014. 27. On 25 October 2014 the investigation authorities returned a number of the case files concerning the applications lodged before the Court, including the file relating to the present case, to Mr Aliyev’s lawyer. The investigator’s relevant decision specified that “since it has been established that among documents seized on 8 and 9 August 2014 there were files concerning applications by a number of individuals and organisations lodged with the European Court of Human Rights, which have no relation to the substance of the criminal proceedings [against Mr Intigam Aliyev], [those files] have been delivered to [Mr Aliyev’s lawyer] Mr Javad Javadov”.
| 1 |
test
|
001-163222
|
ENG
|
BGR
|
CHAMBER
| 2,016 |
CASE OF D.L. v. BULGARIA
| 2 |
No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-d - Minors);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);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
|
5. The applicant was born in 1999 and lives in Pleven. 6. On 2 August 2012 the applicant, aged 13, was admitted to the Open Door children’s crisis centre in Pleven. Her placement was ordered as a protective measure under the Child Protection Act by the Pleven municipal director of social assistance, at the request of the applicant’s mother, who had claimed to be unable to look after her daughter. 7. In a decision of 1 October 2012 a criminal bench of the Pleven District Court (Районен съд) confirmed the applicant’s placement and extended its validity for a further three months. In its reasoning the court found that the conditions for the placement of a minor in a specialist institution were satisfied, namely that the child’s parents were unable to provide her with adequate care and that she was living in a dangerous social environment, as she associated with “men identified as delinquents”. Lastly, it stated that no member of the applicant’s family was able to take on responsibility for her upbringing. 8. On 16 January 2013, finding that the conditions for the applicant’s return to her family environment were not satisfied, the municipal director of social assistance ordered the extension of her placement in the centre. On 1 April 2013 a civil bench of the District Court in turn confirmed the measure and extended it for a further six months. 9. On 3 April 2013 the local committee for combating juvenile antisocial behaviour (“the local committee”) asked the District Court to order the applicant’s placement in a correctional boarding school. On 19 April 2013 a criminal bench of the District Court held a hearing, following which it gave a decision imposing a less severe educational measure on the applicant, namely “a ban on meeting and making contact with certain individuals”. In its reasoning the court specified that placement in a correctional boarding school was liable to have a negative impact on the child’s psychological and social development, given the “unfavourable environment offered by that type of institution”. It added that following the expiry of her placement in the Open Door centre, it would be appropriate to admit the applicant to another institution regulated by the Child Protection Act in order to keep her away from the people who had forced her into prostitution. 10. On 17 May 2013 the local committee sent the District Court a new proposal for the applicant’s admission to a correctional boarding school under the Juvenile Antisocial Behaviour Prevention Act. It argued that the applicant did not have a favourable family environment and that, in particular, her father was serving a prison sentence and her mother had trouble assuming her parental responsibilities. This had caused the applicant to run away from home and develop a circle of friends including both adults and juveniles who were identified as “delinquents” and had allegedly incited her to engage in immoral conduct, such as the provision of “sexual services”. Lastly, the local committee noted that the applicant had also run away twice from the children’s crisis centre and had behaved aggressively towards the staff. 11. On 10 June 2013 a criminal bench of the District Court held a hearing. The applicant’s mother was present, having been summoned to appear at the hearings, and asked to have a lawyer officially appointed to represent her daughter in the proceedings. The applicant also asked to have a lawyer appointed. The court granted their request. It heard evidence from the applicant, her officially appointed lawyer, a representative of the local committee, an inspector from the child protection team (Детска педагогическа стая), a representative of the district prosecutor’s office, a representative of the municipal child protection department and two social workers from the children’s crisis centre where the applicant was living. The inspector from the child protection team stated that the applicant engaged in prostitution and had been found offering prostitution services on a motorway near Devnia, some 270 km from her home town. The two social workers from the children’s crisis centre pointed out that that factor had served as a ground for placing her in the centre as a protective measure for a child at risk. They added that after her admission to the centre, the child had remained in contact with the people who had incited her to engage in prostitution despite the steps that had been taken to protect her. In the social workers’ opinion, the applicant’s family environment was unsuitable for her. She came from a large family where the mother did not exert any parental control. The mother did not have a job and her partner drank and was violent towards her and her children. The mother had also stayed at the children’s crisis centre with two of her other children. After intensive psychological and social counselling, a positive development had been noted in the applicant and there were plans to find different accommodation arrangements for her. However, the social workers added that by the time of the hearing the applicant’s situation had worsened as she did not follow the rules in place, came back late from school or was brought back by the police when she failed to return, and continued to associate with individuals known to the police, to engage in sexual relations and to behave aggressively towards the staff. She had attended a series of talks on prevention of “lover boy”-type human trafficking but had not been receptive to the protective measures recommended. The social workers expressed the opinion that the applicant faced a strong risk of being driven into prostitution and that the arrangements in place at the crisis centre did not afford her the necessary protection. In their view, such protection would only be provided in a secure centre with a restrictive regime. Lastly, the representative of the local committee stated that four educational measures had already been imposed on the applicant, including strict monitoring by a supervisor, the ban on associating with certain individuals and the warning recommending placement in a correctional boarding school. He viewed those measures as insufficient. 12. The court also obtained welfare reports. The applicant stated that she did not wish to be admitted to a correctional boarding school and preferred to remain in the children’s crisis centre. The officially appointed lawyer called for the adoption of less severe educational measures. The representatives of the district prosecutor’s office and of the municipal child protection department supported the proposal by the local committee. The representative of the municipal child protection department stated that during the hearing all the safeguards laid down in the Child Protection Act had been observed. In his opinion, the possibilities for the child’s upbringing in the crisis centre had been exhausted, the risk of her renewed involvement in human trafficking was very high and she was unaware of this. Accordingly, the measure of placement in a correctional boarding school was in fact in her interests. 13. Later on 10 June 2013 the District Court gave a judgment ordering the applicant’s placement in the correctional boarding school in Podem (“the Podem school”), a village 20 kilometres away from Pleven. In its reasoning the court held that despite the judicial decision of 1 April 2013 in which a compromise solution had been adopted for the applicant, namely the confirmation and extension of her placement in the children’s crisis centre, she was still failing to abide by the institution’s internal rules, was not returning to the centre by the designated time after school, was in contact with individuals identified as “delinquents” and was still behaving rudely and aggressively towards the social workers at the centre. It noted that, in the absence of adequate parental control, the applicant had developed serious antisocial habits and that her placement in a children’s crisis centre no longer had the intended educational and preventive effect on her behaviour. In the court’s view, the applicant no longer displayed any willingness to abide by the rules of society, or even those of the institution in which she was living, and it was therefore advisable to remove her from her circle of acquaintances who were harming her personal development, and to provide her with enhanced educational support in order to eradicate her negative behavioural traits. The court noted that educational measures had already been imposed on her, but they had not produced a positive result. It concluded that the measure of admission to a correctional boarding school was necessary not only for her own benefit but in the interests of society. 14. The applicant, represented by her lawyer, appealed against that judgment. She challenged the measure imposed on her, arguing in particular that the court had not specified its duration, that her mother had not been given a hearing by the first-instance court and that she herself had not committed any criminal acts. 15. In a final judgment of 16 July 2013 a criminal bench of the Pleven Regional Court upheld the first-instance court’s decision. In its reasoning it held that the law did not oblige the court to hear evidence from the parents – in this instance the applicant’s mother – and that the applicant’s other complaints were unsubstantiated and ill-founded. 16. On 13 September 2013 the applicant attempted to commit suicide and was admitted to the toxicology department of Pleven Hospital. According to a medical certificate dated 15 September 2013, she had taken ten 500 mg paracetamol tablets and ten Remotiv tablets and was in a fragile state. After her stomach was pumped, the effects of the intoxication were brought under control. 17. On 15 September 2013 the applicant was taken to the Podem school. She was still there at the time of the most recent information submitted to the Court, on 11 June 2015. 18. Regarding life at the school, the applicant submitted in her application that the level of teaching was much lower than at her previous institution. In the four years prior to her application, only six pupils had obtained the secondary-school leaving certificate, and none at all in 2011 or 2012. Three pupils had been awarded the certificate in 2013 with an overall average mark of 3.67 out of 6, the minimum pass mark being 3. The applicant added that in 2012 and 2013 the pedagogical council had not given any positive assessments of pupils’ behaviour or school results, meaning that no proposals for the end of a placement had been submitted to the District Court. 19. The applicant also asserted that she had continued to be threatened with forced prostitution by her former contacts after being admitted to the Podem school. On 19 November 2013 she had attempted suicide for the second time, as part of a group with four other girls, by ingesting chemical substances. She had then been taken to hospital for three days. There had been other suicide attempts at the school. 20. The applicant further submitted that her telephone conversations were monitored by a supervisor. For that purpose, a loudspeaker had been attached to the telephone and switched on during each conversation. 21. In addition, because of the significant number of violent incidents at correctional boarding schools, the prosecutor’s office on 7 November 2013 ordered an inspection of all secure educational institutions, including the Podem school. The results of the inspection are not known. 22. When submitting their observations on the admissibility and merits of the application, the Government included a report dated 30 January 2015 by the head of the Podem school about the applicant’s situation. According to the report, during her previous placement in the Open Door centre, the applicant had been aggressive towards the staff, had encouraged other girls to engage in prostitution and had run away on two occasions (4 and 27 February 2013). The report also stated that she had unashamedly admitted to having been sexually active since the age of 12 and that she provided “sexual services” in return for payment. 23. The report mentioned, in addition, that the applicant did not have a favourable family background and that she was left unsupervised, which explained why she had previously run away and led a vagrant lifestyle. 24. According to the report, the Podem school offered an educational environment with experts qualified to work as teachers or supervisors in accordance with the requirements of the Ministry of Education and Science. The school curriculum and the courses followed in all specific subjects had been developed and approved in line with the Ministry’s standard procedures. The applicant had been deficient in many areas and the teachers had worked with her on a one-to-one basis as well as during lessons. 25. The file does not include a copy of the individual development plan that was supposed to have been drawn up at the time of the applicant’s admission to the school and updated every six months. However, according to the report, the plan indicated that she was unaware of the risks she ran on account of her “erratic sexual relations”, that she did not question the consequences of such acts and that she was not ready to live independently. It added that she was naïve, easy to manipulate, impulsive, emotionally fragile and prone to dishonesty. 26. The report went on to state that the individual plan as updated on 29 September 2014 noted a positive change in the child’s behaviour. Although she did not apply herself consistently, she had nevertheless shown some interest in schoolwork. The individual plan had recommended that she step up her efforts to acquire knowledge on an ongoing, in-depth basis. 27. The report also noted that at the end of the 2013/14 school year, the applicant had achieved an average mark of 3.69 out of 6 and had therefore moved up to the next class, that she had also been awarded a certificate as a qualified seamstress and that she would be receiving a similar mark for the first semester of the 2014/15 school year. 28. With regard to the applicant’s telephone conversations, the report explained the applicable rules and stated that she had not been “deprived of telephone contact with her mother” or subjected to any restrictions on visits from her family, even though these had often taken place outside the times specified in the school’s internal rules. In addition, the applicant had never received any letters or parcels from her family. She had gone on home leave five times during the school holidays, from 21 December 2013 to 5 January 2014, from 30 January to 4 February 2014, from 28 March to 6 April 2014, from 4 July to 15 September 2014, and from 19 December 2014 to 4 January 2015. Each time, the applicant had returned late to the Podem school. 29. The report also stated that according to information from the police, the child had been suspected of stealing a mobile phone and jewels from a house on 4 January 2014. On being questioned by the police, she had handed over the items in question of her own accord. 30. Lastly, the report noted that the school’s committee on preventing the risks of assault and harassment of juveniles had not received any information to suggest that the applicant had been “sexually exploited” within the school itself. 31. Two reports issued in 2009 and 2013 by the State Agency for Child Protection include a summary of the findings of an assessment of the operation of the four correctional boarding schools in Bulgaria, including the one in Podem. They indicate that these schools had a total capacity of 405 places and that in 2013 there were 166 children attending them. There were 44 girls at the Podem school, all of whom had been admitted under the Juvenile Antisocial Behaviour Act. 32. The reports also note that there is a high pupil turnover rate during the school year because of the admission of juveniles on the basis of a placement order and because of their departure, in most cases on reaching the age of majority (18 years of age) or on the expiry of the statutory maximum duration of the placement. During 2009, twenty children ran away from the schools and eight left them following a positive annual assessment by the pedagogical council. During 2012/13, fewer than four children had a positive assessment and were therefore able to leave the correctional boarding schools. During the 2013/14 school year, there were no instances of children leaving the schools following a positive assessment. As regards the results achieved across all secure educational institutions in Bulgaria, the reports indicate that in 2009, 10% of pupils were awarded a vocational qualification, 35% successfully completed their secondary education up to the age of 14 and 3% successfully completed their secondary education up to the age of 18. The remaining 52% of pupils failed to complete their education. The 2013 report mentions a low success rate among pupils, with average marks of between 3 and 4 out of 6. According to the reports, these figures point to a problem as to the effectiveness of educational and rehabilitative measures, and even raise questions as to whether “such measures exist in practice”. 33. The reports further state that, in accordance with the applicable legislation, each correctional boarding school has a team responsible for educational and psychological assessment of pupils and a team of supervisors responsible for educational and rehabilitative support. The teams draw up annual individual plans for pupils, which in most cases are set out in a standardised form. Objectives relating to learning, education and development are general in nature and do not include any specific activities tailored to the individual needs, abilities, age and interests of the children concerned. The 2013 report is particularly critical of the prevalence of serious incidents involving suicide attempts or assaults on other pupils, and deplores the fact that no provision is made for follow-up action in the individual plans of the pupils concerned so that consideration can be given to the reasons for their actions and to their psychological state. 34. In addition, the reports note that the staff of the institutions concerned have undergone training covering matters such as alternative education methods for children in difficulty, development of their potential for autonomy and catering for individual needs. With regard to the Podem school in particular, the teaching and support staff are subject to external educational supervision. The reports nevertheless conclude that the number of people employed to run extracurricular activities is insufficient, although the children’s wide-ranging needs and their vulnerability suggest that educational activities should be arranged in small groups. They also criticise the lack of any programme to foster closer relations between children and their families. 35. Two types of problems are highlighted. The first type concerns the school curriculum and the second concerns the programme for social integration and rehabilitation. 36. Regarding schoolwork, the reports note, among other things, that illiteracy levels are a cause for concern, particularly as children of a wide range of ages and abilities are grouped together in the same class. A large number of pupils are unable to read or write on their arrival at the schools, and the curricula taught do not allow them to redress their shortcomings and make progress. Furthermore, many children with behavioural difficulties also encounter problems at school and the development of their ability for effective learning and independent work is impaired. These children often run away, do not attend lessons regularly and have insufficient contact with adults. 37. As far as the programme for social integration and rehabilitation is concerned, the reports state that, in addition to staff shortages, the existing groups of more than seven or eight children in difficulty cannot be effectively supervised, the activities on offer do not follow an appropriate methodology for vulnerable children, and no arrangements are made at the institutions to encourage contact between the children and their families, a shortcoming identified as a cause of aggressive behaviour. 38. Lastly, the 2009 report recommends in particular: (a) a general reform of the status of the institutions in question and of their operation, through the inclusion of alternative educational and preventive methods; (b) the introduction and development of units for preventing deviant behaviour, and their involvement as soon as children display the first signs of such behaviour; (c) shorter placements, with more emphasis on social rehabilitation and psychological support for children than on teaching; (d) returning the children in question to the ordinary school system, including in schools in their home area, rather than keeping them apart in specialist institutions, through an intensive individual integration scheme managed by teams of educational experts; (e) the introduction of programmes allowing young people to acquire vocational skills; (f) instilling an atmosphere of cooperation with families; (g) a reform whereby local committees for combating juvenile antisocial behaviour would no longer have a decisive role in taking educational measures and such decisions would be taken by a specialist judge alone; (h) abolition of punishments for juvenile antisocial behaviour; (i) abolition of criminal penalties for children under 14 years of age and their replacement by exclusively social and protective measures, applicable only in exceptional cases; (j) admitting children under 14 years of age to specialist institutions only where there is a social need or a need for protection; and (k) closure of the institutions in question, subject to the introduction of alternative protective and judicial measures in legislation and practice. 39. It appears that, following the 2009 report by the State Agency for Child Protection, the Ministry of Education and Science undertook to reform the secure institutions for juveniles in order to ensure that the system was entirely focused on the child and offered an individually tailored approach. Measures were subsequently put forward in an action plan for the implementation of the national policy strategy on juvenile justice for 2013-2020. Among the measures envisaged were: the repeal of the Juvenile Antisocial Behaviour Act and the introduction of a new Juvenile Justice Act for children in conflict with the law, with the aim of offering a wide range of social, educational and learning services to children in difficulty. ...
| 1 |
test
|
001-175493
|
ENG
|
AUT
|
CHAMBER
| 2,017 |
CASE OF LORENZ v. AUSTRIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
|
André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer
|
6. The applicant was born in 1964 and is detained in Krems. 7. On 9 February 1983 the applicant shot his cousin, P.D., three times in the chest and stomach. His victim died. The applicant then decapitated P.D. and disposed of his head. 8. On 15 February 1983 the applicant shot dead two women, namely his former girlfriend, U.E., as well as her mother, S.E., using the same gun as he had used for the previous murder. 9. The applicant was arrested on 26 February 1983 and remanded in custody. 10. On 14 March 1984 the Vienna Regional Criminal Court (Straflandesgericht – hereinafter, “the Criminal Court”), sitting as an assize court (Geschworenengericht), convicted the applicant of triple murder and disturbing the peace of the dead (Störung der Totenruhe). He was found to be criminally responsible for his acts and was sentenced to twenty years’ imprisonment. In addition to the sentence, the Criminal Court ordered his detention in an institution for mentally ill offenders in accordance with Article 21 § 2 of the Criminal Code (Strafgesetzbuch; see paragraph 31 below). A psychiatric expert, Dr Q., had found in his expert opinion that the applicant presented a distinctive picture of secondary personality defence mechanisms, in the sense of suppression of fear, emotion and sexuality. His potential for aggression was increased and he was emotionally unstable and could easily become aggressive. Moreover, there were clear signs of an identity disorder. 11. The above judgment was upheld by the Supreme Court (Oberster Gerichtshof) on 27 September 1984. 12. The applicant has been detained in institutions for mentally ill offenders since 27 September 1984. He served his prison sentence until 26 February 2003 (as the time he had spent in pre-trial detention – see paragraph 9 above – was counted towards his prison sentence). Thereafter, he remained in preventive detention, subject to yearly review proceedings in accordance with Article 25 § 3 of the Criminal Code (see paragraph 32 below). He was first detained in the units for mentally ill offenders of the Vienna-Mittersteig Prison and Graz-Karlau Prison (Justizanstalt), and since 2008 has been detained in the respective unit of Stein Prison in Krems. 13. On an unknown date in 2008, the applicant applied for release from the institution for mentally ill offenders. He argued that he had completed individual therapy with Professor G. in the Vienna-Mittersteig Prison as well as specialised therapy preparing him for his release with an external therapist. Two psychiatric experts had attested that the danger emanating from him had abated or was significantly reduced. Even though different entities had suggested that he be granted privileges (Vollzugslockerung) under section 126 of the Execution of Sentences Act (Strafvollzugsgesetz – see paragraph 41 below), he had not yet been granted any. The applicant claimed that his lawyer had offered him a job and a small apartment if he were released. 14. On 25 February 2009 the Krems a.d. Donau Regional Court (Landesgericht – hereinafter, “the Regional Court”) ordered the continuation of the applicant’s detention in the institution for mentally ill offenders. It referred to an expert opinion of 25 January 2009 by Dr L., who had stated that the applicant’s condition had stabilised and that the danger emanating from him had considerably abated in respect of the closed and protected living environment of the prison. However, the same could not be said with certainty for a life outside prison. The director of the prison did not recommend releasing the applicant either, as the special therapy he needed in order to be prepared for release was only available in the ViennaMittersteig Prison. The applicant waived his right to appeal against that decision. 15. On 20 September 2009 the applicant again applied for release, reiterating that Dr L. in his expert opinion of 25 January 2009 had attested that a process of mental stabilisation had taken place and that it was highly likely that the danger emanating from him was significantly reduced. The applicant claimed that he had successfully completed psychotherapy, which he considered as sufficient preparation for life outside of prison. He emphasised that he was willing to be treated, but that currently he was not receiving any therapy. Moreover, he reminded the court that his lawyer would be able to supply a flat and a job for him if he were released. He complained that the prison authorities had refused his requests to be granted privileges, and as a consequence the domestic courts had dismissed his previous applications for release as he had not been prepared for it. 16. On 15 March 2010 the Regional Court, having held an oral hearing, ordered the continuation of the applicant’s detention. It confirmed that Dr L., in his additional expert opinion of 24 February 2010, had referred to the fact that the applicant’s condition had stabilised. Even though the applicant had developed an aversion to psychotherapy, he did not refuse to talk to psychiatrists. He was actively seeking a dialogue with them. However, Dr L. also found that no protection and support would be provided for the applicant after his release. Without such support, conditional release would be too risky from a psychiatric point of view. The stress caused by the overwhelming feeling of unpreparedness for release could lead to near-psychotic or micropsychotic disorders, the danger of which was unpredictable. 17. The Regional Court also referred to the expert opinion of Dr H. of 31 October 2006 and the forensic expert opinion by the Vienna-Mittersteig Prison of January 2007, as well as the most recent expert opinion by Dr B. (the resident psychologist of Stein Prison, where the applicant was held at that time) of 3 March 2010. The latter had come to the conclusion that the applicant still suffered from a pronounced combined personality disorder with paranoid, schizoid, emotionally unstable and narcissistic elements. Dr B. responded to the generally positive tenor of Dr L.’s opinion and found that the stabilisation process was rather a reaction to the “enemy” institution, namely the prison, in which the applicant was being held, and was not to be considered real or rendering the applicant capable of surviving the challenges of daily life outside prison. Moreover, at that time, Dr B. did not recommend further therapy for the applicant, who was not prepared for any self-reflection and was not ready to process the experiences and challenges of normal social interaction, and thus was still likely to present a danger to others. The director of Stein Prison also recommended the continuation of the applicant’s detention, adding that his institution was not equipped to deal with the preparation of his release, which it considered to be a complex and risk-prone task. Only the Vienna-Mittersteig Prison was capable of preparing the applicant for his release. The applicant in any event refused to undergo any more therapy. 18. The Regional Court found that owing to the applicant’s negative approach to therapy, it was impossible to prepare him for release, even though his counsel had confirmed the offer of a flat and a job, and the applicant appeared to be stable. In line with the argumentation of the expert opinions of Dr B. and Dr L., the court held that in the light of the gravity of the underlying criminal offences, there was a danger that an unprepared release would overwhelm the applicant and could have unpredictable consequences. Therefore, the application for conditional release had to be dismissed. 19. On 26 July 2010, the Vienna Court of Appeal (Oberlandesgericht – hereinafter, “the Court of Appeal”) dismissed an appeal lodged by the applicant. It referred to the expert opinions obtained in 1983, 2000, 2002, 2006, 2009 and 2010, and confirmed the decision of the first-instance court. It also reiterated that Stein Prison’s psychology service had recommended a transfer to the Vienna-Mittersteig Prison, where the necessary therapy was available. 20. The applicant lodged an application for release with the Regional Court on 20 August 2010 and submitted additional observations on 16 November and 3 December 2010. In essence, he repeated the arguments he had made in the previous review proceedings (see paragraphs 13 and 15 above). He also requested that a new expert opinion be obtained from Dr L. 21. On 7 December 2010 the Regional Court, ordered the continuation of the applicant’s detention in an institution for mentally ill offenders, referring to the most recent expert opinion by Dr B. of 3 March 2010 (see paragraph 17 above). It found that there had been no changes in his circumstances and therefore declined the request for a new expert opinion. Recently obtained information from Stein Prison’s psychology service stated that the applicant still refused to undergo further therapy at their institution and requested preparation for his release. It reiterated that the necessary preparation was not available in Stein Prison, but only in the Vienna-Mittersteig Prison. However, the latter had not yet responded to a request for the applicant’s transfer. The Regional Court further referred to the reasoning in previous review decisions to avoid repetition, in particular the one by the Court of Appeal of 26 July 2010 (see paragraph 19 above). It stressed that the applicant still refused to deal with his offences in a therapeutic setting, which in turn was a prerequisite for being granted privileges. In the light of the gravity of the underlying offence, the statements obtained from the various prison services as well as the recent expert opinions, the Regional Court concluded that the applicant still presented a danger to society. 22. On 25 January 2011 the Court of Appeal dismissed an appeal lodged by the applicant as unfounded, as it was evident that there had not been a change in his negative attitude towards further therapy. 23. On 8 September 2011 the applicant applied for conditional release from the institution. 24. On 23 January 2012 the Regional Court held an oral hearing and subsequently ordered an expert opinion in the framework of the yearly judicial review proceedings. On 1 February 2012 the applicant submitted his observations on the review. He stated that the expert opinion of Dr B. (see paragraph 17 above) had been wrong and the court should therefore rather rely on Dr L.’s expert opinion (see paragraphs 13-16 above). As the applicant refused to be examined by any expert, the court held another hearing on 23 April 2012. On that occasion, the presiding judge reproached the applicant with the fact that he could not expect to be granted privileges if he did not collaborate with the experts and the authorities. The applicant replied that previously one of the experts had found that privileges were a prerequisite for his release, and that another expert had even come to the conclusion that he could already be released. He explained that he had refused to be examined by a psychiatrist because he was not suffering from a mental illness. The applicant repeated that his lawyer had offered him a small apartment and work in his law firm. He was not willing to live in an assisted-living facility or to follow psychotherapy after his eventual release, but would agree to work with a probation officer. 25. On 23 April 2012, the Regional Court ordered the continuation of the applicant’s detention. Based on the information on file, the latest expert opinion of Dr B. of 3 March 2010 and the information from the director of the prison, it concluded that the danger emanating from the applicant still persisted and therefore his application for release had to be dismissed. 26. That decision was upheld by the Court of Appeal on 30 July 2012. The court summarised the genesis of the case so far and the applicant’s complaints, and reiterated the lower court’s findings. As to its own conclusion, it almost exclusively referred to its previous decisions in the applicant’s case of 26 July 2010 and 25 January 2011, holding that there had been no significant changes in the applicant’s situation, in particular that he still refused any further therapy. 27. On 26 March 2013 the applicant applied for release from the institution for mentally ill offenders. 28. On 20 June 2013 the Regional Court again ordered the continuation of the applicant’s detention, essentially reiterating the reasoning it had given in its decision of 23 April 2012 (see paragraph 25 above). It appears that the Regional Court did not hold an oral hearing prior to that decision. It referred to the “current” expert opinion of Dr B. of 2010 (see paragraph 17 above) and statements by the prison administration and the social service of the prison (Maßnahmenteam) that the applicant should not be released, as he refused to undergo therapy and still posed a threat. The Regional Court reiterated that the applicant could only be prepared for his release at the Vienna-Mittersteig Prison, but found that it would be unreasonable to order his transfer because of his negative attitude towards therapy. 29. On 19 July 2013 the Court of Appeal dismissed an appeal lodged by the applicant as unfounded. It held that the Regional Court had had no choice but to take into consideration the expert opinion of 2010, as in the course of the 2011/12 review proceedings the applicant had refused to be examined by an expert. The Court of Appeal again referred to the reasoning it had given in its three previous decisions relating to the applicant. 30. At the time of the above decision, the applicant was almost fortynine years old and had spent some twenty-nine years of his life in different institutions for mentally ill offenders.
| 1 |
test
|
001-159916
|
ENG
|
POL
|
CHAMBER
| 2,016 |
CASE OF KARYKOWSKI v. POLAND
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
|
5. The applicant was born in 1966 and is detained in Stargard Szczeciński. 6. The applicant is a habitual offender. He was arrested on an unspecified date on suspicion of uttering threats. He was subsequently convicted as charged and sentenced to three years and six months’ imprisonment. He was first detained in Nowogard Prison and subsequently in Goleniów Prison. 7. On 7 September 2011 the applicant’s cell was searched. During the search the prison officers found a note entitled “Protest letter” signed by 135 prisoners. The prisoners stated their opposition to the forthcoming changes to the Code of Execution of Criminal Sentences affecting, in particular, the possibility of shopping during prison visits. The letter was confiscated by the authorities. 8. On 8 September 2011 the Nowogard Prison Penitentiary Commission imposed on the applicant the so-called “dangerous detainee” regime. The commission held that the applicant was one of the organisers of a planned collective remonstrance in Nowogard Prison, and that it was therefore necessary to isolate him from other prisoners. 9. The applicant appealed against that decision. He submitted that he was not the organiser of the protest but merely one of 140 prisoners who had signed the letter. 10. On 29 November 2011 the Szczecin Regional Court dismissed the applicant’s appeal. The court held that the decision had been lawful. 11. On an unknown date the applicant was transferred to Goleniów Prison. 12. On 6 December 2011 the Goleniów Prison Penitentiary Commission extended the imposition of the “dangerous detainee” regime, holding that the applicant represented a serious threat to the community and should be kept in a solitary cell. The applicant appealed. 13. On 31 January 2012 the Szczecin Regional Court quashed the decision and remitted the case to the commission. The court held that only the original decision to impose the regime of 8 September 2011 had been justified. The following one taken on 6 December 2011 had not indicated any new circumstances justifying the continuing application of the regime and its reasoning had been scarce. The court noted that several months had elapsed since the applicant had signed the protest letter and the suppositions regarding the allegedly planned collective remonstrance of the prisoners had been not confirmed. 14. On 14 February 2012 the Goleniów Prison Penitentiary Commission decided to lift the “dangerous detainee” regime. The regime was imposed on the applicant for a total of five months and seven days.
| 1 |
test
|
001-160059
|
ENG
|
POL
|
ADMISSIBILITY
| 2,015 |
MACH v. POLAND
| 4 |
Inadmissible
|
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
1. The applicants, spouses Ms Jolanta Mach and Mr Bogusław Mach, are Polish nationals who were both born in 1933 and live in Łódź. They are represented before the Court by Ms M. Szereda, a lawyer practising in Łódź. 3. The application concerns national bonds issued by the State Treasury in 1936. The bonds were to have been redeemed by 1995. However, the Treasury failed to undertake any steps to redeem them or to pay interest to the holders of those bonds. 4. The applicants’ claim was not subject to limitation because on 28 July 2003 they had asked the State Treasury to arrange a friendly settlement before the Warsaw District Court. 5. On 20 June 2008 the applicants instituted civil proceedings for payment against the State Treasury represented by the Ministry of Finance. They claimed 55,000 Polish zlotys (PLN), with interest. 6. On 12 February 2009 the Warsaw District Court granted the applicants PLN 35.48 (approximately 9 euros (EUR)). The amount granted was calculated in the following way. The court first referred to § 2 of the 1949 Decree (see paragraph 15 below) and found that by introducing this provision the lawmaker had deprived the applicants’ claim of its economic value. According to the court, by 1949 the applicants’ claim had already been worth only about 2% of the average monthly salary at that time. On the day that the 1949 Decree entered into force – that is to say on 6 August 1949 – the nominal value of the applicants’ bonds had been PLN 1,000 each. It further referred to the 1950 Act (see paragraphs 16 and 17 below) and concluded that after the entry into force of the relevant provisions the value of the applicants’ bonds had been PLN 10 each. Relying on the 1994 Act (see paragraph 18 below) it further found that the nominal value of the applicants’ bonds in 1994 was 1 grosz. Finally, the court, relying on the judgment of the Constitutional Court of 24 April 2007 (see paragraphs 22 and 23 below), ruled that it could recalculate the applicants’ claim on the basis of Article 3571 § 3 of the Civil Code. It based the indexation of the applicants’ claim on the official average salary and considered that the State Treasury should bear 90% of the inflation costs and the applicants 10%. 7. On 22 March 2009 the applicants appealed against that judgment. 8. On 10 August 2009 the Warsaw Regional Court quashed the firstinstance judgment and remitted the case. The Regional Court did not accept the basis of indexation of the applicants’ claim applied by the District Court and held that the indexation should have been based on the real value of the claim in 1936, when the bonds in question had been issued, and on the price of gold at the time the applicants instituted civil proceedings. The court further considered that while recalculating the value of the applicants’ claim, the District Court should have weighed the interests of both parties and taken into account the effects of the Second World War in order to assess the extent of participation of the defendant in the process of bringing about “a significant change in the purchasing power of money” (istotna zmiana siły nabywczej pieniądza). 9. On 22 March 2010 the Warsaw District Court, having re-examined the case and having recalculated the applicants’ claim on the basis of the instructions contained in the Regional Court’s judgment, found that the claim’s value amounted to PLN 17,016. The court, having weighed the interests of both parties, considered that they should bear the effects of inflation in equal parts. Accordingly, the above amount was divided by two and the applicants were granted PLN 8,508. The Court dismissed the remainder of the claim. 10. Both parties appealed against that judgment. 11. On 18 March 2011 the Warsaw Regional Court found the applicants’ appeal ill-founded and the defendant’s appeal partly well-founded, amended the challenged earlier judgment, and granted the applicants PLN 169 (approximately EUR 42). The Court considered that the District Court, in its judgment of 22 March 2010, had failed – when recalculating the value of the claim – to apply the 1949 Decree and the 1950 Act, which had never been repealed or declared unconstitutional; they thus remained in force and had to be applied to the present case. Having set the value of the applicants’ claim at PLN 169, the Court considered that it would be “contrary to the principles of community life” (sprzeczne z zasadami współżycia społecznego) to reduce this amount further by placing on the applicants part of the burden of the effects of inflation; accordingly, it granted them the whole of the recalculated amount. 12. The Court then referred to the applicants’ argument that the value of the claim had been decreased by the 1994 Act. It found that this Act had not significantly influenced the value of their claim because after the entry into force of the 1950 Act the claim had been of only symbolic value, namely PLN 10. The Court further considered that for the more than 40 years that had followed the entry into force of the 1950 Act the applicants’ claim had lost its value as a result of economic developments in Poland and that it was in fact immaterial whether an assessment of the claim’s value was made with or without reference to the 1994 Act. 13. Article 4 provides: “The payment of dues resulting from pecuniary obligations arising from any title of a private or public nature before the entry into force of the present decree and not redeemed until that day may only be effected in the Polish currency.” 14. At the relevant time, Article 5 (subsequently repealed) provided: “(1) The change in the purchasing power of money during the time between the creation of an obligation and its payment date or performance does not constitute a basis for a change in the amount of the obligation or in the means of the execution of the contract or dissolution of the contract. (2) Payment of an obligation, specified in Polish currency on the basis of this decree, shall be made in banknotes of the Polish National Bank according to their nominal value, which is equal to the nominal value of banknotes or other means of payment, which were expressed in zlotys and which were in circulation on the territory of Poland or a part thereof before the introduction of the National Polish Bank’s banknotes into circulation. (3) For the establishment of the value of pecuniary obligations referred to in the present Decree and expressed in the Polish currency, it is irrelevant what means of payment was in circulation at the time of the creation of the obligation.” 15. Article 6 § 2 provides: “The amount of obligations expressed in zlotys in gold is calculated at 1 zloty for 1 zloty in gold.” (Wysokość nalezności z zobowiazań pieniężnych wyrażonych w złotych w złocie liczy się jeden złoty za jednego złotego w złocie). 16. The Change of Monetary System Act of 28 October 1950 (o zmianie systemu pieniężnego) provided that all public and private obligations expressed in zlotys (irrespective of the time at which they came into existence) were to be recalculated with effect from 30 October 1950 according to the following ratio: 100 “old” zlotys = 1 zloty. 17. Under section 9 of the 1950 Act, all amounts expressed in “old” zlotys and mentioned in legal provisions binding on the day of the entry into force of this Act were to be recalculated, by virtue of law, according to the following ratio: 100 “old” zlotys = 3 zlotys. 18. The Polish Zloty Denomination Act of 7 July 1994 (ustawa o denominacji złotego) introduced a new payment unit: with effect from 1 January 1995 the new unit of PLN 1 was to be worth 10,000 “old” zlotys. 19. Article 32 of the Constitution reads: 1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. 2. No one shall be discriminated against in political, social or economic life for any reason. 20. Article 64 of the Constitution reads, in so far as relevant, as follows: 1. Everyone shall have the right to ownership, other property rights and the right of succession. 2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession... 21. Article 3581 § 3 of the Civil Code provides: “In the case of an essential change of the purchasing power of money after an obligation falls due the court may, after considering the interests of the parties and in accordance with the principles of community life, change the amount or the mode of payment, even if these were fixed in a decision or a contract.” 22. On 24 April 2007 the Constitutional Court gave a judgment (SK49/05) in which it held that section 12(1) of the Act of 28 July 1990 amending the Civil Code – in so far as it limited the possibility of judicial indexation referred to in Article 3581 § 3 of the Civil Code as regards pecuniary obligations which had come into existence before 30 October 1950 as a result of bonds emitted by the State Treasury – was inconsistent with Article 64 §§ 1 and 3 in conjunction with Article 32 § 1 of the Constitution. 23. In the part named “effects of the judgment” the Constitutional Court noted: “Taking into consideration the effects of this judgment and the impossibility of claiming the full value of claims arising from national bonds issued before 1939, the matter of possibility and scope and, in particular, the amount of just satisfaction for persons holding such bonds, should be resolved by the lawmaker. As stressed on many occasions in its case-law, the Constitutional Court should not replace the lawmaker. The finding by the Constitutional Court that section 12(1) of the Act of 28 July 1990 amending the Civil Code was inconsistent with the Constitution ... will enable the holders of national bonds to access the indexation of their claims guaranteed by Article 3581 § 3 of the Civil Code. However, in practice, the expiry of limitation periods may effectively deprive claimants of a chance to achieve a positive outcome in the relevant proceedings. If [the Parliament] does not enact new provisions before section 12 (1) of the Act of 28 July 1990 expires, holders of national bonds, who have been patiently waiting for the settlement of their claims, will be able to lodge [with civil courts] their claims for payment in an amount which will be calculated with the application of the indexation clause. However, the present judgment of the Constitutional Court does not indicate to the courts the scope, direction or scale of the indexation.” 24. The provisions which had been found unconstitutional were subsequently repealed, which opened the way for applicants to seek their claims before the courts and to demand that the value of their claims be judicially increased.
| 0 |
test
|
001-179411
|
ENG
|
TUR
|
COMMITTEE
| 2,017 |
CASE OF DİK v. TURKEY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)
|
Ledi Bianku;Stéphanie Mourou-Vikström
|
4. The applicant was born in 1980 and lives in Van. 5. Relying on Law no. 5233 on Compensation of the Losses resulting from Terrorism and the Measures Taken against Terrorism, the applicant applied to the compensation commission and requested to be awarded compensation due to forced evacuation from his village. His request was rejected. Subsequently, he initiated proceedings before the Van administrative court to have the said decision annulled. Relying on documents attesting to his poor financial status, the applicant requested legal aid to pay the court fees. On 7 July 2006 the administrative court rejected the applicant’s legal aid request. He was notified that he had to pay 604 Turkish Liras (TRY) (approximately 330 euros (EUR)) in court fees within one month to continue the proceedings and that failure to do so would result in the discontinuation of the proceedings. As the applicant failed to pay the court fees within the time-limit, on 2 August 2006 and 27 October 2006 respectively, the Van Administrative Court sent further warning letters and ordered the applicant to pay the court fees. 6. On 29 December 2006 the court decided to discontinue the proceedings since the necessary court fees were not deposited with the registry of the court. The Supreme Administrative Court upheld the judgment on 17 December 2008. Subsequently, the administrative court decided to discontinue the proceedings.
| 1 |
test
|
001-180478
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,017 |
AKTAŞ v. TURKEY
| 4 |
Inadmissible
|
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
|
1. The applicant, Ms Eşe Fatma Aktaş, is a Turkish national who was born in 1966 and lives in Adana. She was represented before the Court by Mr N. Karakaya, a lawyer practising in Istanbul. 2. The Turkish Government (“the Government”) were represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 4 September 2011, at approximately 11.15 a.m., the motorcycle driven by the applicant’s son-in-law collided with a pickup truck on a highway. It appears that both the applicant’s son-in-law and her daughter, who was riding at the back of the motorcycle as a passenger, died on the spot. S.D., the driver of the pickup truck, was taken into detention for interrogation upon the orders of the Eskipazar Public Prosecutor. 5. Soon after the incident the Eskipazar Public Prosecutor arrived at the scene of the accident in order to carry out a preliminary examination. It appears from the public prosecutor’s initial incident report that the accident took place on a dual carriageway, where the traffic was flowing in single lanes on one carriageway due to roadworks on the other carriageway at the material time. According to the information that the public prosecutor received from the traffic police, the collision had occurred in the pickup truck’s lane. 6. During his interrogation by the gendarmerie, S.D. stated that he had been driving at a normal speed in his own lane when he noticed a motorcycle coming towards him at great speed in the same lane. Although he had tried to swerve to the right, the motorcycle had hit his vehicle on the left side. He denied any responsibility for the accident. 7. A detailed accident report was prepared by the traffic police on the same day, in which it was stated that no alcohol had been found in S.D.’s blood. The report also stated that the motorcycle driver, who had strayed into the opposite lane, had been entirely responsible for the accident. The traffic police also prepared a sketch map of the scene. 8. According to the crime scene report prepared by the gendarmerie the next day, the post-impact skid marks of the pickup truck were found to be 25.40 metres long, and the scratch marks left by the motorcycle on the road suggested that the collision had occurred in the pickup truck’s lane. According to the same report, the accident had not been caused by adverse weather conditions or any physical defects of the road. The report was accompanied by a sketch map of the accident scene. 9. On 5 September 2011 S.D. was brought before the Eskipazar Public Prosecutor and the Eskipazar Magistrates’ Court, respectively, for questioning. He repeated the statements he had previously made to the gendarmerie. On the same day, the Eskipazar public prosecutor’s office requested S.D.’s arrest on suspicion of causing death through negligence. However, the Eskipazar Magistrates’ Court rejected that request and ordered S.D.’s release from detention. 10. On 14 November 2011 the applicant requested the collection of certain evidence by the Eskipazar public prosecutor’s office, including any CCTV footage from the accident scene, the suspect’s traffic record, a technical examination of the pickup truck (the brake mechanism in particular), and a medical report on the suspect’s eyesight. The applicant also requested the calculation, by an expert, of the approximate speed of the pickup truck at the time of the accident on the basis of the skid marks it had left on the road. 11. On 25 November 2011 the Eskipazar public prosecutor’s office ordered the examination of the suspect’s traffic records and any available CCTV footage in accordance with the applicant’s request. It appears that no action was taken as regards the remaining requests. 12. On 1 December 2011 the Eskipazar Provincial Gendarmerie Command informed the public prosecutor’s office that there were no CCTV cameras in the vicinity of the accident scene, and that S.D. had not been involved in any traffic accidents previously. 13. On 12 December 2011 the applicant was invited to the Gültepe police station in Istanbul to make a statement. She complained that the Eskipazar public prosecutor’s office was not conducting the investigation in an effective manner. Once again, she requested the collection of all the evidence referred to in paragraph 10 above, as well as an examination of the suspect’s phone records to determine whether he had been talking on the phone around the time of the accident. She also asked to be provided with any expert reports submitted to the investigation file. 14. On 30 December 2011 the Eskipazar public prosecutor conducted an on-site examination of the accident scene with the participation of a traffic expert (a traffic police officer). 15. In his report dated 10 January 2012 (“the first expert report”) the traffic expert stated that the absence of any pre-impact skid marks suggested that neither of the drivers had had the opportunity to react in a timely manner (such as by applying the brakes or swerving to the side) to prevent the accident, which had increased the impact of the collision. He found that the motorcycle, which had strayed into the lane occupied by oncoming traffic, had been entirely responsible for the accident. The traffic expert’s report was not provided to the applicant. 16. The Eskipazar public prosecutor’s office subsequently ordered another expert report from the Forensic Medicine Institute, which conducted an examination on the basis of the material in the investigation file. In its report dated 13 February 2002 (“the second expert report”), the Forensic Medicine Institute repeated the findings of the traffic expert. It appears that that report was not sent to the applicant either. 17. Based on all the information and evidence collected, on 28 February 2012 the Eskipazar public prosecutor’s office delivered a decision not to prosecute S.D., who had not been found to be at fault in the incident. 18. The applicant objected to that decision, claiming in particular that she had not been sent the expert reports submitted to the investigation file, which had prevented her from challenging them, and that the public prosecutor had not collected all the evidence relevant to the incident. She also challenged the competence of the police officer who had prepared the first expert report, and claimed that the subsequent report by the Forensic Medicine Institute had merely repeated the findings of that first inadequate report. 19. On 21 June 2012 the Bartın Assize Court dismissed the applicant’s objection. That decision was served on the applicant on 31 July 2012.
| 0 |
test
|
001-156733
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,015 |
CONSTANTIN v. ROMANIA
| 4 |
Inadmissible
|
Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
1. The applicant, Mr Eugen Constantin, is a Romanian national, who was born in 1959 and lives in Timişoara. He was represented before the Court by the National Organisation for Human Rights (Organizaţia Naţională Pentru Drepturile Omului), an association based in Timişoara. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 26 February 2008 at around 6 p.m. the applicant’s twenty-four year old son G.C. was on his way to work. While he was on the pavement intending to cross the street at a zebra crossing, he was hooked by the lateral right side of a lorry and dragged under the wheels of its trailer. He died immediately. The lorry, driven by F.M., was carrying six workers from their place of work to their homes. 5. Immediately after the accident the police arrived at the scene and started drafting the crime scene report, which included identification data of the parties involved in the accident and of two eyewitnesses, various measurements, a description of the lorry and of the area where the accident happened as well as photographs. F.M. was sent to the hospital for a blood alcohol test. 6. The same day a criminal investigation was started against F.M. for unintentional killing. The police took written statements from four eyewitnesses. C.I. explained that she had been a few metres behind G.C., who had been on the pavement “at the zebra crossing”, when he had stumbled on a manhole cover then lost his balance and fallen under the wheels of a small lorry. She mentioned that, when the accident had happened, the traffic lights had been green for cars. S.L.V., B.I. and C.V., who were passengers in the lorry involved in the accident, stated that the lorry in question had been moving slowly on the inside lane towards green traffic lights when they had seen the victim hurrying on the pavement towards their vehicle. When S.L.V. and C.V. had looked in the right side mirror, they had seen the victim stumbling and falling under the lorry. The lorry’s driver had stopped immediately to see what had happened. C.V. also mentioned that the lorry had been travelling at a speed of no more than 30 kph because at that time of day the traffic was busy. At a later date, N.M. and G.D., who were also in the lorry at the time of the accident, gave similar statements. 7. In March 2008 statements were taken from R.C. and M.R., work colleagues of the victim, as well as the victim’s brother, C.B, who had all seen the accident from across the street. R.C. mentioned that she had been waiting for the bus to go to work together with M.R. and other colleagues including C.B. After their bus left the traffic lights and arrived at the stop where she had been waiting, she saw that the cars in the opposite lane were all stopped at the red traffic light and that only the lorry in question was moving. Immediately afterwards, she saw C.G. lying on the road. She explained that the lorry had been moving at high speed and that she had seen C.G. standing on the kerb of the pavement in front of the zebra crossing and not crossing the street. She did not see how C.G. had fallen under the lorry’s wheels. M.R. and C.B. gave similar accounts of the events. 8. On an unspecified date H.A., a witness proposed by the applicant, stated to the police that at the time of the accident he had been walking on the opposite side of the street when he had heard a noise and had turned to see what had happened. At that point he had noticed that all the cars had stopped on both sides of the road and that the traffic lights had been red for cars. The traffic lights for the zebra crossing had been green but he had not seen any pedestrian crossing at that moment. 9. On various dates polygraph tests were carried out on some of the witnesses. The results of blood alcohol tests came back negative for both the victim and F.M. 10. On 3 April 2008 the applicant joined the criminal proceedings as a civil party. 11. On 4 September 2008 an independent technical expert was chosen and specific questions were raised for his analysis in the presence of F.M. and the applicant. A record was drawn up stating that the parties had had no objections to the expert chosen or to the questions. Subsequently, the expert, accompanied by the applicant, went to the site of the accident for technical verifications. A record was drawn up of his findings, and of the applicant’s version of the facts, namely that C.G. had been crossing the street at a zebra crossing while the traffic lights were on green for pedestrians, when the lorry, which was moving at high speed, hooked him with its right side. 12. On 26 September 2008 the technical expert report was submitted to the investigating authorities. After a thorough analysis of the conflicting statements given by the work colleagues of the two parties, corroborated by the statement given by C.I., and with technical data such as the sequence of the traffic lights obtained from the traffic control authorities, the report established that on 26 February 2008 at around 6 p.m. F.M. was driving a small lorry with a trailer on the inside lane of the road next to the pavement. When the lorry reached the zebra crossing in question the traffic lights were green for cars and the victim, who was running towards the street, had tried to stop before stepping onto the road but had stumbled and bumped against the right side of the lorry’s trailer and was dragged underneath it. The expert mentioned that the speed of the truck could not be calculated mathematically because the brake marks had not been measured after the accident. However, from the distance to which the victim was thrown – 2.60 m – and the spot where the lorry stopped after the impact, it could be analytically inferred that the speed had been low. The report concluded that the driver had not breached any traffic rules and could not have avoided the accident. 13. On 14 November 2008 the applicant, represented by a lawyer, submitted objections to the technical expert report. He requested that the expert be required to determine precisely what the speed of the lorry had been, how the charge had been arranged in the open trailer, what had been the sequence of the traffic lights, whether the victim had been run over or hit by the lorry and whether the driver was guilty of causing the accident. On 27 November 2008 these requests were dismissed by the prosecutor in a reasoned decision since these aspects had already been clarified in the report. 14. The investigation was concluded on 27 November 2008 with the prosecutor’s decision not to pursue criminal charges against F.M. for the crime of unintentional killing because no guilt could be established. The prosecutor examined the conflicting statements given by the two sets of witnesses – the victim’s work colleagues and F.M.’s work colleagues – and balanced them against the statement of the independent witness C.I. as well as the findings of the technical expert report and concluded that F.M. had not breached any traffic rules and could not have avoided the accident. 15. The applicant challenged that decision but his complaint was rejected as ill-founded by the head prosecutor of the Prosecutor’s Office of the Timiş County Court on 29 December 2008. 16. The applicant challenged the prosecutors’ decisions before the Timişoara District Court. He averred that, considering the severity of the crime, it was necessary to at least charge F.M. with a crime and thus allow the opportunity for more thorough technical tests to be conducted, to further examine the discrepancies between the witness statements and to enable him to take part in the proceedings as an injured party. 17. On 22 April 2009 his complaint was allowed by the Timişoara District Court, which decided to send the case back to the prosecutor’s office to reopen the criminal proceedings in order to fully respond to the applicant’s allegations. 18. An appeal by the prosecutor on points of law (recurs) against the above judgment was allowed by the Timiş County Court on 23 November 2009. The County Court thoroughly examined the applicant’s complaints and the available evidence and considered that they had been fully and clearly answered by the investigation and that no additional expert reports or other investigative steps were necessary in the case. With respect to the applicant’s allegations that he could not take part in the proceedings, the court held that it had not been proved that the applicant’s procedural rights had been breached; for example, he had been able to propose witnesses. 19. On 9 April 2010 the applicant authorised the National Organisation for the Defence of Human Rights to request a reopening of the case before the Prosecutor’s Office of the High Court of Cassation and Justice. This request was forwarded to the courts for examination. 20. On 10 November 2010 the Timişoara District Court held that a reopening of the criminal proceedings in a case which had already been subject to the scrutiny of a court was only possible when new facts had been uncovered which had not been known to the investigating authorities at the relevant time. Since this was not the situation in the current case, the court declared the request inadmissible. An appeal by the applicant on points of law against that judgment was allowed on 5 January 2011 by the Timiş County Court. The court held that a request for reopening proceedings must first be examined and resolved by way of a reasoned decision by the prosecutor and only afterwards could it be brought before the courts. 21. The investigation was briefly re-opened following the above-mentioned court judgment. After new statements were taken from the applicant, F.M. and a new witness proposed by the applicant, on 16 November 2011 the prosecutor decided again not to pursue criminal charges in the case owing to a lack of negligence on the part of F.M. The new witness admitted that he had not in fact seen the accident but that the applicant had asked him to come and testify against F.M. 22. The applicant’s complaint against that decision was rejected with final effect by the Timişoara District Court on 11 June 2012. The court examined all investigative steps taken by the prosecutors in the case and decided that the applicant’s complaint was ill-founded. 23. The applicant was represented by a lawyer of his own choosing throughout the proceedings before the domestic courts.
| 0 |
test
|
001-182859
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF IBROGIMOV v. RUSSIA
| 4 |
Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life)
|
Alena Poláčková;Dmitry Dedov
|
4. The applicant was born in 1992 and lives in Bukhara, Uzbekistan. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicant was born in Uzbekistan. In 2003 his father, mother, brother and sister moved to Vladivostok in Russia and subsequently acquired Russian nationality, while he continued to live with his grandfather in Bukhara, visiting them in the summer months. After his grandfather had died and the applicant had finished the secondary school, in June 2011 he joined his family in Russia. 7. The applicant took a mandatory blood test with a view to obtaining a health certificate to support his application for a temporary residence permit. He was found to be HIV-positive. 8. On 23 September 2011 the Consumer Protection Authority declared the applicant’s presence in Russian undesirable (the “exclusion order”) on the ground that he was HIV-positive. 9. By judgment of 19 December 2011, the Sovetskiy District Court in Vladivostok rejected the applicant’s challenge to the exclusion order, finding that it was issued in full compliance with Russian law. 10. On 13 February 2012 the Primorskiy Regional Court upheld the judgment on appeal. 11. On 22 February 2012 the applicant left Russia to comply with the exclusion order.
| 1 |
test
|
001-171828
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,017 |
SMADIKOV v. RUSSIA
| 4 |
Inadmissible
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
1. The applicant, Mr Grigoriy Vladimirovich Smadikov, is a Russian national who was born in 1964 and lives in Khabarovsk. 2. In 2012 the applicant was accused of an administrative offence under Article 12.28 of the Federal Code of Administrative Offences (CAO). According to the applicant, he was unaware of the charge. 3. A hearing was listed for 18 June 2012. Since the hearing notification was returned to the court as “after expiry of the storage term”, the judge rescheduled to 16 July 2012 and issued a new notification. This notification was also returned to the court with the same note. 4. According to the applicant, he remained unaware of the charge and did not receive the above notifications. 5. By a judgment of 16 July 2012 a justice of the peace convicted the applicant; his driving licence was suspended for one year and six months. The applicant allegedly first learned about this judgment on 19 May 2014, when he was involved in a traffic accident. 6. The applicant appealed against the judgment. On 21 July 2014 the Khabarovskiy District Court of Khabarovsk held a hearing; heard the applicant’s representative (the applicant waiving his right to be present); examined evidence; and upheld the judgment. 7. On 27 August and 3 December 2014 the Khabarovsk Regional Court and the Supreme Court of Russia respectively rejected the applicant’s applications for review under Article 30.12 of the CAO (see paragraphs 1721 below as regards the applicable procedure). 8. Under Article 25.11 and 28.4 of the CAO a prosecutor institutes administrative-offence proceedings for a number of offences, but also has the right to institute administrative-offence proceedings in any other case. He can participate in the examination of the case, lodge various applications, and issue a report on issues arising in the case. He can also appeal against the decision in the case, irrespective of whether he previously participated in the proceedings. 9. Under the CAO, depending on the subject matter decisions concerning administrative offences can be issued either by a non-judicial authority or by a court (Chapter 23 of the CAO). 10. At the relevant time, Chapter 30 of the CAO contained provisions concerning review of such decisions. 11. Review could be sought by the person or legal entity accused of the administrative offence, the victim of the offence, or their representative (Article 30.1). If the decision on the administrative offence concerned a legal entity or a person engaged in entrepreneurial activities it was reviewed by a commercial court in accordance with the rules of commercial procedure (Article 30.1). 12. An ordinary appeal against a ruling on an administrative offence could be lodged within ten days (or fifteen days for some offences) following receipt of the copy of the decision (Article 30.3). The appeal should be examined within ten days (or less for some offences) following receipt of the case file by the reviewing court or authority (Article 30.5). The reviewing authority or court is not bound by the scope of arguments, and reviews the case in its entirety (Article 30.6). 13. Article 30.10 gave prosecutors the right to seek review of decisions on administrative offences within the procedure and time-limits set out in Articles 30.1-30.3 of the CAO. 14. Article 30.11 provided for further review of final court decisions on administrative offences. A regional prosecutor or deputy or the Prosecutor General of the Russian Federation or deputy had the right to apply for such a further review. According to the ruling no. 5 of 24 March 2005 by the Plenary Supreme Court of Russia, individuals prosecuted in an administrative-offences case also had a right to lodge an application for supervisory review (paragraph 34). 15. If the judge in the supervisory review had doubts about the lawfulness of the impugned court decisions he or she could request the case file and then examine the case in its entirety, going beyond the grounds for review raised by the author of the supervisory-review application (paragraph 34 of the ruling of 24 March 2005). 16. Supervisory review was to be carried out by the presidents of the regional courts or their deputies, or by the President of the Supreme Court of Russia or her deputies. Reviewing this provision, the Constitutional Court of Russia (decision no. 113-O of 4 April 2006 concerning the constitutional interpretation of Article 30.11 of the CAO; this decision was officially published in July 2006) stated that the reviewing court was to inform the person affected by the administrative offence proceedings about the application for review lodged by the victim. The Constitutional Court also stated that until legislative amendment of the CAO concerning the scope of review, grounds for review, the reviewing courts’ powers, timelimits for seeking review, and the procedure for such a review, the reviewing courts were to be guided by the relevant provisions of Chapter 36 of the Code of Commercial Procedure (see paragraphs 24-29 below). 17. Article 30.11 of the CAO was deleted. Article 30.12 provides that the first-instance and appeal judgments, which became final, can be challenged by way of review by the defendant or his counsel, the victim, legal representative of a minor or another vulnerable person, or legal representatives of a legal entity. Review can be sought by a regional prosecutor or deputy or the Prosecutor General or deputy. Since October 2014 the public official who submitted the administrative offence case for judicial examination is also entitled to seek review. 18. Requests for review should be lodged before regional courts or the Supreme Court of Russia. Such requests are to be examined by the presidents of such courts or their deputies. The Supreme Court is empowered to deal with appeals against decisions taken on review at the regional level. In other cases, the Supreme Commercial Court should have similar competence (Article 30.13). 19. Requests for review should indicate the grounds for the review (Article 30.14). The scope of the review should be limited to the grounds indicated in the request and observations in reply. If the interests of legality so require, the review judge can review the case in its entirety. Renewed requests for review on the same grounds before the same court are not allowed (Article 30.16). 20. The reviewing court should issue a decision within two months of receipt of the application or within one month of receipt of the case file, if so requested by the reviewing court (Article 30.16). 21. The Constitutional Court held that the review procedure in respect of final court decisions under the CAO is aimed at the correction of fundamental errors in such decisions, in line with the requirements of Article 4 § 2 of Protocol No. 7 to the Convention (decision no. 1788-O of 16 July 2015). 22. Apparently, the decision of 113-O of 4 April 2006 was not applied by some regional courts (see decision no. 4a10-790 of 31 August 2010 by the Chelyabinsk Regional Court, and, a contrario, decision no. 4-a-854 of 24 November 2010 by the Rostov Regional Court); some regional courts stated that this decision was no longer applicable following the deletion of Article 30.11 of the CAO during the legislative reform in December 2008 (see decision no. 4a10-1227 of 28 December 2010 by the Chelyabinsk Regional Court). It appears that a number of regional courts have recently maintained the position that there is no time-limit for seeking review proceedings under the CAO: - Moscow City Court: decisions no. 4a-1328/15 of 1 June 2015, no. 4a3046/2015 of 8 September 2015, no. 4a-2641/2015 of 2 October 2015, no. 4a-3465/2015 of 5 October 2015, no. 4a-4770/2015, no. 4a123/16 of 15 March 2016; - Novosibirsk Regional Court: decisions no. 4a-214/2016 of 2 March 2016, no. 4a-252/2016 of 14 March 2016, no. 4a-260-2016 of 6 April 2016, no. 4a-376-2016 of 12 May 2016; - Krasnoyarsk Regional Court: decisions no. 4a-606/2015 of 6 August 2015, no. 4a-624/2015 of 7 August 2015; - Primoskiy Regional Court: decisions no. 7-21-958 of 19 August 2015, no. 7-21-1034 of 14 September 2015; - Ivanovo Regional Court: decision no. 4a-284/2015 of 8 October 2015; - Pskov Regional Court: decision no. 7-78/2015 of 9 June 2015; - Chelyabinsk Regional Court: decision no. 4a16-157 of 1 March 2016; - Supreme Court of the Tatarstan Republic: decision no. 4a-299 of 14 April 2016. 23. Cases concerning the charges under the CAO in respect of legal entities and entrepreneurs are examined according to the procedures prescribed by the Code of Commercial Procedure (CCOmP). 24. Prior to the changes which entered into force on 6 August 2014 (Federal Law no. 186-FZ of 28 June 2014), supervisory review of final judgments issued by commercial courts was regulated under Chapter 36 of the CComP. 25. Article 292 of the CComP provided that supervisory review of final judgments was carried out by the Supreme Commercial Court of Russia. This review could be sought by the parties to the proceedings and, in some cases, by a prosecutor (see also Articles 42 and 52 of the CComP). 26. The grounds for review included “substantial violations of rights and legitimate interests relating to entrepreneurial or another economic activity as a result of a violation or wrong application of material or procedural law” (Article 292 of the CComP). The application for review was to be lodged within three months of the date the last impugned judgment entered into force, provided that the other review remedies had been exhausted (ibid.). 27. Article 293 provided that the application was to be examined by a panel of judges, who had to decide whether the case was to be transferred for examination by the Presidium of the Supreme Commercial Court (see also Article 299 of the CComP). 28. Article 304 of the Code contained the grounds for varying or overturning lower courts’ decisions: violation of consistency in interpretation and application of the law by commercial courts; violation of human rights and freedoms, as protected by the well-recognised principles and rules of international law or by an international treaty of the Russian Federation; and violation of the public interest. 29. On this Court’s position concerning the supervisory review procedure under the CComP prior to the amendments in 2014, see Kovaleva and Others v. Russia (dec.), no. 6025/09, 25 June 2009. 30. For a summary of the amended provisions of the CComP in force since August 2014, see Sakhanov v. Russia (dec.), no. 16559/16, §§ 13-30, 28 October 2016.
| 0 |
test
|
001-159374
|
ENG
|
AZE
|
COMMITTEE
| 2,015 |
CASE OF VUGAR ALIYEV AND OTHERS v. AZERBAIJAN
| 4 |
Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election)
|
Carlo Ranzoni;Khanlar Hajiyev
|
4. The applicants’ dates of birth and places of residence are given in the Appendix. 5. The applicants were nominated by the Karabakh Election Bloc as candidates in the parliamentary elections of 7 November 2010 and applied for registration as candidates in various single-mandate electoral constituencies (see Appendix). 6. As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, the applicants on various dates submitted sheets containing the signature of more than 450 voters collected in support of their candidacy to their respective Constituency Electoral Commissions (“ConECs”). 7. Before a decision by a ConEC on registering an applicant as a candidate, the signature sheets and the other registration documents submitted by the applicants had first to be verified by special working groups (işçi qrupu) established by the ConECs. None of the applicants were invited to participate in the examination of their sheets of signatures by the ConEC working groups. 8. The ConECs on various dates (see Appendix) issued decisions to refuse the applicants’ requests for registration as a candidate, after the ConEC working groups had found that some of the voter signatures were invalid and that the remaining valid signatures had numbered fewer than 450. Signatures were found to be invalid on several grounds in each case, including: (a) falsified or repeat signatures (“signatures made repeatedly by the same individuals who had already signed sheets in the name of other individuals”); (b) incorrect personal information on voters (birth date, identity card number, and so on); (c) signatures by persons whose identity cards had expired; (d) signatures belonging to voters registered outside the constituency; (e) uncertified corrections in signature sheets; (f) withdrawal by the signature collector of his or her own signature certifying a list, invalidating the entire list of 50 signatures; and (g) unspecified “other grounds”; and so on. 9. None of the applicants were invited to the ConEC meetings where decisions to refuse their requests for registration were taken. In each case, despite the requirements of the law, all the relevant working group documents (expert opinions, minutes of the meeting, records and tables of results of the examination), as well as the ConEC decision itself, were only made available to the applicants after the decision to refuse their registration had been taken. In many cases, some of the documents were never made available to the applicants or were only made available to them as late as during the subsequent judicial proceedings in the Baku Court of Appeal. 10. Each applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decision. They made some or all of the following complaints: (a) the findings of the ConEC working groups that such large numbers of signatures were invalid had been factually wrong, unsubstantiated, and arbitrary. Some of those findings of fact could easily have been rebutted by simply contacting the voter in question and confirming the authenticity of his or her signature. However, the ConECs had not taken any steps to corroborate their findings with any reliable evidence, such as contacting and questioning a number of voters randomly selected from the group whose signatures were suspected of being false. There were no specialist handwriting experts among the members of the ConEC working groups and therefore their findings on the authenticity of some signatures had been highly subjective and arbitrary; (b) the ConEC decisions to declare the signatures invalid had been arbitrary and in breach of the substantive and procedural requirements of the law. Relying on various provisions of the Electoral Code, the applicants argued that unintentional and rectifiable errors in the signature sheets could not serve as a reason to declare a voter signature invalid. If the errors found could be rectified by making the necessary corrections, the Electoral Code required the ConEC to notify the particular candidate of this within twentyfour hours and to provide him or her with an opportunity to make corrections in the documents before deciding on his or her registration as a candidate. The ConECs had, however, declared large numbers of signatures invalid in the case of each applicant on the basis of easily rectifiable errors, without informing the candidates in advance and giving them an opportunity to make necessary corrections; (c) the procedure followed by the ConECs had also breached other requirements of the Electoral Code. Contrary to the requirements of Article 59.3, the applicants had not been informed in advance of the time and place of the examination of the signature sheets and their presence had not been ensured. Contrary to the requirements of Article 59.13 of the Electoral Code, the applicants had also not been provided with a copy of the minutes of the examination of the validity of the signature sheets at least twenty-four hours prior to the ConEC meeting dealing with their respective requests for registration. Subsequently, none of the applicants had been invited to the ConEC meetings, which had deprived them of the opportunity to argue for their position; (d) some of the grounds for invalidation were not provided by law and therefore to declare signatures invalid on these grounds had been unlawful. For example, the Electoral Code did not allow the invalidation of a signature merely because the voter’s identity document had recently expired; (e) in some cases, various local public officials and police officers had applied undue pressure on voters or signature collectors to “withdraw” their signatures on the grounds that they had been tricked to sign in the candidate’s favour “by deceptive means”. 11. The CEC arranged for another examination of the signature sheets by members of its own working group. None of the applicants was invited to participate in that examination process. The CEC working group found in each case that large numbers of signatures were invalid and that the remaining valid signatures were below the minimum required by law. 12. In each case, the number of signatures found to be invalid by the CEC working group differed from the number given by the particular ConEC working group, with differences often being significant. Furthermore, in almost every case the grounds for declaring signatures invalid given by the CEC had been different from the grounds given for the same signature sheets by the ConEC. In most cases a certain number of the total signatures were also declared invalid on the grounds that they had “appeared” to have been falsified, that is, “made by the same person in the name of other people” (“ehtimal ki, eyni şəxs tərəfindən icra olunmuşdur”). 13. On various dates, the CEC rejected the applicants’ complaints (see Appendix). None of the applicants were invited to attend the CEC meeting dealing with their complaint. Moreover, in each case, all the relevant CEC documents (including the working group documents) were only made available to the applicants after the CEC decision had been taken, while in some cases such documents were never given to them at all, or were given as late as at the stage of judicial appeal proceedings. 14. On various dates, each of the applicants lodged an appeal with the Baku Court of Appeal against the decisions of the electoral commissions. They reiterated the complaints they had made before the CEC concerning the ConEC decisions and procedures. They also raised some or all of the following complaints concerning the CEC’s decisions and procedures: (a) contrary to the requirements of electoral law, the CEC had failed to notify them of its meetings and ensure their presence during the examination of the signature sheets and their complaints; (b) contrary to the requirements of electoral law, some or all of the relevant CEC documents had not been made available to them, depriving them of the opportunity to mount an effective challenge to the CEC decisions; (c) the decisions of the electoral commissions had been based on expert opinions that had contained nothing more than conjecture and speculation (for example, that the signatures had “appeared” (“ehtimal ki”) to have been falsified), instead of properly established facts; (d) in those cases where the applicants had submitted additional documents in support of their complaints, the CEC had ignored those submissions and failed to take them into account. 15. Relying on a number of provisions of domestic law, and directly on Article 3 of Protocol No. 1 to the Convention, the applicants claimed that their right to stand for election had been infringed. 16. On various dates (see Appendix), the Baku Court of Appeal dismissed appeals by the applicants, finding that their arguments were irrelevant or unsubstantiated and that there were no grounds for quashing the decisions of the CEC. 17. The applicants lodged cassation appeals with the Supreme Court, reiterating their previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the cases and had delivered unreasoned judgments. 18. On various dates (see Appendix), the Supreme Court dismissed the applicants’ appeals as unsubstantiated, without examining their arguments in detail, and found no grounds to doubt the findings of the electoral commissions or of the Baku Court of Appeal.
| 1 |
test
|
001-166927
|
ENG
|
SVN
|
CHAMBER
| 2,016 |
CASE OF ŠMAJGL v. SLOVENIA
| 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;Article 6-3-d - Examination of witnesses)
|
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1959 and is currently detained in Dob prison. 6. The applicant was engaged in a business providing online sexual services, which was registered in Všenory in the Czech Republic. He cooperated with certain Dutch and American enterprises. In September 2001 a dispute arose between the applicant and his Dutch partners, one of them being H.C.Z., who wished to discontinue their cooperation. After meeting H.C.Z., together with his bodyguard E.M.L., also a Dutch national, in Prague on 14 September 2001, the applicant connected one of the studios involved in the production to the network of his American partner. 7. On 18 September 2001 the applicant, his brother M.Š. and another Slovenian citizen, A.S., were in a villa in Všenory where the applicant had set up his studio. The applicant had arranged another meeting with H.C.Z., so in the evening the latter appeared at the villa accompanied by his bodyguard E.M.L. Ms M.S. and another three persons were also present in the villa. The applicant, M.Š., H.C.Z. and E.M.L. then met in the bedroom, where H.C.Z. was shot dead. 8. After the shooting, the applicant, M.Š. and A.S. fled the scene of the crime and eventually returned to Slovenia. Bruised and scared, E.M.L. was later that evening found by police hiding in nearby bushes. 9. During the preliminary investigation, on 19 and 20 September 2001 the Czech authorities questioned E.M.L., who stated that H.C.Z. had been killed by the applicant. E.M.L. provided a detailed description of the applicant and an account of the events at issue. He stated that he had come to Prague together with his boss H.C.Z. and had made the applicant’s acquaintance a few days before the shooting, adding that at the first meeting the applicant had appeared hostile to him. E.M.L. met the applicant briefly once again before the evening of 18 September. 10. According to E.M.L., on the evening in question, the applicant asked for a meeting with H.C.Z., so he and E.M.L. drove to the villa in Všenory. The door was opened to them by a young man, who was later identified as A.S. A woman whom they had also met before – Ms M.S. – was sitting in the living room. H.C.Z. was called into the bedroom, while E.M.L. waited outside the open bedroom door. The applicant and another man E.M.L. did not know were standing in the room. E.M.L. described the other man as looking a lot like the applicant, almost his twin, only older. While that man neither spoke nor did anything, the applicant immediately pulled a gun from behind his back, aimed at H.C.Z.’s forehead, and fired at him. After the first shot, E.M.L. turned around and started to run. In the corridor he passed A.S. and ran out through the main door, to the street and into the bushes. E.M.L. stated that he had heard another shot being fired before he escaped from the villa. He then saw the applicant and A.S. follow him, but after a ten-minute search they left, and soon afterwards he heard a car driving away from the villa very fast. 11. The investigators also examined a number of other witnesses involved in the applicant’s business, among whom M.S., who stated that the applicant had a particular interest in firearms. On the day of the shooting, M.S. was in the living room together with the applicant, A.S., and the applicant’s brother M.Š., whom she described as a man looking older than the applicant. When the doorbell rang, A.S. opened the door and two men entered the living room. According to M.S., the applicant and M.Š. were in the bedroom when H.C.Z. and E.M.L. entered the living room. H.C.Z. stepped forward into the bedroom, while E.M.L. stood at the bedroom door. Immediately after H.C.Z. entered the bedroom, M.S. heard four to five shots. E.M.L. ran away, and the applicant and A.S. followed him. According to M.S., M.Š. also ran after E.M.L., with a gun in his hand. Another two women and a man were present at the house and heard the shots, but did not witness the shooting. They stated that A.S. and the applicant would not allow them to call the police at first, but after the three men left one of the women called the police. 12. In addition to taking statements from the witnesses, the Czech authorities examined and recorded the scene of the crime, and performed a forensic examination of H.C.Z.’s body and a ballistic examination of the bullets and cases found at the scene of the shooting. After the investigation was concluded, the competent prosecutor charged the applicant with the murder of H.C.Z. The indictment was served on his court-appointed lawyer on 10 October 2001. However, since the applicant was eventually found to have gone back to Slovenia and voluntarily begun serving a prison sentence for an unrelated offence, the Czech authorities contacted the Slovenian authorities, seeking to take over the proceedings against the applicant. 13. In January 2002 jurisdiction over the case was transferred to the Novo Mesto District Court. When questioned by the investigating judge on 2 August 2002, the applicant stated that H.C.Z. and E.M.L. had come to the villa threatening them. E.M.L. was carrying a gun and forced the applicant to lie down on the floor, while H.C.Z. ran into the bedroom. The applicant heard some commotion and then a few shots were fired. A few moments later E.M.L. left the villa. The applicant followed him out and saw another, unknown man standing outside by the car. The applicant understood that E.M.L. had ordered the other man to bring reinforcements and kill the people in the villa. E.M.L. then went towards the nearby woods. The applicant went back inside and saw H.C.Z.’s dead body in the bedroom. The applicant, M.Š. and A.S. later drove away in their car, but were afraid to go to the police for fear of being killed. 14. In a statement made on 26 June 2002 the applicant’s brother M.Š. confessed to the murder of H.C.Z. He was subsequently questioned by the investigating judge on 21 August 2002 and stated that he had been woken up by the arrival of H.C.Z. and E.M.L. The day before, he had bought a gun for protection from the applicant’s business competitors, which he had put under the pillow. Hearing the visitors, M.Š. tucked the gun into his belt and got out of bed. The door to the bedroom suddenly opened and H.C.Z. came into the room, while another, dark-skinned man (E.M.L.) stood at the door, holding something in his hand. M.Š. heard someone say “He’s got a gun”, and understood that it was E.M.L. who was holding a gun. M.Š. pulled out his own gun and pointed it at H.C.Z. to show that he would defend himself if attacked. However, H.C.Z. laughed and approached him, so M.Š. fired a warning shot at the floor. H.C.Z. nevertheless came close to him and hit him in the face. M.Š. then fired a shot at him in self-defence; nevertheless H.C.Z. attacked him and tried to push him to the ground. When M.Š. managed to break free from H.C.Z.’s grip, he fired again, this time hitting H.C.Z. who staggered away and fell to the bed. M.Š. stated that he was holding the gun at waist level, trying at the same time to get free from H.C.Z.’s grip, and that the shots were fired from that position. 15. According to M.Š., he and H.C.Z. were the only two people in the bedroom, the applicant and A.S. having been forced to lie down on the floor by E.M.L. When M.Š. looked in to the other room they were getting up from the floor. The applicant and A.S. told M.Š. that another person was standing in front of the villa. They were all scared, so they packed their things and drove away. M.Š. added that he had thrown the gun away at their first stop on the motorway, still in the Czech Republic. 16. On 20 September 2002 A.S. was questioned by the investigating judge and stated that he had opened the door when the bell rang. The applicant also came out of the bedroom. H.C.Z. and E.M.L. entered the villa, E.M.L. ordering A.S. and the applicant to lie on the floor in the corridor. E.M.L. was holding a gun. H.C.Z. moved forward into the living room. A.S. then heard two or three shots being fired inside the villa. He waited a few moments and when he lifted his head, E.M.L. was gone. M.Š. came out into the corridor, holding a gun in his hand. The applicant, A.S. and M.Š. then went into the bedroom to check on H.C.Z., whom they found dead. 17. On 1 October 2002 the district state prosecutor’s office lodged an indictment charging the applicant with murder. At the trial hearing conducted by the Novo Mesto District Court the applicant changed his statement, claiming that when the doorbell had rung he had been in the bedroom collecting some business-related documents, while his brother M.Š. had been lying on the bed. He had heard hissing sounds from the other room, so he went out to check what was happening, but was stopped at the bedroom door by H.C.Z., who grabbed him by the chest with one hand and signalled to E.M.L. with the other. H.C.Z. dragged the applicant out of the bedroom and across the living room and then he went back into the bedroom. The applicant saw his brother get up from the bed and point his gun at H.C.Z. Meanwhile, E.M.L., who had a gun in his hand, ordered the applicant to lie down on the floor. Kneeling down, the applicant saw H.C.Z. hit M.Š. in the bedroom, and he also saw that M.Š. was holding a gun. Then he heard four shots. After the shooting stopped, E.M.L. ran away, shouting that they were all finished. The applicant, who followed him out, saw a silhouette of another man standing beside a car parked outside. The applicant, M.Š. and A.S. were afraid of retaliation for H.C.Z.’s death, so they quickly escaped. 18. When faced with inconsistencies between his previous statement made during the investigation and the account he gave at the trial, the applicant explained that he had not wished to implicate his brother in H.C.Z.’s death and that he had been in poor health when he had given his previous statement. 19. The applicant’s brother M.Š. again asserted that he had thrown the gun with which he had shot H.C.Z. away once they had reached the motorway and started to feel safer. Moreover, M.Š. stated that he did not think that he could be mistaken for his brother, as the applicant was more strongly built and dressed in a higher-class way. 20. On the basis of the forensic analysis of the crime scene and the case file submitted to the Slovenian authorities by the Czech authorities, a forensic ballistic report was prepared by a ballistic expert, F.S. He found that H.C.Z. had suffered three gunshot wounds, one to the front of his chest, another to the right side of his stomach and the third to his left arm. The expert found that H.C.Z. had been shot in the stomach at a range of less than 10 cm; however, the gun barrel did not touch his body at the moment of impact. However, the bullets which had hit H.C.Z.’s left arm and chest were fired from more than 50 cm away. Considering that two bullets and three cartridge cases were found at the crime scene, F.S. presumed that one shot hit the wall either directly or after causing a wound to H.C.Z.’s left arm, and that the force of the impact caused the bullet to shatter. Another bullet was found in H.C.Z.’s chest, while the bullet that had entered his stomach had exited his body under the shoulder blade. According to the expert, at the moment of the shooting H.C.Z. was entering the room, while the shooter was inside the room, firing all three shots while standing. Having regard to these considerations, F. was of the view that the account of the events given by E.M.L. was both possible and likelier than the account given by M.Š., which was not possible at all. No shot had been fired at the floor, and no shot had been fired while the shooter and H.C.Z. were in direct contact as described by M.Š. 21. Furthermore, a medical report establishing the cause of H.C.Z.’s death was prepared, also on the basis of the Czech case file. Medical expert A.Š. found that H.C.Z. had died as a result of internal bleeding which was due to trauma caused by gunshot wounds to his body. He was hit by two or three bullets, twice from a distance of more than 50 cm and once from a distance of less than 10 cm. Given the direction of the bullets and the angle at which they entered H.C.Z.’s body, A.Š. concluded that the shooter and the victim were standing facing each other and that the victim was approximately 20 cm taller than the shooter. Also, A.Š. confirmed that the injuries to H.C.Z.’s body were consistent with the account given by E.M.L., while M.Š.’s account did not correspond to the forensic conclusions. 22. E.M.L. was summoned to the trial hearing but did not appear. The applicant nevertheless requested the opportunity to cross-examine him in order to clarify the circumstances of the shooting and the exact positions of everyone who was in the bedroom at the material time. M.S. and two other witnesses did not appear at the trial hearing either. The trial court decided to read out the statements they had given during the investigation. 23. On 17 January 2003 the Novo Mesto District Court found the applicant guilty of murdering H.C.Z. and sentenced him to thirteen years’ imprisonment. 24. Both the district prosecutor and the applicant appealed against the judgment, and on 12 June 2003 the Ljubljana Higher Court granted the prosecutor’s appeal, increasing the applicant’s prison sentence to fifteen years. 25. The applicant lodged a request for the protection of legality (appeal on points of law, an extraordinary legal remedy) before the Supreme Court, which was granted on 19 May 2005. The applicant’s complaint that he should have been given the opportunity to cross-examine E.M.L. and other foreign witnesses was found to be well grounded, and the case was remitted to the District Court for re-examination with the instruction that the applicant be given the opportunity to cross-examine E.M.L., who was considered the key witness in the case against him. 26. During the re-trial, the Novo Mesto District Court obtained a ballistic report prepared by the Czech experts, which corresponded to the conclusions of the Slovenian expert F.S. about the number of shots fired and the trajectories of the bullets. The applicant, however, who by then had regained his liberty, obtained a report prepared by another ballistic expert, V.M., who criticised on certain points of the report prepared by the expert F.S. In particular, V.M. took the view that the shots could have been fired from a closer range than that established by F.S., and that the latter’s conclusion that H.C.Z. had been standing at the moment of impact was not supported by the available material evidence. In this light, the applicant requested the District Court to appoint a new ballistic expert and to perform a special 3D reconstruction of the crime scene. 27. The District Court also summoned E.M.L., M.S. and a certain A.B., who had also been involved in the internet services featuring interactive sexual content, to testify at the hearing scheduled for 15 November 2005. However, on that date none of the witnesses appeared before the court, so the District Court requested legal assistance from the Czech and Dutch judicial authorities, asking its foreign counterparts to hear the three witnesses in the applicant’s presence. 28. On 13 January 2006 M.S. was questioned by the Local Court in Hradec Králové, Czech Republic, in the presence of the applicant and his counsel. M.S. again testified that on the evening of the events at issue, H.C.Z. and E.M.L. had come into the living room asking for the applicant. Then H.C.Z. went into the bedroom, while E.M.L. stopped at the door. M.S. did not remember hearing any voices, but immediately after H.C.Z. stepped inside M.S. heard four or five shots being fired in the bedroom. M.S., frightened, went into the corner of the room and saw E.M.L. running through the room, followed by the applicant, A.S. and M.Š., who was holding a gun. However, M.S. pointed out that she could not see into the bedroom and could not say who had fired the shots. 29. On 28 March 2006 the investigating judge of the Regional Court of The Hague, examined E.M.L., who gave essentially the same account of events as during the investigation, reiterating that he was entirely convinced that the person who had shot H.C.Z. was the applicant, while another man very similar to the applicant had also been present in the bedroom where the shooting had taken place. E.M.L. declared that he would not be willing to appear at the trial in Slovenia or in the Czech Republic because he was afraid for his life, adding that he was ready to cooperate, but only in the Netherlands. 30. The investigating judge also heard A.B., who had testified that the applicant had worked for him in the Czech Republic but had then tried to take over his business and had threatened him several times, also with a gun. Moreover, A.B. stated that he had warned H.C.Z. about the applicant, but the latter would not be intimidated and left for Prague anyway. 31. At the hearing on 12 April 2006 the Novo Mesto District Court established that the applicant and his counsel had not been notified about the questioning of E.M.L. and A.B. due to the urgency of the matter. The court decided to request the Dutch authorities to give the applicant the opportunity to cross-examine those witnesses; however, the investigating judge of the Regional Court of The Hague refused to allow the applicant to attend the examination in person, finding that the witnesses’ safety could be at risk and that they might not be willing to give a statement. Having been informed about the decision of the Dutch investigating judge, the applicant insisted, at the hearing on 16 June 2006, that he should be given the opportunity to personally confront E.M.L., or else the latter’s statement should be excluded from evidence. 32. The second examination of E.M.L. and A.B. on 4 July 2006 was conducted in the presence of the applicant’s counsel, who asked them a number of questions, some of which had been previously prepared by the applicant. A.B.’s testimony mostly concerned his and the applicant’s role in the business they had been involved in in the Czech Republic. As regards E.M.L.’s testimony regarding the shooting of H.C.Z., it was to a large extent consistent with his previous statements; however, when asked to identify on the floor plan of the bedroom where the shooting had taken place the location of the applicant and that of his brother M.Š., E.M.L. showed opposite positions to the ones he had shown when questioned by the Czech police in 2001 and by the Dutch investigating judge for the first time. Alerted to the similarity between the applicant and his brother, E.M.L. responded that he had definitely recognised the applicant at the material time. When asked if he could still recognise the applicant and M.Š. and distinguish between them, E.M.L. responded that he had only seen the applicant twice, but thought that he could recognise him, although he could not say so with certainty. However, he acknowledged that as he had only seen the applicant’s brother M.Š. once, and that very briefly, he was not certain he could still tell the difference between them. Lastly, E.M.L. emphasised again that he was not willing to attend the trial in Slovenia, adding that neither would he consent to being questioned by video link if that meant that the applicant could see him. 33. E.M.L.’s and A.B.’s statements were later read out at the hearing before the Novo Mesto District Court in accordance with the rules of domestic criminal procedure (section 340 § 1 of the Criminal Procedure Act) which provide that a witness’s statement may be read out if he or she lives abroad and fails to appear at a hearing despite being duly summoned. Hearing E.M.L.’s testimony, the applicant commented that E.M.L. had switched the positions of himself and his brother during the shooting, which meant that he had confused the two brothers for one another. 34. Meanwhile, on 24 April 2006 the Šmarje pri Jelšah Traffic Police stopped the applicant and found a gun in his car. The applicant told the officers that the gun had been used in the 2001 murder in the Czech Republic. He further alleged at the trial that his brother M.Š. had told him where he had discarded the gun back in 2001. Returning from the Czech Republic, where he had been at the hearing of M.S., the applicant had gone to find the gun. M.Š. supported the applicant’s account of events by specifying that he had not thrown the gun away, as previously stated. He had in fact hidden it under a concrete plate and had later drawn a map showing the approximate location of the gun, so that the applicant would be able to find it. Ballistic expert F.S. established that the gun corresponded with the model and the calibre used in the murder of H.C.Z. Moreover, the gun was clean and oiled, with no traces of corrosion or any other imperfections. F.S. thus concluded that the gun could not have been left out in the open for several years. The Czech ballistic experts confirmed that the bullets and cartridge cases submitted to them by the Slovenian authorities matched the bullets and cartridge cases found at the crime scene and in H.C.Z.’s body, and had undoubtedly been fired from the same weapon. 35. Moreover, ballistic expert F.S. and medical expert A.Š. were heard by the Novo Mesto District Court and explained the conclusions of their reports. The applicant, not persuaded by their statements, reiterated his request for further ballistic analysis and a 3D reconstruction of the crime scene; however, the District Court dismissed his request. 36. On 12 September 2006 the Novo Mesto District Court delivered a judgment finding the applicant guilty of H.C.Z.’s murder and sentenced him to fifteen years in prison. Noting that the applicant could not be present at the examination of E.M.L. and A.B. in the Netherlands because of the decision of the Dutch investigating judge, which fell beyond the jurisdiction of the Slovenian courts, the District Court nonetheless concluded that since the applicant’s counsel was present and moreover had submitted questions written by the applicant to both witnesses, the applicant’s defence rights were not violated. 37. Moreover, the District Court explained that it had refused the applicant’s request for a 3D forensic reconstruction because ballistic expert F.S.’s request for another ballistic expert to be appointed, the District Court pointed out that any doubts raised by the ballistic report prepared by the defence’s expert V.M. had been removed by the questioning of experts F.S. and A.Š. at the hearing. 38. In its conclusion that it was the applicant who had shot H.C.Z., the District Court relied on the testimony given by E.M.L. The court noted that, when cross-examined by the applicant’s counsel, E.M.L. had confused the position of the applicant and M.Š. on the floor plan of the bedroom, but nonetheless found that his statement regarding the identity of the shooter was persuasive, since he had known the applicant and had maintained throughout the proceedings that he had seen him pulling a gun and firing a shot at H.C.Z. The account given by E.M.L. was further corroborated by forensic evidence and the testimony of M.S. regarding the sequence of events. Moreover, it was noted that M.S. had not seen E.M.L. carry a gun, as had been alleged by the applicant, M.Š. and A.S. 39. As regards the applicant’s motive for shooting H.C.Z., the District Court examined in great detail his role in the business in which he had been involved, and referred to his apparent dispute with the Dutch partners. Finally, the court pointed out numerous discrepancies between the applicant’s statements given during the investigation and at the trial, and the fact that the gun with which H.C.Z. had been killed had been found in the applicant’s possession. The District Court did not believe the applicant’s and M.Š.’s statement that the gun had been hidden under a concrete plate alongside a Czech motorway and then found years later, intact and oiled, by the applicant. As regards M.Š.’s testimony, the court found it unreliable. In particular, it found that M.Š.’s account of the shooting was not supported by the forensic evidence taken at the scene of the crime or by the entry and exit wounds found on H.C.Z.’s body. 40. The applicant appealed against the judgment, raising, inter alia, the argument that he should have had the opportunity to cross-examine E.M.L. in person, either in the courtroom or by video link. 41. On 1 February 2007 the Ljubljana Higher Court dismissed the applicant’s appeal. It found that the District Court had properly assessed the evidence, and that the applicant’s defence rights had not been violated on account of his inability to cross-examine E.M.L. in person. It noted that the grounds relied on by the investigating judge in The Hague, who refused to allow the applicant’s presence at the examination, were identical to those provided in section 178 § 4 of the Slovenian Criminal Procedure Act. It concluded that the applicant’s defence rights had been safeguarded by the attendance of his lawyer at E.M.L.’s examination. It further noted that E.M.L. had provided credible and consistent testimony, which had not been refuted by any of the expert reports; in addition, his account of the events leading to the shooting and his escape from the villa was confirmed by M.S. 42. On 24 January 2008 the Supreme Court decided on the applicant’s request for the protection of legality. It rejected the applicant’s complaint of a violation of his defence rights due because he did not have the opportunity to cross-examine the main witness for the prosecution, finding that the applicant had been familiar with E.M.L.’s testimony and had had an adequate and sufficient opportunity to effectively challenge it through the assistance of his counsel. Moreover, in response to the applicant’s assertion that E.M.L. had confused him for his brother, the Supreme Court observed that E.M.L. had been viewed by the lower courts as a reliable and credible witness because his testimony had been consistent throughout the proceedings, including his identification of the applicant as the shooter. Moreover, E.M.L.’s statement had been corroborated by other evidence, in particular by M.S.’s testimony. The Supreme Court emphasised that the defence had been acquainted with E.M.L.’s initial statement given to the Czech authorities and thus in the position to effectively challenge the reliability and veracity of his testimony. In the Supreme Court’s opinion, the applicant’s counsel had used this opportunity at the hearing of E.M.L. in The Hague, where she had asked, inter alia, a number of questions relating to the reliability of E.M.L.’s identification of the shooter. Therefore, although the applicant had not been present during E.M.L.’s cross-examination, the Supreme Court was convinced that his rights of defence had not been violated. 43. The applicant subsequently appealed to the Constitutional Court, which on 6 April 2010 declared his constitutional complaint inadmissible.
| 0 |
test
|
001-162696
|
ENG
|
BGR
|
ADMISSIBILITY
| 2,016 |
STEFANOV v. BULGARIA
| 4 |
Inadmissible
|
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev
|
1. The applicant, Mr Stoyan Dimitrov Stefanov, is a Bulgarian national who was born in 1950 and lives in Sofia. He was represented before the Court by Ms I. Ivanova, a lawyer practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3. An ancestor of the applicant, of whom the applicant is the only heir, owned land in the city of Kyustendil that was expropriated after 1944. Following the adoption of denationalisation legislation in Bulgaria, in 1997 the applicant initiated restitution proceedings. 4. In a decision of 5 August 1998 the governor of the Sofia region (“the Sofia governor”) held that the land could not be restituted in kind, and awarded the applicant compensation in lieu of restitution. The Sofia governor found that the land had been taken for the construction of buildings and streets, that the construction works had been completed, and that the land which remained unoccupied was insufficient to be registered as separate plot. These findings were reached on the basis of documents submitted by the Kyustendil municipality, including a letter dated 30 June 1998 stating expressly that the unoccupied land was insufficient for a separate plot. 5. According to the applicant, since he had no ground to question the veracity of the documents submitted by the municipality, he did not seek a judicial review of the Sofia governor’s decision, which thus became final. In June 1999 the applicant received the compensation awarded to him, which took the form of compensation bonds. 6. Subsequently the applicant became aware that at about the time when he had sought restitution the municipality had initiated a procedure aimed at separating that part of the land claimed by him which had been unoccupied by buildings or other construction and creating from it an independent plot. The creation of a new plot with a surface of 2,600 square metres was approved by the mayor of Kyustendil in a decision of 5 February 1999. After that the plot was sold to a third party and construction works were commenced. 7. In 2002 the applicant brought a tort action against the Kyustendil municipality, arguing that it had failed to submit to the Sofia governor correct information regarding the status of the land claimed by him. He considered that this had caused him damage, in that had he been awarded partial restitution in kind on the basis of the correct information, he would have received more than what he had actually received after the sale of his compensation bonds. The applicant assessed the losses he had incurred at 30,329 Bulgarian levs (BGN). 8. The Sofia City Court commissioned an expert report, which confirmed that the documents submitted by the Kyustendil municipality in the restitution proceedings had not accurately reflected the land’s true status. In point of fact, the land unoccupied by construction at the time had been sufficient to form a separate plot under the statutory requirements. The Sofia City Court accepted the report’s findings. 9. In a judgment of 30 March 2005 it dismissed the applicant’s action. It noted that a number of circumstances should have been established in order to substantiate the tort claim; however, it had not been shown that the land claimed by the applicant had been expropriated on any of the grounds giving rise to an entitlement to restitution, that the applicant had in fact sought restitution in kind, and that, lastly, the Sofia governor had refused such restitution in kind (and if he had, on what legal ground). Thus, it had not been shown that a causal link existed between the alleged damage and the defendant’s actions. 10. On appeal, on 5 April 2006 the above judgment was upheld by the Sofia Court of Appeal. It also pointed out that in order to prove his claim the applicant had had to establish a causal link between the alleged damage and the actions of the defendant, consisting of a number of elements, and that the failure to establish just one of them would lead to the rejection of the claim. Like the first-instance court, the Court of Appeal pointed out that a number of elements in the causal link were missing. It held that it was not clear on what evidence the Sofia governor had relied in granting compensation in the restitution proceedings. It further held that the applicant had not requested restitution in kind and that it was not proven that he had been entitled to restitution in kind, as it was not established that the documents submitted by the Kyustendil municipality had been the only basis for holding that such restitution was impossible. 11. Upon a further appeal by the applicant, the Court of Appeal’s judgment was upheld by the Supreme Court of Cassation in a final judgment of 29 June 2007. The Supreme Court’s main argument was that the applicant had failed to apply for a judicial review of the Sofia governor’s decision of 5 August 1998 and seek to establish that a partial restitution in kind had been possible. Thus, any damage incurred by the applicant had not been due to actions on the part of the Kyustendil municipality but rather to his own failure to act. 12. In separate proceedings, in 2001 the applicant brought an action against the governors of the Sofia and Kyustendil regions. That action was dismissed in a final judgment by the Supreme Court of Cassation of 4 February 2005. On 20 June 2006 the Supreme Court also dismissed an application by the applicant for the re-opening of the proceedings.
| 0 |
test
|
001-172325
|
ENG
|
SRB
|
COMMITTEE
| 2,017 |
CASE OF BLAGOJEVIĆ v. SERBIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Branko Lubarda;Dmitry Dedov;Luis López Guerra
|
5. The applicant was born in 1951 and lives in Kragujevac. 6. On 13 July 2006 the applicant filed a civil suit together with 18 other persons with the Kragujevac Municipal Court against his former employer Telekom Srbija AD Beograd requesting the payment of funds from profit made in 2005. 7. The applicant’s previous representative did not attend first preliminary hearing fixed for 15 November 2006, since he had been deleted from the register of the attorneys–at-law in May 2006. The applicant appointed the present representative on 25 January 2007. 8. The preliminary hearing was held on 13 February 2007. 9. On 27 August 2007 the proceedings were split to separate proceedings for each of the plaintiffs concerned. 10. The preliminary hearing was held on 21 March 2008. 11. Within the period from 21 October 2008 until 29 April 2011 seven out of eight hearings were postponed for various reasons, mainly because the representatives on the both sides provided new submissions and evidence and on the proposal of both sides due to the cost-efficiency of the proceedings. 12. On 29 April 2011 the Kragujevac First Instance Court ruled against the applicant. 13. On 20 February 2012 the Kragujevac Appeals Court upheld that judgment. 14. On 27 June 2013 the Constitutional Court rejected the applicant’s appeal.
| 1 |
test
|
001-167103
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF RYZHIKOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
4. The applicants were prosecuted in Russia for various crimes. They were arrested and detained pending investigation and trial. Their detention was ordered and extended by the courts. The detention orders were essentially based on the gravity of the charges, the primary grounds being the risk of the applicants’ absconding and interfering with the course of justice. The detention and extension orders used stereotyped formulae, without addressing specific facts or considering alternative preventive measures. 5. The first applicant was born in 1973 and lived, prior to his arrest, in Yekaterinburg, Sverdlovsk Region. In 2007 the applicant was arrested in Ukraine. On 24 May 2008 he was extradited to Russia and was placed in pre-trial detention until 27 December 2010 when he was released on bail. On 22 April 2011 the Kirovskiy District Court of Yekaterinburg convicted him of fraud. 6. The second applicant was born in 1978 and lived, prior to his arrest, in Angarsk, Irkutsk Region. On 23 September 2007 the applicant was arrested on suspicion of fraud. On 25 September 2007 the court remanded him in custody. On 24 June 2010 the Irkutsk Regional Court convicted the applicant of fraud. 7. The third applicant was born in 1967 and lived, prior to his arrest, in Yekaterinburg. The applicant was arrested on 16 August 2012. On 17 August 2012 the court held to place him in pre-trial detention. On 10 October 2013 the Sverdlovsk Regional Court convicted the applicant of trespass, battery, robbery and sexual assault.
| 1 |
test
|
001-164463
|
ENG
|
TUR
|
CHAMBER
| 2,016 |
CASE OF RAHMİ ŞAHİN v. TURKEY
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
|
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
|
5. The applicant, Mr Rahmi Şahin, was born in 1985 and lives in Hakkari. 6. On 12 December 2009 the applicant was taken into police custody on suspicion of involvement in a demonstration and subsequent clashes between some of the demonstrators and the police in Hakkari. According to the arrest report, drafted at 4.30 p.m. and signed by two police officers, the latter officers arrested the applicant at around 4 p.m. after he had attempted to escape. The report said he had also fallen over. The police officers noted that the applicant had resisted arrest and that they had used proportionate force to apprehend him. The applicant refused to sign the arrest report. 7. At 11.30 p.m. on the same day, an incident report was drafted and signed by thirty-seven police officers. According to that report, the Fırat News Agency, a website controlled by the PKK (Kurdish Workers’ Party, an armed illegal organisation), had published a declaration by the KCK (Koma Civakên Kurdistan – the Union of Communities in Kurdistan), containing instructions to hold meetings and marches, to start Serhildan (rebellion), and carry out acts of civil disobedience to show support for Abdullah Öcalan. As a result, on 11 December 2009, a press conference was held and around 500-550 people, including mayors and local politicians from the DTP (Party for a Democratic Society), a pro-Kurdish political party, as well as members of a number of non-governmental organisations, gathered in front of the DTP’s Hakkari office. During the press conference, the crowd chanted slogans and carried banners praising Abdullah Öcalan and the PKK. That same day, the DTP’s dissolution was ordered by the Constitutional Court and thirty-seven of its members were banned from carrying out political activities. As a result, the Fırat News Agency published another article containing instructions for further Serhildan acts and for demonstrations. According to the police report, on 11 and 12 December 2009 the security forces had intervened in several areas in the city where demonstrators had blocked the traffic, chanted slogans in favour of the PKK and its leader, and burned tyres or attacked cars, shops and administrative buildings. The report further stated that when the security forces had intervened, some demonstrators had responded by throwing stones and Molotov cocktails at the police officers. According to the report on the applicant’s arrest, he had been apprehended after the police had moved against a group of 50-60 people who had been chanting slogans in favour of the PKK and its leader in the cemetery of the Biçer neighbourhood. 8. At 6.15 p.m. and 8.20 p.m. that day, two police officers made identical statements to two other officers. They both stated that the applicant had been with a group of people who had been chanting slogans in favour of the PKK and its leader and who had burned tyres. The group had attacked the police with stones when the police had moved against the gathering. According to their statements, the applicant had tried to flee and they had arrested him when he had fallen down, using proportionate force. 9. The arresting officers later identified the applicant. They submitted that the applicant had been in a group of people who had burned tyres and chanted slogans in favour of the PKK and its leader. The officers stated that they had arrested the applicant after he had attempted to avoid arrest. 10. At 6.33 p.m., the applicant was taken to the Hakkari state hospital for a medical examination. The doctor who examined the applicant noted the following information on a medical form: “There is a haematoma on the left eye. [The injury] occurred three hours ago. There is no nausea or vomiting. The patient is conscious and co-operating. There is a slight swelling between the upper lip and the teeth (He stated/It was stated that it was due to a fall). There is a bruised lesion with abrasions on the lumbar area at the level of the second vertebra. A dental examination is recommended.” 11. On 13 December 2009 the applicant was examined by the same doctor. The findings were the same as those in the report of 12 December 2009. 12. On the same day, the Hakkari Magistrates’ Court decided to restrict access to the investigation file concerning the applicant and two other people. 13. On 14 December 2009 a lawyer from the Hakkari Bar Association was asked to assist the applicant during questioning, which took place at the anti-terrorist branch of the Hakkari police headquarters. The applicant was asked to respond to a number of questions in the presence of his lawyer, Mr F. Timur. The applicant, however, exercised his right to remain silent and did not reply to any of the questions. 14. On the same day, the applicant’s legal representative applied to the Hakkari Magistrate’s Court and requested that the decision to restrict his and his client’s access to the investigation file be annulled and his client be released from police custody. On 15 December 2009 the Hakkari Magistrates’ Court dismissed the request. On 16 December 2009 the Hakkari Assize Court upheld the decision of 15 December 2009. 15. Meanwhile, on 14 December 2009 the applicant had made a statement to the Hakkari public prosecutor. He denied any involvement in the demonstration. He stated that the disturbances in the city had meant that he and his wife had been unable to go out of their house and that on 12 December 2009 he had left home in order to buy bread. He contended that he had seen police officers approaching him and had continued to walk towards them. One of the officers had insulted him and taken him to a hill close to their neighbourhood. They had then pushed him down the hill. An officer had hit him on his right ear with a plastic tube. The applicant had then started running down the hill, where there were other officers who had thrown him to the ground, with him landing on his back, and had arrested him. He stated that he still had pain in several parts of his body, particularly around the heart. He complained to the public prosecutor that after he had been arrested, he had been put in a police vehicle and had been hit on the back, close to his armpit, with the butt of a gun. He asked the public prosecutor to find and punish the officers who had been responsible for his ill-treatment. 16. After the questioning, the public prosecutor ordered a medical examination of the applicant. A forensic doctor, mentioning the findings of the previous medical reports, noted an old yellow-green ecchymosis in the right (sic) periorbital area and a mucosal tear of 0.5 cm and oedema on the right side of the upper lip. The report also stated that the applicant had described pain on the left side of his chest and in the left femoral and lumbar regions. According to the report, the applicant was sensitive upon palpation in those regions. The doctor concluded that the injuries were not life-threatening and required only simple medical care. 17. Later that day, the applicant was brought before the Hakkari Magistrates’ Court, where he pleaded innocent and asked to be released. The applicant’s legal representative noted that his client had been beaten during his arrest and that he had not sustained the injuries noted in the medical reports as the result of a fall. The applicant was subsequently detained on remand on suspicion of membership of the PKK on account of his alleged involvement in the events of 12 December 2009. 18. On 16 December 2009 the applicant’s legal representative lodged an application with the Hakkari Magistrates’ Court for his client’s release. In the application, the lawyer noted that the applicant had not sustained the injuries noted in the medical reports as the result a fall, but had been beaten by police officers. The court dismissed the application the same day. 19. Also on that day, the applicant’s legal representative requested that the Hakkari public prosecutor provide him with copies of the documents in the investigation file, which he was authorised to receive despite the restriction order. He further requested the medical reports issued in respect of the applicant. According to the applicant’s submissions, his lawyer was only provided with the medical reports of 12 and 13 December 2009; the public prosecutor’s office failed to provide him with the report of 14 December 2009, which had been issued at the end of the applicant’s detention in police custody. 20. On 17 December 2009 the applicant applied to the Hakkari Magistrates’ Court for release from detention. In his application, the applicant also stated that the police officers had beaten him when they had arrested him. He contended that the officers had held him by the arms and hit him. His eyes and his mouth had been covered with blood as a result. 21. On 18 December 2009 the Hakkari Magistrates’ Court dismissed the application for release. In its decision, the court did not refer to the applicant’s allegations of ill-treatment. 22. On 28 December 2009 the applicant’s lawyer filed a complaint against the police officers who had taken part in the applicant’s arrest. He claimed that the applicant had been beaten by the police officers and that he had been taken to a hill and ordered to run towards the police officers, who had stood further down the hill and had then thrown him to the ground. He also claimed that the medical reports that had been issued were not appropriate or in compliance with internal regulations or the “Istanbul Protocol”. It was further alleged in the complaint that during their consultation in police custody, the lawyer had observed bruises around the applicant’s left eye and damage to his gums, which could have been the result of being hit on the face. The applicant’s legal representative further stated that the applicant was suffering from constant pain around the heart and chest. The lawyer requested that his client be examined by medical practitioners at the Human Rights Foundation of Turkey, a nongovernmental organisation specialised in reporting torture and other types of ill-treatment. He further requested that the public prosecutor initiate an official investigation into the applicant’s allegations of ill-treatment and identify the officers who had ill-treated his client. Finally, the lawyer requested that the public prosecutor take a statement from his client in person and communicate to him the date and the time for taking such a statement. 23. On 17 March 2010 the Hakkari public prosecutor decided not to bring any charges in relation to the applicant’s allegations of ill-treatment. In his decision, the public prosecutor first summarised the content of the incident report dated 12 December 2009 (see paragraph 7 above). Secondly, he noted that the applicant had acted with a group of people who had chanted slogans in favour of the PKK and that he had been arrested after he had attempted to escape and had fallen. The public prosecutor noted in that respect that two police officers had identified the applicant. The public prosecutor then noted that the applicant had acted with groups of people who had blocked traffic, burned tyres, chanted slogans praising the PKK, carried out attacks with stones and Molotov cocktails, and that he had resisted the police by throwing stones when they tried to arrest him, and that he had fallen. The public prosecutor observed that although the applicant had sustained minor injuries on his face and body, he had failed to substantiate his claims that he had been beaten and insulted by the police officers. According to the public prosecutor, acts of “social terrorism” led supporters of terrorism to resist or attack the security forces, in some cases with weapons, and so members of the security forces were obliged to use force within the limits of the law. The Hakkari public prosecutor considered that the applicant had acted upon the instructions of the PKK and that it was to be expected that such people would make claims of ill-treatment. Noting that, according to section 16 of Law no. 2559 on the Duties and Powers of the Police, the police officers had the authority to use force against PKK supporters, the public prosecutor considered that the police had used proportionate force against the applicant. He also noted that there was no evidence in the case file indicating any deficiency in the medical reports drafted by the doctors. The public prosecutor concluded that the applicant’s allegations of ill-treatment were unsubstantiated. 24. On 31 March 2010 the applicant’s legal representative lodged an appeal against the decision of 17 March 2010. He noted, in particular, that the Hakkari public prosecutor’s assessment had been based on incorrect facts such as the “minor nature” of the applicant’s injuries and his involvement in violent acts during the events of 12 December 2009. The lawyer also noted that the public prosecutor had failed to take a statement from the applicant, to collect evidence in relation to his allegations or to identify and question the arresting police officers and potential witnesses. The lawyer also noted that the medical reports had complied with neither domestic legislation nor the “Istanbul Protocol” since they lacked details such as the applicant’s medical history, the applicant’s own account of how the injuries had been caused and an assessment regarding the cause of the injuries. He also claimed that the applicant’s medical examination had taken place in the presence of police officers. 25. On 13 April 2010 the Van Assize Court dismissed the applicant’s appeal. Noting that there was no evidence showing that the applicant had been subjected to ill-treatment, the assize court held that the decision of 17 March 2010 had been lawful. 26. The Government submitted two sets of photographs taken by the security forces with regard to the demonstrations and disturbances of 11 and 12 December 2009 in Hakkari. The first set of 374 photographs concerned the demonstrations held in Hakkari city centre, of which 14 show young men and adolescents throwing stones. The remaining photographs show people demonstrating in different parts of the city centre. 27. The second set of 444 photographs concerned the gatherings and disturbances in the outlying neighbourhoods of Medrese and Biçer in Hakkari. The photographs show that children, adolescents and a few young men gathered in various places in the neighbourhoods. In some photographs, the demonstrators are seen burning tyres and blocking streets. In most of the photographs, children and adolescents, mostly boys, are seen standing or walking. Four of the photographs show children standing close to soldiers, probably talking to them, while another ten show adolescents and young men standing in front of police officers. In around twenty-five of the photographs, children, adolescents and young men, some of whom have their faces covered, are seen throwing stones at an armoured police vehicle. Five pictures show police vehicles spraying demonstrators with a water cannon and tear gas.
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001-140013
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ENG
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RUS
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CHAMBER
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CASE OF SHCHIBORSHCH AND KUZMINA v. RUSSIA
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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 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award
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Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
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5. The applicants were born in 1939 and 1944 respectively and live in Dubna, the Moscow Region. 6. The applicants are a married couple. They are the parents of Mr Shchiborshch, who was an economist and the author of a number of publications. At the time of the events he was thirty-seven years old and suffering from a psychiatric disorder which required in-patient treatment. 7. On 7 July 2006 the first applicant, having obtained a referral from Moscow’s Psychoneurological Dispensary no. 10 recommending in-patient treatment for Mr Shchiborshch, contacted the Nagatinskiy Zaton department of the interior (“the OVD”) and asked the police to assist with placing his son in a psychiatric hospital. He explained that Mr Shchiborshch was in a delirious state and was not letting anyone except the first applicant into his flat as he was afraid of burglars. 8. Between 11.20 a.m. and 12.40 p.m. on 7 July 2006 the head of the OVD ordered police officer G. to forcibly place Mr Shchiborshch in a hospital. Subsequently police officers G., L. and D. arrived at the residence of the applicants’ son. When Mr Shchiborshch opened the lobby door and saw the police officers, he immediately ran back to his flat and tried to close the door. He refused their orders to go to the OVD for transfer to a hospital. First, the police officers tried to remove his hand from the door knob so that he could not close the door. Mr Shchiborshch threatened the police officers with a kitchen knife and wounded G. The police officers, who were wearing bullet-proof vests, hit him with rubber truncheons and other objects. Mr Shchiborshch eventually ran to the kitchen and barricaded the door from the inside. The officers called the special police unit (“the OMSN”) for support. 9. While in the kitchen, Mr Shchiborshch called an ambulance and said that he needed help because he had been wounded. He also called the police, asking for help because he was being “attacked by burglars”. In the meantime, the OMSN arrived. After trying unsuccessfully to negotiate with him, they decided to “storm” the kitchen. Mr Shchiborshch ran to the balcony and cried for help while the police officers continued trying to apprehend him. When he fell on the balcony floor, they handcuffed him and put him on the kitchen floor. The first applicant, who had been ordered to stay in the lobby while the police forced an entry to the kitchen, was then allowed into the kitchen. He saw his son handcuffed and lying on the floor in a pool of blood. 10. Mr Shchiborshch was taken to hospital no. 7 with multiple wounds and in a coma. He died without regaining consciousness, having sustained craniocerebral trauma, brain oedema, concussion, and slash wounds to the head, body and extremities, several fractured ribs and a ruptured jugular vein. 11. On 7 July 2006 the case file concerning the death of Mr Shchiborshch was transmitted to the Simonovskiy Inter-District Prosecutor’s Office. 12. On the same date the investigating authorities ordered a forensic examination of Mr Shchiborshch’s body. 13. On 10 July 2006 forensic report no. 1262 was issued. The experts made the following findings: (1) The following injuries were found on Mr Shchiborshch’s body: - open non-penetrating craniocerebral trauma: depressed fracture of the left frontal and parietal bones, fracture of the sphenoid and parietal bones, and the orbital part of the frontal bone; sub-arachnoid haemorrhages and contusion of the convex surface of the left frontal lobe and the surface of the right frontal lobe, haemorrhaging of the soft tissue and bruising of the left frontal parietal and temporal region; bruising of the frontal region, bruising and abrasions of the right frontal region, and the top of the right eye socket; haemorrhaging of the soft tissue of the parietal-temporal region on the right; - closed fractures of the sixth, eighth, ninth, tenth and eleventh ribs; - bruising of the right cheekbone; - bruising of the right and left shoulder joints, and the left shoulder, the surface of the right hip, the inside of the right knee joint, the front of the right and left shin, the front of the left hip; bruising and abrasions of the left cheekbone and periotic-masticatory region, abrasions of the chin, intra-cutaneous haemorrhages of the chest, bruising and abrasions on the right forearm, right hand, and left arm; - a 3 cm-long punctured slash wound to the left side of the neck; - multiple surface slash wounds on the right earlobe, left cheekbone and periotic-masticatory region, the lower jaw, chest, shoulders and hands. (2) All the injuries were caused while Mr Shchiborshch was alive, shortly before his admittance to hospital: - the craniocerebral trauma was caused by multiple blows with hard blunt objects; - the rib fractures and the bruising of the right cheekbone, head, body and extremities were caused by blows, and the abrasions by scraping against a hard blunt object (or objects); - the punctured slash wound to the left side of the neck was caused by a sharp cutting object inflicted upwards from the front to the back and from left to right, assuming that Mr Shchiborshch was in a vertical position; - the multiple surface slash wounds were caused by a cutting object or objects; - forensic and spectral research of the soft tissue of the wounds to the head, neck and right hand did not reveal any micro splinters of glass or other foreign bodies. Emission spectral analysis showed an increased content of aluminium, lead and manganese in the skin of the head, which could have been caused by soiling. Other specimens of skin and soft tissue did not reveal an increased metal content; - after the injuries had been caused, Mr Shchiborshch was taken to hospital in a coma, incapable of any independent actions, including movement. The injuries could not have been caused as a result of falling from his height to a horizontal surface. In order to establish the possible location of the victim and the aggressor at the time when the injuries were caused, it was necessary to have access to the materials of the file. (3) The open craniocerebral trauma and the punctured slash wound to the left side of the neck which damaged a blood vessel combined to form a life-threatening trauma classified as grave health damage. The rib fractures were classified as health damage of medium gravity. As the bruises and abrasions were not accompanied by heavy bleeding and no blood vessels were damaged, they were not considered to constitute health damage. (4) Mr Shchiborshch’s death at 4.15 p.m. on 7 July 2006 was caused by the combined trauma, complicated by cerebral oedema and blood loss. (5) There was a direct causal link between the craniocerebral trauma, the punctured slash wound to the left side of the neck with a damaged blood vessel, and his death. There was no direct link between his death and the other injuries. 14. Forensic report no. 1262 was supplemented by a chemical and histological analysis of his blood and soft tissue conducted on 13 and 24 July 2006 respectively. 15. On 17 July 2006 the Simonovskiy Inter-District Prosecutor’s Office refused to institute a criminal investigation. It found that the police officers’ actions disclosed no indication of an offence, since they had acted in an appropriate manner in a life-threatening situation. 16. On 24 July 2006 the deputy of the Simonovskiy inter-district prosecutor set aside the decision and remitted the case file for further investigation. He held that the decision was unfounded since not all the the results of the forensic examination of the body and to question the doctor from Psychoneurological Dispensary no. 10 who had recommended in-patient treatment. 17. On 3 August 2006 the Simonovskiy Inter-District Prosecutor’s Office instituted a criminal investigation under Article 108 § 2 (murder committed in excess of necessary self-defence or in excess of measures required to arrest a person who has committed an offence) and Article 286 § 3 (abuse of official powers) of the Criminal Code. The decision stated that, by storming the flat and using rubber truncheons, which led to Mr Shchiborshch’s death, the police officers had clearly exceeded their authority. The case file was assigned no. 363484. 18. On 10 August 2006 police officer D. was questioned. According to his submissions, at approximately 12.40 p.m. on 7 July 2006 he and police officers G. and L. had been ordered to deliver a mentally-ill person to a hospital. They went to that person’s place of residence together with the latter’s father, the first applicant, who had given them oral permission to enter the flat. On arrival, they put on bullet-proof vests, and the first applicant rang at the lobby door. Mr Shchiborshch walked to the door and asked who was there. The first applicant replied that it was him. Mr Shchiborshch said that he would open the door and after a while began to open it. G. was standing at the door; L. was behind him and D. was standing to one side. When the door was opened, G. tried to enter but then shouted: “Knife!” Mr Shchiborshch ran to the door of his flat wielding a knife. He tried to close the door to his flat, but L. stopped him. Mr Shchiborshch then went to the kitchen and barricaded himself inside. D. reported the events to the OVD and called an ambulance, which arrived in approximately twenty minutes; G. was given first aid and taken to hospital. L. blocked the door so that Mr Shchiborshch could not leave the flat and harm anyone else, awaiting the arrival of the special police unit. When the special unit arrived, the regular police officers were asked to leave the lobby. D. could not identify the officers of the special police unit as they were all wearing uniforms and their faces were covered with masks. D. did not see what happened in the flat. He was ordered to return to the OVD. 19. On 13 August 2006 police officer Kh. of the special unit was questioned. He stated that on 7 July 2006 he had been on duty. At 1.50 p.m. he received information that a mentally-ill person had wounded a police officer, barricaded himself in his kitchen and resisted involuntary placement in a hospital. Together with special unit police officers B., D-n. and S., he arrived at the address indicated at approximately 2.35 p.m. He stayed in the car while the head of the team, D-n., went to find out what the situation was. Fifteen or twenty minutes later they were ordered to go up to the sixth floor, where D-n. told them that Mr Shchiborshch had been threatening to kill them, saying that the kitchen door was electrified. Kh. heard Mr Shchiborshch say that he had already knocked down one man and the same would happen to the others. Kh. then understood that Mr Shchiborshch had realised that there were police officers in the flat. The four of them were in the lobby discussing further actions when they heard a crash from the kitchen. The stained glass in the kitchen door had been broken and they were showered with shards of glass. Since the police officers were wearing bullet-proof vests, no one was hurt. Through the kitchen door Kh. saw a bare-chested fair-haired man, approximately thirty-five years old of medium build. His face and chest were covered with blood and he was holding 20-30 cm long kitchen knives. The blades were covered with a brown substance that looked like blood. Kh. noticed that the man had “mad eyes” and was behaving strangely. The police officers of the special unit introduced themselves and asked Mr Shchiborshch to put down the knives and step out of the kitchen. Mr Shchiborshch, who was very excited, refused and lunged at B. The officers were separated from the kitchen by a door, which had been blocked by furniture on the other side. B. tried to force open the door with his shield. Mr Shchiborshch continued lunging at B. and at a certain point Kh. heard that a wound had been inflicted. He then covered B. with his shield and started to move forward. Kh. was then stabbed in the right shoulder and started to bleed. Mr Shchiborshch then moved to the balcony and Kh. went to the stairwell to receive first aid. He stayed there until the end of the operation. Five or ten minutes later he saw from the lobby Mr Shchiborshch, who was covered with blood and wearing handcuffs, being led from the kitchen to the living room. A doctor entered the room and apparently gave Mr Shchiborshch a sedative injection and dressed his wounds. Kh. then went to the kitchen, took his shield and left the flat. 20. On 15 August 2006 police officer B. of the special unit was questioned. He made a statement similar to that of Kh. concerning the events that had taken place before the latter had been wounded. As regards the subsequent events, B. stated that he and police officers D-n. and S. had forced open the kitchen door and begun to clear up the barricade of furniture in the kitchen. Mr Shchiborshch had run to the balcony. As they approached the balcony, he broke the glass in the balcony door and windows, and started throwing various objects at them, such as an iron and cans. He was also hitting his head and back against the balcony windows and screaming that they were going to kill him. He broke all the glass in the balcony door and lunged at them with knives. B. covered D-n. and S. with his shield. Through the balcony window D-n. hit Mr Shchiborshch several times with a rubber truncheon on the left hand in which he was holding a knife. The knife fell to the floor. Mr Shchiborshch then lunged at B. and S. with the knife he was holding in his right hand but S. caught his hand. Mr Shchiborshch pulled S. towards him and they both fell on the balcony floor, which was covered in glass. The other police officers then approached Mr Shchiborshch, handcuffed him and took him to the kitchen. He stopped resisting. Since there were cuts on his body, the police officers called for a doctor, who began dressing the wounds and gave him an injection. Other police officers then entered the kitchen, whereas the officers of the special police unit, having completed their task, left. In answer to the investigator’s question about the whereabouts of the first applicant during the events, B. stated that he had been in the lobby all the time; he had neither entered the flat nor witnessed the events. 21. On 17 August 2006 police officer D-n. of the special unit was questioned. He made a statement consistent with those of Kh. and B., and added certain details. In particular, when he arrived at the sixth floor the stairwell floor was covered with blood, which appeared to belong to police officer G. He heard Mr Shchiborshch swearing at his father, saying that the latter wanted to get his flat. Mr Shchiborshch also asked the police officers to leave and seemed to be sure that he had killed a policeman. D-n. tried to calm him down, and asked him to open the door and step out. However, the negotiations, which lasted ten or fifteen minutes, proved futile and D-n. called for his unit. The first applicant, who remained in the lobby all the time, explained that his son was mentally ill and behaved inadequately; he had threatened to kill everybody. The first applicant emphasised that Mr Shchiborshch was a danger to himself and others. He said that his son had threatened him with a knife before and had beaten him up the previous day. The first applicant seemed very frightened and confused. D-n. added that throughout the operation the police officers had kept telling Mr Shchiborshch to drop the weapons, but he had not reacted. He further submitted that in such a situation, according to the law, the police were allowed to use rubber truncheons, handcuffs and tear gas. They did not use the latter because the ventilation system was shared with other flats, and it could have been dangerous for other residents. D-n. also explained that, apart from the police officers, no one else had witnessed the events. 22. On 21 August 2006 police officer L. was questioned. According to his statement, at approximately 12.40 p.m. on 7 July 2006 he had been instructed to go with police officers G. and D. to a certain address to take a mentally-ill person to hospital. When they arrived, they put on bullet-proof vests and went upstairs with the first applicant, who gave them oral permission to enter the flat. When the first applicant rang at the lobby door, G. was standing beside him; L. was standing behind G., and D. was standing to one side. L. could not immediately see who had opened the door, but then G. shouted that the person who had opened the door had a knife. Mr Shchiborshch ran back to the door of his flat wielding the knife in his hand. Having opened the door with his free hand, he stood in the doorway shouting that he would kill everyone. L. then saw that G. was bleeding. The police officers then tried to calm Mr Shchiborshch down, but had no success. He tried to attack G. and then tried to close the door to the flat, but L. prevented him. Then Mr Shchiborshch ran to a room and barricaded himself inside. While L. blocked the door, an ambulance was called for G. The officers also reported on the situation to the OVD. The ambulance took G. to hospital. After the arrival of the special police unit, L. moved to the stairwell. He could not identify the special unit officers because their faces were covered with masks. He did not see what happened in the flat either. He was then ordered to return to the OVD. 23. On the same date, the first applicant was questioned. He stated that his son, Mr Shchiborshch, had been suffering from a psychiatric disorder. He did not know precisely what his son’s condition was because the doctors had never told the parents the exact diagnosis. Mr Shchiborshch had been undergoing treatment since 2001. His condition always worsened in the spring: recently he had been in a state of delirium. He thought that his parents were not his real parents and that they were trying to kill him. When they visited him, he would swear at them, threaten to kill them, lock himself in his flat and not let them in. On a number of occasions he had been forcibly placed in hospital. He had never agreed to be placed in the hospital voluntarily, and during the forced placement had always resisted the police officers who had apprehended him, so they had sometimes had to use rubber truncheons or tear gas. Since October 2005 Mr Shchiborshch had stopped taking his medication, having declared that he was healthy. Since then, his condition had gradually worsened. The threatening phone calls to his parents had become more frequent. The applicants had started to worry for his life, fearing that he might pose a danger to himself. On 31 May 2006 the first applicant had asked Mr Shchiborshch’s doctor for a referral recommending in-patient treatment and to issue instructions for involuntary placement in a hospital. He then submitted the referral to the Alekseyev Psychiatric Hospital no. 1 and the instructions to the Nagatinskiy Zaton OVD. At 11.20 a.m. on 7 July 2006 he left together with police officers G., L. and D. for Mr Shchiborshch’s place of residence. When they reached the sixth floor, the police officers hid and the first applicant rang at the door. Mr Shchiborshch opened the door. He had a knife in his hand, which he began to wield, trying to force them out. The police officers started to explain that they wanted to take him to a hospital. Mr Shchiborshch mistook them for burglars and shouted at them to go away. He did not recognise the first applicant. After approximately ten minutes of negotiations, the police officers tried to take the knife from Mr Shchiborshch, but he stabbed G. in the chest with it and also cut his finger. There was blood all over the stairwell floor. Then one of the police officers went outside to fetch shields and rubber truncheons. Mr Shchiborshch continued behaving inadequately. The police officers tried to apprehend him by knocking the knife from his hand with the rubber truncheons. He continued to brandish the knife and then ran to the kitchen and barricaded himself inside, blocking the kitchen door with a table. Through the door the first applicant heard him calling an ambulance and the police. At the same time G. called R., the Head of the Nagatinskiy Zaton OVD, who arrived at the scene twenty minutes later, and the special police unit, who arrived an hour and a half later. One of the special unit police officers talked to Mr Shchiborshch through the kitchen door, trying to persuade him to open it. As Mr Shchiborshch did not react to the requests, the special unit prepared to “storm” the kitchen. At that time the first applicant was standing near the lift. He could not see what was happening but heard the sound of breaking glass. He looked inside the flat and saw his son on the balcony screaming: “Help, they are killing me!” At that time the police officers were taking a broken table and a door to the stairwell. They then returned to the flat and went towards the balcony. After a while the first applicant again looked into the flat and saw his son lying face down on the kitchen floor. He had been handcuffed and there was blood around him. The police officers asked whether there was anything they could put him in. They put him in a blanket and carried him to the ambulance, which took him to City Hospital no. 7. Later the first applicant learnt that his son had died. 24. On 22 August 2006 officer F. of the special police unit was questioned. He stated that for technical reasons he had been unable to get into the same police car as officers B., D-n., Kh. and S. and had arrived later in his own car. He observed most of the operation while standing behind the police officers who had arrived earlier. His account of the events was consistent with those of the other police officers. He also added that the first applicant had told him that recently Mr Shchiborshch had stopped taking his usual medication and had instead switched to light alcoholic drinks, which had aggravated his condition. The latter had also refused to be placed in a hospital voluntarily and had threatened the first applicant with a knife. 25. On 25 August 2006 officer S. of the special police unit was questioned. His account of the events was consistent with that of the other police officers. He emphasised that they had not used firearms while apprehending Mr Shchiborshch. 26. On the same date police officer G. was questioned. According to his submissions, on 7 July 2006 he had been ordered, together with police officers D. and L., to carry out the involuntary placement in hospital of Mr Shchiborshch, who was suffering from a psychiatric disorder. They went to his home address with his father, the first applicant, who explained that at the sight of the police his son would lock himself in his flat, so the police officers would have to get between him and the door. However, the first applicant did not warn the police that his son might be armed, even though it later transpired that his son had already resisted his previous placements in hospital with the use of arms. When they arrived, the first applicant rang the lobby door bell. They heard Mr Shchiborshch leave the flat, walk to the door and ask who was there. The first applicant replied: “Kirill, it’s me”. Mr Shchiborshch said: “I will open now”. G. heard him walk back to the flat and return. When Mr Shchiborshch started opening the door, G. pushed him into the lobby. D. and L. followed him into the lobby. G. felt a blow to his chest and, having pushed Mr Shchiborshch away, saw a knife in his hand. He shouted to the other officers that Mr Shchiborshch had a knife, and then received another stab in his chest. Mr Shchiborshch ran to his flat and began to shut the door behind him. However, L. caught the door and opened it, preventing Mr Shchiborshch from locking himself inside the flat. All that time, the first applicant had remained near the lift, too afraid to come closer. Mr Shchiborshch started shouting: “Don’t come closer, or I’ll kill you”, brandishing the knife in his hand. L. took a baby pram that was near the door and, on G.’s order, passed it to him. G. used the baby pram to defend himself from Mr Shchiborshch. At a certain point he managed to take out his gun and warned Mr Shchiborshch that he would use it if he continued threatening with the knife. However, Mr Shchiborshch did not react to the warning. L. had a submachine gun which had not been loaded. According to G., the three police officers tried together to persuade Mr Shchiborshch to calm down and drop the knife. The latter shouted to his father to bring a woman, as he would only talk to a woman. The first applicant refused. The talks lasted for ten or fifteen minutes, during which Mr Shchiborshch swore constantly. At a certain point he lowered his trousers and underpants, rubbed his anus with his left hand and made a gesture as if throwing something in the direction of the police officers, saying: “This is shit!” The police officers moved back slightly. D. went outside and came back with two rubber truncheons. He gave one of them to G., who put his gun back in the holster and took the rubber truncheon. Mr Shchiborshch put his underpants and trousers back on and, with his right hand, in which he was holding the knife, reached for the door knob. G. and D. inflicted several blows on his right hand, following which Mr Shchiborshch lunged at them brandishing the knife and saying: “I’ll kill you”. The police officers moved back towards the lobby door. At that moment Mr Shchiborshch cut the fourth finger of G.’s left hand with the knife, then ran to his kitchen and barricaded himself inside. Then G. ordered L. to load his submachine gun and shoot to kill if Mr Shchiborshch tried to leave. The first applicant then entered the flat and looked into the living room. G. asked him for permission to use the telephone and called the OVD. He asked them to call an ambulance and the special police unit. In approximately 15 or 20 minutes the ambulance arrived and took G. to hospital. He did not know what had happened afterwards. Answering the investigator’s question whether the police officers had been specifically trained for detaining psychiatrically disturbed persons and whether there existed special techniques for apprehending such persons, G. stated that no such training had been provided and that there existed only general rules on apprehending armed offenders in various situations. If the police had information that the person was armed (irrespective of his psychiatric condition), they could use arms in accordance with section 15(2) of the Law on the Police. 27. On an unspecified date – apparently in August 2006 – a person whose name is not clear from the documents but who appears to be R., the Head of the Nagatinskiy Zaton OVD, was questioned. He stated that a year earlier he had taken part in the operation to forcibly place Mr Shchiborshch in hospital. The latter resisted the police officers with weapons and threw acetic acid in the face of one of them. On 6 July 2006 the first applicant called him and asked if the police would assist him in placing his son in hospital on 7 July 2006. On that day police officers G., D. and L. were sent on the operation. Later he received information that G. had been wounded and he himself went to Mr Shchiborshch’s flat. Finding the latter in a dangerous condition, he reported to the Nagatinskiy Zaton OVD and called for emergency psychiatric assistance. He was later informed that a special police unit had been called to the scene. Approximately thirty minutes later two high-ranking police officers, K. and Dub., arrived. After a while, the special police unit also arrived. While they were preparing to storm the kitchen, R. went outside to ensure that no one entered the building, since they could have been hurt by Mr Shchiborshch. The latter was screaming from the balcony to attract attention. He was shouting that he would jump from the window and throwing objects towards the kitchen. Then he broke the balcony windows and started throwing the broken glass down from the balcony. R. thought that he had seen a shard pierce Mr Shchiborshch’s neck. Then R. saw Mr Shchiborshch resisting the police with sharp objects in his hands and falling on the balcony floor with one of the officers. Realising that Mr Shchiborshch had been apprehended, R. went up to the sixth floor. On entering the flat, he saw Mr Shchiborshch lying handcuffed on the kitchen floor. The latter was taken to a room where he was given first aid by an ambulance doctor. As Mr Shchiborshch was bleeding profusely from his neck, it was decided to take him urgently to a hospital. He was carried on a blanket to the ambulance and transported to City Hospital no. 7. R. then called for an investigative unit to inspect the scene. It was established that Mr Shchiborshch had wounded four police officers. R. returned to the OVD and was later informed that Mr Shchiborshch had died. In his view, it had been the result of a tragic concurrence of circumstances, since in his presence nobody had either beaten or hit Mr Shchiborshch. Judging from his conduct, the first applicant had supported the actions of the police throughout the operation. G., L. and D. had acted strictly in accordance with the law. 28. On 4 September 2006 the investigating authorities seized Mr Shchiborshch’s medical file kept at psycho-neurological dispensary no. 10. 29. On 7 September 2006 the investigating authorities seized Mr Shchiborshch’s medical file kept at psychiatric hospital no. 13. 30. On 5 September 2006 K., the acting head of psycho-neurological dispensary no. 10, was questioned. She submitted that Mr Shchiborshch had been under medical supervision since 2002. He had been diagnosed with paranoid schizophrenia with delirium syndromes. He had been forcibly placed for in-patient treatment a number of times as he had never agreed to it voluntarily. His condition had gradually worsened in the past four years: anxiety had been exacerbated, delirious ideas had accumulated and he had been losing contact with the people around him. He considered everybody his enemy and persecutor. His condition had worsened considerably since he had stopped taking regular medication. The investigator asked K. whether Mr Shchiborshch, who would have been suffering from fatigue in the absence of the necessary medication, could have actively resisted his placement in hospital. K. answered that in a delirious period he could be aggressive and reveal great physical force, because he perceived everyone as a persecutor. K. also submitted that Mr Shchiborshch had resisted the previous placements in hospital but she did not know whether he had used weapons. The investigator further asked about Mr Shchiborshch’s relationship with his parents. K. replied that when his condition had worsened and he had beaten them, they had applied for his in-patient treatment. 31. On 7 September 2006 Ch., a doctor of psychiatric hospital no. 13, was questioned. She submitted that she had been Mr Shchiborshch’s doctor since 2002. He had been diagnosed with paranoid schizophrenia. He was subjected to involuntary placement in a psychiatric hospital for the first time in 2004 because his condition had suddenly worsened and he had been delivered to the hospital with self-inflicted burns on his body. Since that time he had begun to display aggression and his delirium had worsened. In such a condition he was dangerous to himself and others. He had had a negative attitude towards the treatment but had agreed to take small doses of medication. Following an improvement in his condition, he had been discharged from the hospital. Answering the investigator’s question whether Mr Shchiborshch could inflict self-harm, Ch. submitted that he could do so while in an agitated state; this was corroborated by the self-inflicted burns. 32. On 8 September 2006 the second applicant was questioned. She gave details of the development of Mr Shchiborshch’s illness. His condition had worsened in October 2006 after he had stopped taking his medication. In particular, she had seen him talking to an imaginary person. She and the first applicant were very concerned about his condition and decided to arrange for him to be placed in a psychiatric hospital. 33. The second applicant was questioned again on 13 September 2006. First, she gave some additional details concerning medical documents the applicants had obtained to ensure Mr Shchiborshch’s in-patient treatment. She then stated that on 7 July 2006 the first applicant had telephoned Mr Shchiborshch and said that he would visit him soon. Mr Shchiborshch talked to him in a normal manner and called him “father”, which made the fact that he then met the first applicant and the police with a knife all the more inexplicable. At approximately 12.30 p.m. she called the first applicant, who said that the police had been unable to restrain Mr Shchiborshch, he had cut a police officer’s finger and the police had called for an investigator. She called the first applicant regularly so as to follow the events. The first applicant was agitated and told her that they were waiting for the special police unit to arrive. When she called him again at approximately 3 p.m., the first applicant said that the special police unit had apprehended Mr Shchiborshch, and an ambulance doctor had said: “Hurry, we may not make it, he might not survive.” She asked her husband to go to the hospital with Mr Shchiborshch, but he said that the police would not let him go because they wanted to question him. During another telephone conversation at approximately 7 p.m. the first applicant told her that Mr Shchiborshch had died and turned off his mobile phone. The next day the second applicant telephoned Mr Shchiborshch’s neighbour, Ts., who said that the previous day she had shouted to the police: “Don’t kill him!” She had also tried to open the door to her flat, but the police officers would not let her. Ts. also said that she had seen the police beating Mr Shchiborshch. Later, two unidentified men approached Ts. in the yard of the block of flats and told her that if she had witnessed the events of 7 July 2006, she should forget them. 34. On 18 September 2006 N., the head of the investigative unit of the Nagatinskiy Zaton OVD, was questioned. She submitted that at approximately 3.20 p.m. on 7 July 2006 she had been informed that a police officer of the OVD had sustained a knife wound and she had gone to the address indicated. When she arrived approximately twenty minutes later the first applicant and R., the Head of the OVD, were there. R. explained to her what had happened. She then inspected the flat. The kitchen was crammed with a variety of objects. There were cans, numerous shards of glass and some other objects on the floor. A refrigerator was lying across the kitchen. There were spots of blood on the refrigerator and the floor. On the right-hand wall there was a kitchen unit; on the table there was a kettle, a sugar bowl and two knives, one of which had a long blade and a wooden handle, the other a shorter blade and a plastic handle. Both knives were covered with blood. There was no glass in the kitchen window facing the balcony, but some shards of glass were stuck in the frame. The balcony windows had also been broken. The balcony floor was covered with shards of various sizes. The glass that remained in the frames bore traces of blood. There was also blood on the balcony floor, the door frame and the window frame facing the balcony. 35. On 20 September 2006 the investigating authorities seized certain documents pertaining to Mr Shchiborshch’s medical file kept at the Alekseyev Psychiatric Hospital no. 1. 36. On 21 September 2006 the investigating authorities seized from Botkin City Hospital no. 2 documents related to the medical assistance provided to police officer G. for the wound caused by Mr Shchiborshch on 7 July 2006. 37. On 22 September 2006 G-v., the ambulance doctor, was questioned. He stated that on 7 July 2006 he had been informed that a man had called an ambulance claiming that he had sustained a knife wound to his neck. G-v. went in an ambulance with K-n. to the address indicated. There he found several police officers, who explained that the person in the flat was mentally ill. They had been trying to restrain him in order to place him in hospital, but he had resisted them with the use of arms. G-v. provided medical assistance to a police officer who had sustained a knife wound to his shoulder. From the stairwell he witnessed the special unit police officers trying for quite a long time to persuade the person to leave the flat. They then decided to storm the flat but G-v. did not see them do that. At a certain point one of the police officers went out to the stairwell. His hand had been cut. G-v. dressed the wound. A few minutes later he and K-n. were asked into the flat in order to provide medical attention. They saw a handcuffed man lying face down on the floor. He was conscious and in a state of psychomotor agitation. His neck was bleeding. They gave him a sedative injection and conducted a detailed examination. Then, with the help of the police officers, they carried the man to the ambulance and transported him to City Hospital no. 7. 38. On 26 September 2006 the investigating authorities ordered the seizure of documents related to the medical assistance provided to police officers B., D-n. and Kh. for the wounds caused by Mr Shchiborshch on 7 July 2006. The documents were seized on 12 October 2006 from polyclinic no. 17. 39. On 29 September 2006 Ts., Mr Shchiborshch’s neighbour, was questioned. She submitted that on 7 July 2006 she had looked through the peephole in her front door on several occasions and had seen some of the events. Initially she heard Mr Shchiborshch swearing and two police officers speaking, and then saw the former standing in the doorway. In a while she heard a tinkling sound in the lobby and saw the police officers defending themselves from Mr Shchiborshch with her baby pram. She told them through the door to put it back, which they did. Then she heard Mr Shchiborshch crying: “Neighbour, save me”. She tried to open the door but one of the police officers told her to close it. Then she heard somebody shout: “Call an ambulance!” She went to the balcony and saw an ambulance parked near a police officer whose chest had been bandaged. Then she saw through the peephole that Mr Shchiborshch had locked himself in his kitchen. The police had not entered the flat, and somebody said: “Call the special police unit”. After a while she heard some noise and saw a special unit police officer near the kitchen trying to persuade Mr Shchiborshch to open the door. He talked to him for quite a long time. Then he left the flat and ordered another officer to switch off the electricity. She understood that they were going to storm the flat. Soon everything was over. When she went out of her flat she saw that the lobby and the stairwell were covered with blood. Mr Shchiborshch’s kitchen door without the stained glass and a broken kitchen table, also covered in blood, were in the lobby. In Mr Shchiborshch’s flat she saw a pool of blood on the floor and the two knives which he had been holding earlier covered with blood. After the events the second applicant repeatedly telephoned Ts. trying to talk her into testifying against the police officers, alleging that they had killed her son. Those telephone calls were very disturbing. They stopped after Ts.’s husband had talked to the second applicant. 40. On the same date the investigating authorities inspected Mr Shchiborshch’s flat, the adjacent lobby and the stairwell. They established, in particular, that there was no door at the entrance to the kitchen. There was a crack in the glass of the balcony door and the door had reddish-brown spots on it. Two glass planes were missing from the window next to the balcony door and there were reddish-brown traces on the frames. The doors of a cupboard on the balcony also had reddish-brown spots on them; the balcony floor and the window frame to the right of the entrance to the balcony were covered with dried reddish-brown stains. The left side of the white linen curtain at the kitchen window was torn. There was a 3 cm reddish-brown stain on the curtain and surrounding it traces of a reddish-brown substance. The balcony was glazed and had three windows. The glass panes were missing in the two windows closest to the balcony entrance. 41. On 3 October 2006 the first applicant was granted victim status in case no. 363484. On the same date he was questioned and confirmed his earlier statements. 42. On 30 October 2006 the investigating authorities ordered the seizure of documents related to the medical assistance provided to police officer B. for the wound caused by Mr Shchiborshch on 7 July 2006. On 8 November 2006 the documents were seized from Kupavna Hospital. 43. On 3 November 2006 an examination was conducted of the knife with a wooden handle seized from Mr Shchiborshch’s flat on 7 July 2006. According to report no. 2813, the blood on the knife could have belonged to either Mr Shchiborshch or police officer Kh. 44. On the same date an examination was conducted of the knife with a plastic handle seized from Mr Shchiborshch’s flat on 7 July 2006. According to report no. 2814, the blood on the knife could have belonged to either Mr Shchiborshch or police officer Kh. 45. On 9 November 2006 forensic examinations were carried out with regard to the injuries caused to the special unit police officers on 7 July 2006. The results showed that D-n. had sustained bruises and abrasions on his upper body that could have been caused by being hit and scraped against hard blunt objects, possibly on 7 July 2006, which could not be considered as health damage. Kh. had sustained slash wounds to the right shoulder and the right hand that could have been caused by the sliding impact of a hard cutting object, possibly on 7 July 2006; these could be classified as light health damage. B. had sustained a puncture wound on the right hand. The text concerning the gravity of the injury is illegible. 46. On 10 November 2006 D-k., a former colleague of Mr Shchiborshch, was questioned. The latter had worked in the same audit company as D-k. in 2004. D-k. submitted that although Mr Shchiborshch had not been aggressive, he had not been communicative and his behaviour had been rather weird. He had talked to himself or an imaginary person; in a café he might buy four cups of tea, place them on the table and talk to them. After Mr Shchiborshch’s superior had asked him to finish an overdue assignment, he simply stopped coming to work. His colleagues searched for him and called his parents, but his mother told them that she did not know where her son was. 47. On 14 November 2006 a forensic psychological-psychiatric report, ordered on 5 October 2006, was completed. It was based on Mr Shchiborshch’s medical file and the materials of the criminal case. The experts stated that at the time of the events of 7 July 2006 Mr Shchiborshch had been suffering from paranoid schizophrenia. His conduct on that date had been due to a psychotic disorder with delirium symptoms, causing feelings of persecution, negativity and aggression towards his parents and the police officers. The psychotic disorder at that time was at such a stage that he was unaware of the meaning of his actions and unable to control them, which is why he posed a danger to others. 48. On 24-25 November 2006 a forensic examination of the injuries caused to police officer G. on 7 July 2006 was conducted. According to the results, he had sustained a shallow puncture wound to the chest and a slash wound to the fourth finger of the left hand caused by the sliding impact of a hard cutting object, possibly on 7 July 2006, which constituted light health damage. 49. On 11 December 2006 the investigating authorities seized from the second applicant a sports jacket that Mr Shchiborshch had been wearing on 7 July 2006. The jacket had remained in the kitchen for a few days before being taken away by the first applicant. 50. On 27 December 2006 Dub., the Head of the Police Inspectorate of the Moscow South District department of the interior (“the UVD”), was questioned. According to his statement, on 7 July 2006 he had been informed by K-k., the Deputy Head of the South District UVD, that Mr Shchiborshch had wounded a police officer. Dub. went to the scene of the events and found three police officers, R. and the first applicant in the sixth-floor stairwell. K-k. arrived at the same time. Dub. witnessed the subsequent events from the stairwell. His account was consistent with that of the other police officers. He emphasised that the first applicant had cooperated with the police and had explained that his son had already been subjected to involuntary placement in hospital a number of times, and was dangerous in his current condition since he was strong and aggressive. Dub. recalled that when he had worked in the Nagatinskiy Zaton OVD a few years earlier the applicant had frequently applied for assistance to place his son in hospital, since the latter had beaten the applicants and they were afraid of him. During one such operation Mr Shchiborshch had thrown acid at a police officer. 51. On 10 January 2007 police officer B. of the special unit was questioned again. He confirmed some details of his earlier statement. 52. On 11 January 2007 the Moscow forensic bureau completed the forensic examination started on 9 November 2006 and issued report no. 628. The experts studied the materials of criminal case no. 363484, medical file no. 39485 kept at City Hospital no. 7, samples of Mr Shchiborshch’s hair, nails and skin from his neck wound and the two knives that he had held on 7 July 2006. The experts found as follows: (a) The wound to the neck could not have been caused by either of the knives that Mr Shchiborshch held on 7 July 2006. However, it is possible that it was caused by contact with a long fixed protruding glass shard. (b) The craniocerebral trauma was caused by numerous blows with a hard blunt object with a wide limited surface to the left side of the frontal parietal-temporal region and the face. From the materials available it was impossible to establish with certainty the nature of the object with which the injuries (four contused wounds and a depressed fracture of the scull) were caused. This was because the edges of the injuries, the relation of the soft tissue to the bone tissue, and the density of the skull bones in the area of the fracture were not examined and the photograph of the area had no plotting scale. (c) The rib fractures were caused by numerous blows with hard blunt objects with a limited surface to the right side and the left back side of the chest. (d) The subcutaneous wounds were caused by sharp objects, probably glass shards. The wounds on the palmar surface of the fingers could have been caused when gripping knife blades. (e) The subcutaneous hemorrhages on the chest, shoulders, forearms, hips, shins and knee were caused by blows and the sliding impact of hard blunt objects, some of which were elongated in shape (for example a rubber truncheon). According to the report, the injuries had been caused shortly before Mr Shchiborshch had been admitted to hospital. That fact as well as the number of injuries made it impossible to establish their sequence. His death was caused by the stab/slash wound to the neck, which affected the left external jugular vein. Other injuries, such as the craniocerebral trauma, complicated Mr Shchiborshch’s condition but did not directly cause his death. With the wound to the neck and the craniocerebral trauma, Mr Shchiborshch was able to act and move independently for a short time (tens of minutes). However, this ability was reduced by the time of his examination by the ambulance doctors and completely lost by the time he was admitted to hospital. It was possible that the stab/slash wound to the neck was caused in the circumstances described in the materials of the case, namely he might have leaned against the balcony door which had shards of broken glass in it, or hit his head against the window frame, which also had broken glass in it. 53. On 15 January 2007 the investigator, in the presence of attesting witnesses, listened to an audio recording of Mr Shchiborshch’s telephone calls to the police on 7 July 2006 between 1.14 p.m. and 1.39 p.m. According to the transcript, Mr Shchiborshch had called the police several times. Each time he said that burglars had broken into his flat and were trying to kill him. In particular, he said that the burglars wearing police uniforms had already shot at him. He asked the police to urgently send a squad to help him. During one of the calls the tape had also recorded a conversation between the police officer who answered the call and another police officer at the station. When the first police officer told the other one about the call, he replied that it was “the same fool calling”, that their unit had already gone there and that the special unit was on its way and preparing to storm the flat. He told the first officer that she need not answer any subsequent calls, since in any event Mr Shchiborshch would soon be apprehended by the special unit. 54. On 19 January 2007 K-k., the Deputy Head of the South District UVD, was questioned. He said that he had arrived at the scene at approximately the same time as Dub. (see paragraph 50 above), and his account of the events was consistent with those of Dub. and the other police officers. 55. On 20 January 2007 police officer F. of the special unit was questioned. Answering the investigator’s questions concerning police training in any martial arts, he submitted that D-n. and Kh. were snipers, whereas B. and S. had no special qualifications. He further stated that tear gas, light-sound distraction tools or devices for demolishing barriers were not used while apprehending Mr Shchiborshch. 56. On 23 January 2007 police officer D-n. of the special unit was questioned again. He confirmed some details of his earlier statement (see paragraph 21 above). 57. On 26 January 2007 police officer S. of the special unit was questioned again. He confirmed some details of his earlier statement (see paragraph 25 above). 58. On 30 January 2007 Sch., a forensic expert, was questioned. In his opinion, Mr Shchiborshch’s craniocerebral trauma could not have been caused by falling from a standing position (from his own height). The number of injuries and their location showed that they were caused by multiple blows, possibly combined with numerous falls and hitting of his head against the surrounding objects. It was unlikely that the trauma had been the result of merely falling down. Some of the cuts, subcutaneous wounds, bruises and abrasions might have been caused by falling on glass shards and hitting some surrounding objects. 59. On the same date A., a forensic expert and psychiatrist, was questioned. She stated that Mr Shchiborshch’s conduct on 7 July 2006 had been caused by the psychotic disorder from which he had been suffering. At the time of the events, his condition was so serious that he was unaware of the meaning of his actions and unable to control them. In particular, he could not understand that the police had come to apprehend him. He resisted them with weapons in an attempt to protect himself from “burglars” because he was in a delirious and aggressive state. 60. On 3 February 2007 the investigation was suspended on account of the failure to identify the person to be charged with the offence. 61. On 15 February 2007 the decision was quashed and the case was remitted for further investigation. 62. On 5 March 2007 B-ch., the deputy head of the special police unit, was questioned. According to his statement, at approximately 1.45 p.m. on 7 July 2006 he received information that a police officer had been wounded and was given the address of the perpetrator. He sent three police officers headed by D-n. and later also sent police officer F. Subsequently he was informed that the person had been apprehended and that three police officers had sustained injuries. 63. On 9 March 2007 police officer K-y. of the special unit was questioned. He submitted that at approximately 1.40 p.m. on 7 July 2006 he had received information that a police officer had been wounded and had been given the address of the perpetrator. He forwarded the information to the deputy head of the special unit and then handed out equipment to the officers instructed to go to the address indicated. 64. On 11 March 2007 the Simonovskiy Inter-District Prosecutor’s Office closed the criminal case on the grounds that the actions of the police officers disclosed no indication of offences under Articles 108 § 2 and 286 § 3 of the Criminal Code. The decision stated, in particular, that as a result of the worsening of Mr Shchiborshch’s mental state, he had been capable of committing an offence endangering the health and life of other people. The police officers’ actions aimed at preventing his unlawful actions had therefore been lawful and appropriate. 65. On 14 March 2007 the applicants’ counsel obtained report no. 4/07 by experts B., L. and R. from the Russian Centre for Forensic Examinations of the Federal Agency for Healthcare and Social Development concerning the injuries and the cause of death of Mr Shchiborshch. According to the report, he had sustained multiple contusions, haemorrhages and bruises on his face and head; fractures of the frontal bone and the left parietal bone; subarachnoid haemorrhages under the soft membranes of the convex surface of the forehead; a slash wound to the neck across the jugular vein; numerous subcutaneous haemorrhages of the chest; fractures of the sixth rib on the right side and of the eighth, ninth, tenth and eleventh ribs on the left side; bruises, abrasions and slash wounds to the shoulders, arms and hands, and bruises on the hips and legs. The bruises, abrasions and fractures of the ribs were caused by blows with hard blunt objects. The multiple slash wounds and the wound on the neck were caused by sharp objects. The head injuries constituted grave craniocerebral multitrauma caused by strong blows with hard blunt objects, such as heavy boots, which constituted a grave injury. Taking into account the character of the head injuries, they could not have been caused by inertial trauma as a result of falling down. The craniocerebral trauma had led to Mr Shchiborshch’s death. The other injuries had not directly led to his death but had complicated his condition. 66. On 16 April 2007 the applicants asked the prosecutor’s office of the Moscow South Administrative District to resume the investigation and conduct another forensic examination. 67. On 26 April 2007 the deputy prosecutor of the South Administrative District granted the request and ordered a number of investigative measures. 68. On 22 May 2007 the first applicant was again questioned (see paragraph 23 above). In addition to his initial statement he submitted that when Mr Shchiborshch had opened the lobby door he had not known that he and the police had come to place him in hospital, otherwise he simply would not have opened the door. On that day he had mistaken the first applicant for a burglar and had been holding a knife. The first applicant warned the police that when Mr Shchiborshch saw them he might try to lock himself in the flat. That is why when Mr Shchiborshch opened the door, the first applicant asked one of the police officers to hold it open. Mr Shchiborshch was wielding a knife and would not let anyone near him. Police officer G. then aimed his gun at Mr Shchiborshch and told him to drop the knife. Mr Shchiborshch did not react and shouted back at G. to take away the gun. G. eventually put the gun away but Mr Shchiborshch would not drop the knife. G. then made a movement towards him, probably intending to seize the knife, and Mr Shchiborshch, while wielding the knife, wounded G. in the chest. The latter moved aside. One of the police officers took a baby pram that had been placed nearby and tried to knock the knife out of Mr Shchiborshch’s hand with it. Another officer hit his other hand with the butt of a submachine gun trying to remove it from the door handle so as to stop him closing the door. After Mr Shchiborshch had wounded G., another police officer brought rubber truncheons and two of the officers started using them against Mr Shchiborshch, trying to knock the knife out of his hand and to knock him off his feet in order to apprehend him. Not all their blows hit him on the hand, as he was constantly wielding the knife. Some of the blows hit him on the body and the head. When G. left to call for support, he ordered the other officers to shoot to kill should Mr Shchiborshch attack them. Through the glass the first applicant heard Mr Shchiborshch telephoning the police and the ambulance and saying that he had been wounded, there was blood, and that burglars had been trying to kill him. After Mr Shchiborshch had been apprehended, D. said that they should take him to hospital quickly as he might not make it. When the first applicant entered the kitchen he saw blood on Mr Shchiborshch’s neck. The bleeding was heavy and the kitchen floor was covered with blood. 69. In response to questions put in the course of that interview, the first applicant submitted that he did not believe that on 7 July 2006 Mr Shchiborshch had posed a real danger either to him or to the police. However, the assistance of the police was required in order to place Mr Shchiborshch in hospital, as the first applicant could not have done it on his own. He believed that the police officers had had to apprehend Mr Shchiborshch because his psychiatric condition at that time had been very serious. In the first applicant’s view, at the time of the police officers’ arrival Mr Shchiborshch had been incapable of perceiving the situation and would not have voluntarily surrendered to anybody. The police officers were wearing bullet-proof vests and helmets, and used shields and, after Mr Shchiborshch had wounded one of them with a knife, rubber truncheons. Immediately after Mr Shchiborshch had been apprehended, the first applicant had entered the kitchen. The refrigerator was lying across the kitchen floor. Also on the floor there were glass shards, pieces of paper and Mr Shchiborshch’s laptop. The kitchen table had been removed by the police while they were apprehending Mr Shchiborshch. When the first applicant was cleaning Mr Shchiborshch’s flat about ten days after the events, he noticed that most of the broken glass from the kitchen door was scattered on the kitchen floor, which meant that the door had been broken from the entrance hall. The kitchen window had also been broken and there was a crack in the glass of the door to the balcony. Most of the broken glass was scattered on the balcony floor, but some of it was also on the kitchen floor. There were also spots of blood on the balcony floor and another spot of blood on the window frame on the side of the balcony, approximately at the level of Mr Shchiborshch’s head. 70. On 28 May 2007 the first applicant was questioned once more. In addition to his earlier statements he submitted that Mr Shchiborshch had mistaken the doctors and police officers for burglars only when his condition had worsened and he had been in a state of delirium. The first applicant also specified that G. had told L. to load his submachine gun and open fire should Mr Shchiborshch leave the kitchen. When the first applicant entered the kitchen after Mr Shchiborshch had been apprehended, he saw him lying on the floor; the left side of his head and neck were covered in blood. He was lying face down and handcuffed. The first applicant further stated that on 7 July 2006 Mr Shchiborshch had not posed a real danger either to the first applicant or to the police as he had been trying to protect himself. His actions were not provoked by either the first applicant or the police since, when he opened the door holding a knife, he did not know that the police were there. The first applicant stated that he did not know why Mr Shchiborshch had been holding a knife – perhaps he had been cooking something in the kitchen. 71. On 8 June 2007 the first applicant was confronted with police officer L. (see paragraph 22 above). The first applicant’s account of the events of 7 July 2006 was in line with his previous statements. L. stated that he partially confirmed the first applicant’s account. He further submitted that in front of Mr Shchiborshch’s flat there was a lobby with a wooden door. When they arrived, the man who had accompanied them [the first applicant] rang at the door while police officer G. was standing beside him. L. stood behind G. Then a man, who appeared to be Mr Shchiborshch, came to the door and, before opening it, asked who was there. The first applicant called him by his name and said that he had brought him money. Mr Shchiborshch told him to wait, and when he opened the door, G. shouted that he had a knife and started crouching. As it appeared, Mr Shchiborshch had stabbed G. in the chest and then immediately ran inside his flat. L. removed the submachine gun from his shoulder, but G. told him not to shoot and ran after Mr Shchiborshch. The applicant told them not to let Mr Shchiborshch close the door as he might lock himself in the flat and it would then be impossible to get him out. 72. In response to questions from the first applicant and his counsel, L. stated that he had seen two knives in Mr Shchiborshch’s hands when the latter had run into his living room. However, he returned from the living room with just one knife and a telephone receiver. He had been trying to call an ambulance, asking somebody for help and demanding to speak to a woman. L. also stated that the police officers had been wearing bullet-proof vests on that occasion and that they had hit Mr Shchiborshch with rubber truncheons and a submachine gun. At first L. was holding his rubber truncheon, but when Mr Shchiborshch stabbed G. and ran into the flat, L. dropped the truncheon, removed the submachine gun from his shoulder and ran after him with it. The rubber truncheon remained in the lobby. L. further submitted that when the police officers had been standing at the door to the flat, Mr Shchiborshch had started throwing faeces at them, apparently trying to make them let go of the door. 73. On 10 June 2007 B., the investigator of the Simonovskiy Inter-District Prosecutor’s Office, again closed the investigation. 74. On 11 June 2007 the Simonovskiy inter-district deputy prosecutor quashed the decision to close the investigation on the ground that not all the investigative measures ordered in the decision of 26 April 2007 had been carried out (see paragraph 67 above). 75. On 22 June 2007 the first applicant was confronted with police officer D. (see paragraph 18 above), whose account of the events of 7 July 2006 was consistent with that of L. He added that when Mr Shchiborshch had been standing at the entrance to his flat while L. had been holding the door, Mr Shchiborshch had been brandishing a knife and shouting at them not to approach him, otherwise he would stab them. D. then had to go to the lobby to use his radio transmitter as there was no reception in the flat. He reported on the events to the officer on duty and called an ambulance. Then he took the rubber truncheon left by L. in the lobby and handed it over to him. D. and police officer G. also had rubber truncheons and the three of them were wearing bullet-proof vests. They tried again to persuade Mr Shchiborshch to drop the knife. However, he continued to wield it and threaten them with it. They tried to knock it out of his hand with the rubber truncheons. At a certain point G. happened to be near Mr Shchiborshch and the latter stabbed his hand. However, none of the police officers used their weapons. 76. In response to the investigator’s questions, D. stated that police officer L. had not hit Mr Shchiborshch with the butt of the submachine gun; that the police had used rubber truncheons trying to knock the knife out of his hand but had not inflicted targeted blows; and that several times Mr Shchiborshch had thrown his faeces at them using his free hand. In response to the first applicant’s questions, D. submitted that initially Mr Shchiborshch had been holding one knife, at a certain point he had seen him holding two knives, but then he had put the second knife down somewhere. When the police entered the lobby, D. and G. were armed with rubber truncheons. When D. returned to the lobby to report on the situation, he noticed L.’s rubber truncheon – he must have dropped it there. D. confirmed that he had not inflicted targeted blows on Mr Shchiborshch but had wanted to knock the knife out of his hand with the rubber truncheon. However, since D. was standing to the side of the door, he could not have done that unless Mr Shchiborshch had stuck his hand out of the door, which he did not do. Hence, D. did not hit him with the rubber truncheon at all. Furthermore, he did not hear G. ordering L. to shoot to kill should Mr Shchiborshch leave the kitchen. 77. The first applicant partially confirmed D.’s account. He pointed out, however, that Mr Shchiborshch had stabbed G. not when he had opened the door to the lobby but later, when G. had been standing in front of the flat persuading him to drop the knife. Mr Shchiborshch had then shouted: “Don’t come near me, or I’ll kill you. Leave!”. After a while G. took out a handgun and ordered Mr Shchiborshch to drop the knife. D. also tried to knock the knife out of Mr Shchiborshch’s hand with a baby pram. 78. Still on 22 June 2007 the first applicant was confronted with police officer G. (see paragraph 26 above), who stated that on 7 July 2006, following the police officers’ arrival at the scene of the events, the first applicant had explained to them that as soon as Mr Shchiborshch opened the door they should prevent him from returning to the flat as he might then lock himself inside. The first applicant then rang at the door and G. heard a man enter the lobby behind the door. The man asked who was there and the first applicant replied that he had brought him money. G. was standing in front of the door, the first applicant was standing to his right and police officers L. and D. were slightly behind them. When Mr Shchiborshch started opening the door, G. tried to push him back into the lobby and felt two blows to his chest. After the second blow G. noticed that Mr Shchiborshch was holding a knife. Mr Shchiborshch then rushed towards his flat and G. felt his right side itching. He put his hand underneath his bullet-proof vest and felt something moist; when he took it out he saw blood and realised that Mr Shchiborshch had wounded him with the knife. G. remained by the stairwell, and Mr Shchiborshch tried to close the door to the flat. L. then ran towards him, pulled the door from him and propped it open with his foot. Mr Shchiborshch was brandishing the knife and shouting: “Don’t come closer, or I’ll kill you”. G. stood facing the door to the flat with D. to his right and L., who was holding the door, to his left. The first applicant remained in the stairwell as D. had prevented him from entering the lobby. According to G., the three police officers had been wearing bullet-proof vests since the beginning of the operation and L. had been armed with a submachine gun. They tried for some time to persuade Mr Shchiborshch to drop the knife. When D. left the lobby to call the officer on duty on his radio, G. and L. placed a baby pram they had found in the lobby in front of them as a shield. Mr Shchiborshch threw faeces at the police while continuing to brandish the knife. After a while, in an attempt to close the door, Mr Shchiborshch pushed the baby pram back with his foot. In so doing, he came out of the flat and moved towards G. and D. G. then hit him on his hand three times with a rubber truncheon, trying to knock the knife to the ground. That is when Mr Shchiborshch cut G.’s left hand. Then Mr Shchiborshch stepped back into the flat and shouted at the officers to call a woman he could talk to. G. asked the first applicant to call the neighbour and ask whether there was a woman who could talk to Mr Shchiborshch. A woman then appeared in the lobby from another flat on the same floor. However, she was afraid to talk to Mr Shchiborshch and returned to her flat. After that, the police officers continued trying to persuade Mr Shchiborshch to drop the knife, but he kept shouting that they were burglars and that he would kill them, and kept wielding the knife so that no one could get near him. Then he barricaded himself in the kitchen, and G. heard him moving furniture. G. then left L. to guard Mr Shchiborshch and authorised him to use his weapon should Mr Shchiborshch come out and attack him. 79. In response to the investigator’s questions, G. stated that he could not tell exactly whether L. had hit Mr Shchiborshch with the submachine gun butt. He said that L. had used the submachine gun to try to knock the knife out of Mr Shchiborshch’s hand, but had not inflicted targeted blows. G. hit Mr Shchiborshch several times with a rubber truncheon, also trying to knock the knife from his hand. D. did not use his rubber truncheon as he was standing between G. and the first applicant. Most of the time L. was holding the submachine gun, which he used to parry Mr Shchiborshch’s attacks with the knife. During all that time, the first applicant was standing in the stairwell unable to enter the lobby because D. was blocking the entrance. 80. Responding to questions from the first applicant and his counsel, G. submitted that initially Mr Shchiborshch had been holding one knife. G. noticed him holding a second knife, which he must have taken from a cupboard, when he regained the flat. However, when he started throwing faeces at the police he had put the second knife down. At the beginning of the operation, after Mr Shchiborshch had wounded him with a knife, G. had taken his handgun out. However, when G. was standing in front of the flat having placed the baby pram between himself and Mr Shchiborshch, he had put the handgun away. 81. The first applicant submitted that he believed that Mr Shchiborshch had wounded G. for the first time in the lobby while L. had been holding open the door to the flat. However, he did not actually see the wound being inflicted. He did not see Mr Shchiborshch wound G. before that, but it was possible that the events had unfolded as recounted by G. The first applicant specified that after Mr Shchiborshch had cut G.’s finger, L. and D. had started hitting Mr. Shchiborshch with rubber truncheons. 82. On 3 July 2007 the applicants’ counsel asked the Simonovskiy Inter-District Prosecutor’s Office to provide copies of procedural decisions taken in the case and reports on investigative measures carried out with the first applicant’s participation. 83. On 5 July 2007 the request was refused. 84. On 6 July 2007 the applicants complained to the South Administrative District Prosecutor’s Office about the investigating authorities’ failure to take measures ordered in the decision of 26 April 2007 and to provide them with copies of procedural documents. 85. On 11 July 2007 the investigator of the Simonovskiy Inter-District Prosecutor’s Office closed the investigation again, holding that Mr Shchiborshch had inflicted on himself the numerous injuries listed in the forensic reports as a result of his imprudent behaviour due to his mental illness. 86. On 12 July 2007 the applicants complained to the Moscow Prosecutor’s Office about a number of procedural breaches in the course of the investigation. On the same date they met with officer K., who allegedly assured them that a check would be carried out following their complaint. 87. On 17 July 2007 the investigation was resumed. 88. On 2 August 2007 the applicants complained to the Moscow Prosecutor’s Office that their complaint of 12 July 2007 had merely been forwarded to the Simonovskiy Inter-District Prosecutor’s Office. 89. On the same date the investigative authorities conducted two re-enactments of the events of 7 July 2006 with police officers L. and G. respectively. 90. On 3 August 2007 Kh. of the special police unit was questioned again. His submissions were consistent with those made in the course of questioning on 13 August 2006 (see paragraph 19 above). He specified that after the support unit had arrived at the scene of the events, the actual operation to apprehend Mr Shchiborshch had started after he had thrown a heavy object at the police, breaking the glass door to the kitchen. As he continued lunging at the police with the knife and shouting that he had “already knocked one cop down”, it became clear to them that he had realised that they were police officers and that he would continue resisting them. The four police officers from the support unit were equipped with bullet-proof vests, shields and helmets, and two of them were wearing gloves with kevlar inserts. After Kh. had been stabbed in the shoulder, he discontinued participation in the operation. 91. On 6 August 2007 S. of the special police unit was questioned again (see paragraphs 25 and 57 above). He submitted that initially there had been no question of storming the flat. The unit arrived following receipt of information that a police officer had been wounded and the initial task had been to solve the situation through negotiations. However, the negotiations with Mr Shchiborshch did not lead to any results. Furthermore, the latter threw a heavy object through the glass door of the kitchen and shards of broken glass fell on the police officers; and he kept lunging at them with a knife. Given how small that part of the flat was, those actions were really dangerous for the police, so it was decided to apprehend him. During the operation the police were equipped with bullet-proof vests, shields and helmets. The leather gloves with kevlar inserts that S. was wearing had no metal inserts. Through the broken glass in the kitchen door the police could see that Mr Shchiborshch had barricaded the door with furniture and a refrigerator. The four police officers tried to open it. B. had a big shield which he pushed against the kitchen door with the help of S. and Kh. When they managed to slightly open the door, B. leaned with his hand against the door stud and Mr Shchiborshch wounded him in the palm of his right hand. Then B. moved back and Kh. took his place. The police continued opening the door and Kh. managed to squeeze through the opening but Mr Shchiborshch immediately stabbed him in the right shoulder. Kh. then retreated and D-n. accompanied him to the doctor [in the lobby]. Kh. took no further part in the operation. S. also stated that the flat was quite small and the police had to move forward in single file. B. again took up the position in front of the kitchen door, with S. behind him. When D-n. returned from the lobby, he stood behind S. They kept pushing against the kitchen door and Mr Shchiborshch resisted from the other side. Then the police abruptly pushed the door and S. heard a crash on the other side but he could not see what had caused it, as B. was blocking his view. He presumed that either Mr Shchiborshch had fallen or pieces of the barricade had fallen apart. When S. could again see Mr Shchiborshch, the latter was stepping back towards the balcony and still threatening the police. The kitchen floor was covered with furniture. Then he started running towards the balcony, having twice stumbled against the barricade and fallen. When he was on the balcony the police cleared some of the barricade and entered the kitchen. Then Mr Shchiborshch started throwing objects at them through the windows between the kitchen and the balcony, breaking all the windows. An iron hit D-n. Then S. and B. approached the door to the balcony with B. holding the shield so as to protect them from the objects being thrown, and D-n. moved close to the balcony window. Mr Shchiborshch started lunging at them with the knives, and D-n. tried to knock the knives out of his hands with a rubber truncheon. D-n. was specifically aiming at his hands, but Mr Shchiborshch kept moving around and hitting his head and shoulders against the broken glass protruding from the window frames. After D-n. had knocked the knife out of Mr Shchiborshch’s left hand, the latter lunged with his right hand at the police officer but hit B.’s shield. He then repeated the lunge but S. caught his hand by the wrist and with his other gloved hand caught the knife’s blade. Mr Shchiborshch tried to free himself, pressing his left shoulder and neck against the window frame and pulling S. towards him. Since S. was standing on the balcony threshold, he could not put one of his feet forward for balance. Then, having wrought the knife from Mr Shchiborshch’s hand so as to move the blade away from him, S. leant his weight on Mr Shchiborshch and they both fell to the floor. As he stumbled against the threshold, he eventually put all his weight on Mr Shchiborshch. Then D-n. handcuffed him and they took him into the kitchen, where the doctors administered injections and took him to the living room. D-n. and S. then left the flat. 92. On 10 August 2007 the applicants asked the Moscow Prosecutor’s Office to take measures to ensure the completion of the delayed investigation. 93. On 11 August 2007 D-n. of the special police unit was questioned again. His submissions were consistent with those that S. made on 6 August 2007. He specified that he had tried to negotiate with Mr Shchiborshch, but that that had proved futile. He also specified that when Mr Shchiborshch was on the balcony, D-n. had seen a rubber truncheon on the refrigerator and had picked it up and used it to knock the knives out of Mr Shchiborshch’s hands. 94. On 17 August 2007 the investigation was suspended. It was resumed on the next day. 95. On 18 September 2007 B., the investigator from the Simonovskiy Inter-District Prosecutor’s Office, again suspended the investigation and ordered a search for persons to be charged with the offence. On the same day that decision was quashed by the head of the investigative department on the ground that it was premature. 96. On 18 October 2007 B. suspended the investigation again on account of the failure to identify the perpetrator. 97. On 14 November 2007 the head of the investigative department quashed the decision of 18 October 2007 and resumed the investigation. 98. On 15 November, and 7 and 12 December 2007 the applicants complained to the Moscow Investigative Committee of procedural breaches in the course of the investigation and asked it to apply administrative sanctions to the head of the investigative department of the Simonovskiy Inter-District Prosecutor’s Office. Their complaints were forwarded to the head of the investigative department they had complained about. 99. On 14 December 2007 R., the investigator from the Simonovskiy Inter-District Prosecutor’s Office, suspended the investigation and then resumed it on the same date. It was subsequently suspended and resumed on the same date on a number of occasions, in particular on 14 January, 14 February, 14 March, 14 April and 14 May 2008. 100. On 25 December 2007 the second applicant was questioned again. She confirmed her earlier statements (see paragraphs 32-33 above) and added some information. In particular, she stated that two days after the events she had called Ms Ts., Mr Shchiborshch’s neighbour, to ask what had happened. Ms Ts. said that she had seen Mr Shchiborshch being brutally beaten and hit with a submachine gun. She also said that her baby pram had been broken and covered with blood. She heard Mr Shchiborshch screaming first: “Neighbour, save me” and then, after the arrival of the police special unit: “People, save me, they are killing me”. Ms Ts. said that the previous day Mr Shchiborshch had behaved normally and had helped her to wash the floor in the lobby. The second applicant asked Ms Ts. whether she would confirm that statement before the authorities. First she agreed but after a while refused, saying that two men had threatened her and she was afraid to testify against the police. 101. On 15 February 2008 the investigative authorities conducted three re-enactments of the events of 7 July 2006 with officers G., S. and D-n. of the special police unit. Overall, the police officers’ statements were consistent with the submissions they made during their earlier questioning. However, as the re-enactments were conducted in the presence of the applicants, their counsel and a forensic expert, Zh., the police officers had to answer their specific questions. 102. In response to questions from the investigator and Zh., G. submitted that he had hit Mr Shchiborshch twice on his hand and had then pushed him twice with the baby pram. He said that the police had not left any rubber truncheons in the flat; they had taken all the truncheons with them. 103. In response to questions from the applicants and Zh., S. of the special police unit stated, in particular, that he could not remember exactly how long the operation had lasted. He neither heard Mr Shchiborshch calling the police nor remembered exactly how the windows had been broken. S. could not remember exactly how he had fallen on the balcony floor with Mr Shchiborshch, but as they were falling he was gripping the latter’s hand holding the knife. On the balcony floor there were shards of glass and other objects – he could not remember exactly what. S. was equipped with a shield, a bullet-proof vest and a handgun. He did not use the weapon because D-n. had not given the order to do so and because they had been informed that the situation concerned a mentally disturbed person. S. had seen no particular injuries on Mr Shchiborshch but he had seen him bleeding profusely. The upper part of his body was covered with blood. S. did not see Mr Shchiborshch fall in the kitchen, but he heard him fall. Nobody hit him with anything in the kitchen; he was apprehended on the balcony. S. could not remember exactly how Mr Shchiborshch sustained his injuries. However, on the balcony the latter hit himself against various surfaces, although S. did not see exactly how, as his attention was concentrated on the knife. S. believed that Mr Shchiborshch had posed a real danger to his life, as he had threatened him with a knife and had a mad look in his eyes. 104. In response to questions from the applicants and Zh., D-n. of the special police unit stated, in particular, that he had been equipped with a bullet-proof vest, a helmet that he had not had time to put on, and a handgun. The special police unit did not have rubber truncheons. He further submitted that there had been no order to storm the flat as such, but their superior had instructed them to apprehend Mr Shchiborshch. D-n. did not know that at the time of the special unit’s arrival, emergency psychiatric assistance had been called for (see paragraph 27 above). He did not hear Mr Shchiborshch calling the police but he heard him scream: “People, help”. When D-n. first saw Mr Shchiborshch there was a lot of blood on his head, chest and arms, and abrasions on his forehead. D-n. did not know how the glass in the kitchen door had been broken and could not tell exactly how much time elapsed from the moment when Mr Shchiborshch broke the door to the time the special unit entered the kitchen. No one tried to apprehend Mr Shchiborshch in the kitchen, as the door was barricaded, and when the police managed to enter he was on the balcony. D-n. did not see Mr Shchiborshch fall in the kitchen, but he did see him disappear from view through the kitchen door opening, and heard the sound of him falling. On the kitchen floor there were various objects and shards of glass, all covered with blood. D-n. submitted that he had taken the rubber truncheon from the refrigerator in the kitchen and had hit Mr Shchiborshch with it to knock the knife from his hand no more than two or three times. Mr Shchiborshch had then pulled S. towards him while the latter was gripping the hand in which he was holding the knife. D-n. could not tell why they had fallen to the floor. He entered the balcony through the broken window. When the police were handcuffing Mr Shchiborshch he continued to resist them. Then D-n. and S. led him to the kitchen where he could walk by himself. They put him on the kitchen floor. He stopped resisting them and kept repeating something like “Don’t, don’t”. 105. B. of the special police unit refused to take part in the re-enactment, stating that he would only be willing to do so in the presence of his lawyer. 106. On 18 February 2008 the second applicant was questioned yet again (see paragraph 100 above). She confirmed her earlier statements and commented on the police officers’ submissions made in the course of the re-enactments conducted on 15 February 2008 and earlier questioning. The second applicant stated that the submissions of S. and D-n. of the special police unit were untenable and pointed out that in response to important questions they had answered that they either did not know or did not remember. In particular, they did not remember how they had broken the kitchen door and the kitchen table and thrown them into the lobby. Immediately after the events the first applicant found a broken table leg in the kitchen near the balcony window. The end of the table leg had blood on it. The first applicant put it on the balcony, where it remained to this day. Hence, D-n.’s statement that he had found a rubber truncheon on the refrigerator in the kitchen was untrue, as a rubber truncheon could not have been there. Not only had the regular police squad not entered the flat but by that time they had left, and the special unit officers were the first ones to enter the kitchen. The only baton that remained in the kitchen was the leg of the broken table, which D-n. must have used as he did not deny hitting Mr Shchiborshch with a baton. As the latter was standing to the left of D-n., the police officer must have hit him on the head with the table leg, which would be consistent with the medical report stating that Mr Shchiborshch had sustained injuries on the left side of his head. The second applicant also requested an expert examination of the table leg. 107. The second applicant further contended that S.’s submissions to the effect that while on the balcony Mr Shchiborshch kept moving around and hitting his head and shoulders against the glass remaining in the window frames was equally untenable. Should that have been the case, Mr Shchiborshch would have slashed his neck lengthwise. However, the wound to his neck measured 3 cm across and, in the second applicant’s view, must have been caused by falling down. Although the police officers of the special unit no longer remembered how Mr Shchiborshch had fallen on the floor with S., in her view it followed from the materials of the case that Mr Shchiborshch had fallen face down, and that was what had caused the wound. Furthermore, the officers failed to clarify how he had sustained multiple fractures of the ribs. 108. Furthermore, the second applicant alleged that a number of D-n.’s statements had been false. In particular, Mr Shchiborshch could not have thrown an iron at him, because the iron had been tied to the balcony door. When D-n. entered the kitchen, he could not have seen its floor covered in blood. Although the regular squad had hit Mr Shchiborshch with rubber truncheons, the blood on the floor appeared only after the special unit officers had apprehended Mr Shchiborshch and put him there. Nor could it be true that Mr Shchiborshch, having been handcuffed, walked to the kitchen from the balcony by himself, as in that case it was unclear why the police officers had had to put him on the floor. Moreover, D-n.’s submissions that he had entered the balcony through the broken window made no sense given that he could have used the door. Similarly, it was unlikely that he had not heard Mr Shchiborshch calling the police for help, as his first call, made at 2.10 p.m., had been heard even by those standing in the lobby. Therefore, it was untenable that D-n., standing next to the kitchen door, had not heard the call made at 2.39 p.m. 109. As regards the organisation of the operation, the second applicant noted that D-n. had had no authority to storm the flat, especially given that emergency psychiatric assistance had already been called for by R., the Head of the Nagatinskiy Zaton OVD. She pointed out that Mr Shchiborshch had not been holding hostages or otherwise posing a danger to other people. He had acted merely out of fear, trying to defend himself, which was corroborated by his calls to the police. Therefore, there were no grounds for such an urgent operation, which eventually led to her son’s death. 110. On 21 February 2008 the broken table leg was seized from Mr Shchiborshch’s flat. 111. On 26 February 2008 an examination of the broken table leg was conducted. According to the results of the examination, no blood was detected on the leg. Although epidermis cells were detected, there were too few to determine their type and gender. Six pieces of hair were also detected. One of them could have belonged to Mr Shchiborshch, another to D-n., and yet another to G. It appeared possible that five pieces of hair had been separated by a blunt object, such as a table leg. 112. On 22 March 2008 Zh., the forensic expert, was questioned. He submitted that the results of the forensic examination had showed that Mr Shchiborshch’s right wrist, which had been gripped by police officer S., had not been broken. He further stated that on the basis of forensic report no. 1262 it had been impossible to determine whether the craniocerebral trauma had been caused by the broken leg of the kitchen table. Zh. noted that he could have provided more detailed answers following an additional forensic examination. 113. On 22 April 2008 Ms I. was questioned. She submitted that she had had good relations with Mr Shchiborshch and used to visit him and his wife, whom he had divorced in 2003. According to her, his psychiatric condition had worsened after the divorce and he had been seen by a psychiatrist. He had no friends and sometimes fantasised that he was in the company of a woman. For example, when she took him meals she would ring at the door and he would reply that he could not open it because he was with a woman. However, through the keyhole she could see that he was alone in the kitchen. Ms I. stated that Mr Shchiborshch had believed that his parents were not his biological parents and that he had been adopted; he had been afraid that they would place him in a psychiatric hospital. 114. On the same date another inspection of the scene of the events – in particular the balcony – was carried out. In the course of the inspection two reddish-brown stains were found. One was on the inside of the doorway; it was 21 cm long and started 171 cm from the floor. The other one, next to it, was 18 cm long and started 190 cm from the floor. There were also reddish-brown spots. 115. Between 8 April and 7 May 2008 a forensic examination was conducted by L-o, A. and D., experts from the Russian Centre for Forensic Examinations. Report no. 40/08 stated, in particular, that: (a) Mr Shchiborshch had sustained a stab/slash wound to the neck 3 cm long crossing the jugular vein and multiple slash wounds to the right ear, the left side of the face, the chest, the right shoulder and collarbone, the left shoulder, the back of the elbow and wrists, the back of the left hand, two fingers of the right hand, and four fingers of the left hand. The wounds were complicated by profuse bleeding and led to Mr Shchiborshch’s death. The wound on the neck was caused by an object with multiple sharp cutting edges, which could have been a piece of glass. The piece of glass must have been fixed somehow and stayed in its place quite firmly and motionlessly. Such an injury was often observed when wounds were caused by the breaking of an entire window pane or glass door, when the main part of the window fell out but sharp shards on the edges remained firmly fixed to the frame. The multiple slash wounds were caused by fragments of broken glass. Although it was not possible to determine the sequence of the injuries, they were sustained within a short period of time shortly before Mr Shchiborshch’s death. They were complicated by external bleeding leading to anaemia, which caused his death. (b) Mr Shchiborshch had an open craniocerebral trauma consisting of bruising of the left frontal parietal and temporal region and the top of the right eye; superficial bruising of the right cheekbone; bruises and abrasions of the forehead, eyelid and top of the right eye, the left eyelid, the right temporal region, the left jaw, cheek and chin; haemorrhages of the soft tissue of the left frontal parietal and temporal region and the right parietal and temporal region; depressed fracture of the frontal bone and the left parietal bone; linear fractures of the left parietal bone and frontal bone; subarachnoid haemorrhages and contusion of the cerebral cortex on the convex surface of the forehead. The craniocerebral trauma was defined as a grave injury. However, since there were no symptoms of dislocation or compression of the brain, the essential areas of cerebral tissue were not damaged and there was no inflammation, the craniocerebral trauma alone could not have led to the death of Mr Shchiborshch. The craniocerebral trauma was caused by multiple blows with hard blunt objects, which probably had a wide surface. However, it was not possible to determine exactly how it had been caused. (c) Mr Shchiborshch had closed fractures of the sixth right rib and of the eighth, ninth, tenth and eleventh left ribs. They were caused by repeated blows with hard blunt objects. Such injuries could have been caused as a result of being punched, kicked with boots or as a result of falling on protruding objects. (d) Mr Shchiborshch also had subcutaneous haemorrhages on the chest, shoulder joints, the left shoulder, forearm, hip and shin, and on the right forearm, hip, knee joint and shin; and bruises and abrasions on the right forearm and hand which were caused by blows with hard blunt objects. Such bruises and subcutaneous haemorrhages were classified as light injuries. 116. According to the report, the injuries were caused shortly before Mr Shchiborshch was admitted to hospital. His death was caused by the stab/slash wound to his neck, which affected the jugular vein, and multiple slash wounds which were complicated by profuse bleeding. Other injuries, such as craniocerebral trauma, complicated Mr Shchiborshch’s condition but did not directly cause his death. The neck wound was definitely caused by a fixed piece of glass. However, it was impossible to establish at which precise moment during Mr Shchiborshch’s apprehension it had been caused. 117. As regards the first applicant’s question whether the injuries that led to Mr Shchiborshch’s death could have been caused as a result of his falling down, the forensic experts stated that, since the precise way in which the wound to the neck had been caused could not be established, they could not rule out such a possibility. Whereas the experts considered that at a certain moment a fixed shard of glass had been thrust against Mr Shchiborshch’s neck, the shard might have been either in the window or door frame, or on the floor clamped between other objects. However, the multiple slash wounds could not have been caused by his falling down. 118. On 19 May 2008 the applicants’ counsel questioned R., the expert who participated in the forensic examination completed on 14 March 2007 (see paragraph 65 above), with regard to the conclusions of report no. 40/08. R. noted that a neurosurgeon had not taken part in the examination completed on 7 May 2008, which affected the reliability of its conclusions. In particular, it was not clear why the craniocerebral trauma had not been given as the cause of death. It was likewise unclear which areas of cerebral tissue had been classed as “not essential”, whereas all such areas were essential. Furthermore, it was not sufficiently specified what was meant by “profuse bleeding”: acute bleeding or acute anaemia. At the same time the conclusion that the wound to the jugular vein had caused the death was not accurate, since the jugular vein was not a blood vessel and damage to it could not have caused blood loss. 119. On the same date the second applicant asked the investigating authorities to order a forensic examination with the participation of a neurosurgeon. 120. On 30 May 2008 the investigation was closed on the ground that the actions of the police disclosed no indication of an offence. 121. On 17 June 2008 the decision of 30 May 2008 was quashed and the investigation was resumed. 122. On 31 June 2008 the investigator questioned A., an expert who had participated in the forensic examination carried out between 8 April and 7 May 2008. According to A., there had been no need for a neurosurgeon’s participation in the forensic examination, as the cause of Mr Shchiborshch’s death was acute anaemia and not craniocerebral trauma. 123. On 1 August 2008 the Simonovskiy District Prosecutor’s Office dismissed the request of 19 May 2008. 124. On 4 August 2008 the second applicant asked the investigating authorities to question the head of the emergency ward of hospital no. 7 concerning the cause of Mr Shchiborshch’s death. 125. On 7 August 2008 the Simonovskiy District Prosecutor’s Office dismissed the request. 126. On the same date the investigating authorities ordered the Russian Centre for Forensic Examinations to conduct another forensic examination. 127. On 1 September 2008 the investigation was suspended. It was resumed on the next day. 128. On 29 September 2008 the applicants’ counsel obtained report no. 169/08 of a forensic examination conducted by P. and Sh., experts from the State Centre for Forensic Expert Examinations of the Ministry of Defence. The description of the injuries sustained by Mr Shchiborshch corresponded to that of report no. 40/08 (see paragraph 115 above). However, the experts’ conclusions concerning the cause of death differed. According to report no. 169/08, his death had been caused by a complex trauma to the head, chest and extremities, together with the fractured skull, medullary contusion, haemorrhages under the pia, wound to the jugular vein and multiple fractures of the ribs. In the experts’ opinion, the jugular vein wound could not have been the only cause of death as it had not been accompanied by life-threatening symptoms such as acute massive blood loss, or an air or fat embolism. However, taken together with the other injuries, it had constituted a factor contributing to Mr Shchiborshch’s death. The same applied to the complex trauma to the head, chest and extremities, which was also a contributing factor, the combined effect of which led to the lethal outcome. In response to particular questions put to them, the experts stated, inter alia, that the craniocerebral trauma had probably caused the coma, whereas the other injures had aggravated its course. They also submitted that it was possible that after having sustained the craniocerebral trauma, Mr Shchiborshch had been able to move independently for a short period of time. In cases of similar craniocerebral trauma, there could be periods – ranging from several minutes to several hours – when the injured person was able to talk and consciously perform certain actions. The craniocerebral trauma was caused by a hard blunt object with a limited surface. It could not be ruled out that it was caused by kicking with boots. However, there were no signs leading to the conclusion that it was caused by a baton. The experts further stated that inflammatory complications in the brain could not have developed in the course of the forty minutes’ resuscitation efforts before Mr Shchiborshch’s death. Lastly, having regard to the entry in Mr Shchiborshch’s medical file to the effect that he had suffered from moderate blood loss, the experts stated that the results of the general blood test showed that blood loss had been light to moderate. They reiterated that Mr Shchiborshch’s death had been caused not by the blood loss alone but by a combination of factors. 129. On 1 December 2008 the investigation was suspended. 130. On 15 December 2008 the investigation was resumed. 131. On 12 January 2009 the Russian Centre for Forensic Examinations issued report no. 122/08 on the results of the forensic examination ordered on 7 August 2008 (see paragraph 126 above). The conclusions were essentially the same as those of report no. 40/08 of 7 May 2008. 132. On the same date the Russian Centre for Forensic Examinations issued report no. 81/09. It said that it was more likely that Mr Shchiborshch’s craniocerebral trauma had been caused by at least two blows, but that it could not be ruled out that the fractures of the skull had been sustained when he fell on a protruding object or hit his head against an object. 133. On 15 January 2009 the investigation was suspended. 134. On 25 February 2009 the investigation was resumed. 135. Between January and April 2009 the applicants asked the investigating authorities to conduct a number of investigative measures, such as questioning the forensic experts and conducting another forensic examination with the participation of a neurosurgeon, and to enclose certain documents in the case file. The requests were refused. The applicants’ complaints about the refusals to higher prosecuting authorities were dismissed. 136. On an unspecified date the applicants wrote to the Federal Supervisory Service for Healthcare and Social Development with a request to review the accuracy of the forensic reports enclosed in the criminal case file. 137. On 16 April 2009 the Federal Supervisory Service for Healthcare and Social Development provided the second applicant with an opinion of T., a forensic expert, dated 26 March 2009 and a report of the commission that examined the request. According to T., the experts from the Russian Centre for Forensic Examinations had not assessed certain factors related to the craniocerebral trauma. He pointed out that the participation of a neurosurgeon in the examination would have been desirable. T. also stated that forensic report no. 122/08 had supported the conclusions of report no. 40/08 without proper scientific substantiation, which cast doubt on the objectivity of the conclusions and their scientific accuracy. According to the findings of the commission, forensic examination no. 122/08 had been conducted in breach of time-limits; the commission’s report had not corresponded to certain formal requirements; the experts who had conducted the examination had used traditional methods accepted in forensic activity; and, taking into account the nature of the trauma, the participation of a neurosurgeon in the examination would have been desirable. 138. On 23 April 2009 the investigation was closed on the ground that the police officers’ actions disclosed no indication of an offence. 139. On 29 April 2009 the applicants complained about the decision to the Moscow Investigative Committee. It is not clear whether the complaint was examined. 140. On 28 May 2009 the investigation was resumed. 141. On 8 August 2009 the investigation was closed. 142. On 18 August 2009 the investigation was resumed. 143. On 26 August 2009 the investigator ordered an additional forensic examination. 144. On 18 September 2009 the investigation was suspended. 145. On 21 September 2009 the investigation was resumed. 146. Following an order by the investigator, between 15 March and 16 April 2010 another forensic examination on the basis of the case materials was conducted by five experts, F., B., I., S. and P., from the Russian Centre for Forensic Examinations. In report no. 232/09 the experts stated, in particular, that it was more likely that Mr Shchiborshch’s craniocerebral trauma had been caused by at least two blows to his head than by his falling down. More specific findings might be made following a detailed examination of the skull. In the experts’ opinion, there had been no symptoms of massive blood loss, and the craniocerebral trauma had been the only cause of Mr Shchiborshch’s death. The experts assessed the other injuries as contributing to Mr Shchiborshch’s condition but not affecting the lethal outcome. There was no evidence of any inflammatory complications of the brain either. 147. On 26 October 2009 the Moscow Investigative Committee upheld an earlier refusal of the applicants’ request to conduct DNA tests in respect of the broken table leg. According to the response, as no traces of blood had been found on the table leg in the course of the biological tests, there were no grounds for DNA tests. 148. On 17 April 2010 the investigation was closed. The findings of the investigation may be summarised as follows: on 7 July 2006 following the first applicant’s request on the basis of a referral from Moscow’s Psychoneurological Dispensary no. 10, police officers G., L. and D. accompanied by the first applicant, tried to escort Mr Shchiborshch to a hospital. However, he refused to accompany them and resisted the police officers with the use of arms, wounding one of them in the chest and finger. Given that Mr Shchiborshch committed a criminal offence by using violence against a police officer on duty and that he posed a danger to others, it was decided to ask a special police unit for support in order to apprehend him. After negotiations with Mr Shchiborshch had proved futile, the special unit officers stormed the flat. In the course of the operation they used rubber truncheons, handcuffs and means of defence. As a result of Mr Shchiborshch’s actions, four police officers sustained various injuries. As a result of the police operation, Mr Shchiborshch was apprehended and immediately transferred to hospital for medical assistance, as he had sustained injuries. He died on the same date. 149. The statements of the applicants and of the police officers who took part in the events, forensic reports nos. 1262, 628, 40/08, 122/08, 81/09 and 232/09, and a report of a forensic psychological-psychiatric examination of 14 November 2006 were cited in the decision to close the investigation. 150. It was also stated in the decision that the investigation had established that there had been lawful grounds for apprehending Mr Shchiborshch as he had posed a danger to himself and others. The police officers could not have left the flat without having apprehended him. Similarly, they were unable to use certain special tools as they would have endangered other residents. The police officers had valid reasons to call the special police unit for assistance, since Mr Shchiborshch had actively resisted them and had wounded one of them in the chest. The use of special tools in order to apprehend him was also justified as his mental state and the fact that he had wounded a police officer were reasons to believe that he posed a real danger to them and might commit unlawful acts in respect of others or hurt himself. In accordance with the Law on Police 1991, police officers may use physical force if other means employed in order to fulfil their duties prove futile. A police officer may use special tools to repel attacks against the police and other citizens. In the present circumstances, the fact that the police inflicted light injuries on Mr Shchiborshch was justified by the necessity to apprehend him. 151. As regards the grave injuries, the decision noted that the results of the forensic expert examinations were conflicting. Whereas according to some of them Mr Shchiborshch’s death had been caused by massive blood loss, others concluded that it had been caused by the craniocerebral trauma. Therefore, the investigation was unable to establish with certainty the cause of death and had to take into account all the injuries. In particular, all the experts agreed that the neck wound had probably been caused by a glass shard. As Mr Shchiborshch was resisting the police from behind the balcony door in which there was broken glass, he probably sustained that wound when some of the police officers pulled him by the hand and he cut himself on a protruding glass shard. The police thus had no intention of injuring Mr Shchiborshch and he sustained the injury also as a result of his own actions. Such an injury, regarded as grave and possibly the cause of Mr Shchiborshch’s death, could not have been foreseen. 152. The decision of 17 April 2010 further stated that the experts had not reached a unanimous conclusion concerning the cause of the craniocerebral trauma. Whereas some of the reports stated that it could have been caused as a result of Mr Shchiborshch hitting his head against something or falling down, other reports concluded that it had probably been caused as a result of blows to the head. A definitive conclusion might have been reached following an additional examination of Mr Shchiborshch’s skull, but his relatives did not give their consent to exhumation and the investigator’s request for exhumation was refused by the court. Therefore, there remained no further opportunities to clarify the cause of the injury, and the investigation still had certain doubts in that respect. Should the craniocerebral trauma have been caused as a result of Mr Shchiborshch’s falling onto protruding objects, no questions concerning the police officers’ responsibility would arise. Should it have been caused by blows to the head, the investigation took the view that the police had had no intention of harming Mr Shchiborshch. That was confirmed by the fact that immediately after the storming of the flat, a doctor had been asked to provide him with medical assistance. From the witness statements it followed that the police had used rubber truncheons to knock the knife out of Mr Shchiborshch’s hands. It could not be ruled out that some of the blows had accidentally hit Mr Shchiborshch on the head. However, that would not have been intentional. In any event, any conclusions in that respect were of a probabilistic nature and could not be regarded as established facts, as the investigation had unresolvable doubts concerning the cause of the injury. Taking this into account, there was insufficient evidence to show that the police officers had committed an offence, and the investigation should therefore be closed. 153. On 4 May 2010 the applicants complained to the investigating department of the Simonovskiy District of Moscow about the closure of the investigation. The outcome of the complaint is unclear. 154. On 31 July 2007 the second applicant lodged a complaint before the Lefortovskiy District Court concerning the inactivity of the Simonovskiy Inter-District Prosecutor’s Office. She stated, in particular, that a number of investigative measures, including those ordered by a higher prosecutor’s office, had not been carried out and that she had not been granted victim status in the proceedings. 155. On 19 September 2007 the Lefortovskiy District Court partially granted the complaint. It held that the refusal to grant the second applicant victim status in the investigation was unfounded and dismissed the remainder of the complaint. The applicants appealed. 156. On 15 October 2007 the Moscow City Court dismissed the appeal and upheld the decision. 157. On an unspecified date the applicants complained to the Lefortovskiy District Court about the decision to suspend the investigation of 18 October 2007 and the failure to examine a number of their requests for additional investigative measures. 158. On 10 December 2007 the Lefortovskiy District Court partially granted the complaint. It found unlawful the failure to examine the applicants’ request, but dismissed the part of the complaint related to the suspension of the investigation. It is not clear whether the applicants appealed. 159. On 10 June 2008 the second applicant complained to the Lefortovskiy District Court about the decision of 30 May 2008 to suspend the investigation, the failure to examine a number of her requests, the refusal to conduct certain additional investigative measures and the delays in the investigation. 160. On 18 June 2008 the Lefortovskiy District Court partially granted the complaint. It noted that the investigation had been resumed on 17 June 2008. The court found unlawful the failure to examine the second applicant’s request for another forensic examination, the failure to provide her with decisions taken in respect of her other requests and the delays in the investigation. 161. On an unspecified date the second applicant complained to the Lefortovskiy District Court about the failure of the Simonovskiy District Prosecutor’s Office to comply with the court’s decision of 18 June 2008. She asked the court to find forensic report no. 40/08 unlawful and to declare it inadmissible as evidence. 162. On 30 July 2008 the Lefortovskiy District Court granted the part of the complaint related to the failure to comply with the decision of 18 June 2008 and dismissed the remaining part. The second applicant appealed. 163. On 27 August 2008 the Moscow City Court dismissed the appeal. 164. On 18 August 2008 the applicants complained to the Lefortovskiy District Court about the continued failure of the Simonovskiy District Prosecutor’s Office to comply with the court’s decision of 18 June 2008 and the failure to grant a number of their requests for additional investigative measures. 165. On 20 August 2008 the Lefortovskiy District Court granted the part of the complaint related to the failure to comply with the decision of 18 June 2008 and dismissed the remaining part. The applicants appealed. 166. On 22 September 2008 the Moscow City Court dismissed the appeal. 167. On 25 August 2008 the applicants complained to the Lefortovskiy District Court about certain investigative measures related to another forensic examination. 168. On 30 September 2008 the Lefortovskiy District Court dismissed the complaint. The applicants appealed. 169. On 29 October 2008 the Moscow City Court dismissed the appeal. 170. On an unspecified date the second applicant complained to the Lefortovskiy District Court about the failure to examine a number of her requests related to certain investigative measures. 171. On 6 October 2008 the Lefortovskiy District Court granted the part of the complaint related to the failure to examine her request for another forensic examination and dismissed the remaining part. 172. On an unspecified date the applicants again complained to the Lefortovskiy District Court about certain investigative actions related to another forensic examination. 173. On 27 October 2008 the Lefortovskiy District Court dismissed the complaint. 174. On 26 February 2009 the applicants complained to the Lefortovskiy District Court about the investigating authorities’ refusal to let them study the case file, their refusal to include forensic report no. 169/08 in the case file, the failure to examine a number of the applicants’ requests in due time and the refusal of several requests for additional investigative measures. 175. On 4 March 2009 the Lefortovskiy District Court granted the part of the complaint related to the failure to examine a request submitted by the second applicant and the refusal to allow the applicants access to the case file. The remainder of the complaint was dismissed. 176. On 6 March 2009 the second applicant complained to the Lefortovskiy District Court about the decision to suspend the investigation of 1 December 2008 and the investigating authorities’ failure to inform the applicants of the suspension. 177. On 12 March 2009 the Lefortovskiy District Court dismissed the complaint. The second applicant appealed. 178. On 8 April 2009 the Moscow City Court dismissed the appeal. 179. On 16 April 2009 the second applicant complained to the Lefortovskiy District Court about the refusal of her request to question the forensic experts. 180. On 22 April 2009 the Lefortovskiy District Court dismissed the complaint. 181. On 10 August 2009 the second applicant complained to the Lefortovskiy District Court about the refusal of her request to declare report no. 122/08 inadmissible evidence, to conduct an additional forensic examination and to adduce certain evidence. 182. On 20 August 2009 the Lefortovskiy District Court dismissed the complaint. 183. On an unspecified date the second applicant requested the institution of criminal proceedings against K. and R., senior officers of the Nagatinskiy Zaton OVD. She argued that their decision to storm Mr Shchiborshch’s flat had been unlawful and taken in abuse of their official powers, as it had been in breach of the Law on Psychiatric Assistance. 184. On 12 January 2009 the institution of criminal proceedings was refused. The decision stated, in particular, that as Mr Shchiborshch had posed a danger to the police officers and other citizens, there had been grounds for storming the flat, and the use of rubber truncheons had been in accordance with the law. 185. Article 20 (1) of the Constitution provides that everyone has the right to life. 186. In accordance with section 10(2) of the Law on Police of 18 April 1991, in force until 1 March 2011, the police had to provide assistance to citizens who were victims of a crime, an administrative offence or an accident, or in a helpless or other state that threatened their health and life. Under section 10(22), following a request from a medical institution authorised by a court, the police had to bring to that institution for medical treatment persons suffering from illnesses who posed an imminent danger to themselves or others, or had committed a socially dangerous act and refused to go to the institution. For the purposes of crime prevention the police also had to ensure, jointly with the public health agencies and as provided for by the applicable legislation, the monitoring of persons suffering from mental disorders, drug addiction or alcoholism and posing a danger to others. 187. Section 11(9) provided that the police were competent to apprehend and take to specialised institutions persons refusing compulsory medical treatment that had been prescribed in accordance with a legal procedure. 188. Section 12 provided that the police could use force, special tools or firearms only in situations stipulated in the Law. When using force, special tools or firearms a police officer had to: - warn about the intention to use them sufficiently in advance to enable the person to comply with the requirements of the police, except in cases where a delay might put in danger the life or well-being of other citizens or police officers, or entail other grave consequences, or where, given the circumstances, such a warning would be inexpedient or impossible; - try to minimise the possible damage, depending on the nature of the offence, the perpetrator and the resistance; - ensure that those injured were provided with medical assistance and notify their relatives as quickly as possible; - inform the prosecutor of any wounds or deaths. 189. Section 12 further provided that those found guilty of abuse of powers when using force, special tools or firearms would be held liable. 190. Section 13 authorised the police to use force, including martial arts, in order to prevent the commission of crimes and administrative offences; to arrest persons who had committed them; and to break down the resistance to lawful demands where non-violent means had failed to ensure the fulfillment of police duties. 191. Section 14 provided a list of special tools, which included, but were not limited to, rubber truncheons, handcuffs, electroshock tools and tear gas. The special tools could be used by the police in the following circumstances: (1) to repel attacks against citizens and police officers; (2) to break down the resistance to a police officer; (3) to apprehend a person caught red-handed and trying to escape; (4) to apprehend persons in respect of whom there were sufficient grounds to believe that they would resist the police with the use of arms; (5) to take those apprehended to a police station or to convey those subjected to administrative arrest if there were grounds to believe that they might flee, hurt themselves or others, or resist the police; (6) to release hostages; (7) to prevent mass disorders or group actions disrupting the functioning of traffic, communication or of other organisations; (8) to stop a vehicle whose driver did not comply with a police officer’s request to stop; (9) to identify persons who are committing or have committed a crime; (10) to protect citizens from an attack that threatens their life or well-being, as provided for by section 15(1). 192. Section 14 further provided that the use of special tools was forbidden in respect of pregnant women, minors and disabled persons, except if they resisted the police with the use of arms or attacked them, thereby posing a danger to the life and well-being of other people. In a situation of justifiable self-defence or in an emergency, in the absence of special tools a police officer could use any available means. It was forbidden to equip the police with special tools which might cause excessively grave injuries or pose unjustified risks. 193. Under Article 2 of the Standard Regulation on Special Police Units of the Ministry of the Interior of the Russian Federation, adopted by Order no. 162 of 19 March 1997 of the Ministry of the Interior and amended on 22 December 2000 and 7 March 2001, the special police unit had the following tasks: (2.1) ensuring personal safety and safety of property on the street and in other public spaces; (2.2) ensuring law and order and public safety on the street and in other public spaces and transport, and crime prevention; (2.3) participation in the investigation of crimes; (2.4) providing assistance, within its competence, to citizens, officials, enterprises, organisations, agencies and public associations in exercising their rights and lawful interests; (2.5) participation, together with other law-enforcement and military units, in the fight against terrorist, subversive and intelligence groups. 194. Under Article 3 the functions of special police units in fulfilling the above tasks include ensuring order at public events; conducting raids in criminogenic areas; identification and apprehension of terrorists and members of armed gangs; conducting special operations for defusing explosive devices; securing public order and safety in a state of emergency; participation in operations conducted by other law-enforcement, security, customs or tax agencies. 195. Section 29 of the Law on Psychiatric Assistance and Citizens’ Rights in this Respect of 2 July 1992, as amended on 21 July 1998, 25 July 2002, 10 January 2003 and 29 July 2004 (“the Law on Psychiatric Assistance”), provides that a person suffering from a mental disorder may be placed in a psychiatric hospital without his or her consent, or the consent of his or her representative, before a court had delivered a decision in this respect, if the person’s examination or treatment is only possible on an inpatient basis and the mental disorder is grave and: - poses an immediate danger to either himself or others; - renders the person incapable of attending to his basic needs; or - risks causing considerable harm to his health should the person be left without psychiatric assistance. 196. Under section 30(3) police officers have to assist the medical personnel in carrying out the involuntary hospitalisation and ensure safe access to the person concerned and his or her examination. Should the police have to prevent the actions of the person posing a danger to the life and health of others, or to search for and apprehend the person, they must act as provided for in the Law on Police. 197. Under Article 1.6 of the Instruction, adopted by Order no. 133/269 of 30 April 1997 of the Ministry of Public Health and the Ministry of the Interior, if it is necessary to carry out the involuntary hospitalisation of a person suffering from a mental disorder who poses a danger to himself or others and where there are reasons to believe that either he or his relatives would resist the hospitalisation, psychiatric emergency services personnel should contact the local department of the interior for assistance. The head of the department of the interior or his deputy should arrange for police officers to arrive at the relevant address at the required time. 198. Under Article 1.7 of the Instruction, involuntary hospitalisation is carried out by psychiatric emergency services personnel. Police officers conduct a search for the person in question and provide assistance in apprehending persons subject to involuntary hospitalisation, ensure public safety and safe conditions for access to the person subject to hospitalisation and prevent any unlawful actions of persons resisting the hospitalisation. 199. Article 125 of the Code sets out the judicial procedure for the examination of complaints. The orders of an investigator or prosecutor refusing to institute criminal proceedings or terminating a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to hinder citizens’ access to justice, may be appealed against to a local district court, which is competent to check the lawfulness and grounds of the impugned decisions.
| 1 |
test
|
001-180548
|
ENG
|
ROU
|
COMMITTEE
| 2,018 |
CASE OF S.C. TEXTINC S.A. v. ROMANIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
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Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque
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4. The applicant company, S.C. Textinc S.A., is a Romanian company whose registered office is in Timişoara. 5. On 12 December 2008 the Timişoara Finance Inspectorate (hereinafter, “the T.F.I.”) instituted enforcement proceedings against the applicant company on the grounds that it had an outstanding tax liability for the year 2008 amounting to 237,128 Romanian lei (RON). 6. The applicant company, represented by its appointed lawyer, Mr. P. Sălăjan, challenged before the Timişoara District Court the T.F.I.’s decision to open enforcement proceedings. It claimed that it had no outstanding fiscal debts and submitted documentary evidence in this respect. 7. At the first hearing in the proceedings the T.F.I. acknowledged that the applicant company had no outstanding tax liability and that the enforcement proceedings had been instituted in error. Invoking Article 275 of the Romanian Code of the Civil Procedure (hereinafter, “the CCP” – see paragraph 15 below), it also contended that as it had acknowledged its error at the first hearing in the proceedings it should not be ordered to pay the costs and expenses incurred by the applicant company. 8. By a judgment of 16 February 2009 the Timişoara District Court allowed the applicant company’s challenge concerning the T.F.I.’s decision to open enforcement proceedings and ordered the T.F.I. to pay the applicant RON 9,893; this sum represented respectively the fees of the applicant company’s lawyer (9,700 RON), stamp duty and trial tax (193 RON). The court held that although the T.F.I. had acknowledged its error at the first hearing it could not be exonerated from the payment of the costs and expenses incurred by the applicant company, as the challenge proceedings were the result of a mistake on its part. The court further noted that the T.F.I. had started enforcement proceedings against the applicant company for a non-existent debt and that the latter had accordingly had to hire a lawyer and pay the trial fees in order to defend itself. The court also noted that the applicant company had submitted evidence to support its request for the reimbursement of the expenses it had incurred. 9. The T.F.I. lodged an appeal on points of law against the judgment of 16 February 2009. It claimed that the first-instance court had not observed the principle of adversarial proceedings and of equality of arms, as it had not had the opportunity to challenge the amount paid by the applicant company in lawyer’s fees, which in its opinion were too high. 10. By a final judgment of 12 August 2009 the Timiş County Court dismissed the appeal as unfounded. While holding that the lawyer’s fees corresponded to his input in the case, the court reiterated that the judge was entitled to increase or to reduce a lawyer’s fees, according the specific criteria set out by Article 274 of the CCP (see paragraph 15 below). The court thus concluded that the judgment given by the Timişoara District Court was lawful and well-founded; it further awarded the applicant company the amount of 7,596 RON in legal costs in respect of the appeal proceedings. 11. The T.F.I. lodged with the Timiş County Court an application for the judgment of 12 August 2009 to be set aside (contestaţie în anulare – see paragraph 14 below) on the grounds that the County Court had not examined all the arguments that it had raised in its appeal on points of law; the T.F.I. referred in particular to the fact that before the Timişoara District Court they were not given the possibility to bring their arguments concerning the amount requested by the applicant company and then awarded in legal costs and expenses by the first-instance court. 12. In a final judgment of 19 February 2010 the Timiş County Court, sitting in a different formation from that of 12 August 2009, allowed the request: it set aside the judgment of 12 August 2009 (see paragraph 10 above) and allowed the appeal lodged by the T.F.I. against the judgment of 16 February 2009 (see paragraph 8 above), which it partly amended. The County Court held that the appellate court had not examined the arguments raised by the defendant in their appeal on points of law in relation to the manner in which the first instance court applied Article 274 § 3 of the CCP (see paragraph 15 below); in particular, the first instance court had not allowed the parties to bring their arguments concerning the amount of the legal costs requested by the applicant company. Such an omission was sufficient, in the County Court’s view, to justify the quashing of the previous judgments. 13. The County Court then re-examined the amount paid by the applicant company in lawyer’s fees and considered that in relation to the lawyer’s input in the case, it was justified to reduce that amount from RON 9700 to RON 700. It also considered that the stamp duty and trial tax in the amount of 193 RON were not to be granted to the applicant company, in so far as this amount could be requested separately from the fiscal authorities, based on the Law no. 146/1997 on stamp duty, as a consequence of the fact that the challenge to the enforcement had been allowed.
| 1 |
test
|
001-178344
|
ENG
|
RUS
|
CHAMBER
| 2,017 |
CASE OF DUDCHENKO v. RUSSIA
| 3 |
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention;Release pending trial;Trial within a reasonable time);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Legal assistance of own choosing;Article 6 - Right to a fair trial);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
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Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
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5. The applicant was born in 1975 and lives in Murmansk. 6. On 23 December 2003 the Murmansk regional prosecutor’s office initiated criminal proceedings against the applicant, who was suspected of leadership of a criminal armed gang. According to the authorities, the applicant, as the leader of the gang, had planned and committed several offences, namely aggravated kidnapping, assault, aggravated robbery and extortion, in Murmansk and Moscow. 7. On 23 December 2003 the Murmansk Regional Court authorised the interception and recording of the applicant’s telephone communications on his mobile telephone, number ...-15. The surveillance authorisation read in its entirety as follows: “[The police] are investigating [a case] against a criminal gang involved in robberies and the extortion of money and personal belongings from citizens in Murmansk and other Russian regions. [The applicant] is the leader of the gang. [M.] and [Z.] are members of that gang. According to intelligence information, these people are planning to commit aggravated extortion from Murmansk businessmen. Operational-search measures have revealed that [the applicant] uses mobile phone number ...-15, registered as belonging to [M.]. In view of the above and given that it seems impossible to obtain the information necessary to expose [the applicant’s] unlawful activities by overt investigation, the court, on the basis of Article 23 of the Russian Constitution and Article 186 § 2 of [the Code of Criminal Procedure] decides to authorise for 180 days the interception of [the applicant’s] telephone communications on his mobile telephone number ...-15.” 8. On 24 and 25 December 2003 the police intercepted the applicant’s conversations with an accomplice, M. 9. On 25 December 2003 two of the applicant’s accomplices, M. and S., were arrested. The applicant went into hiding. 10. On the same day, 25 December 2003, at the applicant’s request his brother retained G. as the applicant’s legal representative. The legal services agreement stated that G. was to consult and defend the applicant while his name was on the police’s wanted persons list in connection with charges that were not yet known to him. If the applicant were to be arrested by the police, an additional agreement would be signed between G. and the applicant. There is no evidence that the police or the investigator were informed about that agreement. 11. On 26 December 2003 the Murmansk Regional Court authorised the interception and recording of the applicant’s telephone communications on his mobile telephone number ...-49. The surveillance authorisation read in its entirety as follows: “[The police] have intelligence information about a criminal gang involved in robberies and the extortion of money and personal belongings from citizens in Murmansk and other Russian regions. [The applicant] is the leader of the gang. Operational-search measures have revealed that [the applicant] uses mobile phone number ...-49. In view of the above and given that it seems impossible to obtain the information necessary to expose [the applicant’s] unlawful activities by overt investigation, the court, on the basis of Article 23 of the Russian Constitution and Article 186 § 2 of [the Code of Criminal Procedure] decides to authorise for 180 days the interception of [the applicant’s] telephone communications on his mobile telephone number ...-49.” 12. On 26 and 27 December 2003 the police intercepted conversations between the applicant and G. 13. On 27 December 2003 the applicant was arrested. 14. On 28 December 2003 G. informed the investigator that he was the applicant’s defence counsel by virtue of instruction no. 1062 of the Murmansk Regional Bar Association (“the Bar Association”). He was formally admitted (допущен) as counsel for the applicant. 15. On 5 January 2004 the applicant was charged with aggravated robbery, assault, kidnapping and extortion, committed by an organised criminal group. S. and M. were also charged with the same criminal offences. 16. At the beginning of August 2004 the investigator informed G. that his presence was required during investigative procedures involving the applicant. On 23 August 2004 the investigator was informed by the Bar Association that G. was on annual leave until 4 October 2004. 17. On 24 August 2004 the investigator appointed legal aid counsel for the applicant, noting that he had refused to choose replacement counsel and had insisted on being represented by G. 18. On 30 August 2004 the investigator decided to remove G. as counsel for the applicant, finding that it was necessary to question him about his telephone conversations with the applicant on 26 and 27 December 2003. He noted that at the time, G. had not yet been the applicant’s counsel. However, well aware that the applicant had committed serious criminal offences, G. had advised him what to do. In particular, he had told the applicant that money was needed, which could possibly mean that G. had intended to bribe a police official. He had also informed him about the course of the criminal proceedings, which had become known to him as at the time he had been representing the applicant’s accomplices, S. and M. When the police had tried to force the applicant’s door, the applicant had summoned G., who had said that he could not come and offered to send another lawyer. He had then advised the applicant to try to avoid arrest and, if that was not possible, to destroy his telephone and the SIM card, and to remain silent when questioned. In the investigator’s opinion, by giving such advice, G. had been trying to hide his connections with the applicant and his knowledge of the criminal offences committed by him. Given that at the material time G. had not been formally admitted as the applicant’s counsel, he should be considered as having advised him in his capacity as a simple citizen. He should therefore be called as a witness in the criminal proceedings against the applicant. 19. On 11 October 2004 the criminal case against the applicant and his accomplices was transferred to the Murmansk Regional Court for trial. The criminal case file comprised twelve volumes; five criminal cases were joined into one criminal case against the applicant and his accomplices. 20. A preliminary hearing was held on 21 and 22 October 2004. 21. The trial started on 3 November 2004. The applicant asked the court for permission for his brother, a civil lawyer working at a company which sold car spare parts, to act as his defence counsel. The court rejected his request, stating that the applicant’s brother was not qualified to participate as defence counsel in criminal proceedings, that he did not have the relevant practical experience, and that the applicant was already represented by legal aid counsel. 22. On 4 November 2004 the applicant requested that legal aid counsel assigned to his case be removed for failure to provide adequate legal assistance. The court rejected his request. The applicant then requested that AM. be admitted as his defence counsel instead of the legal aid lawyer. The judge granted that request and AM. represented the applicant throughout the remainder of the criminal proceedings. The trial was adjourned until 15 November 2004 to let AM. study the case file. 23. On 15 November 2004 the hearing was again postponed, until 22 November 2004, owing to the failure of one of the co-accused to appear due to illness. 24. Further hearings were held between 22 November and 9 December 2004. 25. On 22 November 2004 the applicant challenged the admissibility as evidence of transcripts of his telephone conversations with G. on 26 and 27 December 2003. He argued that G. had been his counsel as from 25 December 2003, as confirmed by the legal services agreement of that date and by relevant payment invoices. The conversations in question were therefore protected by legal professional privilege and their transcripts could not be used in evidence in criminal proceedings. 26. On 30 November 2004 the Murmansk Regional Court found that the legal services agreement of 25 December 2003 stated that G. was to provide the applicant with legal assistance in the framework of criminal proceedings, without clearly identifying the criminal proceedings to which it related. The investigator had not been informed about that agreement. G. had not been formally admitted as the applicant’s counsel in the present criminal proceedings until 28 December 2003 when he had shown the investigator the relevant instruction by the Bar Association. The Regional Court found it relevant that during the conversations intercepted by the police, G. had advised the applicant to remain in hiding and to destroy the evidence. Moreover, having been present, as their counsel, at S.’s and M.’s questioning after their arrest, G. had informed the applicant about their statements to the investigator. When summoned by the applicant to assist him at the time of his arrest, he had refused to come and had offered to send another lawyer. That gave reasons to doubt that G. had been representing the applicant at the time in the present criminal proceedings. The investigator had subsequently removed G. as counsel for the applicant. G. had not, however, been called to testify against the applicant in breach of legal professional privilege. Given that the applicant’s conversations with G. intercepted by the police contained information about the applicant’s criminal activities, they were not subject to legal professional privilege and their transcripts were admissible as evidence. 27. On 9 December 2004 the court ordered a graphological expert report and for that reason adjourned the trial until 5 April 2005. 28. On 4 April 2005 the applicant lodged an action before the Oktyabrskiy District Court of Murmansk, challenging the investigator’s decision of 30 August 2004 to remove G. as his counsel. On 6 June 2005 the Oktyabrskiy District Court dismissed that complaint as inadmissible, finding that it could not be examined once the investigation had been completed. The applicant could raise the complaint before the trial court. 29. Meanwhile, further hearings were held on 5, 25 and 27 April and 5 and 12 May 2005. 30. On 19 May 2005 the court ordered a complex psychological expert examination of one of the co-accused and adjourned the trial pending the expert examination report. A further complex psychological examination was ordered on 4 July 2005 and the trial was again adjourned until 7 October 2005. 31. On 7 October 2005 the trial was adjourned because the court ordered that two prosecution witnesses who had testified against S. and who were detained in Moscow be transported to Murmansk for a crossexamination. 32. The trial remained adjourned between 7 October 2005 and 6 March 2006 while awaiting the transfer of the prosecution witnesses, who at the time were on trial in a criminal case in Moscow. They were transferred to Murmansk on 3 March 2006, after their conviction of 7 October 2005 had been upheld on appeal on 26 December 2005. 33. On 29 December 2005 the applicant challenged the admissibility as evidence of the transcripts of his telephone conversations with M. on 24 and 25 December 2003 and with G. on 26 and 27 December 2003. He claimed, in particular, that the transcripts had been obtained unlawfully. 34. The trial was resumed on 6 March 2006. Hearings were held on 16 March, 6, 7, 13 and 20 April 2006. 35. During the trial the court examined numerous pieces of evidence, including three expert reports and the statements of six victims and twentyfour witnesses from Murmansk and Moscow. 36. On 12 May 2006 the Regional Court found the applicant guilty as charged and sentenced him to thirteen years’ imprisonment. It relied on the transcripts of the applicant’s telephone conversations with G. and M., among other evidence, observing that the interception of the applicant’s telephone communications had been authorised by a court. Having analysed the transcripts of the applicant’s telephone conversations with G., it held as follows: “The lawyer had not been formally admitted to provide legal assistance to [the applicant] at the time [when the interception had taken place]. His actions were considered by the investigator to be unlawful and served as a basis for the decision to remove [G.] as counsel for [the applicant] and for considering the question of opening criminal proceedings [against G.]. The court does not have any reason to believe that the information obtained as a result of [intercepting the applicant’s] telephone communications with [G.] cannot be used as evidence, given that the information in question has not become known to [G.] as a result of providing legal assistance to [the applicant].” 37. The applicant appealed against the conviction, claiming that the Regional Court had erred in its assessment of the evidence, that the transcripts of his telephone conversations with his co-defendant M. and counsel G. had been unlawfully used as evidence in the criminal proceedings, that G. had been unlawfully removed as counsel from his case, and that the authorities had refused to allow his brother to act as his legal representative. 38. On 18 December 2006 the Supreme Court of the Russian Federation upheld the conviction. It held, in particular, that the transcripts of the applicant’s telephone conversations with M. and G. had been correctly admitted as evidence. It further observed that the applicant’s allegations of violations of his right to defence during the preliminary investigation had been examined by the first-instance court and had been rejected as unsubstantiated. 39. The applicant was arrested on 27 December 2003. 40. On 29 December 2003 the Murmansk Regional Court remanded the applicant in custody. It held that he was suspected of particularly serious offences, did not have a permanent job, and that his assertions that he owned a family business were unconvincing. There were therefore sufficient reasons to believe that he might abscond, obstruct the course of justice, and continue his criminal activities. 41. On 24 February and 18 June 2004 the Regional Court ordered extensions of the applicant’s detention, citing the need for further investigation, the gravity of the charges and the risks of the applicant absconding, putting pressure on witnesses and obstructing the course of justice. There were no factors relating to the applicant’s character, state of health, family or other circumstances which would warrant release. The applicant did not appeal against those extension orders. 42. On 11 October 2004 the criminal case file was transferred to the Regional Court for trial. On 22 October 2004 the Regional Court ordered the applicant’s and his co-defendants’ detention during trial, referring to the gravity of the charges and the lack of permanent employment “at the time of the commission of the crimes”. It considered that the grounds which had served as the basis for the preventive measure remained valid. The applicant did not appeal. 43. On 5 April, 4 July, 7 October and 29 December 2005 and 7 April 2006 the Regional Court extended the applicant’s and his codefendants’ detention, finding that the grounds which had served as the basis for the preventive measure remained valid and that there were therefore no reasons to change it. The trial could not proceed for objective reasons as it was necessary to wait for the results of a psychological expert examination of S. and for the transfer for questioning of two prosecution witnesses against S. 44. The applicant appealed against the above extension orders to the Supreme Court. He submitted that he had been permanently residing in Murmansk, that he had been working in the family business, that he had no previous convictions and that he had no intention of absconding from the authorities. The authorities had failed to substantiate their allegations that he might abscond or continue with his criminal activity. As regards the risk that he might put pressure on witnesses, it was no longer relevant as all the witnesses had already been questioned by the trial court. According to the applicant, the extension of his detention had been based solely on the gravity of the charges against him. The trial had been adjourned for reasons which were not related to his personal situation, but in order to carry out expert psychological examinations of one of the co-accused and to ensure the transfer from Moscow of two prosecution witnesses who were to give evidence against that same co-accused. He asked to be released on bail or on his father’s personal guarantee. 45. On 11 August, 9 November and 15 December 2005 and 30 March 2006 the Supreme Court upheld the above extension orders on appeal, referring to the gravity of the charges and the risks of the applicant absconding or putting pressure on witnesses. The fact that the witnesses had already been questioned was irrelevant because the applicant might still put pressure on them or otherwise obstruct the trial. 46. The applicant was held as follows: in remand prison no. IZ-51/1 (SIZO-1) in Murmansk from 30 December 2003 to 21 May 2006; in correctional facility no. IK-16 in Murmashi, Murmansk Region, in a special wing with the material conditions of detention of a remand prison (ПФРСИ – помещение, функционирующее в режиме следственного изолятора) from 21 May to 9 October 2006; in remand prison no. IZ-35/2 in Vologda from 12 to 17 October 2006; and in remand prison no. IZ-77/3 in Moscow from 18 October 2006 to 24 January 2007. 47. The Government submitted that it was impossible to provide original documentation concerning the conditions of the applicant’s detention in remand prison no. IZ-51/1 (SIZO-1) in Murmansk because all the official records had been destroyed after the expiry of the statutory period for their storage. In respect of that detention facility they submitted only statements and reports prepared by the prison authorities in 2010. They also submitted copies of the prison population register for the entire periods of the applicant’s detention in correctional facility no. IK-16 in Murmashi and in remand prison no. IZ-35/2 in Vologda, and selected pages from the prison population register for the period of detention in remand prison no. IZ-77/3 in Moscow. 48. The Government submitted the following information about the applicant’s detention, which was based on the above-mentioned documents: 49. The Government asserted that in all the cells where the applicant had been detained between 2003 and 2007, the number of inmates had not exceeded the number of beds and that at all times while in detention the applicant had been provided with an individual sleeping place. At the same time, the Government submitted as follows: “... during the applicant’s detention the sanitary norm for space per inmate was not always complied with. However, it happened only occasionally ... and the prosecutor’s office demanded that these infractions be eliminated ...” 50. Relying on the statements and reports prepared by the prison authorities in 2010, the Government further submitted that the applicant had been provided with bed sheets and cutlery. The cells were cleaned daily by the inmates and the administration of the penal institutions carried out a sanitary treatment of the premises every month. 51. All cells were equipped with wash basins supplying cold water; hot water was available for personal and household needs. In addition, the inmates were allowed to use their own kettles and water heaters. 52. At all times in all the remand prisons, the applicant and the other inmates were allowed to take a fifteen-minute shower once a week; their linen was changed weekly. 53. The applicant and other inmates were allowed to take one hour’s daily exercise in specially equipped yards. 54. According to the applicant, remand prison no. IZ-51/1 (SIZO-1) in Murmansk had been severely overcrowded and the space available to him had been below the domestic standards. The applicant contested the accuracy of the data submitted by the Government about the designated number of bunk beds within the cells. For instance, in cell no. 423 the actual number of bunk beds had been eight and not three as submitted by the Government, as could be seen from the photographs he had submitted to the Court. Cell no. 406 had seven sleeping bunks and housed up to nine inmates. 55. In reply to the applicant’s complaints about poor conditions of detention, the Murmansk regional prosecutor’s office stated, on 14 November 2005, as follows: “... the applicant’s complaints ... that the conditions of detention in SIZO-1 were not fully compatible with the sanitary regulations prescribed by the Federal Law on pretrial detention ... that the minimum individual space prescribed by the Law (4 sq. m per person) was not always complied with, that the premises needed repair, that the walls in some of the cells were stained with mould and crumbling, that the plumbing was often out of order, that not all the cells were equipped with a sufficient number of shelves and TV sets, that broken glass in the windows was not replaced promptly and that there were no refrigerators – [all these complaints] reflect the reality. These deficiencies were noted by the prosecutor’s office during their inspection of SIZO-1.” 56. On 25 April 2006 the Murmansk regional prosecutor’s office stated: “... in 2005-06 the number of detainees in SIZO-1 frequently exceeded the prescribed limits. For these reasons it was not always possible to comply with the sanitary regulations (4 sq. m per inmate). For the same reasons the requirements concerning the separate detention of different categories of detainees were sometimes not complied with ...” 57. As regards correctional facility no. IK-16 in Murmashi, the applicant stated that during his stay there he had been detained in inadequate conditions. The cells had been overcrowded. The space available to him throughout the detention period had been below the domestic standards. In particular, he had shared a cell measuring 20 sq. m with five other detainees. 58. On 28 September 2006 the applicant complained to the Murmansk Regional Department for the Execution of Sentences of inadequate conditions of detention in IK-16. In particular, he complained of poor nutrition, overcrowding, a lack of newspapers and television sets, and of the authorities’ refusal to make copies of documents at inmates’ requests. He received no reply. 59. Furthermore, as regards remand prison no. IZ-35/2 in Vologda, the applicant stated that the quality of the food in the prison had been extremely poor. He had been detained with thirty-six other detainees in a cell measuring 50 sq. m. The cell had been infested with cockroaches, bedbugs and rats. The detainees had slept on bunk beds. 60. Lastly, as regards remand prison no. IZ-77/3 in Moscow, according to the applicant, he had been held in cell 434, which measured 13 sq. m, with seven other detainees. The inmates had slept on bunk beds. There had been a table measuring 1 m by 0.3 m but no benches or chairs to sit on. The cell had been swarming with insects. The inmates had been allowed to take exercise only in groups. 61. From 9 to 12 October 2006 the applicant was transferred by train from Murmansk to Vologda. He was given no food. He received his first meal on 13 October 2006. 62. On 17 and 18 October 2006 the applicant was transferred by train from Vologda to Moscow. 63. From 24 January to 9 February 2007, on the way from Moscow to Murmansk, between St Petersburg and Murmansk, the applicant was transported in cramped conditions in a compartment with up to sixteen other inmates, some of whom were suffering from tuberculosis. 64. As regards the conditions of the applicant’s transportation between Murmansk and Vologda from 9 to 12 October 2006, the applicant was transported in a compartment with other inmates, none of whom were suffering from tuberculosis. He was transferred from Vologda railway station to the local remand prison IZ35/2 in a special vehicle separately from other inmates. 65. When the applicant was transferred from Vologda railway station to Moscow on 17 and 18 October 2006, he was not transported with inmates who were suffering from tuberculosis. 66. When the applicant was transferred from Moscow to Murmansk between 24 January and 9 February 2007, he was transported first alone in the railway compartment, then from St Petersburg onwards he was transported with other inmates, none of whom were suffering from tuberculosis. 67. During the transfers the applicant was duly provided with dry food rations; he was given permission to use hot water and the toilet. 68. The applicant did not lodge any complaints about the conditions of his transportation between Murmansk and Moscow. He did not apply for medical assistance, nor did he complain about the state of his health. 69. In their submission the Government neither specified the number of inmates transported with the applicant, nor the size of the compartments in which they had travelled. Nor did they submit any copies of documents regarding that part of the applicant’s complaints, including the distribution of dry rations for the trip.
| 1 |
test
|
001-182452
|
ENG
|
RUS
|
CHAMBER
| 2,018 |
CASE OF LOZOVYYE v. RUSSIA
| 3 |
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 family life;Respect for private life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
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Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
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5. The applicants are Russian nationals who were born in 1952 and 1954 respectively, and live in the town of Belomorsk in the Republic of Karelia. 6. On 1 December 2005 the applicants’ son, Mr M. Lozovoy, was killed in St Petersburg. Criminal proceedings were instituted against a Mr O. on a murder charge. 7. On 18 January 2006 Ms L., an investigator of the Primorskiy district prosecutor’s office in St Petersburg, asked the head of the Primorskiy district police to identify relatives of the deceased, Mr M. Lozovoy; to establish their place of residence and to summon them to the prosecutor’s office for the purpose of granting them victim status in the criminal case. 8. A week later the applicants’ son was buried under his full name in St Petersburg. A record in a cemetery registration log indicated that the body had been unclaimed. 9. On 30 January 2006 the investigator, having concluded that it was impossible to identify relatives of the deceased, assigned the status of victim in the criminal case to a representative of the municipal authorities. The following day police officials informed the investigator that operative measures undertaken by them to identify Mr M. Lozovoy’s relatives had not produced any result. 10. On 2 February 2006 the applicants contacted Ms L. and informed her of their intention to come to St Petersburg to take part in the criminal proceedings. 11. Despite the applicants’ notice, five days later Ms L. sent the criminal case file to the Primorskiy District Court for trial. 12. Sometime later the applicants were invited to take part in the criminal proceedings in the capacity of victims. 13. On 14 February 2006 the applicants were allowed to exhume their son’s remains. Two days later they buried him in Belomorsk. 14. On 6 June 2006 the Primorskiy District Court found Mr O. guilty of having murdered the applicants’ son and sentenced him to six years’ imprisonment. 15. On the same day, responding to the applicants’ complaints about the authorities’ failure to notify them of their son’s death, the District Court issued an interim decision (частное постановление) in respect of the investigator, Ms L. The decision, addressed to the Primorskiy district prosecutor, in so far as relevant, read as follows: “Moreover, the [finding] that the investigator, Ms L., did not take sufficient steps to find relatives of the deceased and that measures undertaken [by her] were formalistic in character is not only confirmed by the fact that the decision assigning victim status to [a representative of the municipal authority], had been taken before the information was received from the police officials, but also by the fact that criminal-case-file material contained sufficient information about [the applicants’ son], on the basis of which it was possible to establish the place of residence of his relatives ([there was] an explanation from Mr O. made on 1 December 2005, in which he had given the information about the place of residence of [the applicants’ son]; a statement made by Mr O. on 8 December 2005 in which he said that a criminal case against [the applicants’ son] was pending before a court; statements by a witness, Ms A., who asserted that [the deceased’s] mother had occasionally made telephone calls to [the deceased’s] flat; a certificate on [the deceased’s] criminal record from which it is apparent that the Primorskiy district prosecutor’s office of St. Petersburg applied a measure of restraint in the form of a written undertaking in respect of [the applicants’ son] in criminal case no. 137755; the material in the abovementioned criminal case file contain a copy of [the applicants’ son’s] passport; and so forth). It follows that the victims’ rights envisaged by the law in force were substantially violated in the course of the preliminary investigation. Relying on Article 29 § 4 of the Russian Code of Criminal Procedure, [the court] rules: that the violations of criminal-procedural law committed during the preliminary investigation in the criminal case should be brought to the attention of the Primorskiy district prosecutor in St Petersburg; that the Primorskiy District Court of St Petersburg should be informed of the measures taken no later than a month after the receipt of the present decision.” 16. In 2007 the applicants lodged an action against the Prosecutor General’s Office and the Ministry of Finance, seeking compensation for pecuniary and non-pecuniary damage. Relying on the Primorskiy District Court’s interim decision of 6 June 2006, the applicants argued that as a result of the investigator’s failure to promptly notify them of their son’s death, they had sustained pecuniary damage, having been forced to pay for the exhumation and transport of their son’s remains from St. Petersburg to Belomorsk. In addition, they had suffered non-pecuniary damage as they had been unaware of their son’s whereabouts for a long time and had been forced to initiate a search for him; they had been unable to properly say “goodbye” to their son and to provide him with a decent burial; they had been forced to go through a two-week bureaucratic procedure to obtain permission to exhume their son’s remains; and subsequently, after the exhumation, they had been forced to identify his disfigured remains. 17. On 5 February 2008 the Tverskoy District Court of Moscow dismissed the claim, having found that the investigator had not committed any unlawful actions and there had been no final decision by any domestic court to establish otherwise. 18. On 20 May 2008 the Moscow City Court upheld the judgment endorsing the District Court’s reasoning.
| 1 |
test
|
001-155104
|
ENG
|
SVK
|
CHAMBER
| 2,015 |
CASE OF COMPCAR, S.R.O. v. SLOVAKIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
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Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
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5. The applicant company was established in 1995 and has its registered office in Prešov. 6. In 2004 the applicant company bought real property registered on ownership certificate no. 5604 for the cadastral area of Južné mesto in the city of Košice. The seller was a State-owned enterprise (“the seller”) acting through a receiver in insolvency. 7. Prior to the sale, in a decision (uznesenie) of 8 April 1998, the Košice Regional Court (Krajský súd) acting as an insolvency court had consented to the property being sold directly as opposed to through a public auction. 8. By way of an order (opatrenie) of 9 July 2004 the insolvency court approved the sale of the property to the applicant company because it had fulfilled the conditions for the sale as set out in the decision of 8 April 1998. It observed that the proposed price was adequate in view of all the circumstances, including the fact that there were municipal and other roads situated on the land in question. 9. The order of 9 July 2004 was not amenable to appeal. It became final and binding on the same day as it was issued. 10. On 28 July 2004 the sale was registered in the land registry. The title to the property was thereby effectively transferred to the applicant company. 11. The seller was subsequently dissolved and struck out of the companies register, whereby it ceased legally to exist. 12. On 22 April 2008 the City of Košice (“the claimant”) brought an action against the applicant company seeking a ruling that it was the owner of the property. The claimant argued in principle that, by mistake, the property had not been registered as its own; that accordingly it did not belong to the seller; and that – consequently – the sale had been void. 13. The action was examined and dismissed on 27 February 2009 by the Košice I District Court (Okresný súd) and, following an appeal lodged by the claimant, on 8 October 2009 by the Regional Court. The District Court held a hearing and took complex documentary evidence and oral submissions from the parties. Both courts unanimously concluded that there was a non-rebuttable legal presumption, under Article 19 § 2 of the Insolvency Code (Law no. 328/1991 Coll., as applicable at the relevant time), that the property belonged to the insolvency estate and could be lawfully sold to third parties unless its exclusion from the estate had been claimed by way of a special action (vylučovacia žaloba), which had not happened in the present case. The applicant company had acquired the property in good faith and the present action could not be used to contest that. 14. The dismissal of the action became final and binding on 7 January 2010. 15. On 13 December 2010 the claimant filed a petition with the Office of the Prosecutor General (“the PG”) requesting the latter to exercise his discretionary power to challenge the above-mentioned judgments by way of an extraordinary appeal on points of law (mimoriadne dovolanie – “extraordinary appeal”). 16. Having decided to accede to the request and acting through his First Deputy, on 5 January 2011 the PG challenged the contested judgments in the Supreme Court (Najvyšší súd). He argued that the courts had erred in applying the said legal presumption which, in his view, only applied if the party concerned had been invited by the insolvency court to seek the exclusion of the property in question from the insolvency estate by the special action mentioned above and if that party had failed to act on the invitation. This had however not been the case in the present situation. Moreover, the PG argued that both the seller’s receiver in insolvency and the insolvency court should have flagged up and treated the property as contentious, especially in view of the fact that there were public roads on it. 17. The applicant and the claimant were both given an opportunity to comment. 18. On 30 April 2012 the Supreme Court quashed the challenged judgments and remitted the case to the first-instance court for a new determination. It referred to a precedent of 11 September 2009 in case no. 5Cdo 194/08, which had been published in the “Collection of Standpoints of the Supreme Court” in 2010 (issue 3/2010, item 25), according to which there were conditions attached to the legal presumption applied by the lower courts. The present case fell within one of the exceptions. In particular, the Supreme Court concurred with the PG’s argument that the presumption only applied on condition that the party concerned had been invited but had failed to seek to have the disputed items excluded from the insolvency estate. However, according to the Supreme Court, there was an exception to that condition, in that the latter would only apply if there were circumstances casting doubt on whether the disputed items rightfully fell within the insolvency estate. The Supreme Court found that, on the facts of the present case, the claimant had not been invited to seek to have the plots in question excluded from the estate. Moreover, there were reasons to doubt whether the seller had actually been the owner of those plots and whether the property had belonged to the seller’s insolvency estate. As the receiver and the insolvency court had failed to flag up the property as being contentious, the presumption was not applicable and the sale contract was void. Moreover, in the Supreme Court’s assessment, in view of the circumstances, the applicant company could not be considered as having been the bona fide purchaser of the property. The contested judgments were therefore wrong in law and had to be quashed. 19. Since then the case has been pending at the first instance. 20. On 3 August 2012 the applicant company lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). The applicant company relied, inter alia, on Article 6 § 1 of the Convention and challenged the Supreme Court’s decision. In particular, it contended that the Supreme Court had wrongfully reexamined the lawfulness of the insolvency court’s order of 9 July 2004, which was impermissible outside the framework of the insolvency proceedings. In any event, an extraordinary review of that order was also impermissible on account of the expiry of the applicable time-limits. In addition, the re-examination of that order was impermissible because it was in breach of the principle of res judicata. Lastly, the applicant company disagreed with the Supreme Court’s findings on the merits. 21. On 11 October 2012 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It found no constitutionally relevant arbitrariness, unfairness or irregularity in the Supreme Court’s decision and reasoning or in the underlying procedure. It added that, in so far as the applicant company could be understood as wishing to rely on the principle of res judicata with regard to the original insolvency proceedings, this principle did not apply in the present case because the insolvency proceedings had concerned the seller and not the claimant. Any rulings made in the insolvency proceedings therefore did not restrict the claimant from pursuing its own claims in the action at the origin of the present case. The Constitutional Court’s decision became final and binding on 2 November 2012.
| 1 |
test
|
001-157544
|
ENG
|
POL
|
ADMISSIBILITY
| 2,015 |
OSTROWSKI v. POLAND
| 4 |
Inadmissible
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev
|
1. The applicant was born in 1972. He is currently serving a prison sentence in Świnoujście Remand Centre. 2. The facts of the case, as submitted by the parties, may be summarised as follows: 3. In 2005 the applicant suffered an acoustic shock. He was subsequently diagnosed as having a severe hearing impairment. An audiometric test carried out on 20 July 2005 confirmed 10 decibels hearing loss (dB HL) in his left ear and 80 dB HL in his right ear. Medical treatment he underwent in the Szczecin Military Hospital from 10 to 19 August 2005 did not result in an improvement of his condition. He was released from the hospital and further outpatient treatment was recommended. 4. Subsequent laryngological and surgical treatment and further consultations with a psychiatrist, neurologist and optician resulted in successive decisions to postpone the start of a seven-year prison sentence imposed on him by the Świnoujście District Court on 15 May 2003. On 15 September 2005 the court postponed the start of his sentence until 15 March 2006 on health grounds (ref. no. VI Ko 199/05). Having regard to the applicant’s medical records, it was of the view that serving the sentence would have been too harsh on him. On 25 May 2006 the court extended the period of postponement (ref. no. VI K 94/06), referring to the applicant’s need to have further treatment. 5. He started his sentence on 10 July 2006. 6. The applicant was subsequently deprived of his liberty in a number of detention facilities, namely: - Świnoujście Remand Centre (from 10 July to 24 October 2006, 27 February to 21 March 2007, 18 July to 17 August 2007, 9 to 19 February 2010 and 18 November 2010 to 10 June 2011); - Szczecin Remand Centre (from 24 October to 6 December 2006 and 17 January to 1 February 2007); - Bydgoszcz Remand Centre (from 6 to 28 December 2006); - Koronowo Prison (from 28 December 2006 to 17 January 2007); - Goleniów Prison (from 1 to 27 February 2007, 27 March to 18 July 2007, 17 August to 4 September 2008, 3 November 2008 to 5 February 2009 and 19 February to 18 November 2010); - Katowice Remand Centre (from 5 to 17 September 2008); - Nowy Wiśnicz Prison (from 17 September 2008 to 28 October 2008); - Łódź Remand Centre (from 29 October to 3 November 2008); - Nowogard Prison (from 10 June to 10 November 2011). 7. The applicant was examined by doctors of various prisons – twice in 2006, on four occasions in 2007 and on nine occasions in 2008. The courts twice postponed the date on which he was to start serving his prison sentence. 8. On 31 August 2005 the applicant was provided with a medical prescription (zlecenie lekarskie) for a hearing aid for his right ear. Subsequently, on unspecified dates the competent court twice postponed the start of his prison sentence (see paragraph 7 above). While at liberty, he did not use a hearing aid and did not take any steps to obtain one. 9. On 22 June 2006 the applicant underwent another audiometric test, which gave similar results to the test on 20 July 2005 (see paragraph 6 above). At that time he had 75 dB hearing loss in his right ear. A subsequent medical certificate drawn up on 13 December 2006 demonstrated that his hearing had become worse, increasing to 80 dB hearing loss in his right ear and 30 dB hearing loss in his left ear. 10. On 31 March 2007 a laryngologist examined the applicant. He was informed that under Article 115 § 2 of the Code of Execution of Criminal Sentences, he could obtain a hearing aid at his own expense. Subsequently, he took steps to obtain a hearing aid without the help of the prison service. It appears that to that end he contacted the Institute of Physiology and Hearing Pathology (Instytut Fizjologii i Patologii Słuchu) in Warsaw and had a medical appointment scheduled for 13 August 2007; however, he could not attend it as he was imprisoned at the time. 11. On 30 May 2007 he was registered for social insurance purposes as a person suffering from a moderate disability (umiarkowany stopień niepelnosprawności). 12. On 5 July 2007 the applicant requested the Penal Division of the Szczecin Regional Court (hereinafter “the penal court”) to grant him shortterm prison leave to attend the medical appointment scheduled for 13 August 2007 (see paragraph 13 above) and further medical check-ups at liberty. He did not make a formal request to attend the relevant hearing. He requested that a lawyer be appointed under the legal aid scheme to represent him before the court. He submitted that he did not feel mentally fit to argue his own case and that he had been undergoing psychiatric treatment for years. 13. On an unspecified date in August 2007 the court dismissed his request for legal aid. 14. On 16 November 2007 the Szczecin Regional Court informed the applicant that his application for prison leave would be examined at a hearing scheduled for 20 November 2007. 15. The hearing was held as planned, without him being present. The court dismissed his request for leave. It considered, with reference to the medical certificate, that his hearing impairment could be treated in prison, that his detention had not put his life directly at risk within the meaning of Article 150 § 2 of the Code of Execution of Criminal Sentences, and that the legal requirements for granting him leave had not been met. 16. The applicant appealed, submitting that he had been deprived of the right to argue his case before the court either in person or through a legal aid lawyer. He requested to be present at the appeal hearing. 17. On 17 January 2008 he was informed that an appeal hearing had been scheduled for 31 January 2008. On that date the Szczecin Court of Appeal dismissed his appeal. He was not present at the hearing. 18. In its decision, the penal court referred to a medical certificate issued by a prison doctor on 7 August 2007. The court was of the view that, in the light of that certificate, the applicant’s condition could be successfully accommodated by the prison health care system. The court did not address the issue of the procedural shortcomings which had allegedly been committed by the Regional Court. 19. The applicant applied to the Polish Association of the Deaf to be provided with a hearing aid. The replacement hearing aid (zastępczy aparat słuchowy) was issued to him on 8 April 2008. He was entitled to use it until he was able to buy his own device, with the possibility of a partial refund by the National Health Fund. 20. The applicant secured a new date for a specialist medical consultation at the Institute of Physiology and Hearing Pathology on 7 April 2008, but he could not attend. 21. On 8 July 2008 the Szczecin Regional Court dismissed another request for prison leave on medical grounds. The court relied on the same reasoning and on the same 2007 medical certificate as in its January 2008 decision (see paragraph 21 above). The applicant appealed. 22. On 30 September 2008 the Szczecin Court of Appeal quashed the decision. On 8 October 2008 the applicant was granted legal aid for the purposes of his request for leave. Meanwhile, he was transferred to another prison in a different court circuit. Eventually, on 3 February 2009 the Szczecin Regional Court granted him six months’ leave to allow him to obtain a hearing aid. He left prison on 5 February 2009. 23. During his leave, he asked the State Fund for the Rehabilitation of Disabled Persons (Państwowy Fundusz Rehabilitacji Osób Niepelnosprawnych) and other organisations to finance the purchase of his hearing aid. 24. On 8 May 2009 the applicant was presented with an invoice from a private company that made hearing devices. The cost of a hearing aid fitted to his purposes was 1,888 Polish zlotys (PLN) (approximately 500 euros (EUR)). He did not collect the hearing aid from the shop during his prison leave, because he could not afford to pay for it. 25. By a letter dated 12 May 2009 the Świnoujście Family Assistance Centre (Miejski Ośrodek Pomocy Rodzinie) informed him that they could not finance his hearing aid. 26. On 25 August 2009 the Szczecin Regional Court extended his leave for another six months until 5 February 2010 (ref. no. V Kow 1521/09), as he had not managed to obtain a hearing aid within the period of leave previously granted to him. Subsequently, he obtained a left ear hearing aid. The total price of the aid with an ear insert was PLN 2,498 (approximately EUR 630). PLN 610 (approximately EUR 154) was refunded by the National Health Fund, while PLN 900 (approximately EUR 227) was refunded by the State Fund for the Rehabilitation of Disabled Persons. He paid approximately PLN 1,000 (approximately EUR 252) from his own means. 27. The applicant failed to report back to Goleniów Prison at the end of his leave. He was arrested by the police and taken back there on 9 February 2010. 28. Once back in prison, he asked the prison authorities to provide him with a right ear hearing aid. They refused, referring to the principle that only people in employment were entitled to two hearing aids, including persons at liberty. 29. On 15 December 2010 a laryngologist issued an opinion that he should also be provided with a right ear hearing aid. 30. Subsequently, on 14 January 2011 the applicant applied to the Szczecin Regional Court for further prison leave (ref. no. V Kow 139/11). He raised the issue of his hearing impairment. He submitted that he planned to undergo ear surgery and urological surgery. He was granted legal aid for the purposes of the proceedings. On 10 March 2011 the Szczecin Regional Court assigned a lawyer to represent him under the legal aid scheme. 31. On 5 April 2011 the Szczecin Regional Court refused his request for prison leave. The court referred to a medical certificate dated 1 March 2011, which indicated that he had been examined by laryngologists on several occasions, that he was suffering from hearing problems but had been using a hearing aid, that the certificate of 5 December 2010 had not recommended that it was absolutely necessary for him to also have a hearing aid for his right ear, and, lastly, that during the previous period of leave, he had committed another criminal offence and had not returned to prison on the due date. The applicant was represented by the legal aid lawyer. 32. The applicant appealed and requested to be taken from prison to the appeal hearing. On 9 June 2011 the Szczecin Court of Appeal refused to allow his request. It was of the view that he had failed to refer to any circumstances that would justify his attendance in person, that the decision was to be taken on the basis of documents in his medical file, and that he was represented by a legal aid lawyer. On the same date the court dismissed his appeal. It noted that it was not in dispute that he suffered from various ailments which necessitated medical care, but it was possible to provide treatment to him in prison. The court referred to a medical certificate and his laryngological consultations, none of which confirmed that he was in danger of becoming deaf. There was no need for him to be provided with a right ear hearing aid. 33. On 5 May 2011 the applicant was consulted by a laryngologist. The doctor was of the view that his very significant hearing loss made the use of a hearing aid for his right ear pointless. Furthermore, it was possible that the right ear hearing aid would interfere with the left ear hearing aid he had been using. The laryngologist did not recommend that he be provided with a hearing aid for his right ear. 34. As the laryngologists’ opinions dated 15 December 2010 and 5 May 2011 were contradictory, another consultation was arranged on 29 August 2011 at the laryngological ward of the Pomeranian Medical University in Szczecin. Medication was prescribed as a result of this consultation. The conclusions of the opinion of 15 December 2010 as to the necessity of the applicant being fitted with a hearing aid for his right ear were confirmed. 35. On 30 August 2011 the applicant made another request to have a hearing aid provided by the penal authorities. The following day, after considering this oral request, the authorities decided to wait for the court’s decision as to the applicant’s possible prison leave. 36. On 8 November 2011 the Szczecin Regional Court granted six months’ prison leave to the applicant (ref. no. V Kow 2435/11 pr). He submitted, in support of his request, that because of his disability he had found it difficult to communicate with his fellow inmates and the prison guards, which had resulted in people being aggressive and intolerant towards him. He had been insulted and humiliated. Moreover, he could not attend the education classes offered in prison or fully engage in religious practices. The court noted that the applicant was serving a six-year prison sentence. He suffered progressive hearing loss, atrophy of the hearing nerves, myopia, and hyperglyceridemia. He was afraid of losing his hearing and wanted to be treated. He had used a hearing aid since 2008, but his hearing had deteriorated. His hearing loss had caused him to have anxiety attacks and depressive thoughts. A detailed diagnosis of his hearing problems and surgical treatment, if necessary, was not possible within the confines of a prison. 37. On 10 November 2011 the applicant was provided with a right ear hearing aid paid for by the detention facility. 38. On 20 December 2012 a doctor working for the social insurance authorities declared the applicant partially unfit to work for the period ending 31 December 2013. 39. On 26 February 2013 the penal court granted the applicant further leave for the purposes of his medical treatment. 40. On 22 March 2013 he had an ear implant fitted during an operation in a civil hospital in Kajetany specialising in treating hearing disorders. In June 2013 the hospital scheduled twelve visits at three-month intervals, with the treatment ending on 20 March 2015, with a view to him having a clinical follow-up after each operation. On 26 September 2013 he attended a follow-up appointment at that hospital. 41. On 8 November 2013 he returned to prison to serve the remainder of his sentence. He submitted that the prison administration had not allowed him to attend a follow-up appointment scheduled for 27 November 2013. 42. The applicant tried to institute criminal proceedings against the prison staff, alleging that they had failed to provide him with appropriate medical care. 43. On 14 August 2008 the Goleniów District Court dismissed an interlocutory appeal by the applicant against a decision by the Goleniów District Prosecutor on 30 June 2008 (Ds. 505/08) refusing to open an inquiry into his allegations that the Goleniów Prison doctor had put him directly at risk of severe health damage by refusing to authorise his diagnostic hearing tests and by failing to provide him with a hearing aid. 44. The prosecution authorities had found that the applicant had undergone medical tests in 2006. Since then, he had been under continuous medical care in prison. He was not considered to be at risk of suffering any damage to his health. It was also noted that the State was under an obligation to provide prisoners with only basic health care, and not to grant their (often excessive) wishes to receive specialist medical services and undergo unnecessary medical procedures. 45. On 10 March 2008 the Świnoujście District Court dismissed an appeal by the applicant against a decision taken by the District Prosecutor on 9 June 2007 (Ds. 656/07) discontinuing an investigation against the staff of the Świnoujście Remand Centre who had allegedly put his life at risk by interrupting the medical treatment prescribed to him by the remand centre psychiatrist. It was established that the applicant’s psychiatric treatment had been temporarily interrupted because he had been moved to a smaller remand centre where, for reasons unspecified in the decision, his treatment could not be continued. However, this did not amount to a criminal offence. It was further held that a hearing aid was not absolutely necessary for the applicant. His hearing impairment made his detention more difficult, but it did not render it impossible or too harsh on him. 46. By a letter dated 17 August 2007 the Szczecin Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) informed the applicant that complaints he had lodged on 27 July and 3 August 2008 concerning the administration of his medication, adequacy of his medical care and failure to provide him with a hearing aid had been declared illfounded. It was established that (in the morning) a prison nurse and (in the evening) a prison guard administered psychotropic drugs to the applicant on prescription. He had received three injections, whereas the fourth injection, which he had asked for, was not required. The prison laryngologist had not considered it necessary for him to use a hearing aid. Accordingly, he had been informed that the device would not be financed by the prison health care system. 47. By a letter dated 30 June 2008 the governor of Goleniów Prison informed the applicant that his complaint regarding the alleged irregularities in the administration of his medication had been considered ill-founded, as he had received it in a manner consistent with his prescription. 48. After lodging his application with the Court, on 14 July 1008 the applicant instituted a civil action against the State Treasury representing Goleniów Prison (ref. no. I C 757/08). Originally, his allegations concerned power cuts in the detention facility, being forced to take sleeping pills at 6.30 p.m., the supposed presence of asbestos in the prison buildings, limited possibilities of employment, overcrowding and the lack of common space. During a hearing on 30 November 2011 the applicant stated that he was also claiming compensation for health damage he had sustained as a result of his irreversible hearing loss as well as the overall poor prison conditions. 49. The applicant’s claim concerned the period 1 February 2007 to 5 February 2009. 50. On 29 October 2009 an expert opinion prepared by a laryngologist was submitted to the court. The doctor stated that there was no doubt as to the applicant’s very significant hearing loss in his right ear, whereas an evaluation of the hearing loss in his left ear was more difficult and had not led to unequivocal results. The expert had regard to audiograms made on 13 December 2006, 16 July 2008, 29 August 2008, 8 December 2008, 12 February 2009 and 19 October 2009 and to a number of documents in the applicant’s medical records. There were discrepancies between results of different audiograms, as the applicant had over that time been examined by various people and with various apparatus. The applicant’s emotional state could also have had an impact on the results. Some results indicated a deterioration of his hearing, whereas other suggested an improvement from 2006 to 2009. It was noted that the applicant had been using a hearing aid since 4 April 2008. The expert found that the applicant’s hearing without a hearing aid was “socially efficient” (wydolne społecznie), while with the aid it was good. He found that there were no grounds on which to establish that the applicant’s hearing had deteriorated as a consequence of his detention. He emphasised that usage of a hearing aid had no influence on the possibility of further deterioration as it neither cured nor prevented hearing loss; it only made the applicant’s social functioning more comfortable. 51. On 22 September 2010 the expert was questioned by the court, and upheld his conclusions. 52. On 29 December 2010 the Szczecin Regional Court was provided with an expert opinion by a psychiatrist concerning the applicant’s mental health. It was stated that it was not possible to carry out a full assessment without access to his medical records stored in the hospitals where he had been treated previously or without prior psychological tests. The applicant apparently suffered from various personality problems. 53. During the hearing on 30 November 2011 (see paragraph 51 above) the psychiatrist was questioned. 54. On 14 March 2012 the Szczecin Regional Court dismissed the applicant’s compensation claim, finding that there was no evidence to show that he had been attacked or ill-treated because of his bad hearing; that the medical reports had certified that he could have some difficulties following conversations held in a noisy room between a number of people; that his hearing was socially efficient; that there was no evidence to show that it had deteriorated during and because of his detention; that a hearing aid could assist him in everyday life but could not be regarded as treatment of his condition; and that the refusals to provide him with a hearing aid at the public’s expense did not result in the deterioration of his hearing, nor could be seen as humiliating or debasing treatment. The court had regard to the applicant’s medical records, his correspondence with the Association of the Deaf, certain documents in the applicant’s prison records, the laryngologist’s opinion referred to above, and the testimony given by the prison laryngologist, E.P., the psychologist, the psychiatrist, the laryngologists and three other witnesses. The applicant appealed. 55. On 29 June 2012 the Szczecin Court of Appeal dismissed his appeal, fully sharing the findings and conclusions of the first-instance court. 56. The provisions pertaining to medical care in detention facilities, and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Sławomir Musial v. Poland (no. 28300/06, §§ 48-61, 20 January 2009), and Kaprykowski v. Poland (no. 23052/05, §§ 36-39, 3 February 2009). In particular, Article 115 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides: “1. A sentenced person shall receive medical care, medication and sanitary items free of charge. ... 4. Medical care is provided, primarily, by health care establishments for persons serving prison sentences. 5. Health care establishments outside the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular: 1) to provide immediate medical care because of a risk to the life or health of a sentenced person; 2) to provide specialist medical examinations, treatment or rehabilitation to a sentenced person; 3) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in ... the sentence ...” 57. On the basis of Article 115 § 10 of the Code, the Minister of Justice issued the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności). The Ordinance was in force from 17 December 2003 until 11 July 2010. 58. Health care establishments for persons deprived of their liberty provided, inter alia, medical examinations, treatment, preventive medical care, rehabilitation and nursing services (paragraph 1.1). 59. A person deprived of his or her liberty was subjected to preliminary and periodical medical examinations and check-ups (paragraph 2), and had to undergo preliminary medical examinations, such as a review of his or her medical history and a physical examination as soon as he or she was admitted to a detention establishment (paragraph 3). Moreover, no later than fourteen days from the admission date, a person deprived of his or her liberty had to have a chest X-ray and a dental examination. 60. Prison doctors were authorised to prescribe medical tests other than those mentioned above, if it was justified in the light of the health of the person deprived of his or her liberty (paragraph 3.5). Those tests, however, were not mandatory and could only be performed with a prisoner’s consent. 61. The Ordinance of 31 October 2003 was replaced by a largely similar text, the Ordinance of 23 December 2010, on the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości z dnia 23 grudnia 2010 r. w sprawie udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności), which entered into force on 3 January 2011.
| 0 |
test
|
001-150238
|
ENG
|
POL
|
COMMITTEE
| 2,015 |
CASE OF PAWLAK v. POLAND
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
|
Krzysztof Wojtyczek;Päivi Hirvelä;Zdravka Kalaydjieva
|
5. The applicant was born in 1974 and lives in Łódź. 6. On 6 June 2007 the applicant was arrested on suspicion of committing a number of offences in an armed organised criminal group. 7. On 15 June 2007 the Łódź District Court (Sąd Rejonowy) remanded the applicant in custody. The court relied on a reasonable suspicion that the applicant had committed the offences in question. The risk of the applicant fleeing was also taken into account since he had spent almost a year in hiding after a ‘wanted’ notice (list gończy) had been issued against him. The court also referred to the likelihood of a heavy prison sentence being imposed on the applicant after conviction. 8. The applicant’s detention on remand was extended by the Łódź Regional Court (Sąd Okręgowy) on 4 September 2007, 18 December 2007 and 26 March 2008. Subsequently it was extended by the Łódź Court of Appeal (Sąd Apelacyjny) on 4 June 2008, 22 October 2008, 23 December 2008 and on 25 March 2009. The applicant’s appeals filed against some of the above decisions were dismissed by the Łódź Court of Appeal on 6 February 2008, 2 July 2008, 12 November 2008 and 22 April 2009. In their detention decisions the courts relied on the original grounds for the applicant’s arrest. They stressed, in particular, the danger of the applicant absconding referring to the fact that he had remained in hiding before his arrest. They further referred to the need to apprehend other members of the criminal group and to obtain additional evidence supporting the case against the applicant. In the courts’ view, the applicant, if released, would try to obstruct the proceedings by passing vital information about the preliminary proceedings onto the other members of the criminal group and by influencing witnesses. The courts concluded that in the context of the applicant’s case, which concerned organised crime, detention on remand was the only security measure to guarantee the proper conduct of the proceedings. 9. On an unspecified date in 2009 the charges against the applicant were severed to a separate set of the proceedings as he was to undergo a psychiatric examination. 10. On 16 June 2009 the Łódź Prosecutor of Appeal (Prokurator Prokuratury Apealacyjnej) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of robbery and drug trafficking committed in an organised criminal group. 11. On 24 June 2009 the Łódź Court of Appeal extended the applicant’s detention on remand until 31 December 2009. Subsequently, the same court ordered prolongation of his detention on 21 December 2009 (detention extended until 30 September 2010), on 22 September 2010 (detention extended until 31 March 2011) and on 23 March 2011 (detention extended until 30 September 2011). The applicant appealed against all of those decisions but to no avail. In their decisions the courts repeated the grounds previously given for the applicant’s detention. They also stressed the likelihood of a heavy prison sentence being imposed on the applicant after conviction. 12. Meanwhile, on 28 July 2009, the Łódź Regional Court joined the applicant’s case with the case against the other members of the criminal group. The joined proceedings concerned altogether 29 defendants charged with 102 offences. The prosecution authorities requested that 318 witnesses be heard before the court. 13. The court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place. 14. The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the coaccused and due to problems with sound system in the court room. 15. In May 2010 the Regional Court gave a severance order and decided to determine charges against two co-accused separately. 16. The bill of indictment was finally read out to the defendants at the hearing held on 27 May 2010. 17. At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused. In particular, the hearing scheduled for 16 August 2010 was cancelled because the applicant and another defendant in the case were feeling unwell. One hearing was adjourned because of the motion for disqualification of the judge lodged by one of the co-accused. 18. In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty-nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges. 19. Meanwhile, the applicant’s detention on remand was lifted on an unspecified date in late August 2011. He continued to remain in custody as pretrial detention was imposed on him in a separate set of proceedings. 20. The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from witnesses. Of the fourteen hearings cancelled this year, two were adjourned because of a sickleave of the presiding judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties. 21. Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants. In particular, the hearing of 28 June 2013 was adjourned because of the absence of the applicant. 22. The criminal proceedings against the applicant are still pending before the firstinstance court. 23. On 25 February 2011 the applicant lodged a complaint with the Łódź Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the criminal proceedings against him had been excessive and 20,000 Polish zlotys (PLN) in compensation. 24. On 11 May 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The appellate court found that, considering the complexity of the case and the number of co-accused, who actively tried to obstruct the proceedings, the first-instance court had conducted the proceedings in a correct and timely manner. Consequently, the court refused to award the applicant compensation.
| 1 |
test
|
001-160746
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,016 |
KAIYAM AND OTHERS v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
Aleš Pejchal;Armen Harutyunyan;Guido Raimondi;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
|
1. A list of the applicants is set out in the appendix. 3. Mr Kaiyam was convicted of robbery and drugs offences. He was sentenced on 20 July 2006 to a combination of determinate and indeterminate sentences, with the lead sentence (for the robbery) being one of imprisonment for the public protection (“IPP”) with a minimum term (“tariff”) of three years. 4. In January 2008 he was assessed as unsuitable for the Controlling Anger and Learning to Manage it (“CALM”) course and anger management was made a sentence-planning target. 5. In February 2008 he was transferred to HMP Lowdham Grange and in May 2008 he commenced the six-week Enhanced Thinking Skills (“ETS”) course. He completed the course in July 2008. He was assessed as having made some progress on the course, but there was doubt about his ability to carry the lessons into practice and about his honesty, self-control in prison and drug use. 6. Meanwhile, in June 2008 he was reduced from a Category B prisoner to the lower-risk Category C. He also completed a drug awareness course in July 2008 and a victim awareness course in October 2008. 7. Following his reclassification as a category C prisoner, Mr Kaiyam was disciplined on twenty-three occasions for offences including disobedience, assault, drug offences and the possession of mobile telephone parts. In January 2009, he was reclassified as a category B prisoner. 8. On 2 February 2009 the Parole Board reviewed his case. It noted that although he had begun to address his offending behaviour he still had much work to do. The decision also noted that he had previously been referred for the CALM course but that the assessment indicated that it was not suitable for him because his offending was not emotionally driven. However, some anger management work was nonetheless required. 9. In April 2009 Mr Kaiyam’s tariff expired. 10. In July 2009, he commenced one-to-one anger management consultations with his offender manager. 11. In January 2010, as a result of his previous misbehaviour in custody, he was transferred to a high security prison at HMP Long Lartin, where the priority was security and rehabilitative courses were comparatively few. During his time at HMP Long Lartin, he continued the one-to-one anger management consultations until October 2011. His behaviour underwent a significant improvement. 12. Meanwhile, regular sentence-planning meetings took place. In May 2010 the meeting concluded that he should be referred once again for the CALM course, notwithstanding the previous negative assessment, and that he should be assessed for FOCUS, a high-intensity drug abuse programme. By September 2010 a decision had been taken not to refer him for CALM and he had yet to be assessed for FOCUS. A referral was sent to the substance abuse team on 1 September 2010. 13. On 14 November 2010 the Parole Board again reviewed Mr Kaiyam’s case. The decision noted that Mr Kaiyam was motivated to undertake offence-focused work but had had little opportunity to do so at HMP Long Lartin. It considered it essential that necessary work on drug abuse and anger management be progressed as soon as possible. 14. On 3 December 2010 Mr Kaiyam was assessed as unsuitable for FOCUS and the Prisoners Addressing Substance Related Offending (“PASRO”) course was recommended instead. 15. On 11 January 2011 the prison authorities confirmed that a prison transfer would be required to enable him to undertake PASRO and anger management work. 16. A prison transfer was subsequently planned but was cancelled when Mr Kaiyam was accused of a further disciplinary offence in May 2011. The disciplinary proceedings lasted until August 2011, when the allegation was not proceeded with because the officer who made it became ill and could not continue. 17. Meanwhile, at a June 2011 sentence-planning meeting it was decided that Mr Kaiyam should be transferred to another prison to enable him to complete necessary coursework. Between June 2011 and November 2012 prison staff actively sought an appropriate prison transfer for Mr Kaiyam. However, this was further complicated by the opening of his parole window in February 2012, at which point, because of the need to allow the preparation of reports for the pending Parole Board review, transfers were usually not permitted. 18. On 1 October 2012 Mr Kaiyam lodged a judicial review claim seeking, inter alia, a declaration that his Article 5 § 1 rights had been violated as a result of the delay from January 2010 in providing access to rehabilitative courses, and damages. 19. In October 2012 Mr Kaiyam’s offender manager added the Self Change Programme (“SCP”) as a sentence-planning target. In November 2012 Mr Kaiyam underwent assessment for the programme and he began the SCP in January 2013. His Parole Board review was deferred, with his agreement, to enable him to complete the SCP. The next review was fixed for October 2013. 20. In its decision dated 8 November 2013, the Parole Board noted that good progress was being made but declined to recommend a transfer to open conditions. 21. By May 2014, Mr Kaiyam had been transferred to HMP Lindholme and was undertaking a course which had replaced PASRO, namely the Building Skills for Recovery Programme (“BSR”). 22. His judicial review claim was unsuccessful before the High Court and the Court of Appeal. He was given permission to appeal to the Supreme Court (see paragraphs 50-62 below). 23. In 2006 Mr Robinson was convicted of various sex offences. He had previous convictions for sexual offences. On 2 October 2006 he received an IPP sentence with a tariff of seven years. 24. In 2007 he completed the ETS programme. 25. In 2008 he completed the six-month Core Sex Offenders Treatment Programme (“SOTP”). 26. A Structured Assessment of Risk and Need (“SARN”) report dated 9 July 2008 concluded with the recommendation that there should be a full psychopathy assessment and that, so long as that did not provide contra-indications, he was suitable for the Extended SOTP (“ESOTP”). By February 2009, this was a formal sentence objective. 27. On 24 February 2010 Mr Robinson was moved to HMP Whatton, which specialises in sexual offenders, to access the ESOTP. On 17 March 2010 he was entered on the waiting list. 28. Following a Parole Board Review, on 31 March 2010 the Board declined to recommend that he be moved to open conditions. 29. In February/March 2011 the psychopathy test was conducted. 30. A July 2011 OASyS (Offender Assessment System) report noted that the sentence objectives for the following twelve months included completion of the ESOTP. 31. In October 2011 Mr Robinson was informed that he would not be offered a place on the ESOTP until 2013 at the earliest. 32. Mr Robinson was assessed as suitable for the ESOTP in April 2012. In her report, the Deputy Treatment Manager indicated that he might yet need also a Healthy Sexual Functioning course. 33. On 26 June 2012 Mr Robinson commenced judicial review proceedings, arguing, inter alia, that his Article 5 § 1 rights had been violated as a result of the delay in providing access to rehabilitative courses. 34. On 2 November 2012 the Parole Board declined to direct Mr Robinson’s release. 35. On 10 December 2012 Mr Robinson’s tariff expired. 36. In spring 2013 he was transferred to HMP Risley to commence the ESOTP. He completed the course in July 2013. 37. His judicial review claim was unsuccessful before the Divisional Court and he was given permission to appeal directly to the Supreme Court (see paragraphs 50-62 below). 38. Mr Massey was convicted in May 2008 of a total of five sexual assaults on four unrelated young men, committed over a period of more than ten years. All the victims were either young or vulnerable. He had two previous sex-related convictions. He received an IPP sentence with a tariff of two and a half years. 39. On an unknown date, Mr Massey participated in an alcohol awareness course. 40. In April 2009, he completed the ETS programme. 41. In November 2009 he completed the Core SOTP. 42. In July 2010, a SARN report recommended that he be assessed for the ESOTP and suggested the likely desirability of a subsequent Better Lives Booster (“BLB”) programme. 43. In September 2010 his tariff expired. At a Parole Board review the Board declined to order his release. By letter dated 21 October 2010, the Secretary of State agreed with the decision of the Parole Board and identified assessment for and, if suitable, completion of the ESOTP and the BLB as appropriate further interventions. He set the review period at twenty-four months, including ten months to complete the ESOTP, taking into account the time for assessment and the waiting list. 44. In April 2011 Mr Massey was assessed for the ESOTP. In a report dated November 2011 he was found to be suitable for the programme. 45. Meanwhile, in July 2011 he completed the Cognitive Skills Booster (“CSB”) programme. 46. At his Parole Board hearing in March 2012, the Board noted that he had completed the CSB course and that he was awaiting a place on the ESOTP, which was expected to address much of his outstanding treatment needs. It refused to order release. 47. On 18 December 2012 Mr Massey commenced judicial review proceedings arguing, inter alia, that his Article 5 § 1 rights had been violated as a result of the delay in providing access to rehabilitative courses. 48. He commenced the ESOTP in May 2013 and completed it in September 2013. 49. His judicial review claim was unsuccessful before the Divisional Court and he was given permission to appeal directly to the Supreme Court (see paragraphs 50-62 below). 50. The three appeals were heard together by the Supreme Court, which gave judgment on 10 December 2014. The court explained that it would consider whether and, if so, how far to modify its case-law in light of this Court’s judgment in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012, concerning access to rehabilitative courses. 51. Lord Mance and Lord Hughes delivered jointly the opinion of the court on the general issues of principle and in respect of Mr Kaiyam and Mr Massey. Separate opinions were given in respect of the appeal by Mr Robinson. 52. The Supreme Court observed that this Court’s reasoning in James, Wells and Lee opened the possibility that post-tariff detention could fluctuate between the lawful and unlawful, depending on whether a prisoner serving an IPP sentence was being offered an appropriate opportunity to progress in his sentence. The court pointed out that, according to the wording of Article 5 §§ 1 and 4, any detention not authorised by Article 5 § 1 ought to lead release. Thus in a case where detention was found to be arbitrary under Article 5 § 1, in application of the James, Wells and Lee approach, the prisoner should – according to this Court – be entitled to an immediate order for release. There was, the Supreme Court said, a real difficulty about accepting the proposition that the Convention required the release of an IPP prisoner before the Parole Board was satisfied that his detention was no longer required for the protection of the public. 53. As to this Court’s conclusion in James, Wells and Lee that detention following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system was unlawful, the court explained: “33. ... That exposes a problem. Particularly where a tariff is of a relatively long period, a prisoner’s progression towards release through courses and experience in open conditions should, where and to the extent feasible, be facilitated not merely after but also in advance of the tariff period, so as to keep open the possibility of release on or shortly after its expiry ... Yet, on the ECtHR’s approach, treating the present issue as falling within the text of article 5(1)(a), no complaint can apparently arise until the expiry of the tariff period, and any complaint can then only arise if the failure to provide courses, etc continues after the expiry of the tariff period. 34. The second, much more substantial problem ... is that logically it would, if followed in the United Kingdom, mean, as we have stated, that any prisoner not being progressed through the system should be released, and that the Crime (Sentences) Act 1997 section 28(6)(b) should be declared incompatible with the Convention rights insofar as it precludes this ... Many of the failings revealed by the cases which have come before the courts to date are simply incapable of being redressed at the drop of a hat or wig. Systems failed, due to lack of resources and facilities, and it takes time to mend such failures, whatever order a court might make. Moreover, in a case where the failure was repaired, as it might be by the time a court came to consider the case, by the provision of adequate opportunity to the prisoner, then the court would be left, on this view of the ECtHR decision, with detention which had been unlawful for a time but was no longer.” 54. The Supreme Court concluded that it was not possible to follow the reasoning of the Court in James, Wells and Lee. However, this did not mean that the House of Lords’ prior decision in that case should be followed. This Court had underlined the link which should be recognised between preventive detention and rehabilitation, and had also concluded that there should be an individual remedy in damages for failure to provide prisoners serving indeterminate sentences with proper means of progression towards release. The Supreme Court explained: “36. We consider that the Supreme Court should now accept the Fourth Section’s conclusion, that the purpose of the sentence includes rehabilitation, in relation to prisoners subject to life and IPP sentences in respect of whom shorter tariff periods have been set. We also consider that the Supreme Court can and should accept as implicit in the scheme of article 5 that the state is under a duty to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. But we do not consider that this duty can be found in the express language of article 5(1). Treating it as an aspect of the duty to avoid ‘arbitrariness’ under article 5(1)(a) has unacceptable and implausible consequences which we have already identified. The Grand Chamber decision in Saadi also remains important authority that arbitrariness has a confined meaning, when used as a test of lawfulness in the context of article 5(1)(a). 37. Article 5(4) would be a more satisfactory home for any duty of the nature identified in the previous paragraph, if its language covered it (which it does not). Article 5(4) gives rise to an ancillary duty on the state, breach of which does not directly impact on the lawfulness of detention. The duty is to make available access to judicial review by a court or here the Parole Board, which will consider whether the information put before it justifies continued detention or release. Speedy access to the Parole Board like reasonable access to proper courses and facilities represents an important aspect of a prisoner’s progression towards release. But the language of article 5(4) is in terms confined to access to judicial review by the Parole Board on the basis of the information available from time to time. It does not cover the prior stage of provision of courses and facilities in prison, which gives rise to the information necessary on any Parole Board review. 38. The duty to facilitate the progress of such prisoners towards release by appropriate courses and facilities cannot therefore be brought, in our opinion, within the express language of either article 5(1)(a) or article 5(4). But it is on any view closely analogous, at an earlier stage, to the duty involved under article 5(4), and it is far more satisfactory to treat it as an analogous duty arising by implication at an earlier stage than that covered by article 5(4), rather than to treat article 5(1)(a) as incorporating it. We consider that a duty to facilitate release can and should therefore be implied as an ancillary duty - a duty not affecting the lawfulness of the detention, but sounding in damages if breached. Such a duty can readily be implied as part of the overall scheme of article 5, read as a whole ...” 55. The appropriate remedy for a breach of such a duty was not release of the prisoner but an award of damages for legitimate frustration and anxiety. Damages would be recoverable in respect of any period of extended detention which could be shown to have resulted after the expiry of the tariff period, whether the failure occurred before or after the expiry of the tariff period. A prisoner could also seek mandatory orders. 56. The Supreme Court noted that the prison service manager who reviewed Mr Kaiyam’s case accepted that there had been “regrettable delays” at some points. However, to say that more extensive coursework could have been made available to him was a very long way from saying that he had not been provided with a reasonable opportunity to rehabilitate himself and demonstrate that he no longer presented an unacceptable risk of serious harm to the public. According to the court, Article 5 did not create an obligation to maximise the coursework or other provision made to the prisoner, nor did it entitle the court to substitute, with hindsight, its own view of the quality of the management of a single prisoner and to characterise as arbitrary detention any case which it concluded might have been better managed. It continued: “60. ... It requires that an opportunity must be afforded to the prisoner which is reasonable in all the circumstances, taking into account, among all those circumstances, his history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use which has been made of such rehabilitative opportunity as there has been. It is plain that Kaiyam was not denied a fair or reasonable opportunity to rehabilitate himself or to demonstrate that his risk is acceptable. In the three years of his minimum term he was provided with courses in enhanced thinking, drug awareness and victim awareness. Sadly, his response was poor, there was doubt about his honesty, and his behaviour in prison attracted the many disciplinary adjudications mentioned above, all of which demonstrated that the risk he presented was far from removed. The transfer to HMP Long Lartin somewhat reduced the availability of rehabilitative courses, but there will inevitably be differences between prisons which can give emphasis to rehabilitation and those where the priority is security. It was his own misbehaviour which led to his transfer there, over a year after the expiry of his minimum term. The consequence was that PASRO, which was the course judged, plainly bona fide, as that most suitable for him, was not available. Even without PASRO, there was sustained one to one anger management work for over a year after transfer to HMP Long Lartin. Even if, with the benefit of hindsight, consideration of CALM and FOCUS courses involved some misjudgement, it was perfectly understandable. He very plainly had anger problems, whether or not his index offences were the result of loss of temper, and he very plainly had a drug-use and drug-supply background. The advice to take an SCP course was plainly a sensible expedient, given that transfer to a place where the first choice PASRO was available had proved unavailable despite considerable efforts. Once it was identified, SCP was begun within about two months. The attempts to find a transfer were clearly persisted in; they were complicated by Kaiyam’s wish to be in a prison near to his family, by the pending adjudication in May 2011 and by a ‘parole window’ in Spring-Summer 2012, quite apart from the competing needs of other prisoners in a large prison population. His case does not begin to approach the kind of failure of provision considered and chronicled in R (James). He was afforded reasonable opportunity to rehabilitate himself and to demonstrate that he was no longer a risk to the public, but did not do either. There was no breach in his case of the ancillary obligation under article 5.” 57. The Supreme Court referred to the Divisional Court’s finding that there had been a breach of the Secretary of State’s public-law duty because of an under-provision of the ESOTP. This did not, however, mean that the Secretary of State was under an obligation to provide the ESOTP to every prisoner for whom it might be suggested. The question was whether the Secretary of State had afforded Mr Robinson a reasonable opportunity to reform himself and to demonstrate to the Parole Board, by the time of tariff expiry or within a reasonable time thereafter, that he no longer presented an unacceptable risk to the public. As there were differences of opinion on this question among the members of the Supreme Court, two opinions were issued. 58. Lord Hughes, delivering the opinion for the majority, emphasised that the breach of the ancillary obligation under Article 5 which this Strasbourg court identified in James, Wells and Lee involved a wholesale failure to address rehabilitation. He continued: “86. ... It was of a quite different order from the complaint made by Robinson. Whereas the prisoners James, Lee and Wells in James v UK were left for a long time to languish in local prisons with no sentence planning and no rehabilitative work at all, no little effort was made with Robinson, who was provided with successive courses and had ample opportunity to change himself and to demonstrate that he was no longer a predatory sexual offender. The ETS and CSOTP courses with which he was provided supplied ample reasonable opportunity to do so. The latter in particular lasted six months or more and involved three or four sessions per week. Unfortunately, what was demonstrated was that Robinson remained a serious risk, since the initial scores for child abuse supportive beliefs proved false positives, and he remained manipulative, mistrustful and denying his principal offences, seeing himself as the real victim.” 59. Lord Hughes considered the strongest part of Mr Robinson’s claim to be the passage of time after the psychologist’s report of July 2008, before the ESOTP was begun in July 2013. However, in his view, since the minimum period was not due to expire until December 2012, there could have been very little complaint before at least the Secretary of State recognised the course as an objective in August 2010, and perhaps not until well after that. He further noted that in March 2011, still well before the expiry of the minimum period, there had been further detailed psychopathy assessment sessions. Although these were principally assessments rather than therapy, they provided ample opportunity to demonstrate change, or at least encouraging understanding of the true nature of what he had done. Instead, what those sessions revealed was that Mr Robinson still saw himself as the victim, denied his principal offences, believed that he had not harmed any of the children and remained manipulative. Lord Hughes continued: “89. ... There could be no clearer demonstration of the risk he continued to present. There has certainly been considerably greater delay in putting him onto the even more intensive ESOTP than one would choose to see in an ideal prison management system, but that is not the same as saying that he has not had a fair opportunity to reform himself or to demonstrate that he is no longer a danger. Despite the delay he was able to begin the ESOTP quite shortly after the expiry of his tariff. 90. There is a great danger, in considering Robinson’s case, of classifying the ESOTP as the acid test by which alone he could demonstrate his safety for release. Even if it were, it would not mean that he had not had reasonable opportunity to demonstrate this already. But it was not. The fact that the psychological recommendation that Robinson should take part in this programme did not have spoken conditions attached to it, does not mean that it was the only way in which he could demonstrate his safety. It was in fact neither a necessary nor a sufficient means of doing so. It was not sufficient since it is not designed to address the offenders’ sexual interest in pre-pubescent girls; even if made available, it would have been only part of the possible programmes which Robinson might have needed in the absence of his accepting that his behaviour, which he continued to characterise as innocent victimhood, was in fact a considerable danger to children, and in the absence of his recognition that it needed to alter. It was not necessary, because by this time he had had ample confrontation with his failings, and if he had recognised them and shown real willingness to change, for example in the course of the nine hours of interviews for the PCL-R assessment, then there may well have been no occasion for six months of ESOTP work.” 60. Lord Hughes emphasised that the responsibility for deciding what form of rehabilitative assistance was to be afforded to a prisoner had to rest with the individual State, providing that the minimum standard was met of a reasonable opportunity to him to demonstrate safety. The availability of limited resources, particularly at a time of national financial stringency, was an unavoidable factor. He continued: “91. ... The Core Sex Offenders’ Treatment Programme (“CSOTP”) administered in the prisons of England and Wales is of considerable intensity and makes extensive psychological demands on those offenders who take part in it. It is very likely that if it stood by itself it would meet the duty contemplated by James v UK and even more likely that it would do so if coupled, as it is, with the EST, BLB, HSP and other programmes, which are available. There is no legal obligation to provide an ESOTP course in the first place. It is simply one possible way of tackling recalcitrant attitudes in some prisoners and a welcome arrow in the quiver for the case of those who prove very difficult to change. To hold that a delay (including an unacceptable delay) in providing it constitutes a breach of article 5, via the ancillary duty recognised, would be likely to have the perverse effect of discouraging the prison service from providing it at all, and/or of discouraging recommendations for courses unless and until they are known to be shortly available, and/or of discouraging the prison service from devising and suggesting new forms of programme, especially if they are extremely expensive, as clearly the ESOTP is. All these effects would be an impediment to individualised prisoner assessment and management, and to eventual rehabilitation of those for whom it is possible.” 61. Lord Mance dissented, explaining that in his view a legislative scheme for IPP prisoners had to allow a reasonable opportunity to demonstrate safety and had to be accompanied by reasonable systems and resources to enable offenders to change and develop so as to be able to demonstrate that they were safe and to achieve release by tariff expiry or reasonably soon thereafter. As an element of this duty, he considered that there should be a reasonable degree of access for IPP prisoners to the ESOTP which many prisoners would need before they could hope to show that they were safe. That was the consequence of the scheme itself, under which it was otherwise inevitable that prisoners would languish in prison long after the tariffs set by reference to the seriousness of their actual offending. In his view, this was a consequence of the rehabilitative purpose of the IPP sentence. A finding that there was no breach of the ancillary duty in the present case could not, Lord Mance said, stand with the finding of the Divisional Court that the Secretary of State was in breach of his public law duty to make reasonable provision of systems and resources for the purpose of allowing Mr Robinson a reasonable opportunity to demonstrate to the Parole Board, by the time of tariff expiry on 10 December 2012 or reasonably soon thereafter, that he was safe to be released. He would therefore have upheld Mr Robinson’s appeal and awarded modest damages. 62. The Supreme Court upheld Mr Massey’s appeal. It said: “68. ... It is apparent that the less than two and a half years of his tariff (somewhat shortened, properly, by time spent on remand awaiting trial and sentence) was as well furnished with offender-behaviour work as one could reasonably expect. He first completed the ETS course, which is a frequent if not conventional first step, and he was placed on the CSOTP within his comparatively short tariff period. He completed the CSOTP in November 2009, and since it is a six month course it would appear that he must have been placed on it almost immediately after completing the ETS in April of that year. The SARN report which first mooted the ESOTP was in July 2010, so that there could never have been any prospect of his being both assessed for, and completing, the ESOTP by the time of his tariff expiry in September 2010. The chronology illustrates the fact that if standard, intensive, course work such as the CSOTP does not succeed and if lack of risk is not demonstrated at the end of it, it will be inevitable that a prisoner with this kind of tariff period will pass the end of the tariff without being able to be offered every course which the system has. 69. However, it is important to note that, no doubt mindful of the comparative brevity of his tariff, the Secretary of State by the formal letter of October 2010 effectively defined what was regarded as a reasonable opportunity for Massey to build on the partial progress which he had made and to demonstrate (if he could) that he was safe to release, namely over a two-year period. Neither this timetable nor anything approximating to it was honoured. Instead, it was not until after that period had come and gone that he was able to begin the ESOTP, and the letter shows that even if this produced a successful outcome, a further year or thereabouts was contemplated. We conclude that in Massey’s case there was a failure to provide him with the opportunity to try to demonstrate that he was safe for release which the Secretary of State regarded as reasonable. The assessment for ESOTP was in Spring 2011. If there had been a plentiful supply of places he might have been on it by about Autumn of that year, but no real complaint could have been made merely because this kind of course was not immediately available; if it had been provided in or about Spring 2012, there would we conclude have been no breach. There is thus an unacceptable delay of about a year, and all post tariff. The inference of legitimate frustration is justified and that period calls for an award of damages. Given that it was post tariff we assess it at £600.” 63. The relevant domestic law and practice is set out in the Court’s judgment in James, Wells and Lee, cited above.
| 0 |
test
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001-159376
|
ENG
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SRB
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CHAMBER
| 2,015 |
CASE OF STANKOVIĆ AND TRAJKOVIĆ v. SERBIA
| 3 |
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
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Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
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5. The first and second applicants were born in 1948 and 1970 respectively and live in Bujanovac Municipality. 6. Following the North Atlantic Treaty Organisation’s intervention in Kosovo, on 9 June 1999 the Yugoslav and Serbian Governments agreed to a phased withdrawal of their military and police forces from the territory and a transfer of all effective control to an international security force (“KFOR”). Concerning a number of municipalities, including Suva Reka, the transfer, according to the Military Technical Agreement, was to take place by 15 June 1999. It was further envisaged that it would be up to KFOR to “maintain a secure environment for all citizens of Kosovo”. Pursuant to their own phased withdrawal plan, which was to be synchronised with the Yugoslav Army plan, the Serbian police forces envisaged that a transfer of all effective control in Suva Reka Municipality would in fact take place on 13 June 1999. 7. On 13 June 1999 the first applicant’s husband was kidnapped by the Kosovo Liberation Army (“KLA”) in Suva Reka Municipality. 8. On 12 March 2002 the Bujanovac Municipal Court declared the first applicant’s husband dead. This ruling became final by 3 April 2002. 9. On 19 May 2005 the first applicant, together with her children, lodged a civil claim against the Republic of Serbia with the First Municipal Court in Belgrade, seeking compensation for the mental anguish suffered as a consequence of the incident. 10. On 19 May 2006 the said court ruled against the plaintiffs. 11. On 21 November 2007 the first-instance judgment was upheld by the Belgrade District Court on appeal. The first applicant was served with the District Court judgment on 23 May 2008. 12. In their reasoning the First Municipal Court and the District Court opined, inter alia, that while the first applicant’s husband had indeed been kidnapped on 13 June 1999 the Republic of Serbia could not be held liable, within the meaning of Article 180 § 1 of the Obligations Act (see paragraph 26 below), since it was up to KFOR to provide for the safety of all citizens of Kosovo from 9 June 1999 onwards (see paragraph 6 above). The fact that national security forces had been in the process of withdrawing from Suva Reka Municipality on 13 June 1999 was therefore merely a technical issue. 13. The first applicant could not have lodged a further appeal on points of law (revizija), given that the amount of compensation claimed was below the statutory threshold. 14. On 13 June 1999 the second applicant’s husband was kidnapped by the KLA in Suva Reka Municipality. 15. On 24 June 2002 the Bujanovac Municipal Court declared the second applicant’s husband dead. This ruling became final by 16 July 2002. 16. On 31 May 2005 the second applicant, together with her children and other family members, lodged a civil claim against the Republic of Serbia with the First Municipal Court in Belgrade, seeking compensation for mental anguish suffered as a consequence of the incident. 17. On 19 May 2006 the said court ruled against the plaintiffs. 18. On 3 April 2008 the first-instance judgment was upheld by the Belgrade District Court on appeal. 19. In their reasoning the First Municipal Court and the District Court opined, inter alia, that while the second applicant’s husband had indeed been kidnapped on 13 June 1999 the Republic of Serbia could not be held liable within the meaning of Article 180 § 1 of the Obligations Act, since it was up to KFOR to provide for the safety of all citizens of Kosovo from 9 June 1999 onwards. The fact that national security forces had been in the process of withdrawing from Suva Reka Municipality on 13 June 1999 was therefore merely a technical issue. 20. The second applicant could not have lodged a further appeal on points of law, given that the amount of compensation claimed was below the statutory threshold. 21. The applicants maintained that in other judgments, rendered between 2006 and 2010, the Belgrade District Court and subsequently the Belgrade Appeals Court, as well as the Supreme Court at third instance, had ruled in favour of other plaintiffs, notwithstanding the fact that their claims were based on very similar facts and concerned identical legal issues. 22. Given the case-law provided by the parties, in their reasoning in those judgments where the said courts/different benches of the same court had indeed ruled in favour of the plaintiffs, the Serbian authorities were deemed responsible for the lives and safety of all persons residing in Kosovo up until the actual transfer of effective control to KFOR in respect of each of the municipalities considered separately (see, for example, the judgment of the First Municipal Court in Belgrade P. 431/07 of 24 February 2009, upheld on appeal by the Belgrade District Court; the judgments of the Belgrade District Court Gž. 10832/06, 13799/06, and 11483/08 of 26 December 2006, 5 June 2007 and 14 October 2008 respectively; the judgments of the Belgrade Appeals Court Gž. 2005/10 and 605/10 of 17 March 2010 and 10 June 2010 respectively; and the judgments of the Supreme Court Rev. 1551/07, 1092/08 and 939/08 of 5 September 2007, 24 April 2008 and 7 May 2008 respectively). 23. On 18 March 2008, according to the Government, the Supreme Court’s Civil Division endorsed this line of reasoning, specifically the reasons given in the same court’s ruling Rev. 1551/07 of 5 September 2007 (cited in paragraph 22 above). 24. On 10 March 2010, in Rev. 1540/10, the Supreme Court of Cassation ruled against other plaintiffs on the same basis as in the applicants’ case, but in its decision Už. 2786/10 of 28 June 2012 the Constitutional Court quashed this ruling and ordered the re-examination of the matter. On 19 April 2013 the Supreme Court of Cassation apparently ruled in favour of the plaintiffs, this time holding that the Serbian authorities were responsible for the lives and safety of all persons residing in Kosovo until the actual transfer of effective control to KFOR in respect of the municipality in question. 25. On 1 April 2014 the Supreme Court of Cassation adopted a detailed action plan aimed at ensuring the general harmonisation of case-law throughout the Serbian judicial system. This plan contained a series of measures to be undertaken at various levels of jurisdiction, and, inter alia, included the following: (i) the adoption of guiding legal opinions based on the principles developed in the jurisprudence of the European Court of Human Rights; (ii) the dissemination of such opinions; (iii) regular information sharing between the courts; (iv) an increased number of thematic discussions and training programmes; (v) the adoption of specific action plans by the courts at various levels; and (vi) the development of various IT tools and related intranet databases.
| 0 |
test
|
001-174111
|
ENG
|
UKR
|
COMMITTEE
| 2,017 |
CASE OF OVECHKINA AND OTHERS v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)
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Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano
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3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.
| 1 |
test
|
001-153312
|
ENG
|
MLT
|
CHAMBER
| 2,015 |
CASE OF DIMECH v. MALTA
| 3 |
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing)
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Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
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7. The applicant was born in 1960 and lives in Zejtun. 8. By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, the law only came into force in 2010 by means of Legal Notice 35 of 2010. Prior to this Legal Notice Maltese law did not provide for legal assistance during the pre-trial investigation and specifically during questioning, whether by the police or by a magistrate in his investigative role. Before questioning, however, suspects would be cautioned, that is, informed of their right to remain silent and that anything they said could be taken down and produced as evidence. At the time, no inferences could be drawn by the trial courts from the silence of the accused at this stage. 9. Statements taken by the police could be confirmed on oath before the Court of Magistrates, in which case the person was entitled to be assisted by a lawyer. 10. On 30 April 2009 the Executive Police were authorised by the duty Magistrate to execute a search and arrest warrant relative to residence F. 11. On 1 May 2009 the search was carried out and it yielded the discovery of five bags of heroin (925.26 grams, 35 % purity), 755 euros (EUR) in two separate bundles, electrical weighing scales and a number of plastic bags with the corners missing. 12. On 2 May 2009 Mr Dimech was arrested and, after being cautioned about his right to remain silent, was questioned in the absence of legal assistance on suspicion of drug trafficking. He made a statement in which he admitted to certain facts but denied others. In a nutshell he explained that the 800 grams of heroin found in his possession during a search at his house were being kept as a guarantee against a sum of money he was owed, and that he had known that he would be given the drug as a guarantee when he lent the money. He admitted that he had hidden the drug in his fridge and stated that his partner had had nothing to do with it and was unaware of it. He denied, however, that the drugs were his and also denied that he ever used or sold drugs. His signed statement also indicated that he had made the statement voluntarily, without threats or promises, that it was the truth and that he did not want to change anything in it. 13. A magisterial inquiry (under Maltese law known as an inquiry relating to the in genere) was held on 13 May 2009 and the Inquiring Magistrate drew up the procès verbal. On 20 May 2009 the applicant was arraigned in court and the procès verbal as well as his statement referred to above were produced as evidence against him. During the committal proceedings the Court of Magistrates as a Court of Criminal Inquiry also collected further evidence including witness testimony and documentary evidence. 14. On 8 July 2010 a bill of indictment was issued against the applicant by the Attorney General. 15. During the criminal proceedings the applicant requested the Criminal Court to refer his complaint regarding the lack of legal assistance during the investigation and questioning to the constitutional jurisdictions. On an unspecified date the court granted the request and referred the case. 16. The applicant claimed a breach of his right to a fair trial on account of the lack of legal assistance during the investigation and questioning. 17. By a judgment of 10 January 2012 the Civil Court (First Hall) in its constitutional competence, opting to take cognisance of the case on the merits despite the fact that the proceedings were still pending, found a violation of the applicant’s right to a fair trial in so far as he had not been assisted by a lawyer when making a statement to the police before he had been charged, and ordered that the Criminal Court take note of this breach in considering all the evidence. It noted that the voluntary nature of the statement, together with the caution as to the right to remain silent, did not suffice to make up for such a failing, when it could not be said what the applicant would have done had he been assisted by a lawyer. 18. Both the Attorney General and the applicant appealed to the Constitutional Court. By a judgment of 26 April 2013 the Constitutional Court took cognisance of the merits of the case despite the fact that the proceedings were still pending, and reversed the first-instance judgment. Reiterating its previous findings in other domestic judgments, it noted that the right to legal assistance was not meant to be a formality which, if not complied with, gave the accused a means to defend himself. That right served as a guarantee that every statement made by a person during questioning was made freely, in full knowledge of the right to remain silent, and without threats or promises, violence or other abuse. A breach of the right to a fair trial as a result of a lack of legal assistance during questioning occurred when a statement was taken abusively and without the guarantees of legitimacy, and not solely because of the lack of legal assistance. It followed that the sole fact that the applicant had made a statement, including both admissions of guilt and denials, in the absence of a lawyer could not ipso facto entail a violation of Article 6 of the Convention. In the Constitutional Court’s view, other circumstances such as the particular vulnerability of the individual being questioned had to exist in order to conclude that the absence of legal assistance breached the right to a fair trial. The Constitutional Court could not agree with the first-instance court that Article 6 of the Convention provided for the right to a lawyer without any consideration of the age, maturity and tainted criminal record of the accused as well as the nature of the accusations against him. A correct interpretation of Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) had to be made in the light of the circumstances of that case, where Mr Salduz had indeed been in a vulnerable position when he had made the statement. The ratio of the right was precisely that, and not to allow a guilty person to go scot-free because of the failure to comply with a formality which lacked any real or grave consequences. The same exceptional and extreme circumstances had been present in other cases decided by the ECtHR such as Panovits v. Cyprus (no. 4268/04, 11 December 2008) and Płonka v. Poland (no. 20310/02, 31 March 2009), and cases decided by the domestic Constitutional Court such as The Police vs Alvin Privitera of 11 April 2011 and The Police vs Esron Pullicino of 12 April 2011. Even in the Salduz case the Court had held that such a violation arose only if the fairness of the trial was compromised. The Court had stated in that context that “Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions” (§ 50). This, according to the Constitutional Court, was probably the reason why the Grand Chamber had not embraced the more categorical approach suggested by Judge Bratza in his concurring opinion. 19. The Constitutional Court considered that in the present case the applicant had admitted that he had not been pressured into making the statement, and thus there had been nothing illicit and abusive in the taking of such a statement. It followed that the element of vulnerability found in the Salduz case was missing. Moreover, it had not been shown that the applicant had suffered prejudice as a result of the lack of legal assistance to the extent that there was an objective danger that he would not be given a fair trial. 20. In the absence of any such violation, no remedy was required, nor was there any need for the court to examine the appeal entered by the applicant. 21. The applicant’s trial by jury was due to start on 23 October 2013. 22. On 20 September 2013 the applicant filed an application with the Criminal Court requesting it to suspend the trial by jury on the basis of a new set of constitutional proceedings which he had lodged (alleging a violation of Article 7) and on the basis of the proceedings pending before this Court. 23. On 23 September 2013 the Criminal Court acceded to the request.
| 0 |
test
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001-152990
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF MOMČILOVIĆ v. CROATIA
| 3 |
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
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Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
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5. The first and second applicants were born in 1938 and the third applicant in 1963. They all live in Karlovac. 6. On 1 April 1993 the first and the second applicants’ daughter, who was the third applicant’s sister, was killed in a bar by Z.R., who at the time served as a soldier in the Croatian army. 7. By a judgment of the Karlovac Military Court (Vojni sud u Karlovcu) Z.R. was found guilty of murder and sentenced to eight years’ imprisonment. 8. On appeal, the Supreme Court (Vrhovni sud Republike Hrvatske) on 17 February 1994 upheld the conviction, which thereby became final, but increased the sentence to nine years’ imprisonment. 9. On 15 January 1998 the applicants submitted a request to the State Attorney’s Office for their claim for damages to be settled in connection with the unlawful killing of their relative by a soldier, as required under the Military Service Act, in force at the material time (see paragraph 26 below). 10. On 5 March 1998, after their request was refused, the applicants brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking compensation from the State and Z.R. in connection with the killing of their relative. 11. During the proceedings, the State Attorney’s Office raised a number of substantive and procedural objections to the applicants’ claim against the State. 12. Meanwhile, on 4 October 1999 the applicants withdrew their civil action against Z.R. but maintained their action against the State. 13. Owing to the failure of the applicants’ representative to appear at several hearings, of which the first applicant was informed, on 14 March 2003 the Zagreb Municipal Court found that the civil action was considered to have been withdrawn (see paragraph 24 below; section 216 § 4 of the Civil Procedure Act). 14. As no appeal was lodged by the parties, on an unspecified date this decision became final. The applicants later in 2005 attempted to have the statement of finality quashed and to lodge a belated appeal, but this was dismissed by the competent court. 15. On 9 May 2005 the applicants brought their claim for damages before the Karlovac Municipal Court (Općinski sud u Karlovcu), which meanwhile had acquired competence to hear the case, against the State and Z.R. related to the killing of their family member. 16. During the proceedings, the State Attorney’s Office challenged the applicants’ claim on several procedural grounds, arguing in particular that they had failed to seek to have their claim against the State settled before lodging their civil action, as required under the relevant domestic law (see paragraph 24 below). 17. On 17 March 2010 the Karlovac Municipal Court declared the applicants’ civil action against the State inadmissible, on the grounds that before they lodged their civil action the applicants had failed to attempt to have the case settled with the competent State Attorney’s Office, as required under the relevant domestic law. 18. The applicants challenged the decision of the Karlovac Municipal Court by lodging an appeal before the Karlovac County Court. On 29 July 2010 the Karlovac County Court dismissed their appeal, holding as follows: “Section 186(a) of the Civil Procedure Act (Official Gazette, nos. 117/2003 and 88/2005) provides that a person intending to bring a civil suit against the Republic of Croatia must first submit a request for a settlement to the competent State Attorney’s Office. When there is no doubt that before lodging the civil claim the claimant has failed to settle the case with the competent State Attorney’s Office, the first-instance court is correct to declare such a claim lodged directly before it inadmissible (VS Rev-1124/056 of 14 March 2007). The duty to seek settlement with the State Attorney’s Office is a procedural requirement for lodging a civil action which must be complied with at the moment when the action is lodged. Section 186(a) of the Civil Procedure Act is inapplicable to claims for damages lodged before the courts prior to 1 December 2003. It is not in dispute that the plaintiffs on 5 March 1998 lodged an identical claim against the same defendants before the Zagreb Municipal Court ... It is also not disputed that on 14 March 2003, after the conditions for the stay of proceedings had been met twice, a decision was adopted finding that the claim against the first defendant, the Republic of Croatia, was withdrawn. However, these undisputed facts do not mean that the plaintiffs were released from their obligation under section 186(a) of the Civil Procedure Act because they had previously submitted an identical claim. With the amendments to the Civil Procedure Act (Official Gazette no. 117/2003) the duty to seek settlement with the State Attorney’s Office is a procedural requirement for lodging a civil action which must be complied with at the moment when the action is lodged. Further amendments to the Civil Procedure Act (Official Gazette nos. 84/2008 and 123/2008) did not [alter this obligation] with regard to the actions against the Republic of Croatia.” 19. On 27 October 2010 the applicants lodged an appeal on points of law before the Supreme Court, challenging the decision of the Karlovac County Court on the grounds that it unreasonably restricted their right to access to court. They argued that before they brought their civil action of 5 March 1998 before the Zagreb Municipal Court they had attempted to settle the matter with the State Attorney’s Office. However, their request had been refused, and later during the proceedings the State Attorney’s Office had also challenged their claim in the court. The applicants therefore considered that there was no reason to seek another settlement concerning the identical claim brought before the court after it was decided that it had been withdrawn. 20. The applicants also lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) on 5 November 2010, reiterating their above arguments. 21. On 23 March 2011 the Constitutional Court declared the applicants’ constitutional complaint inadmissible on the grounds that the decisions of the lower courts did not concern individual acts deciding on their civil rights and obligations. 22. On 3 April 2013 the Supreme Court dismissed the applicants’ appeal on points of law, endorsing the reasoning of the Karlovac County Court that the applicants had been obliged to seek settlement with the State Attorney’s Office before lodging their action of 9 May 2005. The Supreme Court pointed out: “It should be noted that the procedural requirement for the admissibility of an action under section 186(a) of the Civil Procedure Act, and the reliance of the lower courts on that provision, do not represent a violation of a plaintiff’s right of access to court. This is because the plaintiff, by complying with that provision, does not lose any of their rights to claim [damages] since, for example, the lodging of a request for settlement interrupts the running of the statutory prescription period ([Article 186(a)] § 3) and the plaintiff may lodge an action in the court if the State Attorney’s Office refuses the request [for settlement] or does not decide on it within three months of the date it was lodged ([Article 186(a)] § 5). It cannot therefore be said that the obligation of the plaintiffs to seek settlement of the claim with the State Attorney’s Office before lodging an action against the Republic of Croatia represents an unreasonable restriction of access to a competent court which can decide the case on the merits as required under Article 6 § 1 of the European Convention on Human Rights (Official Gazette-International Contracts, nos. 18/1997, 6/1999-consolidated text, 8/1999-rectification, 14/2002 and 1/2006). This is because section 186 of the Civil Procedure Act neither impaired the right to lodge a civil action nor the right to have the case decided on the merits ... (see the European Court of Human Rights in Ačimović v. Croatia of 9 October 2003 and Kutić v. Croatia of 1 March 2002).”
| 0 |
test
|
001-179232
|
ENG
|
AUT
|
CHAMBER
| 2,017 |
CASE OF D.L. v. AUSTRIA
| 3 |
No violation of Article 2 - Right to life (Article 2 - Extradition) (Conditional) (Kosovo);No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kosovo)
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André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
|
7. The applicant was born in 1973, lives in Austria since 2001 and is currently in detention pending extradition at Vienna-Josefstadt Prison. 8. The application concerns proceedings for extradition from Austria to Kosovo, which have the following background: 9. S.Lu. is the former husband of the applicant’s sister, T.L. In the course of an argument on 9 October 2001, S.Lu. stabbed the applicant in the chest. On 27 May 2002 S.Lu. was convicted in Austria of attempted intentional homicide (versuchter Totschlag) committed in a comprehensible state of emotion (in einer allgemein begreiflichen heftigen Gemütsbewegung) under Articles 15 and 76 of the Criminal Code (Strafgesetzbuch) and sentenced to five years’ imprisonment. The applicant testified as a witness during that trial. 10. After S.Lu. was released from prison in 2005, the applicant’s sister reported him to the police for having repeatedly raped her during their marriage, and for threatening to kill her and her family. Out of fear of her husband, she changed her and her children’s names. An order to determine S.Lu.’s whereabouts (Ausschreibung zur Aufenthaltsbestimmung) was issued by the Vienna public prosecutor’s office in 2008 and is in effect until 2 February 2018. 11. On the basis of an international arrest warrant issued by the Mitrovica District Court (Kosovo) on 26 November 2010 and 6 May 2011, the applicant was apprehended and taken into detention pending extradition by a decision of the Vienna Regional Criminal Court (Straflandesgericht Wien – hereinafter “the Criminal Court”) of 15 January 2016. On 20 January 2016 the Ministry of Justice of Kosovo requested the applicant’s extradition. According to the arrest warrant, the applicant was suspected of aggravated murder under Article 147 § 7 in conjunction with Article 24 of the Kosovo Criminal Code. He had allegedly ordered L.Q. in July 2010 to murder S.Lu. (his former brother-in-law) for a payment of 30,000 euros (EUR). On 3 August 2010 L.Q. fired gunshots at a car in the vicinity of the intended victim S.Lu., but instead killed N.Lu., S.Lu.’s cousin. 12. During the extradition proceedings, the applicant alleged that he had nothing to do with the murder in Kosovo. He claimed that the accusations had been invented by S.Lu. as revenge for the applicant’s having testified against him during the criminal proceedings in Austria. Furthermore, the “Lu. clan” (the family of S.Lu.) was very influential in Kosovo and had connections to the highest Government officials and the justice authorities there, which is why the applicant could not expect a fair trial in that jurisdiction. In addition, the conditions of detention in Kosovo prisons were deplorable and would amount to torture, inhuman and degrading treatment. Because of the threat emanating from S.Lu. and his family, the applicant would have to fear for his life there. They could easily get to him in prison by using their connections. 13. On 24 February 2016, after having held an oral hearing, the Criminal Court declared the applicant’s extradition to Kosovo permissible. It held that during the extradition proceedings, the court was not called on to examine whether the applicant was guilty or innocent, but merely to assess whether there was enough evidence to raise suspicions against him, which according to the documents submitted by the Kosovo authorities was the case. None of the evidence offered by the applicant had been capable of dispelling these suspicions immediately and without doubt, as would have been required by section 33(2) of the Extradition and Legal Aid Act (Auslieferungs- und Rechtshilfegesetz – hereinafter “the Extradition Act”). The fact that S.Lu. had been convicted of attempted intentional homicide in 2002 and the allegation that he wanted to take revenge on the applicant did not dispell the suspicion either. Furthermore, the court remarked that S.Lu.’s cousin had actually been killed, which called into question the applicant’s theory of that being a contrived story. It could equally be argued that the applicant had wanted to take revenge on S.Lu. for stabbing him. Concerning the applicant’s fear for his life in Kosovo, the court stated that the mere possibility of inhuman or degrading treatment did not suffice. The applicant had failed to adduce specific evidence of an actual, individual threat of treatment contrary to Article 3 of the Convention. Furthermore, in case of extradition to a member state of the Convention, the responsibility of the extraditing state was limited, as the person concerned could seek protection against a violation of the Convention in the receiving state. 14. On 24 March 2016 the applicant appealed. He submitted that if extradited to Kosovo, he risked treatment contrary to Article 3, because Lu. Clan wished to take revenge on him. In fact, Sm. Lu., a very influential member of that clan, was detained at Mitrovica prison and following extradition to Kosovo, he would be detained at that prison as well. Security in prison in Kosovo was a problem, as prisoners became frequently victims of aggression, and he would therefore also risk to become the victim of an assault. 15. On 31 May 2016 the Vienna Court of Appeal (Oberlandesgericht Wien hereinafter “the Court of Appeal”) dismissed the applicant’s appeal. It confirmed the Criminal Court’s finding that the applicant had failed to substantiate a real and individual risk of being subjected to torture, inhuman or degrading treatment, or that the Kosovo authorities would not be able to protect him from third, private parties. Furthermore, members of the allegedly influential Lu. clan were themselves imprisoned in Kosovo. In particular, on 21 January 2008 S.Lu. was convicted in Kosovo for issuing a dangerous threat against the applicant, which demonstrated that the Kosovo authorities were indeed capable of taking adequate measures to protect the applicant. Moreover, the Lu. clan could not be that influential if it was not capable of keeping its own members out of prison. Concerning the conditions of detention, the court held that the report on Kosovo by the Committee for the Prevention of Torture (hereinafter “the CPT”) of 2011 (see paragraph 30 below) did not state that ill-treatment was the rule in Kosovo prisons, but that there were merely sporadic incidents of violence. The mere possibility of ill-treatment by prison officers did not suffice to stop the applicant’s extradition. In relation to the material conditions of detention in Mitrovica Detention Centre, where the applicant alleged he would most likely be held if extradited, the Court of Appeal again quoted the above-mentioned CPT report of 2011, where it was found that inmates were able to move freely within that facility during the day and could exercise outside on a daily basis for three and a half hours, and that fitness and computer rooms have recently been installed. 16. On 13 June 2016 the Austrian Federal Minister of Justice (Justizminister) approved the applicant’s extradition to Kosovo. 17. On 20 June 2016 the applicant requested that the Court indicate to the Austrian Government to stay his extradition to Kosovo under Rule 39 of the Rules of Court. He complained under Articles 2 and 3 of the Convention that he would run the risk of torture, inhuman or degrading treatment or even death, as the Lu. clan wanted to take revenge on him and the Kosovo authorities were not willing or able to afford him protection. 18. On 22 June 2016 the Court granted the applicant’s request. 19. On 17 June 2016 the applicant lodged applications for the reopening (Wiederaufnahme) of the extradition proceedings and a stay of the extradition with the Criminal Court. He produced a certified declaration by L.Q., who had retracted his previous confession to the police that the applicant had ordered the murder of S.Lu. He asserted that he had been tortured by the Kosovo police during his questioning and had been pressured into blaming the applicant for ordering the murder. L.Q. alleged that he had fallen unconscious several times because of the “mental and physical torture”. L.Q. averred that he did not even know the applicant in person. The applicant further submitted into evidence several sworn statements from family members and friends, who attested that his life was in danger in Kosovo because of threats from S.Lu. and his clan. 20. On 23 June 2016 the Criminal Court dismissed the applicant’s applications. It held that in accordance with section 33(2) of the Extradition Act, the applicant had failed to adduce evidence which would have been capable of immediately dispelling the suspicion against him raised in the extradition request. L.Q.’s declaration did not constitute objective evidence and did not indicate any violations in Kosovo of the applicant’s rights under the Convention either. The applicant appealed. 21. On 18 July 2016 the applicant lodged an application for a renewal (Erneuerung) of the extradition proceedings with the Supreme Court under Article 363a of the Code of Criminal Procedure (Strafprozessordnung – hereinafter “the CCP”), requesting suspensive effect at the same time. 22. On 6 September 2016 the Supreme Court rejected the applicant’s application. It found that the new evidence the applicant had produced in the proceedings before it were a matter for the pending reopening proceedings, not for requesting a renewal of the extradition proceedings. In relation to the alleged violations of Articles 2 and 3 of the Convention in the event of his extradition, the Supreme Court found that mere allegations referencing general reports on the human rights situation were not capable of substantiating a real and immediate risk to the applicant under these provisions. Furthermore, the Supreme Court held that the applicant did not have a right under the law to request suspensive effect, which is why that request had to be rejected. 23. On 24 January 2017 the Court of Appeal dismissed the applicant’s appeal against the Criminal Court’s decision of 23 June 2016 (see paragraph 20 above). The court found that the applicant had failed to produce objective evidence which would have indicated a real and immediate risk of treatment contrary to Article 3 of the Convention if extradited to Kosovo and therefore would have warranted a reopening of the extradition proceedings. While the sworn statement by L.Q. in principle raised doubts in relation to the suspicions against the applicant, it had not constituted the only evidence against him. More pertinent had been the fact that, during the criminal proceedings against L.Q. in Kosovo, a microcassette had been put into evidence by S.Lu. which had allegedly contained a conversation confirming his statements that the applicant had been to blame for the murder. In addition, L.Q.’s initial incriminating statements against the applicant had been made in the presence of his lawyer. Moreover, L.Q. had not specified what exactly the police had allegedly done to him, which had made it impossible to evaluate whether the alleged treatment had actually amounted to torture, inhuman or degrading treatment. The Court of Appeal reiterated that it was in any event for the Kosovo courts to evaluate the evidence against the applicant. In sum, it confirmed that the statement by L.Q. was not capable of immediately dispelling the suspicion against the applicant on which the extradition request was based. Lastly, the Court of Appeal found that despite not being a State Party to the Convention or the Council of Europe, Article 22 of the Constitution of Kosovo granted the Convention direct effect under and superiority to national law, therefore domestic law equally offered protection from violations of the Convention. The Court of Appeal’s decision to dismiss the applicant’s appeal was served on his counsel on 30 January 2017.
| 0 |
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