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test
|
001-161898
|
ENG
|
CHE
|
GRANDCHAMBER
| 2,016 |
CASE OF BÉDAT v. SWITZERLAND
| 1 |
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information)
|
Aleš Pejchal;András Sajó;Dean Spielmann;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;Guido Raimondi;Helen Keller;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Krzysztof Wojtyczek;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Päivi Hirvelä;Paul Lemmens;Paul Mahoney;Robert Spano;Vincent A. De Gaetano
|
8. The applicant is a journalist by profession. On 15 October 2003 he published an article in the weekly magazine L’Illustré entitled “Tragedy on the Lausanne Bridge – the reckless driver’s version – Questioning of the mad driver” (“Drame du Grand-Pont à Lausanne – la version du chauffard – l’interrogatoire du conducteur fou”). The article in question concerned a set of criminal proceedings against M.B., a motorist who had been remanded in custody after an incident on 8 July 2003 in which he had rammed his car into pedestrians, before throwing himself off the Lausanne Bridge (Grand-Pont). The incident, in which three people had died and eight others had been injured, had caused much emotion and controversy in Switzerland. The article began as follows: “Surname: B. First name: M. Born on 1 January 1966 in Tamanrasset (Algeria), son of B.B. and F.I., resident in Lausanne, holder of a category C licence, spouse of M.B. Profession: nursing assistant ... It is 8.15 p.m. on Tuesday 8 July 2003, in the austere premises of the Lausanne criminal investigation department. Six hours after his tragic headlong race along the Lausanne Bridge, resulting in three deaths and eight casualties, this reckless driver is alone for the first time, facing three investigators. Will he own up? In fact he doesn’t actually seem to realise what is happening, as if oblivious to the events and all the hubbub around him. The man who upset the whole of Lausanne this fine summer day is not very talkative. This Algerian citizen is withdrawn, introverted, inscrutable, indeed completely impenetrable. And yet the questions are flying from all sides. What were the reasons for this ‘accident’, one of the policemen rather clumsily writes, as if he had already formed his opinion. Four words in reply: ‘I do not know’.” 9. The article continued with a summary of the questions put by the police officers and the investigating judge and M.B.’s replies. It also mentioned that M.B. had been “charged with premeditated murder (assassinat) and, in the alternative, with murder (meurtre), grievous bodily harm, endangering life and serious traffic offences”, and that he “appear[ed] to show no remorse”. The article was accompanied by several photographs of letters which M.B. had sent to the investigating judge. It ended with the following paragraph: “From his prison cell, M.B. now spends his time sending letters to the investigating judge ...: on being taken into custody he asked for his watch to be returned and requested a cup for his coffee, some dried fruit and chocolate. On 11 July, three days after the events, he even asked to be temporarily released for ‘a few days’. ‘I would like to phone my big brother in Algeria’, he subsequently begged. He finally announced on 11 August that he had come to a ‘final decision’: he dismissed his lawyer, Mr M.B., on grounds of ‘lack of trust’. Two days later, another letter: could the judge send him ‘the directory of the Bar Association of the Canton of Vaud’ to help him find a different defence lawyer? However, with all the recurrent lies and omissions, the mixture of naivety and arrogance, amnesia and sheer madness characterising all these statements, surely M.B. is doing everything in his power to make himself impossible to defend?” 10. The article also included a brief summary entitled “He lost his marbles...” (“Il a perdu la boule...”), and statements from M.B.’s wife and from his doctor. 11. It appears from the file that the applicant’s article was not the only piece to have been published on the Lausanne Bridge tragedy. The authorities responsible for the criminal investigation had themselves decided to inform the press about certain aspects of the investigation, which had led to the publication of an article in the Tribune de Genève on 14 August 2003. 12. M.B. did not lodge a complaint against the applicant. However, criminal proceedings were brought against the applicant on the initiative of the public prosecutor for having published secret documents. It emerged from the investigation that one of the parties claiming damages in the proceedings against M.B. had photocopied the case file and lost one of the copies in a shopping centre. An unknown person had then brought the copy to the offices of the magazine which had published the impugned article. 13. By an order of 23 June 2004 the Lausanne investigating judge sentenced the applicant to one month’s imprisonment, suspended for one year. 14. Following an application by the applicant to have the decision set aside, the Lausanne Police Court, by a judgment of 22 September 2005, replaced the prison sentence with a fine of 4,000 Swiss francs (CHF) (approximately 2,667 euros (EUR)). At the hearing on 13 May 2015, in reply to a question from the Court, the applicant’s representative stated that the sum of CHF 4,000 had been advanced by his client’s employer and that his client was intending to refund it after the proceedings before the Court. He also confirmed that the amount set by the criminal court had taken account of the applicant’s previous record. 15. The applicant lodged an appeal on points of law. His appeal was dismissed on 30 January 2006 by the Criminal Court of Cassation of the Canton of Vaud. 16. The applicant lodged a public-law appeal and an appeal on grounds of nullity with the Federal Court, which on 29 April 2008 dismissed the appeals. Its decision was served on the applicant on 9 May 2008. The relevant passages from the decision are as follows: “7. In short, the appellant submits that his conviction for a breach of Article 293 of the Criminal Code is contrary to federal law. He does not challenge the fact that the information which he published falls within the ambit of Article 293 of the Criminal Code. He does, on the other hand, submit, under an interpretation of Articles 293 and 32 of the Criminal Code in the light of the principles inferred from Article 10 ECHR by the European Court of Human Rights, that having received that information in good faith without obtaining it unlawfully, he had the duty as a professional journalist, under Article 32 of the Criminal Code, to publish it owing to what he sees as the obvious interest of the so-called ‘Lausanne Bridge’ case to the general public in French-speaking Switzerland. 7.1. In accordance with Article 293 of the Criminal Code (Publication of secret official deliberations), anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of an authority which are secret by law or by virtue of a decision taken by that authority, acting within its powers, will be punished by a fine (paragraph 1). Complicity in such acts is also punishable (see paragraph 2). The court may decide not to impose any penalties if the secret thus made public is of minor importance (see paragraph 3). According to case-law, this provision proceeds from a formal conception of secrecy. It is sufficient that the documents, deliberations or investigations in question have been declared secret by law or by virtue of a decision taken by the authority, or in other words that there has been an intention to keep them from becoming public, regardless of the type of classification selected (for example, top secret or confidential). On the other hand, strict secrecy presupposes that the holder of the specific information wishes to keep it secret, that there is a legitimate interest at stake, and that the information is known or accessible only to a select group of persons (see ATF [Judgments of the Swiss Federal Court] 126 IV 236, point 2a, p. 242, and 2c/aa, p. 244). This state of affairs was not altered by the entry into force of paragraph 3 of this Article on 1 April 1998 (RO [Recueil officiel – Official Collection of Federal Statutes] 1998 852 856; FF [Feuille fédérale] 1996 IV 533). That rule concerns not secrets in the substantive sense but rather instances of futile, petty or excessive concealment (see ATF 126 IV 236, point 2c/bb, p. 246). In order to exclude the application of paragraph 3, the court must therefore first of all examine the reasons for classifying the information as secret. It must, however, do so with restraint, without interfering with the discretionary power wielded by the authority which declared the information secret. It is sufficient that this declaration should nonetheless appear tenable vis-à-vis the content of the documents, investigations or deliberations in issue. Moreover, the journalists’ viewpoint on the interest in publishing the information is irrelevant (see ATF 126 IV 236, point 2d, p. 246). In its Stoll v. Switzerland judgment of 10 December 2007, the European Court of Human Rights confirmed that this formal conception of secrecy was not contrary to Article 10 ECHR inasmuch as it did not prevent the Federal Court from determining whether the interference in issue was compatible with Article 10 ECHR, by assessing, in the context of its examination of Article 293, paragraph 3, of the Criminal Code, the justification for classifying a given piece of information as secret, on the one hand, and weighing up the interests at stake, on the other (see Stoll v. Switzerland, cited above, §§ 138 and 139). 7.2. In the present case the offence with which the appellant is charged concerned the publication of records of interviews and correspondence contained in the case file of a live criminal investigation. In pursuance of Article 184 of the Code of Criminal Procedure of the Canton of Vaud (CPP/VD), all investigations must remain secret until their final conclusion (see paragraph 1). The secrecy requirement relates to all the evidence uncovered by the investigation itself as well as all non-public decisions and investigative measures (see paragraph 2). The law also specifies that the following are bound by secrecy vis-à-vis anyone who does not have access to the case file: the judges and judicial staff (save in cases where disclosure would facilitate the investigation or is justified on public-order, administrative or judicial grounds; see Article 185 CPP/VD), and also the parties, their friends and relatives, their lawyers, the latter’s associates, consultants and staff, and any experts and witnesses. However, disclosure to friends or relatives by the parties or their lawyer is not punishable (see Article 185a CPP/VD). Lastly, the law provides for a range of exceptions. As an exception to Article 185, the cantonal investigating judge and, with the latter’s agreement, the judge responsible for the preliminary inquiry or senior police officers specially appointed by the cantonal government [Conseil d’Etat] (see Article 168, paragraph 3) may inform the press, radio or television about a pending investigation if so required by the public interest or considerations of fairness, particularly where public cooperation is required to shed light on an offence, in cases which are particularly serious or are already known to the general public, or where erroneous information must be corrected or the general public reassured (see Article 185b, paragraph 1, CPP/VD). The present case therefore concerns secrecy imposed by the law rather than by an official decision. 7.3. As a general rule, the reason for the confidentiality of judicial investigations, which applies to most sets of cantonal criminal proceedings, is the need to protect the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed. Nevertheless, the interests of the accused must not be disregarded either, particularly vis-à-vis the presumption of innocence and, more broadly, the accused’s personal relations and interests (see Hauser, Schweri and Hartmann, Schweizerisches Strafprozessrecht, 6th ed., 2005, § 52, no. 6, p. 235; Gérard Piquerez, op. cit., § 134, no. 1066, p. 678; Gérard Piquerez, Procédure pénale suisse: manuel, 2nd ed., 2007, no. 849, pp. 559 et seq.), as well as the need to protect the opinion-forming process and the decision-making process within a State authority, as protected, precisely, by Article 293 of the Criminal Code (see ATF 126 IV 236, point 2c/aa, p. 245). The European Court of Human Rights has already had occasion to deem such a purpose legitimate in itself. The aim is to maintain the authority and impartiality of the judiciary in accordance with the wording of Article 10 (2) ECHR, which also mentions the protection of the reputation or rights of others (see Weber v. Switzerland, judgment of 22 May 1990, § 45, and Dupuis and Others v. France, judgment of 7 June 2007, § 32). Furthermore, in so far as the impugned publication concerned excerpts from records of interviews of the accused and reproduced certain letters sent by the latter to the investigating judge, this evidence can validly be classified secret, by prohibiting public access to it, as provided by the legislation of the Canton of Vaud. This is the inescapable conclusion as regards the records of interviews of the accused, as it would be inadmissible to allow such documents to be analysed in the public sphere, before the conclusion of the investigation, before the trial and out of context, in a manner liable to influence the decisions taken by the investigating judge and the trial court. It is also the only possible conclusion as regards the letters sent by the accused to the investigating judge, which focused on practical problems and criticisms of his lawyer (see Police Court judgment, point 4, p. 7). We might point out here that it appears from the impugned publication – which the cantonal authorities did not reproduce in full in their decisions, although they did refer to it and its content is not disputed – that the aforementioned practical problems concerned requests for temporary release and for access to personal effects (letters of 11 July 2003), for a change of cell (letter of 7 August 2003) and for authorisation to use the telephone (letter of 6 August 2003). Regardless of the guarantee of the presumption of innocence and the inferences concerning the detainee’s character which might be drawn during the criminal proceedings from such correspondence, the detainee, whose liberty is considerably restricted, even in respect of everyday acts relating to his private life, or indeed intimate sphere, can expect the authority restricting his liberty to protect him from public exposure of the practical details of his life as a remand prisoner and as a person facing charges (see Article 13 of the Constitution). It follows that in the instant case the information published by the appellant, in so far as it concerned the content of the records of his interviews and his correspondence with the investigating judge, cannot be described as a secret of minor importance for the purposes of Article 293, paragraph 3, of the Criminal Code. That being so, the impugned publication constituted the factual elements of the offence provided for in Article 293, paragraph 1, of the Criminal Code. 7.4. Moreover, the information in question may be described as being secret in substantive terms because it was only accessible to a restricted number of persons (the investigating judge and the parties to the proceedings). Furthermore, the investigating authority was desirous to keep them secret, with not only a legitimate interest in doing so but an obligation under the Cantonal Code of Criminal Procedure, the justification for which was mentioned above (see point 7.3 above). 7.5. Therefore, the only remaining point at issue is the existence of justification. 8. In short, the appellant submits that he had the professional duty (under former Article 32 of the Criminal Code) as a journalist to publish the information in question because of what he describes as the obvious interest in the ‘Lausanne Bridge’ case for the population of French-speaking Switzerland. He considers that in the light of European case-law, the basic assumption should be that publication is justified in principle unless there is a pressing social need to maintain secrecy. From the standpoint of good faith, he submits that Article 32 should apply to journalists who are not responsible for the indiscretion committed by a third party and who receive information without committing any offence themselves other than the breach of secrecy stemming from the publication. Lastly, he contends that the mode of publication is not a relevant criterion. 8.1. As regards the former point, the cantonal court found that while the accident of 8 July 2003, the circumstances of which were undoubtedly unusual, had triggered a great deal of public emotion, it had nevertheless, in legal terms, been simply a road accident with fatal consequences, and did not in itself entail any obvious public interest. It was not a case of collective trauma on the part of the Lausanne population, which would have justified reassuring the citizens and keeping them informed of the progress of the investigation (see judgment appealed against, point 2, p. 9). It is true that the ‘Lausanne Bridge case’ attracted extensive media coverage (see Police Court judgment, point 4, p. 8, to which the cantonal judgment refers (judgment appealed against, point B, p. 2)). However, this circumstance alone, alongside the unusual nature of the accident, is insufficient to substantiate a major public interest in publishing the confidential information in question. Unless it can be justified per se, the interest aroused among the public by media coverage of events cannot constitute a public interest in the disclosure of classified information, because that would mean that it would be sufficient to spark the public’s interest in a certain event in order to justify the subsequent publication of confidential information likely to maintain that interest. Furthermore, such a public interest is manifestly lacking as regards the letters that were published. As we have seen above (see point 7.3 above), these letters virtually exclusively concerned criticisms levelled by the accused against his lawyer and such practical problems as requests for temporary release, for access to personal effects, to change cells and to use the telephone. This type of information provides no relevant insights into the accident or the circumstances surrounding it. It relates to the private life, or indeed intimate sphere, of the person in custody, and it is difficult to see any interest which its publication could satisfy other than a certain kind of voyeurism. The same applies to the appellant’s requests to the investigating judge in relation to his choice of defence lawyer. Nor is it clear, as regards the records of his interviews, what political question or matter of public interest would have arisen or been worth debating in the public sphere, and the cantonal authorities explicitly ruled out the existence of any collective trauma which might have justified reassuring or informing the population. This finding of fact, which the appellant has not disputed in his public-law appeal, is binding on this court (see section 277 bis of the Federal Criminal Procedure Act). That being the case, the appellant fails to demonstrate the ‘obvious’ interest to the general public of the information published, and the cantonal court cannot be criticised for having concluded that at the very most, such an interest involved satisfying an unhealthy curiosity. 8.2. The other two factors relied upon by the appellant concern his behaviour (good faith in access to information and mode of publication). 8.2.1. It should first of all be noted that Article 293 of the Criminal Code punishes only the disclosure of information, irrespective of how the perpetrator obtained it. Moreover, even under Article 10 ECHR, the European Court does not attach decisive importance to this fact when considering whether applicants have fulfilled their duties and responsibilities. The determining fact is rather that they could not claim in good faith to be unaware that disclosure of the information was punishable by law (see Stoll v. Switzerland, cited above, § 144, and Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999I). This point is well-established in the present case (see section B above). 8.2.2. On the other hand, the mode of publication can play a more important role in the context of safeguarding freedom of expression. While the European Court of Human Rights reiterates that neither it, nor the domestic courts for that matter, should substitute their own views for those of the press as to what technique of reporting should be adopted by journalists, in weighing up the interests at stake it nevertheless takes account of the content, vocabulary and format of the publication, and of the headings and sub-headings (whether chosen by the journalist or the editors), and the accuracy of the information (see Stoll v. Switzerland, cited above, §§ 146 et seq., especially 146, 147 and 149). In the instant case the cantonal court ruled that the tone adopted by the appellant in his article showed that his main concern was not, as he claims, to inform the general public about the State’s conduct of the criminal investigation. The headline of the article (‘Questioning of the mad driver’, ‘the reckless driver’s version’) already lacked objectivity. It suggested that the case had already been tried in the author’s view, in the sense that the fatalities on the Lausanne Bridge had been caused not by an ordinary motorist but by a ‘mad driver’, a man ‘oblivious to the events and all the hubbub around him’; The journalist concluded by wondering whether the driver was in fact doing his best to ‘make himself impossible to defend’. The manner in which he quoted the excerpts from the records of interviews and reproduced the letters sent by the defendant to the judge pointed to the motives of the author of the impugned article: he confined himself to sensationalism, his modus operandi being exclusively geared to satisfying the relatively unhealthy curiosity which anyone is liable to feel about this type of case. Readers of this highly biased publication would have formed an opinion and subjectively prejudged the future action to be taken by the courts regarding this case, without the least respect for the principle of presumption of innocence (see judgment appealed against, point 2, pp. 9 et seq.). The cantonal court concluded that this factor did not indicate that the public interest in receiving information prevailed. That court cannot be criticised on that account. 8.3. The appellant also submitted that the records of interviews and the letters would in any case be mentioned in subsequent public hearings. He inferred from this that preserving the confidentiality of this information could therefore not be justified by any ‘pressing social need’. However, the mere possibility that the secrecy of criminal investigations might be lifted during a subsequent phase of proceedings, particularly during the trial, which is generally subject to the publicity principle, does not undermine the justification for keeping judicial investigations confidential, because the primary aim is to protect the opinion-forming and decision-making processes on the part not only of the trial court but also of the investigating authority, until the completion of this secret phase of proceedings. Moreover, far from being neutral and comprehensive, the publication in issue included comments and assessments which presented the information in issue in a particular light, without providing the opportunities for adversarial argument which are the very essence of proceedings in trial courts. 8.4. Lastly, the appellant did not explicitly criticise the amount of the fine imposed on him. Nor did he challenge the refusal to grant him a probationary period after which the fine would be struck out (former Article 49, point 4, in conjunction with former Article 106, paragraph 3, of the Criminal Code) under Swiss law. From the angle of weighing up the interest in the interference, we might simply note that the fine imposed, the amount of which took into account a previous conviction dating back to 1998 (imposition of a CHF 2,000 fine, which could be struck out after a two-year probationary period, for coercion and defamation), does not exceed half the amount of the appellant’s monthly income at the material time (see Police Court judgment, point 1, p. 5), and there is nothing to suggest that his freelance status at the time of the first-instance judgment led to any significant drop in his earnings. It should also be pointed out that at CHF 4,000 the amount of the fine is below the statutory maximum set out in former Article 106, paragraph 1, of the Criminal Code (as in force until 31 December 2006), and that this maximum amount, set by the legislature more than thirty years ago, was not revised until the entry into force of the new general section of the Criminal Code, which now sets a figure of CHF 10,000 (see Article 106, paragraph 1, of the Criminal Code as in force since 1 January 2007). Furthermore, the sanction for the offence with which the appellant is charged did not prevent him from expressing his views, since it was imposed after the article had been published (see Stoll v. Switzerland, cited above, § 156). That being the case, it is unclear, in view of the nature of the offence charged (the least serious in the classification set out in the Swiss Criminal Code), the amount of the fine and the time of its imposition, how the sanction imposed on the applicant could be regarded as a form of censorship. 8.5. It follows from the foregoing that the appellant disclosed a secret within the meaning of Article 293, paragraph 1, of the Criminal Code and that he cannot rely on any justifying factor in his favour. The decision appealed against does not violate federal law as interpreted in the light of the Convention provisions relied upon by the appellant.”
| 0 |
test
|
001-170033
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF RODKIN v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
4. The applicant was born in 1988 and is detained in Saransk. 5. On 3 August 2009 the applicant was arrested on suspicion of the rape of a girl, who was also a minor. 6. On 5 August 2009 the Staroshaygovskiy District Court of the Mordovia Republic remanded him in custody. He remained in pre-trial detention pending investigation and trial on the grounds that he was accused of a serious crime, might reoffend, abscond, destroy evidence, threaten witnesses, or interfere with the investigation. 7. On 24 December 2010 the Supreme Court of the Mordovia Republic found him guilty as charged. 8. On 4 October 2010 the applicant, acting for himself, submitted his first letter to the Court. 9. On 4 August and 4 October 2010 he provided two powers of attorney authorising Mr Frimu, one of his cellmates, to represent him before the Court.
| 1 |
test
|
001-158945
|
ENG
|
TUR
|
CHAMBER
| 2,015 |
CASE OF SAKİNE EPÖZDEMİR AND OTHERS v. TURKEY
| 4 |
No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)
|
Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
|
5. The applicants were born in 1947, 1966 and 1968, respectively, and live in Istanbul. The first applicant is the wife and the second and third applicants are the sons of Mr Şevket Epözdemir. 6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. The deceased was a lawyer and the chairman of the Tatvan provincial branch of a pro-Kurdish political party, the Democracy Party (“DEP”). 8. The applicants submitted that between August and December 1993, DEP party buildings were bombed and ten of its members and administrators were killed. The applicants also alleged that during a meeting with political party representatives, General K.T., who was the commander of the Tatvan 6th Armoured Brigade, had threatened their relative, Şevket Epözdemir, and one of his colleagues, the chairman of DEP’s Bitlis provincial branch, Mr İshak Tepe. The General had told the two men that “they would meet their deaths very soon”. Subsequently, Mr Tepe’s son had been abducted and killed. 9. On the morning of 25 November 1993 Mr Epözdemir left his house to go to his office, which was nearby. At around 8 p.m. the same day Mr Epözdemir telephoned his wife, the first applicant, and told her that he was leaving his office to come home. When he failed to arrive the family became concerned and contacted the authorities. 10. At midday the following day the first applicant went to the police station in Tatvan, where she asked the police officers to find her husband. She told the police officers that when her husband had failed to come home the previous evening she had telephoned the local prosecutor and asked him whether her husband had been arrested. After the prosecutor had told her that her husband had not been arrested, she had informed members of her family about her husband’s disappearance, and then waited up all night. 11. Unbeknown to the first applicant, some half an hour before she went to the police station the body of her husband had been found by soldiers in the vicinity of the nearby town of Güroymak, in a ditch at the side of a road which connected the town of Tatvan to the city of Bitlis. He was blindfolded and there was a gunshot wound on his face. The police officers who subsequently arrived at the scene informed the soldiers that it could be the body of Şevket Epözdemir, whose disappearance had been reported to them by his family. 12. The local prosecutor arrived at the scene at 1.45 p.m. on the same day and gave instructions for the deceased’s body to be taken to the hospital in Bitlis, where it was formally identified by Mr Epözdemir’s brother, Şakir Epözdemir, who also informed the prosecutor that after his brother had failed to come home the previous evening the family had telephoned the local police at 9.30 p.m. because they feared that he might have been abducted. He added that his deceased brother had been a prominent figure in the town of Tatvan and that that had been the reason for the family’s suspicions that he might have been abducted. 13. On the same day Mr Epözdemir’s body was examined by two doctors, who noted that there was a bullet entry hole on the face and a corresponding exit hole on the back of the head. The doctors also noted the existence of widespread injuries on many parts of the face and the body which, according to the doctors, had been caused by physical trauma. The doctors, who established the cause of death as cerebrovascular haemorrhagic shock caused by the gunshot wound, did not consider it necessary to carry out a full autopsy. 14. On the same day the Tatvan prosecutor opened an investigation file into the killing and informed the Ministry of Justice. 15. On 27 November 1993 the Tatvan police headquarters sent a letter to the governor’s office in the town of Güroymak, in whose administrative jurisdiction the body had been found, and asked the governor whether the applicants’ relative had been in Güroymak on 25 November 1993 and whether they had any information about anyone in Güroymak who might have harboured hostile feelings towards Mr Epözdemir. 16. On 29 November 1993 the second applicant asked the Tatvan prosecutor whether there had been an outstanding arrest warrant in respect of his father. On the same day the prosecutor informed the second applicant that no such warrant had been issued. 17. On 6 December 1993 the Bitlis prosecutor decided that he did not have the requisite jurisdiction ratione materiae to investigate the case and forwarded the investigation file to the prosecutor’s office at the Diyarbakır State Security Court, which did have jurisdiction to investigate such offences. 18. On 21 December 1993 the prosecutor at the Diyarbakır State Security Court sent a letter to the Bitlis prosecutor and asked him to resume his investigation into the killing and to inform him every three months about developments. 19. On 5 June 2003 the applicants sent letters to the offices of the Van and Tatvan prosecutors and asked to be provided with information regarding the steps taken in the investigation over the course of the previous ten years. 20. On 26 June 2003 the Van prosecutor’s office decided that it had no jurisdiction ratione loci to investigate the incident and forwarded the applicants’ letter (mentioned in the preceding paragraph) to the office of the prosecutor in Tatvan. On 30 June 2003 the Tatvan prosecutor decided that his office did not have jurisdiction ratione loci either and sent the letter to the prosecutor’s office in Güroymak. On 24 July 2003 the Güroymak prosecutor took a decision of non-jurisdiction ratione materiae and sent the letter to the prosecutor’s office at the Van State Security Court. 21. On 14 August 2003 the prosecutor at the Van State Security Court replied to the applicants’ letter of 5 June 2003 and informed them that the investigation was still continuing. On the same day the prosecutor also issued a standing search order and asked the Güroymak prosecutor to continue to search for the perpetrators and to inform his office every three months about developments. 22. On 10 May 2010 the Güroymak prosecutor instructed the local gendarmerie to search for the perpetrators until 26 November 2013 (the date of the expiry of the time-limit prescribed by the statute of limitations). On 1 December 2010 and 24 March 2011 a number of gendarmes visited the place where the body had been found in 1993 and noted that there was no evidence there to help solve the killing. 23. In the meantime, on 10 January 1995 the applicants brought compensation proceedings against the Ministry of the Interior. In their petition the applicants argued that the perpetrators of the killing had not been found, despite the fact that more than one year had elapsed since the incident. They submitted that their relative had been a well-liked person in Tatvan and that he had never had any problems with anyone. The applicants argued that States were responsible for protecting their citizens’ lives and that in the event that they failed to do so, they had a duty to find and punish the perpetrators of any resultant unlawful death; otherwise they themselves should be held responsible for such loss of life. The applicants also submitted that, because of the failure to find and punish the perpetrators of the killing of Şevket Epözdemir, they had suffered immeasurable pain and stress and the State had thus an obligation to compensate them for the damage that they had sustained. They argued that the State’s liability arose from its failure to protect the deceased’s life. In any event, even if no such failure could be said to have occurred, they further argued that the State nevertheless had an “absolute liability” to compensate them. 24. On 10 June 1996 the Bitlis police headquarters informed the Van Administrative Court, in response to an apparent query from the latter, that the applicants’ relative, Şevket Epözdemir, had never requested protection from the authorities. 25. On 16 December 1997 the Van Administrative Court decided to award compensation to the applicants, in accordance with Article 125 of the Constitution (see paragraphs 32-34 below). It held that when carrying out their duties the public authorities had an obligation to take the necessary measures and to show due diligence in doing so. In the present case the public authorities had failed to comply with that obligation. 26. The Ministry of the Interior appealed, arguing that it had not failed in that obligation because the reason for the killing and the identity of its perpetrators had not yet been established. 27. The applicants did not submit any observations in reply to those of the Ministry of the Interior. 28. In its decision of 6 November 2000 the Supreme Administrative Court quashed the decision of the Van Administrative Court because it considered that, given that the reason for the killing had not been established and the perpetrators had not been identified, no causal link could be said to exist between the damage caused by the killing and any actions on the part of the public authorities. It added that for the public authorities to be said to have failed in their obligation, it was necessary to establish that they had either not performed their duties at all, or had failed to perform them in a timely manner, or had performed them in an unsatisfactory fashion. The Supreme Administrative Court further held that the lack of the above-mentioned causal link also prevented the courts from awarding compensation to the family on the basis of the public authorities’ “absolute liability” because the sole fact that the deceased had been a “member of society” was not sufficient. For it to be able to award compensation on the basis of the “social risk doctrine” it was a precondition for the damage to have arisen in a setting within which public servants were carrying out their duties. 29. On 15 May 2001 the Van Administrative Court re-examined the case in the light of the Supreme Administrative Court’s decision and decided to reject the applicants’ claim for compensation. In reaching its conclusion, the administrative court noted that the investigation into the killing was still ongoing and, in any event, the deceased had never sought protection from the State. It thus held that the public authorities had not acted in breach of their duties. It further held that, as the conditions of the “social risk doctrine” had not been satisfied, it was not possible to award compensation to the family on the basis of the State’s “absolute liability”. 30. The applicants lodged an appeal with the Supreme Administrative Court against the decision and argued that a citizen need not officially seek protection from the authorities in order to trigger the State’s obligation to protect such a citizen’s life. To argue otherwise would be at odds with the Constitution and the international treaties to which Turkey was a party. The applicants also submitted that at the time of the killing, a state of emergency had been declared in their part of the country; this had created a climate that was conducive to the perpetration of such crimes. The fact that some eight years after the killing the perpetrators had still not been identified was an indication that the public authorities had failed in their duties. The applicants maintained that the authorities had failed to take the necessary steps to prevent the attack on their relative and to find the perpetrators. The Ministry was therefore responsible for the pecuniary and non-pecuniary damage arising from the failures on its part. 31. The appeal lodged by the applicants was rejected by the Supreme Administrative Court on 17 April 2003. A request made by the applicants for the Supreme Administrative Court’s decision to be rectified was also rejected, on 14 November 2005. The final decision was served on the applicants on 3 January 2006.
| 0 |
test
|
001-182602
|
ENG
|
ROU
|
COMMITTEE
| 2,018 |
CASE OF MARINAȘ AND OTHERS v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-167467
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,016 |
PUBLISHING HOUSE 'PSKOV NEWS' v. RUSSIA
| 4 |
Inadmissible
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
1. The applicant, the publishing house Pskov News (автономная некоммерческая организация «Издательский дом “Новости Пскова”»), is a Russian non-profit organisation. It was represented before the Court by Mr V. Bykov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by their Agent, Mr G. Matyushkin. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant is the publisher of Pskovskaya Guberniya, a regional weekly. The applicant and the newspaper are two distinct legal persons. In 2003 two officials sued the newspaper for defamation over an article about their encounters with the law. On 8 August 2003 the Pskov Town Court found the article’s allegations false and ordered the newspaper to issue a retraction but refused damages for emotional distress. On 23 September 2003 the Pskov Regional Court affirmed the judgment. 4. According to the Tax Service’s company register, in July 2009 the applicant was liquidated.
| 0 |
test
|
001-148286
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF NAVALNYY AND YASHIN v. RUSSIA
| 3 |
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Criminal charge;Fair hearing);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicants were born in 1976 and 1983 respectively and live in Moscow. Both applicants are political activists and opposition leaders. The first applicant is also a well-known anti-corruption campaigner and a popular blogger. The second applicant is a leader of the political movement “Solidarnost”. 6. On 4 December 2011 general elections of the State Duma took place in Russia. 7. On 5 December 2011 the applicants took part in a public demonstration (a meeting) at Chistyye Prudy, Moscow, to protest against the allegedly rigged elections. The demonstration had been duly authorised by the mayor of Moscow. The number of participants at the meeting was estimated between 5,000 and 10,000. During the meeting, conducted by the second applicant, the first applicant addressed the participants with a speech calling for fresh, fair elections and describing United Russia, the election frontrunner, as “a party of crooks and thieves”. 8. After the demonstration the applicants were arrested. The parties disagreed as to the circumstance of their arrest, and their respective submissions are summarised below. 9. The applicants claimed that at the end of the meeting they had headed, with other people, towards the Kuznetskiy Most metro station, where the first applicant had left his car. They were walking along the pavement, leaving the road clear for traffic. Suddenly their way was blocked by the riot police (сотрудники внутренних войск и OMOН). Without any introduction or demand, the police surrounded a group of about one hundred protesters, including the applicants, pressing them against a building. The surrounded group chanted “One for all, and all for one!”. The riot police then began to arrest the protesters. According to the applicants, no one put up any resistance. They obeyed the police and followed them to the police bus. 10. According to the Government, at the end of the meeting the second applicant called on the participants to march down Myasnitskaya Street onto Lubyanskaya Square and then to the office of the Central Electoral Commission. At 8.30. p.m. about sixty people, including the applicants, began walking down Chistoprudnyy Boulevard, Bolshaya Lubyanka Street and Rozhdestvenka Street. They walked along the road, obstructing the traffic and chanting slogans such as “This is our city!” and “Down with the police state!” At the crossroads of Pushechnaya and Rozhdestvenka Streets the police blocked the march and ordered the marchers to stop. They pushed thought the cordon and went on until they were stopped by the police again at 2 Teatralnyy Proyezd. They ignored the repeated demands of the police to stop and thereby prevented the police from carrying out their mission of securing public order. Confronted with this persistent behaviour, the police arrested the applicants. 11. Both applicants were arrested at about 8.45 p.m. and were taken to a police bus. 12. At about 9.40 p.m. the applicants were taken to the Severnoye Izmaylovo District police station, Moscow. At 11.40 p.m. the first applicant was subjected to a body search, which lasted until 12.15 a.m. His personal affairs, including his mobile phone, barrister licence, watch, money, credit cards, driving licence and some items of clothing were seized. The second applicant was searched as well, and his mobile phone, belt, watch, whistle and a badge reading “Against the Party of Crooks and Thieves” were seized. The list of the seized objects was recorded in the search report. The applicants have been unable to retrieve them, although those objects were not attached to the case file. 13. The applicants requested that their lawyers, who had arrived at the police station and had presented their authority, be allowed to see them, but their request was refused. The applicants were not allowed to make a phone call to their families either. 14. Both applicants lodged complaints at the police station alleging that their rights had been violated during their arrest and detention. 15. At about 12.45 a.m. on 6 December 2011 the applicants were transferred from Severnoye Izmaylovo police station to the Vostochnyy District police station, Moscow, where they arrived at about 1.45 a.m. on the same day. They requested to see a lawyer and to make a phone call, but this was refused again. The first applicant lodged a complaint about the refusal. 16. At 2.30 a.m. on the same night, the applicants were transferred to the Kitay-Gorod District police station, where police reports were drawn up stating that the applicants had been escorted to the police station in accordance with Article 27.2 of the Code of Administrative Offences. At 2.40 a.m. further police reports were drawn up in which it was decided to remand the applicants in custody under Article 27.3 of the Code of Administrative Offences. The applicants were charged with an administrative offence for refusing to comply with a lawful order of the police, in breach of Article 19.3 of the Code of Administrative Offences. The charges were based on the identical statements of two police officers, I. and F., who alleged that they had ordered the applicants to follow them to the police bus to give statements on the administrative offence but that the applicants had pushed them away and had therefore been arrested. 17. At the Kitay-Gorod police station the applicants requested permission to see their lawyers and to telephone their families, but their requests were refused. 18. The first applicant remained in custody at the police station until 3 p.m. on 6 December 2011, and the second applicant until 10 a.m. on that day. 19. The applicants claimed that the conditions of detention during their transfer between the police stations and in the cell at the Kitay-Gorod police station were inhuman and degrading. In particular, they claimed that they had spent six hours being driven to different police stations without being given any food or drinking water. At the Kitay-Gorod police station they were placed together in a cell measuring about 6 sq. m with concrete walls, a metal grill, a concrete floor, no windows and no furniture except for two narrow wooden benches. The cell was poorly lit and had no ventilation. There was no sanitary equipment, beds or bedding. The applicants did not receive any food or water until later on 6 December 2011 when they were allowed to receive a parcel from their families containing drinking water and crackers; no other food was allowed in the parcels. 20. The Government submitted that the applicants had spent about one hour in transit to the Vostochnyy District police station and then about forty-five minutes in transit to the Kitay-Gorod police station, which was not long enough to require the provision of meals. According to the Government, the applicants were detained at the Kitay-Gorod police station in an administrative-detention cell measuring 12.3 sq. m equipped with artificial lighting and mandatory ventilation. They claimed that the applicants had been provided with a sleeping place – a wooden bench – and bedding, which they had refused. They provided a photograph of the cell with a metal grill, a close-up photograph of the bench, showing with a measuring tape its width of 47 cm, and another photograph showing the same bench covered with a blanket and with a pillow placed on it. The Government further contended that the cells had to be cleaned and disinfected twice a day and that pest control had to be carried out once every three months, in accordance with the cleaning service agreement between the Ministry of the Interior and a private company. The Government provided a copy of the service agreement in support of that statement. They alleged that the applicants had not complained about the conditions of their detention. According to the Government, the applicants had been offered food at the Kitay-Gorod police station, but had refused to take it. 21. On 6 December 2011 the applicants were brought before the Justice of the Peace to have their charges examined in administrative proceedings. They met their counsels for the first time shortly before the hearing. The case of the second applicant was examined first, and then the case of the first applicant. 22. The administrative case was examined by the acting Justice of the Peace of Circuit no. 370 of the Tverskoy District of Moscow, Ms B. At the beginning of the hearing the second applicant challenged the judge on the grounds that she had previously found him guilty of an administrative offence and sentenced him to five days’ administrative detention. After that conviction the second applicant had lodged numerous complaints about Ms B. and had campaigned against her in his online blogs. The Justice of the Peace dismissed the challenge against her. 23. The second applicant requested leave to call and examine five witnesses, including I. and F., the police officers who had drawn up the arrest reports; K., the on-duty police officer at the Kitay-Gorod police station; Mr B., a fellow activist; and the first applicant. The request was granted in respect of I., F. and B. 24. The second applicant complained of unlawful detention during the first six hours after his arrest, poor conditions of detention at the KitayGorod police station and the acts and omissions of the officials at the Severnoye Izmaylovo police station. However, those complaints were not examined. 25. The Justice of the Peace questioned the witnesses. Police officers I. and F. stated that after the public meeting the second applicant had participated, together with some sixty people, in an unauthorised march from Chistoprudnyy Boulevard, through Bolshaya Lubyanka Street, Kuznetskiy Most Street and down Rozhdestvenka Street. The marchers had been obstructing the traffic, chanting slogans and ignoring police orders made on a loudspeaker to stop the march. They (I. and F.) had required the second applicant to follow them to the police bus in order to draw up a report on the administrative offence, but he had ignored them, so they had seized him by the arms; he had resisted, refusing to present his documents and calling out to the crowd. 26. The second applicant pleaded not guilty and contested the police officers’ testimonies. He testified that he had been arrested at the indicated address while walking alongside other people returning from the authorised meeting. He insisted that he had been arrested without any warning or orders from the police. 27. Witness B. testified that he “had been present during Mr Yashin’s arrest” and that “the policemen had not given Mr Yashin any orders before arresting him”. 28. On the same day the Justice of the Peace found the second applicant guilty of having disobeyed a lawful order of the police. She based her findings on the witness statements of I. and F., their written reports and the report on the administrative arrest. She dismissed the testimonies given by the second applicant and B. on the grounds that they had contradicted the police officers’ testimonies and reports. The second applicant was convicted under Article 19.3 of the Code of Administrative Offences and sentenced to fifteen days’ administrative detention. 29. The first applicant’s case was examined after the second applicant’s trial by the same Justice of the Peace, Ms B. In the interval between the two hearings the first applicant’s counsel was able briefly to access the case file of the second applicant and meet the first applicant for the first time. 30. According to the applicants, the proceedings in the first applicant’s case began in the absence of members of the public, who were prevented from entering the hearing room. Many were barred from approaching the courthouse, which was cordoned off by the police. Later, during the proceedings, eight journalists were allowed in at the first applicant’s insistent requests. The Government contended, on the contrary, that the proceedings in this case had been open to the public. 31. At the beginning of the trial the first applicant requested that the case be transferred, in accordance with the statutory rules, to a court at his place of residence; that the hearing be adjourned in order to give him time to prepare his defence; that the verbatim records of the hearing be kept open; that copies of the complaints that he had lodged at the police stations the previous night be made available to him; and that five eyewitnesses of his arrest, including the second applicant, be called and examined. 32. The Justice of the Peace dismissed all of the requests, except one: that T. and A. be called as witnesses. The first applicant then challenged the Justice of the Peace, unsuccessfully. 33. I. and F. gave testimonies identical to those they had given in the second applicant’s case. The Justice of the Peace disallowed the following questions to I. and F put by the defence counsel: “What orders did you personally give to Mr Navalnyy?”, “Who gave the order to arrest Mr Navalnyy?” and “Why were two policemen’s reports identical?” 34. The first applicant pleaded not guilty and contested the police officers’ testimonies. He testified that he had been returning from the authorised meeting, walking, together with other people, not marching or chanting any slogans. However, the police had repeatedly obstructed their way and had then arrested them. He insisted that he had not received any orders from the police and had not resisted the arrest. 35. Witness T. testified that he had seen the applicant’s arrest. It had been noisy and he had not heard the police officers giving the first applicant any orders before arresting him. The police had announced through a loudspeaker “Your actions are unlawful” while surrounding a group of people, and had then begun arresting them. He had not seen the first applicant resisting the arrest. Witness A. testified that he had been walking down Teatralnyy Proyezd and had seen people in uniform arresting the first applicant on the pavement; during the arrest the police had announced through a loudspeaker “Your actions are unlawful”; witness A. had not seen the first applicant resisting the police during the arrest. 36. The first applicant requested that two video recordings of his arrest, shot by T. and A., be admitted as evidence. He also requested that the court obtain and examine the video footage which the police had at their disposal. Those requests were dismissed on the grounds that the court had no technical means of playing the recordings and that it would be unacceptable to use the devices provided by the defence. Those requests were not joined to the case file on the grounds that they had been submitted at the wrong stage of the proceedings. 37. According to the first applicant, most of the questions put by the defence to the witnesses were disallowed by the Justice of the Peace. She also refused to entertain his complaints concerning the lack of access to a lawyer, the refusal of a statutory phone call after the arrest, the allegedly unlawful detention during the first six hours after the arrest, the seizure of his possessions during the search, and the inhuman and degrading conditions of transfer and of detention at the Kitay-Gorod police station. 38. On the same day the Justice of the Peace found the first applicant guilty of having disobeyed the lawful order of the police. As in the second applicant’s case, she based her findings on the witness statements of I. and F., their written reports and the report on the administrative arrest. She dismissed the testimonies of the applicant, A. and T. on the grounds that they had contradicted the police officers’ testimonies and reports, and that no reasons for mistrusting the latter had been established. The first applicant was convicted under Article 19.3 of the Code of Administrative Offences and sentenced to fifteen days’ administrative detention. 39. On 6 December 2011 both applicants lodged appeals, claiming that their arrest and conviction for the administrative offence had been in breach of domestic law and in violation of the Convention. They contested the findings of fact made by the first instance as regards the events following their departure from the authorised meeting. In addition, they complained about the manner in which the first-instance hearing had been conducted, in particular, about the refusal of the Justice of the Peace to grant their requests, to admit the video materials as evidence and to call all the witnesses requested by the defence. They also challenged the grounds on which the court had dismissed the testimonies of the applicants and the defence witnesses. The applicants also complained of unlawful detention during the first six hours after their arrest, lack of access to a lawyer and the conditions in which they had been transferred between the police stations and remanded in custody at the Kitay-Gorod police station. 40. On 7 December 2011 the Tverskoy District Court of Moscow examined the applicants’ appeals in separate proceedings. In both cases the court dismissed the complaints about the refusals to hear witnesses and to admit the evidence requested by the applicants. It also rejected the applicants’ requests to have those witnesses called. It rejected the request to admit the video recordings in evidence because of their “unknown provenance”, and it refused to keep a verbatim record of the hearing because it considered it unnecessary. It granted the request to join a photograph of the first applicant’s arrest to the case file. On the same day the Tverskoy District Court dismissed the applicants’ appeals and upheld the first-instance judgment in both cases, citing the same reasons. 41. In the first applicant’s case the court held, in particular: “The Justice of the Peace has correctly established that Mr Navalnyy had disobeyed a lawful order of a police officer ..., in particular: at 8.45 p.m. on 5 December 2011 at 2 Teatralnyy Proyezd, Moscow (near Metropol hotel), after an authorised public event (meeting), in a park of Chistoprudnyy Boulevard, he participated with a group of about 60 people in a march that had not been notified to the executive authorities, went out on the road and continued walking from Chistoprudnyy Boulevard, down the side streets to Bolshaya Lubyanka Street, Kuznetskiy Most Street, and Rozhdestvenka Street in the direction of Red Square; by doing so he obstructed the traffic and created a risk of accident while shouting out “Shame!”, “This is our city!”, “Russia without Putin!”, “Down with the police state!”. In order to intercept the march a [police] cordon was set up at the crossroads of Pushechnaya and Rozhdestvenka Streets. Repeated lawful orders to stop and end the march were given through a loudspeaker; despite that, Mr Navalnyy with a group of people pushed through the cordon and came out onto Teatralnyy Proyezd while continuing to chant slogans, and there they were met by the police cordon. [He] did not react to the repeated lawful orders to stop these acts and disperse, continued his unlawful acts drawing the attention of citizens and the press. During his arrest Mr Navalnyy, in reply to an invitation to proceed to the police bus for the issuing of an administrative offence report, began to push away [I.] and [F.], trying to cause panic among people, and by doing so [he] manifested his refusal to comply with the lawful orders of the police and prevented them from carrying out their duties, an offence under Article 19.3 of the Code of Administrative Offences. ... Despite his denial, Mr Navalnyy’s guilt is proven by the report on the administrative charges ..., the statements of the police officers [I.] and [F.] [and] their testimonies given to the Justice of the Peace at the court hearing. The Justice of the Peace gave a correct and convincing assessment of this evidence, which led to the conclusion that Mr Navalnyy had deliberately refused to comply with the police officers’ lawful order to stop his actions breaching public order, and continued them in defiance of [the police order]. This evidence, which is relevant, admissible and credible, is consistent. No bias on the part of the aforementioned witnesses or grounds for them to slander Mr Navalnyy have been established [by the court], including the appeal instance; therefore the explanations of Mr Navalnyy, as well and the witness testimonies of A. and T., have been duly rejected for want of reliable corroboration; the ruling of the Justice of the Peace is sufficiently reasoned in this respect. ... ... As follows from the [escorting report] and the [detention report], the [police] had sufficient grounds for arresting Mr Navalnyy and for escorting him to the KitayGorod police station, Moscow, in particular, the impossibility of drawing up an administrative offence report on the spot. The reports comply with the requirements of the law, in substance and in form. At the same time the court dismisses the arguments of the defence concerning the unlawful deprivation of liberty during six hours as unsubstantiated. As follows from the case file, after his arrest at Teatralnyy Proyezd, at 2.30 a.m. on 6 December 2011 Mr Navalnyy was taken to the Kitay-Gorod police station, Moscow, where the administrative material against him was issued. On 6 December 2011 the administrative case was remitted to the Justice of the Peace. The police officers have complied with the terms of administrative detention provided for by Article 27.5 of the Code of Administrative Offences. ... During the [appeal] hearing ... Mr Yashin was examined as a witness. He testified that at the time of Mr Navalnyy’s arrest he had been with him at Teatralnaya Square. At the time of arrest [they] were on the pavement near the underpass, and did not commit any unlawful acts. About 100 people were blocked by the riot police. Then both Mr Navalnyy and Mr Yashin were arrested, virtually simultaneously. At this point the police officers did not give any orders, there was no disobedience on the part of [the applicants]. The police officers [I.] and [F.] did not take part in their arrest; their court testimonies were false. Giving its assessment of the witness testimony of Mr Yashin, the court finds it unreliable and dismisses it because it contradicts the testimonies of [I.] and [F.], which are logical, consistent, concordant and objectively corroborated by the written evidence ...” 42. The judgment held in the second applicant’s case was essentially the same, including the similar testimonies of the other applicant.
| 1 |
test
|
001-153317
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF SOLOMUN v. CROATIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicant was born in 1974 and lives in Sisak. 6. In 1993 the applicant took up employment with the Sisak-Moslavina Police Department (Policijska uprava sisačko-moslavačka) as a police officer. On 1 January 1998 he was assigned to a post in the Dvor Police Station (Policijska postaja Dvor). 7. Dvor is a municipality that receives special State support as defined by the legislation in force at that time, namely the Act on Areas receiving Special State Support (Zakona o područjima posebne državne skrbi, Official Gazette, nos. 44/1996, 57/1996, 124/1997 and 73/2000; hereinafter: the “Special State Support Act”). Among other things, that Act guaranteed to those employed in the public sector in areas receiving special State support a special salary uplift, which in the case of the Dvor municipality amounted to 50% of the salaries received in other parts of the country. 8. The amendments to the Special State Support Act which entered into force on 29 July 2000 (Official Gazette no. 73/2000) guaranteed the right to a special salary bonus only to those public sector employees in areas receiving special State support who had both their registered domicile (prebivalište) and also actually resided (borave) in the area at issue. 9. In May 2001 the applicant was assigned to another post in the Sisak-Moslavina Police Department, with his place of work being Sisak. 10. On 29 September 2000 the applicant brought an action against the State in the Kutina Municipal Court (Općinski sud u Kutini), seeking payment of a salary bonus in accordance with the Special State Support Act. 11. Soon afterwards the Kutina Municipal Court decided that it was not competent to hear the case and transferred it to the Hrvatska Kostajnica Municipal Court (Općinski sud u Hrvatskoj Kostajnici). 12. During the proceedings before the Hrvatska Kostajnica Municipal Court, the Sisak State Attorney’s Office (Općinsko državno odvjetništvo u Sisku) ‒ representing the State ‒ objected to that court’s territorial jurisdiction, arguing that the applicant had his domicile and lived in Majur, which was also within an area receiving special State support but outside the territorial jurisdiction of the Hrvatska Kostajnica Municipal Court. The Sisak State Attorney’s Office also submitted that the applicant had been receiving expenses for travel between Sisak and Dvor and that he was not entitled to the special salary bonus as provided under the Special State Support Act because Sisak was not an area receiving special State support. 13. The applicant replied to these submissions with the argument that during his tenure in Dvor he had had authorisation to use a police car, and that he had in fact lived in Majur, but since his house had not been fully reconstructed after the war, he had also spent some time in Sisak. 14. With regard to the contentious submissions of the parties, the Hrvatska Kostajnica Municipal Court heard evidence from the applicant, who pointed out that during his tenure in Dvor his registered domicile had been Majur, where he had actually resided ‒ some of the time in his own house and some of the time with his sister, since his house had needed reconstruction. He also explained that he had had authorisation to use a police car and had also been entitled to travel expenses, even though he had actually lived in Majur. 15. On 2 October 2003 the Hrvatska Kostajnica Municipal Court accepted the applicant’s civil action, ordering the State to pay compensation for his special salary bonus in the total amount of 67,214.69 Croatian kunas (HRK), together with the statutory default interest, for the period between 1 February 1998 and 1 May 2001, and to reimburse him the costs of the proceedings in the amount of HRK 7,978.80. 16. The Hrvatska Kostajnica Municipal Court pointed out that the applicant’s statement as to his domicile and his residence was credible and nothing called it into doubt. It also stressed that the Sisak State Attorney’s Office had neither provided any evidence nor challenged the veracity of the applicant’s statement. Instead, it had argued in its submissions that the applicant had both his domicile and his residence in Majur, within an area receiving special State support. As to the submission concerning travel expenses, the Hrvatska Kostajnica Municipal Court considered that this was a matter relating to the employment conditions of civil servants, which did not in itself have any bearing on the applicant’s domicile and residence. Against this background, the Hrvatska Kostajnica Municipal Court found that the applicant’s claim should be accepted. 17. On 22 October 2003 the Sisak State Attorney’s Office challenged the first-instance judgment before the Sisak County Court (Županijski sud u Sisku) contending that the applicant had only had his domicile in Majur, whereas the travel expenses suggested that he had in fact lived in Sisak. It thus considered that the applicant did not satisfy the criteria of the Special State Support Act necessary to qualify for a special salary uplift. 18. In a decision of 26 February 2004 endorsing all the factual and legal findings of the first-instance judgment, the Sisak County Court dismissed the appeal by the Sisak State Attorney’s Office. The first-instance judgment thus became final. 19. On 19 April 2004 the Kutina Municipal Court opened enforcement proceedings against the State on the basis of the final and enforceable judgment in the applicant’s favour. 20. The judgment was fully enforced on 26 April 2004 by payment of the due amount to the applicant. 21. On 20 May 2004 the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) lodged a request for the protection of legality (zahtjev za zaštitu zakonitosti) with the Supreme Court (Vrhovni sud Republike Hrvatske) against the part of the final judgment of the Hrvatska Kostajnica Municipal Court by which the applicant had been awarded HRK 19,238.59 for the period between 11 August 2000 and 5 May 2001 on account of the special salary uplift. It reiterated that the travel expenses which the applicant had received suggested that he had actually resided in Sisak in the period at issue, which could also be deduced from the fact that he had provided an address in Sisak in the civil action he lodged before the Kutina Municipal Court. Thus, once the 2000 amendments to the Special State Support Act had entered into force (see paragraph 8 above), the applicant had no longer been entitled to the special salary bonus since he had no longer resided in an area receiving special State support, which was a precondition for the special uplift, as explained in the judgment of the Supreme Court no. Gzz-190/03 of 18 February 2004. 22. The applicant challenged the request for the protection of legality, arguing that it could not be used as a remedy and that it substantially contradicted the general position on the matter adopted at the meeting of the Civil Division of the Supreme Court on 13 June 2003. 23. On 14 April 2005 the Supreme Court approved the request for the protection of legality, quashed the second-instance judgment in the impugned part, and remitted the case to the Sisak County Court. The Supreme Court held that the 2000 amendments to the Special State Support Act made it clear that civil servants employed in an area receiving special State support who applied for a special salary bonus should also have their domicile and residence in that area. It therefore ordered the Sisak County Court to reassess the appeal arguments of the Sisak Municipal State Attorney’s Office as to whether or not such conditions had been met in the applicant’s case. 24. On 7 December 2006 the Sisak County Court accepted the Sisak Municipal State Attorney’s Office appeal, reversing the first-instance judgment of the Hrvatska Kostajnica Municipal Court in the part in which the applicant was granted HRK 19,238.59 for the period between 11 August 2000 and 5 May 2001 on account of the special salary uplift, and ordering the applicant to repay that amount together with the statutory default interest. The Sisak County Court also reversed the first-instance judgment in the part concerning the costs of the proceedings. 25. The Sisak County Court held that the evidence adduced before the first-instance court suggested that in the period at issue the applicant had not in fact resided in an area receiving special State support, and thus had not met all the requirements under the 2000 amendments to the Special State Support Act concerning the right to a special salary uplift. 26. On 30 January 2007 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgment of the Sisak County Court of 7 December 2006, challenging the use of a request for the protection of legality in his case. 27. On 29 April 2010 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, holding that the lower courts had acted in accordance with the law. The decision of the Constitutional Court was served on the applicant on 31 May 2010. 28. According to a certificate issued by the Ministry of the Interior on 30 December 2013, pursuant to the above proceedings the applicant repaid the total amount of HRK 28,700 from his salary to the State.
| 1 |
test
|
001-173398
|
ENG
|
SMR
|
ADMISSIBILITY
| 2,017 |
VANNUCCI v. SAN MARINO
| 4 |
Inadmissible
|
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Robert Spano
|
1. The applicant, Mr Luciano Vannucci, is a San Marinese national who was born in 1949 and lives in Faetano. He was represented before the Court by Mr A. Campagna, a lawyer practising in Dogana. summarised as follows. 3. In 2009 criminal proceedings were instituted in Italy against a named individual, X, who was charged, inter alia, with issuing invoices for fictitious operations (emissione di fatture per operazioni inesistenti) and fraudulent bankruptcy to the detriment of an Italian company, C. (under the control of X and later declared bankrupt on an unspecified date). 4. In the context of the above-mentioned Italian proceedings against X, the Public Prosecutor’s Office in Milan sent a letter of request (no. 81/2009) to the San Marino judicial authorities, seeking their assistance in accordance with Article 29 of the bilateral Convention on Friendship and Good Neighbourhood between San Marino and Italy of 1939. The request was aimed at obtaining information and documents and carrying out searches in all the San Marinese banks, fiduciary institutions and companies involved with X. 5. In particular, the Public Prosecutor stated that investigations into fraudulent bankruptcy had begun after company C. had been declared bankrupt as it was suspected that the funds used to pay the abovementioned invoices for fictitious operations and other large amounts of money had been taken from the assets of company C. It further transpired that once company C. had gone bankrupt, 1,373,814.10 euros (EUR) had been transferred from a current account owned by the Italian company F. to a current account (no.1) owned by a San Marinese company, Z., via three cheques. To justify such transfers, Z. had issued a series of false sales invoices. 6. On 13 January 2009 the sum of EUR 1,273,814 had been transferred from company Z.’s current account to another current account (no. 2) that was also in its name. 7. A series of cash withdrawals amounting to EUR 1,224,500 had been made from account no. 2 and over the same period of time a similar amount had been deposited in a current account connected to a fiduciary mandate under no. MS1314/A, which had been opened on 27 February 2009 by a certain B. in his capacity as legal representative of a certain, named company. 8. On the basis of the information provided by the Italian Public Prosecutor, on 30 April 2009 the investigating judge (Commissario della Legge Inquirente), considering that all the requirements set by the law for the execution of letters of request had been fulfilled, accepted the Italian request in relation to fraudulent bankruptcy and ordered the execution of the request by means of an exequatur order. 9. The investigating judge ordered the search of a specific San Marinese bank in order to obtain all the documents and relevant information related to current account no. 1, into which the three cheques had been paid. The judge also ordered the bank to submit a copy of all the relevant documents in its possession within ten days. The judge further ordered the freezing of account no. 1 and the seizure of all the money in it, which had been traced back to X, and company Z, as well as the freezing of any other current accounts and the seizure of their contents if any money from current account no. 1 could possibly have been transferred there. In addition, any legal entities or individuals concerned, who had been notified of the exequatur order, were ordered to submit a copy of all the relevant documents in their possession within ten days. 10. On 4 May 2009 the judicial police (Polizia Giudiziaria) carried out the exequatur order by freezing current accounts nos. 1 and 2 (both belonging to company Z.), which at the time had balances of EUR 690.22 and EUR 99,460.47 respectively. Some documents related to the two current accounts were also seized during the same search. 11. On an unspecified date, one of the institutions that had been served with the exequatur order (company F.P.) informed the authorities that it administered a fiduciary mandate put in place by “one of the accused people” (the above-mentioned fiduciary mandate no. MS1314/A). As a consequence, on 6 May 2009 the judicial police seized a further EUR 1,194,290 from the current account connected to the mandate and EUR 5,000 deposited in a bearer savings book (libretto al portatore) belonging to the new administrator of company F. (a certain P.). The total sum was thus EUR 1,299,440.69. 12. On an unspecified date the Public Prosecutor’s Office in Milan sent another letter of request to the investigating judge (no. 110/2009) as a complement to letter no. 81/2009. The request was aimed at charging the applicant and another person, M., with the offence of money laundering. 13. By a decision of 8 June 2009 the investigating judge accepted the request in relation to the crime of money laundering and instructed the judicial police to identify the applicant and to question him and M. within twenty days. Moreover, considering that the alleged offence had been committed in San Marino, the judge also ordered the institution of criminal proceedings against the applicant and M. for money laundering under Article 199 bis of the Criminal Code. 14. On 22 March 2011, the Italian Public Prosecutor, in the context of the proceedings under letter of request no. 81/2009, asked the investigating judge to release all the money that had been seized so it could be returned to the bankrupt company C. and for control (affidamento) to be given to the insolvency administrator of the company who had been joined as a civil party to the Italian proceedings for fraudulent bankruptcy. The request was made after a similar one had been submitted directly by X. to the San Marinese courts on 4 March 2011. That request was attached to the one from the Public Prosecutor. 15. The investigating judge accepted the request made by the Italian Public Prosecutor by a decision of 23 March 2011. In line with Article 25 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism of 2005, ratified by San Marino in 2010, the judge ordered that sums that had been seized and traced back to X should be released and returned to company C. and that control of the money should be given to the insolvency administrator of the bankrupt company. 16. On 4 April 2011, the judicial police executed the above-mentioned decision by releasing EUR 1,211,384.50 and transferring it to company C.’s current account. 17. Neither the decision of 23 March 2011 nor the subsequent police report concerning the execution of the order were ever notified or communicated to the applicant or to any other accused party in the criminal proceedings no. 665/RNR/2009. 18. By a judgment delivered in the above-mentioned criminal proceedings on 13 June 2013, filed in the registry on 23 December 2013 and notified to the applicant on 16 January 2014, the first-instance criminal judge (Commissario della Legge Decidente) found the applicant and four other people guilty of money laundering under Articles 50, 73 and 199 bis of the Criminal Code, over the period of January to April 2009. The applicant was sentenced to three years and six months’ imprisonment and prohibited for four years and six months from holding public office and exercising political rights or running a business. 19. The judge held that the applicant had had the operational role of organising the companies’ structures, which were then used to disguise the various money transfers which had constituted money laundering. According to the judge it had been shown that the money transferred to the company Z.’s current accounts had come from F. and had originally derived from the bankrupt company C. 20. The judge, applying Article 147 of the Criminal Code, also ordered the confiscation of the money that was still subject to the seizure order and which had not been transferred to company C. (EUR 104,440.69). He also sentenced the applicant and his co-accused to pay, in solidum, EUR 1,273,673.41 (the sum returned to company C.), known as “confiscation by way of equivalent measures” (confisca per equivalente), in accordance with Article 147 § 3 of the Criminal Code (see paragraph 31 below). The order was issued because it was impossible to confiscate the further amount of money considered to have been laundered as it had been returned to company C. 21. On 17 February 2014, the applicant appealed against his conviction, challenging, inter alia, the order to pay the equivalent amount of money. 22. The applicant complained that the order to pay EUR 1,273,673.41 had to be considered as an unfair duplication of the penalty against him, noting that that sum of money had previously been seized and then transferred (in accordance with the investigating judge’s decision) by way of compensation to the company that had been the victim of bankruptcy, without involving the applicant or his co-defendants. 23. The applicant complained that the inability to carry out a “direct confiscation”, which was a prerequisite under the law for applying “confiscation by way of equivalent measures”, had not been the result of any actions by him, and thus he should not have been held responsible for the payment of such an amount. 24. The applicant also mentioned the unconstitutionality of, on the one hand, the “overlapping” of compensation for victims and, on the other, the confiscation of an equivalent amount of money. He argued that that had led to an unjustified payment by those who had been sentenced. 25. On 17 March 2014 the applicant made further written submissions, reiterating, inter alia, the argument of unconstitutionality. 26. By a judgment of 8 January 2015, filed in the registry on 14 January 2015, the applicant’s appeal was dismissed by the Judge of Criminal Appeals (Giudice d’Appello Penale). 27. The judge noted that the complaint regarding the confiscation of an equivalent amount had to be considered as clearly irrelevant given the fact that Article 147 § 3 of the Criminal Code (as modified by Law no. 28 of 26 February 2004), did not provide that the prerequisite for such a confiscation order was that “direct confiscation” had been made impossible by the defendant. The judge further noted that at the time of the firstinstance judgment it had not been possible for the judge to order the direct confiscation of all the assets which had been laundered as most of them had already been transferred to company C. The judge had therefore been correct in ordering the accused, including the applicant, to pay an equivalent amount of money. 28. Article 29 of the Bilateral Convention on Friendship and Good Neighbourhood between Italy and San Marino of 1939, in so far as relevant, reads as follows: “The judicial authority of each contracting State, following a request from the other contracting State, shall notify acts, execute acts in conjunction with preliminary investigations, including the seizure of objects constituting the corpus delicti, and carry out any other act related to criminal proceedings ongoing before the abovementioned authorities.” 29. Article 25 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism of 2005, ratified by San Marino on 2010, in so far as relevant, reads as follows: “1. Property confiscated by a Party pursuant to Articles 23 and 24 of this Convention, shall be disposed of by that Party in accordance with its domestic law and administrative procedures. 2. When acting on the request made by another Party in accordance with Articles 23 and 24 of this Convention, Parties shall, to the extent permitted by domestic law and if so requested, give priority consideration to returning the confiscated property to the requesting Party so that it can give compensation to the victims of the crime or return such property to their legitimate owners. 3. When acting on the request made by another Party in accordance with Articles 23 and 24 of this Convention, a Party may give special consideration to concluding agreements or arrangements on sharing with other Parties, on a regular or casebycase basis, such property, in accordance with its domestic law or administrative procedures.” 30. Article 199 bis of the Criminal Code, as amended by Chapter 2, Article 7 of Law no. 28 of 26 February 2004, and by Article 77 § 2 of Law 92 of 17 June 2008, as applicable at the time of the facts (JanuaryApril 2009) in so far as relevant, read as follows: “1. A person is guilty of money laundering, where, except in cases of aiding and abetting, he or she conceals, substitutes, transfers or co-operates with others to so do, money which he knows or should know was obtained as a result of crimes not resulting from negligence or contraventions, with the aim of hiding its origins. 2. or whosoever uses, or cooperates or intervenes with the intention of using, in the area of economic or financial activities, money which he knows or should know was obtained as a result of crimes not resulting from negligence or contraventions.” 3. If the crime at the origin of the laundered money has been committed in a foreign country, such a crime has also to constitute a prosecutable criminal offence in San Marino (deve essere penalmente perseguibile e procedibile anche per l’ordinamento Sammarinese) ... 7. The judge applies the penalty provided for the predicate offence if it is less heavy.” 31. Article 147 of the San Marino Criminal Code, as modified by Article 5 of Law no. 28 of 26 February 2004, read at the time of the commission of the offence in the present case (January – April 2009) as follows: “1. In a judgment of conviction, the Judge shall order (il giudice ordina) the confiscation of the items belonging to the convicted person which were used or were intended to be used to commit the crime, as well as the confiscation of the price, the product, and the profit of the crime. ... 3. In a judgment of conviction the Judge shall always order (è sempre obbligatoria) the confiscation of the items which were used or were intended to be used to commit the offence ex Art.199 bis (money laundering), or offences connected to terrorism, or offences with the purpose of subverting the constitutional order, as well as ordering the confiscation of the price, the product and the profit of the crime. If confiscation is not possible the Judge shall order (impone l’obbligo di) the payment of an amount of money equivalent to the value of the above-mentioned items. 4. The confiscated items or the equivalent amount of money shall be allocated to the State Revenue Service or, if necessary, destroyed.”
| 0 |
test
|
001-182217
|
ENG
|
RUS
|
CHAMBER
| 2,018 |
CASE OF TSVETKOVA AND OTHERS 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 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of sentence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom
|
4. This application was lodged on 20 October 2008 by Svetlana Ivanovna Tsvetkova, who was born in 1972 and lives in Irkutsk. 5. At 10 p.m. on 1 January 2008 Officer S. escorted the applicant to the police station, in accordance with Article 27.2 of the Federal Code of Administrative Offences (“the CAO”) (see paragraph 67 below), on suspicion of shoplifting. 6. Officer B. compiled an arrest record under Article 27.3 of the CAO (see paragraph 69 below). The administrative arrest record reads as follows: “I, Officer B., ... compiled the present administrative arrest record in respect of: [the applicant’s name, date of birth, address] ... who has been escorted to ... on 1 January 2008 at 10 p.m., on account of an administrative offence under Article [blank] of the CAO. Reasons for the arrest (Article 27.3 of the CAO): [blank] ...” 7. According to the applicant, after she had been taken away by the police, her minor son (who had apparently been with her in the shop) had been left unattended in the cold. The applicant was then subjected to a humiliating body-search procedure and was asked to take off her clothes, remaining in her underwear. She was then kept with drunk people in a small cell with no seats and no toilet. 8. In her application to the Court, the applicant specified that she had been released at 3 a.m. on 2 January 2008. In her observations before the Court, she specified that she had been released “after 4 a.m.”. According to the Government, the applicant was released at 0.35 a.m. 9. The applicant was not subsequently prosecuted for an administrative offence or a criminal offence. 10. Considering that the police actions in respect of her and the degrading treatment to which she had been subjected were sufficiently serious so as to amount to a criminal offence, on 27 May 2008 the applicant sought the institution of criminal proceedings against officer S., referring, inter alia, to the unlawful deprivation of liberty. 11. On 16 June 2008 an investigator refused to open a criminal case, finding that the officer had not committed any abuse of power, which was a criminal offence punishable under Article 286 of the Criminal Code. The investigator referred to a statement from B. affirming that the applicant had been taken to the police station on suspicion of theft. 12. On 20 June 2008 a superior officer overruled the refusal to open a case. A new refusal was issued on 30 June 2008 by the same investigator. That was also then overruled. 13. A further refusal was issued on 11 December 2008 and the applicant sought a judicial review. On 19 January 2009 the Oktyabrskiy District Court of Irkutsk confirmed the refusal. On 26 February 2009 the Irkutsk Regional Court set aside the judgment, considering that the applicant’s allegations concerning the unlawfulness of her arrest had not been examined. 14. The District Court then declined jurisdiction in favour of another court, but that was declared unlawful on appeal. 15. On 8 May 2009 the District Court discontinued the case because on 7 May 2009 the impugned refusal to prosecute had been overruled by a superior officer. However, a new refusal was issued on 12 November 2009 as regards offences under Articles 285, 286 and 293 of the Criminal Code. This refusal was then upheld by a final judgment of the Regional Court on 9 September 2010. 16. This application was lodged on 28 January 2011 by Aleksandr Vitalyevich Bgantsev, who was born in 1958 and lives in Volgograd. The applicant was represented before the Court by Ms Y. Lepilina, a lawyer practising in the Volgograd Region. 17. On 30 August 2010 the applicant’s superior, Mr I., called the police to report that the applicant had used (unspecified) foul language at his work place. Officer O. ordered the applicant to accompany him to the police station. The applicant refused and said that nothing prevented the officer from compiling an administrative-offence record on the spot. The officer insisted, stating that it would be more convenient for him to do it at the police station. The applicant obeyed and was escorted to the police station at around 1 p.m. (in accordance with Article 27.2 of the CAO). At 3.40 p.m. he was subjected to the arrest procedure (Article 27.3 of the CAO). The arrest record reads as follows: “[The applicant] was escorted to the police station at: 3.40 p.m. On account of: an administrative offence under: Article 20.1 of the CAO For the purpose(s) of Article 27.3 of the CAO: for taking a decision.” 18. Officer O. compiled the administrative-offence record, which reads as follows: “[The applicant] used foul language in the presence of Mr I. and continued his unruly behaviour, despite being asked to stop. Thus, [the applicant] committed an offence under Article 20.1 of the CAO. Witnesses to the offence: Mr K.; Mr M.” 19. The applicant spent the night at the police station. 20. On 31 August 2010 the applicant was taken before a justice of the peace, who held a hearing at which he examined the applicant, as well as I., K. and M. On the same day, the justice of the peace convicted the applicant of minor hooliganism (Article 20.1 of the CAO) and sentenced him to five days of detention. 21. The applicant started to serve the sentence on the same day, in the police station. Between 30 August and 4 September 2010 he was locked in cells measuring six square metres and accommodating, on average, four detainees. Each cell was equipped with two benches some 35 cm in width. There was no window and no ventilation system. The other detainees smoked cigarettes, which caused discomfort to the applicant, who was not a smoker. There was no bed or bedding. The applicant was not provided with food or allowed outdoors. Access to a toilet (which was apparently outside the cell) was available every four hours (or sometimes every eight hours). The applicant submitted written statements from three co-detainees in support of his allegations. 22. The applicant was released at 3.40 p.m. on 4 September 2010. 23. On 4 October 2010 the Krasnoarmeyskiy District Court of Volgograd held an appeal hearing and examined the applicant, I., K., M. and Officer O. The appellate court upheld the judgment of 31 August 2010. On 3 November 2010 the Volgograd Regional Court upheld the judgments following a review. 24. This application was lodged on 1 February 2013 by Pavel Vladimirovich Andreyev, who was born in 1989 and lives in Syktyvkar. The applicant was represented before the Court by Ms I. Buryukova, a lawyer practising in the Moscow Region. 25. On 9 December 2011 the applicant distributed leaflets in various police stations, urging the police not to use force to disperse public gatherings which were to be held on 10 December 2011, after the contested elections to the State Duma earlier that month. 26. At 11 p.m. the traffic police took the applicant to the police station on suspicion of evading military service. At 11.50 p.m. the applicant was charged with an administrative offence under Article 20.25 of the CAO on account of an unpaid fine of 300 roubles (RUB) (equivalent to 7 euros (EUR)) for a traffic offence. The charge concerning evasion of military service was not pursued. 27. The arrest record reads as follows: “[The applicant] was escorted to the police station: at 11.30 p.m. On account of an administrative offence: under Article 20.25 of the CAO. For the purposes of Article 27.3 of the CAO: for compiling an administrative record.” 28. The applicant was not released after the administrative-offence record had been drawn up, but was instead placed in a detention centre at 2 a.m., for reasons which were not specified. 29. At 3 p.m. on 11 December 2011 the applicant was taken before a justice of the peace, who then sentenced him to two days of detention for the offence under Article 20.25 of the CAO. The applicant was then taken back to the detention centre and was released at around 11.30 p.m. 30. The applicant appealed. On 31 January 2012 the Syktyvkar Town Court upheld the conviction. 31. The applicant brought proceedings, under Chapter 25 of the Code of Civil Procedure (“the CCP”), to challenge the deprivation of his liberty from 2 a.m. on 10 December 2011 to 3 p.m. the next day. By a decision of 12 May 2012, the Town Court discontinued the proceedings. On 2 August 2012 the Supreme Court of the Komi Republic upheld the decision. On 4 March 2013 the cassation instance of the same court confirmed it. The courts considered that while neither the CCP nor the CAO set out a separate procedure for challenging the measures of being escorted to the police station or of administrative arrest, arguments concerning those measures could be raised during an examination of the related CAO charges against the applicant, as well as in an appeal against a decision that had been taken on such charges. 32. In separate proceedings, the applicant lodged a claim for compensation, arguing that Article 27.4 required that a record of administrative arrest was to specify reasons for the arrest; the record of his arrest referred to the need to compile the administrative-offence record; such record had been compiled late at night on 9 December 2011; thereby the justification for his arrest had been exhausted and could no longer justify his continued deprivation of liberty on 10 and 11 December 2011. The applicant concluded from the above that the unlawful deprivation of liberty on those dates served as a legal basis for obtaining compensation on account of the non-pecuniary damage suffered. 33. By a judgment of 19 September 2012, the Town Court dismissed the applicant’s claim. The court considered that the matters relating to his being taken to the police station and the ensuing administrative arrest had been examined in the CAO case and there were therefore no reasons to award compensation. On 20 December 2012 the Supreme Court of the Komi Republic upheld that judgment. On 27 May 2013 the same court dismissed a cassation appeal lodged by the applicant, stating as follows: “... [The applicant] was escorted to the police station for the compiling of a record of administrative offence ... With a view to the correct and expedient examination of the case, he was subjected to the measure of administrative arrest ... The actions of the police officers relating to the escorting and the arrest procedures were assessed by the courts dealing with the administrative charge and were, in substance, declared lawful ... The claimant’s argument that the courts in a civil case should assess the lawfulness of the police actions is based on a wrong interpretation of the law ... It is not appropriate to challenge the procedure of administrative arrest within the procedure under Chapter 25 of the Code of Civil Procedure, where there is a decision to engage the liability of a person for an administrative offence ...” 34. This application was lodged on 5 September 2014 by Aleksey Olegovich Dragomirov, who was born in 1980 and lives in Roslavl in the Smolensk Region, Russia. 35. On various dates between 2001 and 2008, including from 9 to 11 June 2008 (see below), the applicant was kept in a temporary detention centre. According to him, the cells had no toilet; he had had to relieve himself in a bucket; there was no running water available in the cells, and no access to shower facilities. 36. According to a written report by Officer S., at 2.45 p.m. on 9 June 2008 he arrested the applicant for being drunk and looking untidy in a public place, and took him to the police station where he then remained until he sobered up. It appears, however, that the applicant was actually arrested (apparently, by another officer) and then tested for alcohol intoxication around 6 p.m. and 10.45 p.m. respectively (see paragraph 38 below). On 10 June 2008 before a justice of the peace the applicant admitted that he had consumed vodka with a friend in the morning the day before but denied that he had appeared untidy at 2. 45 p.m. or had been drunk or otherwise behaving in a manner offending public morals or human dignity. On the same day, referring to S.’s report, a medical report (the contents of which are not clear) and an arrest record, the justice of the peace convicted the applicant of an administrative offence under Article 20.21 of the CAO on account of being drunk in a public place at 2.45 p.m. on 9 June 2008 while having an untidy appearance, thus offending human dignity and public morals. The justice of the peace sentenced him to five days of administrative detention. 37. The applicant started to serve his sentence on 10 June 2008. 38. The applicant appealed. On 11 June 2008 the Bolsheukovskiy District Court quashed the conviction and discontinued the case for lack of any evidence to confirm the facts as imputed to the applicant. The appeal court considered that there had been nothing to suggest that the applicant had had an untidy appearance which offended human dignity or public morals; around the same time the applicant had had an appointment at the prosecutor’s office and no complaint had been made concerning his appearance or any state of drunkenness. The appeal decision reads as follows: “The defendant was convicted of being drunk and looking untidy in a public place at 2.45 p.m. on 9 June 2008 ... [The applicant] stated that he had consumed vodka with a friend in the morning of 9 June 2008; had then attended a sauna, had put clean clothes, had had lunch and had then gone to attend a meeting in the district prosecutor’s office; he had not seen any police officer at 2.45 p.m. ... Mr Se. stated before the appeal court that he had had a meeting with [the applicant] at 3 p.m. While he could see that [the applicant] had consumed alcohol, he conducted himself, looked and spoke properly ... Officer S. stated that he had been told on 9 June 2008 of [the applicant] being drunk but he had actually not seen him at 2.45 p.m. and had actually not effected his arrest at that time ... The file contains a medical report compiled at 10.45 p.m. and the arrest record indicating that the defendant had been arrested at 6.05 p.m. There is no other evidence in the file. The trial court relied on S.’s report, the medical report and the arrest record. However, it has now been established that the defendant was examined and arrested much later than at 2.45 p.m. on 9 June 2008 ... S.’s presentation of facts is not truthful and contradicts his earlier report. Shortly after that time the defendant was at the district prosecutor’s office and testified before an investigator [Se.]. His appearance and conduct did not offend human dignity and public morals ... So it has not been established that the defendant committed any offence under Article 20.21 of the CAO ... The proceedings should be discontinued for lack of a corpus delicti ...” 39. The applicant was released on 11 June 2008. 40. The applicant brought civil proceedings, seeking compensation in the amount of RUB 100,000 (equivalent to EUR 2,000) in respect of nonpecuniary damage owing to the conditions of his detention and the unlawful penalty of administrative detention. By a judgment of 5 March 2014, the District Court awarded the applicant RUB 5,000 (EUR 100 according to the Bank of Russia rate on the relevant date) on the basis of the fact that the prosecution had been discontinued. On 4 June 2014 the Omsk Regional Court upheld that judgment. 41. This application was lodged on 24 October 2014 by Viktor Grigoryevich Torlopov, who was born in 1963 and lives in Syktyvkar, Komi Republic. The applicant was represented before the Court by Ms I. Buryukova, a lawyer practising in the Moscow Region. 42. Section 8 of the Public Events Act of 2004 banned public gatherings “in the immediate vicinity of court buildings”. Relying on that provision of the Act, in 2011 the Syktyvkar town administration decided to ban the holding of public events within a radius of 150 metres of any court, to be measured from the entrance to each court building in the town. 43. At 9 a.m. on 12 October 2011, as part of a series of solo demonstrations held in late 2011, the applicant placed himself within a fenced-off area around the building housing the prosecutor’s office. He was holding a poster that read “The prosecutor’s office should return Stefanovskaya Square to demonstrators!”. 44. After ten minutes the police ordered the applicant to stop the demonstration because it was being held in the vicinity of the Town Court building. He was handcuffed and, allegedly, physical force was used against him. He was then taken to the police station and subjected to the measure of administrative arrest. The relevant record reads as follows: “[The applicant] arrived at the police station at ‘11.25’ in connection with offences under: ‘Article 20.2, Article 19.3 of the CAO’ For (among the grounds listed in Article 27 of the CAO): for compiling a record of administrative offence ...” 45. The applicant was released at 8.30 p.m. He was later admitted to hospital. 46. By a judgment of 6 December 2011, a justice of the peace convicted the applicant under Article 20.2 of the CAO and sentenced him to a fine of RUB 500 (equivalent to EUR 12 at the time). On 14 March 2012 the Syktyvkar Town Court upheld the judgment. However, on 23 August 2013 the Supreme Court of the Komi Republic set aside the above judgments and discontinued the case. The court considered that there had been no evidence that the place where the applicant had stood was assigned to the territory of the Town Court under the applicable laws and regulations. 47. The applicant brought civil proceedings for compensation on account of the unlawful deprivation of his liberty on 12 October 2011. By a judgment of 12 February 2014, the Town Court dismissed his claim. On 24 April 2014 the Supreme Court of the Komi Republic upheld that judgment. The court observed as follows: (a) Having regard to Articles 5, 10 and 11 of the Convention and the ruling of the Plenary Supreme Court of Russia dated 27 June 2013 (concerning the application of the Convention by courts of general jurisdiction), the police’s action in taking the applicant to the police station had been proportionate and had pursued a legitimate aim; it had been of short duration, and had not involved any recourse to physical force. (b) The measure of taking the applicant to the police station had been aimed at ensuring prosecution for an administrative offence, including the drawing up of an arrest record. 48. This application was lodged on 30 September 2015 by Kirill Valentinovich Svetlov, who was born in 1990 and lives in Cherepovets in the Vologodsk Region. 49. On 4 September 2015 the applicant’s car was stopped by the police. The applicant was accused of an administrative offence under Article 12.7 of the CAO because he had no valid driving licence. The applicant was taken to the police station where he went through the procedure of being placed under administrative arrest. His mobile telephone was seized. 50. According to the applicant, he was not informed of his procedural rights, including the right to remain silent, when he was pulled up by the police, or at the police station. 51. On 6 September 2015 (a Sunday) the applicant was taken before a justice of the peace. At the hearing, the applicant asked for a lawyer. The judge adjourned the hearing for thirty minutes to allow the applicant to contact a lawyer. According to the applicant, during the break in the hearing, a guard took him to a metal cage where defendants were kept; the applicant had no access to a telephone. According to the Government, the applicant was not kept in a metal cage but in a room measuring some twelve square metres. 52. According to the Government, after the adjournment the applicant waived his right to legal assistance and opted to defend himself. The applicant submitted that he had not made any such statement. 53. The justice of the peace convicted the applicant of the offence and sentenced him to five days of administrative detention, to be counted from 4 September 2015. The justice of the peace stated that the applicant’s guilt was confirmed by, inter alia, the record of administrative offence compiled by the police as well as by the applicant’s guilty plea. The justice of the peace had dismissed as unsubstantiated his argument that as a military officer, he could not be sentenced to administrative detention. 54. The applicant began his sentence the same day. 55. On 8 September 2015 the applicant appealed. In his statement of appeal he mentioned that he had had difficulties with legal assistance since no law firms would be open on a Sunday. He was released on 9 September 2015. 56. On 18 September 2015 the Cherepovets Town Court examined the applicant and upheld the judgment against him. It stated, inter alia, that the justice of the peace had not been provided with any proof that the applicant was a military officer. It is unclear whether the applicant adduced the relevant evidence in the appeal proceedings. 57. The applicant also lodged a constitutional complaint. By decision no. 2732-O of 19 November 2015, the Constitutional Court held that the immediate execution of the sentence of administrative detention had not contravened the Constitution (see “Relevant domestic law and practice”, paragraph 79 below). 58. On 26 November 2015 the Vologda Regional Court dismissed an application by the applicant for review of the court decisions of 6 and 18 September 2015. 59. On 1 April 2016 the Supreme Court of Russia dismissed a further application for review lodged by the applicant.
| 1 |
test
|
001-173373
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF POTAPYEVA AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6-1 - Reasonable time)
|
Branko Lubarda;Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings.
| 1 |
test
|
001-162211
|
ENG
|
TUR
|
CHAMBER
| 2,016 |
CASE OF CUMHURİYET HALK PARTİSİ v. TURKEY
| 1 |
Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)
|
András Sajó;Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Ksenija Turković
|
4. The applicant party is a Turkish political party based in Ankara. 5. Supervision of the finances of political parties in Turkey is entrusted to the Turkish Constitutional Court (“the Constitutional Court”) under Article 69 of the Constitution. Accordingly, all political parties are obliged to submit their consolidated final accounts annually to the Constitutional Court, which reviews the compliance of the political parties’ incomes and expenditure with the principles set out in Article 69 of the Constitution and sections 70-77 of Law no. 2820 on Political Parties (“the Political Parties Act”). Failure to comply with the relevant laws is subject to sanctions set out in the Political Parties Act. The decisions delivered by the Constitutional Court in this regard are final. 6. In keeping with the requirement under Article 69 of the Constitution and sections 74 and 75 of the Political Parties Act, the applicant party submitted the consolidated final accounts of its headquarters and local branches for the years 2007, 2008 and 2009 to the Constitutional Court for inspection. While the exact dates are unknown, it appears that the accounts were submitted within six months of the end of each respective fiscal year (that is, before 30 June) in accordance with section 74(2) of the Political Parties Act. 7. The Constitutional Court carried out a preliminary inspection on 1 July 2010 for the 2007 accounts and on 6 April 2011 for the 2008 and 2009 accounts. At the end of each preliminary inspection, it found the information submitted by the applicant party to be complete and decided to proceed with an examination on the merits. 8. On 7 October 2011, 29 November 2011 and 15 February 2012 the Constitutional Court sent the applicant party “questionnaires” in relation to its accounts for the years 2007, 2008 and 2009 respectively, whereby it requested the party to provide further information and documents regarding some of the expenses that it deemed problematic. It also requested the applicant party to provide the original invoices or other supporting documentation as required under Law no. 213 on Tax Procedure (“the Tax Procedure Act”) for all items of expenditure that had not been submitted previously. 9. It appears that the applicant party responded to the Constitutional Court’s requests within fifteen to thirty days of their receipt; its responses are summarised in the appendix below. It was, however, unable to provide original invoices or the like for all the items of expenditure as requested. 10. On 7 March 2012 the Constitutional Court delivered its decision regarding the final accounts of the applicant party for the year 2007, which was followed by decisions pertaining to the 2008 and 2009 accounts, both delivered on 11 July 2012. The decision concerning the 2007 accounts was published in the Official Gazette on 5 April 2012 and the decisions for the 2008 and 2009 accounts were published on 20 September 2012. 11. In all three decisions the Constitutional Court found at the outset that the income and expenses presented in the final accounts were financially accurate. It also held that the income obtained in the period under review had been mostly in compliance with the rules on funding as set out in the Political Parties Act. As for the expenses, the Constitutional Court made the following preliminary remarks to explain the basis for its examination: “One of the main tenets of accounting is the principle of ‘documentation’. Section 229 of the Tax Procedure Act explains that ‘an invoice is a commercial certificate given to a customer by a vendor or a merchant to indicate the amount owed by the customer in return for the goods sold or service provided’, and section 232, entitled ‘Obligation to use an invoice’, specifies under what circumstances and by whom an invoice must be received and provided. In this connection, it has been made obligatory to document purchases of goods and services with invoices and to use invoices as supporting documents in bookkeeping. Section 236 of the same Act, entitled ‘Obligation of receipt’, states that ‘self-employed persons are under an obligation to issue a freelance receipt in duplicate for all payments received in relation to their professional activities and to give one copy to the customer; and the customer is under an obligation to request and receive such receipt’. The contents of a receipt have been set out in section 237. Section 234 of the same Act, entitled ‘Expense note’, states that ... those [tradespersons exempt from taxation] who are under no obligation to furnish an invoice should issue expense notes. Since section 70(3) of Law no. 2820 [the Political Parties Act] provides that expenses below five thousand liras do not need to be substantiated with documents such as a receipt or an invoice, any expenses exceeding that amount must be based on a relevant supporting document. Under section 70 of the Political Parties Act, ‘all expenses of a political party shall be incurred on behalf of the legal personality of that political party’ and pursuant to section 75 of the same Act, ‘at the end of its inspection, the Constitutional Court shall determine the accuracy and the lawfulness of the political party’s income and expenses, and shall order the registration of unlawful income and expenses as revenue with the State Treasury’. Law no. 6111 ..., which was published in the Official Gazette dated 25 February 2011 [and which introduced some amendments to section 74 of the Political Parties Act], came into force on the date of its publication and it does not envisage ... the [retroactive] application of the amended provisions ...; therefore, the unamended provisions are to be applied to inspections and proceedings predating the amendments.” 12. On the basis of the principles outlined above, the Constitutional Court found that certain expenses incurred in the respective periods under review had been in violation of the Political Parties Act. The violations in question fell under two heads: the first head consisted of expenses that could not be considered to have been made “in pursuance of the objectives of the political party” and “in the name of the party’s legal personality” on the basis of a decision of the competent party organ, in accordance with section 70 of the Political Parties Act; and the second head concerned the expenses that had not been substantiated with the necessary documents as required under section 76, regardless of whether they were otherwise lawful. The Constitutional Court accordingly ordered the “confiscation of the party’s assets” in the amounts corresponding to its unlawful expenditure for each respective year under review, as per sections 75 and 76 of the Act. 13. The details of the Constitutional Court’s findings are presented in the table below (the amounts indicated are in Turkish liras (TRY)): 14. Further details regarding the individual expenses that were deemed unlawful by the Constitutional Court may be found in the appendix below. 15. The Constitutional Court treated all expenses that were not supported by original invoices, freelance receipts or expense notes as “undocumented”, referring to the strict requirements of documentation set out under the Tax Procedure Act as referred to in paragraph 11 above. The applicant party informed the Constitutional Court that in view of the sheer volume of documents circulating in the party, the originals of some invoices had been lost and submitted other documents as proof of payment. However, where the expense concerned an invoiceable transaction, the Constitutional Court did not accept as proof of payment vouchers, receipts, payment orders or even duplicates or notarycertified copies of invoices, and ordered the confiscation of the applicant party’s assets in the amounts corresponding to the undocumented expenses. 16. The expenses that were found not to have been incurred “in pursuance of the party’s objectives” and “in the name of the legal personality of the party” following a decision of the competent party organ, and those that were considered to “fall outside the party’s political activities”, covered a wide array of financial activities. 17. They included food, pharmaceutical and accommodation expenses, including those incurred by members of the party and employees of the party headquarters or its youth branches. Although the applicant party argued that the expenses in question had been incurred by the relevant individuals while on official duty, the Constitutional Court did not accept them as lawful expenses since the invoices had been drawn up in the individual members’ or employees’ names, rather than in the name of the party. Moreover, the applicant party had not submitted any other tangible evidence to demonstrate the professional nature of those expenses. In this connection, the Constitutional Court refused to accept that the food expenses of the driver assigned to the party leader and of other drivers working for the party could be lawfully met by the applicant party, in spite of the latter’s explanation that the relevant expenses had been incurred while the drivers were on duty. 18. Among the food expenses declared unlawful were expenses incurred by the head of the applicant party’s youth branch, F.P., who appears to have hosted six dinners in 2008 in connection with election work. The Constitutional Court accepted two of those meals as lawful expenses in relation to party work, but rejected the remaining four without any explanation. 19. Reimbursement of food and commuting expenses of persons not on the applicant party’s payroll and not party to the collective labour agreement between the applicant party and its salaried employees, such as freelance consultants, was not considered to be in keeping with the “party’s objectives”. Similarly, meals offered to persons who provided various services to the applicant party, but who were legally employed by other public or private bodies, such as police officers, municipality employees, journalists or gardeners, could not qualify as legitimate expenses under the Political Parties Act because any meal costs had to be met by the relevant person’s respective employers and not by the applicant party. Some dinners hosted for the applicant party’s guests, volunteers or personnel for special occasions were also considered to constitute personal expenditure not related to the party’s legal personality, whereas some other dinners were accepted as relevant to party work. In this connection, the Constitutional Court found that the expenses borne for the meals hosted for the Alevi-Bektaşi Federation and the Pir Sultan Abdal Association, as well as the meals organised for party personnel on the occasion of Bayram and following the death of an employee’s father, should not have been paid from the party’s budget, whereas it deemed legitimate the expenses in relation to food offered to Tekel workers during their industrial action. 20. The Constitutional Court also refused to accept a great number of travel expenses as lawful, because the bus and plane tickets in question had been prepared in the name of the individuals travelling rather than in the party’s name, and the official decisions of the relevant party organs authorising travel had not been submitted. In addition, reimbursement of passport fees to various employees was not considered relevant to the party’s objectives, even when the passports had been obtained for travel in connection with party business, as passports could be used for personal travel as well. The Constitutional Court also deemed costs for printing of business cards for employees to be unlawful, considering them to be personal expenses. 21. Payments made to employees apart from the entitlements specifically indicated in the collective labour agreement, including New Year bonuses (approximately 35 euros (EUR) per person in 2008) or bonuses to reward extra work during the general election period, were also deemed to fall outside the scope of the lawful expenditure provided for in the Political Parties Act. Moreover, chocolates distributed to party personnel for Eid alFitr (Ramazan Bayramı) in 2009 were found to be unlawful expenses, whereas no such finding was made in relation to the chocolates distributed during another religious holiday, Eid al-Adha (Kurban Bayramı). Blankets, umbrellas and raincoats purchased for use at the party headquarters were also found to be personal expenses, whereas no such finding was made for clothes and dishwashers purchased for the use of personnel. 22. In addition, payments made to security and cleaning personnel in excess of the amounts specifically indicated in the service agreements, where such excess amounts – no matter how meagre – could not be explained by increases in social security contributions or taxes, were considered unjustified and thus unlawful. 23. The Constitutional Court also found that the severance packages given to employees whose contracts had been terminated, which included basic severance pay, unused vacation time and benefits corresponding to unused leave, were not in compliance with the Labour Act and were therefore unlawful, as benefits corresponding to unused leave should not have been included in the severance packages. 24. The review of the financial accounts for the years 2007 to 2009 also revealed that the applicant party had paid court fees in various legal proceedings in which members of the party’s senior management and/or its members of parliament, including its leader at the relevant time, had been involved. Although the applicant party stated that the legal proceedings in question had concerned the party’s political activities, and not personal disputes, the Constitutional Court nevertheless decided that the litigation expenses had to be met by the persons in question, regardless of their role or status in the party, as the political party itself was not a party to any of the relevant proceedings. In the decision of 11 July 2012 concerning the review of the 2009 accounts (see paragraph 10 above), one of the judges dissented from the majority’s approach to this matter, and argued that demanding that such costs be met by the individual members of the party involved directly in the litigation, regardless of the effects of that litigation on the political party, would unduly curtail the scope of the party’s political activities in an unconstitutional manner. 25. Another payment that was considered unlawful by the Constitutional Court was made to Halk TV, a nationwide television channel, for the live broadcasting of political rallies and activities attended by the applicant party’s leader and coverage of the party’s parliamentary group meetings, press conferences, and important statements made by the party’s senior management, as well as the distribution of that material to other media outlets. The Constitutional Court found that while the applicant party could lawfully pay for the live broadcast of the relevant events, additional payments to cover the costs of production and for the allocation of link bandwidth were unacceptable, as such costs had to be met by Halk TV itself. In addition, payments made in 2009 for the lease of vehicles for broadcasting rallies organised by the party in various provinces were considered unlawful unless accompanied by the relevant lease agreements and detailed information on the exact nature of the services acquired. The Constitutional Court also noted that an agreement had already been made with Halk TV for coverage of the applicant party’s political rallies and other events. 26. Fuel and other expenses (such as installation of sound systems, speakers and microphones) for the vehicles owned or leased by the party and its local branches were accepted as having been made in the party’s name and for its purposes only where the vehicle registration certificates or lease agreements had been submitted to the Constitutional Court along with the invoices. As for fuel and other expenses for vehicles made available to the party by volunteers during the election campaigns, they were deemed entirely unlawful in the absence of any contracts with the volunteers for the use of the relevant vehicles. 27. The Constitutional Court held that gold coins given as wedding gifts at wedding ceremonies attended by the applicant party’s leader on behalf of the party could not be considered to have been made in the name of the party or in pursuance of its objectives. Similarly, the costs of flowers sent by the applicant party’s treasurer for special events could not be classified as lawful expenses where the invoice had been drawn up not in the party’s name but in the name of the treasurer. 28. The Constitutional Court also held that fines for traffic violations by the party’s drivers, as well as fines or interest on late payment of various financial obligations, such as social security contributions, court orders, rents or motor vehicle taxes for the party’s vehicles, could not be lawfully covered from the party’s budget, and had to be met by the individuals who had been responsible for defaulting on such payments. 29. Moreover, the Constitutional Court found that advance payments made to fifty-two employees in 2009 had only been partially repaid. In the light of the prohibition in section 72 of the Political Parties Act against lending money, the advance payments in question were unlawful and were thus confiscated in full (including the amounts that had been repaid by the relevant employees). 30. The Constitutional Court also issued a number of warnings in relation to certain expenditure in 2008 and 2009. 31. One of those warnings concerned the payment of employees’ salaries. Although the applicant party had submitted the relevant payment orders, it had not provided bank statements demonstrating that the amounts ordered had actually been paid. The Constitutional Court warned the applicant party to submit such bank statements with its consolidated accounts to demonstrate that the payments in question had indeed been made. 32. Another warning was issued in relation to a payment made to a private company in return for installing a sound system for an election bus. The Constitutional Court requested the applicant party to submit a technical report indicating when the work had been completed and a record stating that the bus had been duly delivered. The applicant party responded that there was no legal obligation to prepare such documents. The Constitutional Court held that in the absence of such information, it could not know whether the service had been delivered on time and, if not, whether the service provider had paid the penalty envisaged in the service agreement for defaulting on its obligation. 33. Yet another warning was issued about the incompatibility between the party’s expenses and its inventory, in that a number of items allegedly purchased for the party (three televisions and one computer) had not been registered in the inventory. 34. The Constitutional Court also issued a warning in connection with advance payments made to some employees in 2009, in addition to ordering the confiscation of the applicant party’s assets in the full amount of the advance payments in question (see paragraph 29 above). 35. On 11 May 2012 the applicant party received a letter from the Ankara governor’s office ordering it to pay the amounts indicated in the Constitutional Court decision concerning the review of the 2007 final accounts, which totalled TRY 3,372,446 (approximately EUR 1,435,000 on 7 March 2012, the date of the delivery of the decision), within thirty days of the receipt of the letter. 36. On 23 May 2012 the applicant party sent a letter to the Ankara governor’s office requesting postponement of the payment until January 2013, in view of the financial difficulties it would suffer for the rest of 2012 in the event of immediate payment of the amounts concerned. 37. On 12 March 2013 the Ministry of Finance informed the applicant party that the payments due in relation to the 2007 final accounts had been deducted from the State funding allocated to it on 10 January 2013 for that year, together with interest of TRY 176,211 running from the date on which the payment had become due (namely 12 June 2012). The amount deducted thus totalled approximately TRY 3,549,000 (approximately EUR 1,527,000 on 10 January 2013). 38. On 31 October 2012 the applicant party received a letter from the Ankara governor’s office ordering it to pay the amounts indicated in the Constitutional Court decisions concerning the review of the 2008 and 2009 final accounts, plus interest, which totalled approximately TRY 3,738,700 (approximately EUR 1,604,000 as at 31 October 2012), within ten days of the receipt of the letter. 39. On 6 November 2012 the applicant party sent a letter to the Ankara governor’s office, once again requesting the postponement of the payments due in relation to its 2008 and 2009 accounts until January 2013. 40. On 15 January 2013 the applicant party paid TRY 1,432,257.30 (approximately EUR 605,212 at the material time) to the State Treasury for its unlawful expenses, in compliance with the Constitutional Court’s review decision for the year 2008, and TRY 1,257,030.83 (approximately EUR 531,168 at the material time) for the decision regarding the accounts for the year 2009. It refused to pay the interest, which it contested before the relevant authorities. 41. On 7 June 2013 the applicant party paid the State Treasury the sum of TRY 45,920 (approximately EUR 18,460) as default interest on the amounts confiscated in relation to its 2008 and 2009 accounts. 42. On 30 March 2014 local elections were held in Turkey.
| 1 |
test
|
001-176928
|
ENG
|
EST
|
CHAMBER
| 2,017 |
CASE OF RÕIGAS v. ESTONIA
| 3 |
Remainder inadmissible (Article 35-3-a - Ratione personae);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström
|
6. The applicant was born in 1963 and lives in Tallinn. 7. In 2006 the applicant’s son O., who was born in 1983, was diagnosed with malignant melanoma. He was operated on in 2006, and underwent regular check-ups. In April 2009 a metastasis was removed from his brain, and he received radiation therapy. 8. In September 2009 O.’s state of health deteriorated. He was vomiting and felt weak and dizzy. 9. On 19 September 2009 the applicant called an ambulance and O. was taken to the North Estonia Medical Centre (“the NEMC”) (Põhja-Eesti Regionaalhaigla) for examination. A computerised tomography (CT) scan was performed on him. According to the applicant, O. was told that the scan had not revealed any problems with his health. He was prescribed an anti-vomiting drug and discharged from the hospital the same evening. 10. On 24 September 2009 the applicant again called an ambulance for O., who had been complaining of feeling generally unwell, of a numbness of one side of his face, a rash around his nose and dizziness. O. was admitted to the NEMC. A CT scan and magnetic resonance imaging (MRI) of O.’s brain were performed the same day and the following day, respectively. An additional CT scan of O.’s neck, lungs, abdomen and pelvic area was performed on 29 September 2009. The MRI scan and the CT scan of 29 September 2009, taken together, indicated a leptomeningeal pathological process involving the cranial nerves, a probable meningeal metastatic process and probable multiple metastases in the liver and other organs of the abdominal cavity. He was given hormonal and infusion therapy, but his health deteriorated rapidly. He developed breathing and walking problems and a speech impediment, and his eyesight worsened. On 28 September 2009 a hospital medical council decided to proceed with palliative care. It found that because of the spread of the tumour, oncological treatment would not be effective. The applicant pointed out that the medical council’s decision had not been signed by O. 11. For one week starting from 5 October 2009, O. was physically restrained to a bed with magnetically locking restraints on both arms, apparently in order to prevent him from hurting himself, given his disturbed state of mind. 12. On 6 October 2009 O. was transferred to an intensive care unit because he was suffering from progressive respiratory failure and a disturbed state of mind. He was also diagnosed with pneumonia and, in the light of that finding, was given additional antibacterial treatment. According to the medical record (nurse’s notes), on 6 October 2009 O. was intubated because he was having breathing difficulties. On the same day the medical council found that a surgical cure would not be possible and decided to continue with palliative treatment supporting the vital functions. The applicant again pointed out that the medical council’s decision was not signed by O. 13. On 9 October 2009 a tracheotomy was performed on O. 14. On 12 October 2009 O. stopped breathing and mechanical ventilation was applied. On 13 October 2009 characteristics corresponding to brain death were ascertained. According to information in a report drawn up by the Estonian Forensic Science Institute based on an analysis of O.’s medical records, an electroencephalogram performed the same day revealed serious diffuse brain damage and only minimal electrical activity. O.’s active treatment and feeding were discontinued, but the infusion therapy was continued. The applicant disagreed with this finding and rather considered that O. had fallen into a coma following an overdose of medicine. She maintained that O.’s pulse had reacted to her speech the following day, 14 October 2009, which had indicated that O. had not been brain-dead. According to the applicant, the protocol for verifying brain death was never fully and properly carried out. The administration of food and medicines was not resumed, despite the applicant’s requests. The applicant alleged that during the night of 14 October 2009, O.’s blanket had been removed and he had been left with only a sheet near an open window, which had caused his body temperature to drop to 35 degrees Celsius. 15. On 15 October 2009 O.’s heart stopped and the mechanical ventilation was terminated. 16. On 15 October 2009 the applicant called the police on the general emergency number, complained about O.’s treatment and asked that an expert examination be commissioned. Her phone call was registered as an information notice (infoteade) and not as the reporting of a crime. The applicant was advised to contact the Expert Committee on the Quality of Health Care Services (Tervishoiuteenuse kvaliteedi ekspertkomisjon; hereinafter “the Expert Committee”). 17. On 16 October 2009 an autopsy was performed at the NEMC. The medical death certificate (arstlik surmateatis) indicated cerebral oedema as the immediate cause of death, and melanoma with multiple metastases as the medical condition that had brought about the immediate cause of death. According to the autopsy report (lahangu protokoll), O. died of malignant melanoma with multiple metastases in the brain, which also caused cerebral haemorrhage and oedema as complications. 18. On 2 November 2009 the applicant complained to the Health Board (Terviseamet) of O.’s inhuman treatment and about the circumstances of his death. 19. On 8 March 2010 the Health Board informed the applicant that the case had been transmitted to the Expert Committee. The Expert Committee examined O.’s medical records, obtained written explanations from several members of the medical staff who had treated O., and ordered two expert opinions, one to be prepared by one of its members and the other by another doctor, both professors emeriti. The Expert Committee also heard the applicant. In its decision given on 25 March 2010, it found no medical malpractice in O.’s treatment. According to the report of the Expert Committee’s meeting of 25 March 2010 at which the applicant was also present, the Expert Committee gave oral answers to the applicant’s questions regarding the possible radiation of O. during his previous treatment; the decision not to offer chemotherapy to O.; and the alleged late detection of pneumonia. In addition, the Expert Committee’s decision contained written answers to the applicant, stating that O. had not suffered from a stroke; that the deterioration in his health had not been caused by the administration of specific medication or the withdrawal thereof, but rather by the metastatic developments in his brain; and that based on the medical records, O. had not been starved, nor had his mechanical ventilation been stopped before his death. The applicant was also notified of the possibility to request an alternative medical expert opinion and was informed that tissue samples gathered while the patient was alive as well as after his death, would be maintained for thirty years at the NEMC pathology centre and were available on demand. The applicant considered that the Expert Committee had not been impartial, that it had lacked a quorum at its meeting of 25 March 2010 and that the decision it had adopted contained false statements. An action lodged by the applicant to have the Expert Committee’s report declared unlawful and claiming damages for it was dismissed by a final judgment of the Supreme Court on 2 December 2015. 20. In the meantime, on 22 March 2010 the applicant lodged an offence report with a prosecutor’s office. Criminal proceedings under Article 123 of the Penal Code (placing or leaving another person in a situation which is life-threatening or likely to cause serious damage to the person’s health) were initiated on 1 April 2010. 21. In the course of the criminal investigation, several individuals (doctors, nurses, the applicant, and O.’s friends who had visited him in the hospital) were interviewed. Requests for documentary evidence (the Expert Committee’s opinion, O.’s medical file as well as the autopsy report) were submitted and documents were received; a forensic medical examination was ordered from the Estonian Forensic Science Institute. The prosecutor posed ten questions to the forensic medical experts addressing, inter alia, O.’s diagnoses; the adequacy of the treatment with respect to his state of health (including the tracheotomy); the restraining of O. to the bed; the administration of medicine on 12 October 2009 and whether this could have caused O.’s breathing to stop; the decision to cease the administration of medicine and food on 13 October 2009; the assertion that O. was brain-dead; and the decision to stop mechanical ventilation. 22. According to the forensic medical report dated 30 August 2012, O. had received treatment appropriate for his condition. The forensic medical experts also concluded that the medicine administered to O. had been appropriate and had not caused his breathing to stop. They considered that the restraining of O. to the bed could have been justified in the instant case. As the characteristics corresponding to brain death had been ascertained, the discontinuation of feeding and the continuation of infusion therapy had been medically justified. The experts also concluded that the mechanical ventilation had been turned off only after his heart had stopped and thus could not have been the cause of his death. The forensic medical assessment found that O.’s death had been caused by malignant melanoma with multiple metastases, with further complications of cerebral haemorrhage and oedema. 23. On 25 October 2012 the criminal proceedings were terminated as the commission of an offence had not been proven based on the evidence gathered. An appeal lodged by the applicant with the Office of the Prosecutor General was dismissed on 10 December 2012. On 28 January 2013 the Tallinn Court of Appeal dismissed a further appeal lodged by the applicant. 24. Following the termination of the criminal proceedings, the Office of the Prosecutor General dismissed complaints lodged by the applicant regarding the refusal to initiate additional criminal proceedings against the chief inspector of the Health Board’s supervisory department, against the experts of the Estonian Forensic Science Institute who had drawn up the forensic medical report during the original criminal proceedings (this refusal was later upheld by the Court of Appeal), against two prosecutors and the judge of the Court of Appeal. The Office of the Prosecutor General also dismissed an application lodged by the applicant to reopen the original criminal proceedings.
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CASE OF ILGAR MAMMADOV v. AZERBAIJAN (No. 2)
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Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
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Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev
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5. The applicant was born in 1970 and is currently serving a prison sentence. 6. The applicant has been involved in various political organisations and local and international non-governmental organisations for a number of years. In 2009 he co-founded a political organisation named the Republican Alternative Movement (“REAL”) whose initial goal was to oppose the proposed changes to the Constitution, which included abolition of the limits on the re-election of the president, at the constitutional referendum of 18 March 2009. In 2012 the applicant was elected REAL’s chairman. In this capacity, he expressed views opposing the current Government (for more detail, see an earlier judgment of this Court, Ilgar Mammadov v. Azerbaijan, no. 15172/13, §§ 6-7, 22 May 2014). According to the applicant, REAL was quickly becoming one of the main political forces opposed to the ruling Government. In 2014 it announced that it was beginning a process of transforming itself into a political party. 7. The applicant had intended to stand as a candidate in the presidential elections of November 2013, but was unable to do so owing to the events giving rise to the present case and his nomination as a candidate was rejected by the electoral authorities (for more detail, see Ilgar Mammadov, cited above, §§ 8 and 62-67). During the events giving rise to the present case, he also made an unsuccessful attempt to have himself registered as a candidate for repeat parliamentary elections in Agdash Constituency No. 90 in June 2016. 8. Following the applicant’s arrest described below, another member of the REAL board, Mr Rasul Jafarov, was arrested under charges of illegal entrepreneurship, tax evasion and abuse of power (for more detail, see Rasul Jafarov v. Azerbaijan, no. 69981/14, 17 March 2016). According to the applicant, four other current or former members of the REAL board were forced to leave the country owing to the “pressure by the Government”. 9. In the below-mentioned criminal proceedings, one of the applicant’s co-defendants was Mr Tofiq Yaqublu, who was a deputy chairman of the Musavat Party and who also worked as a columnist for the Yeni Musavat newspaper (see Yagublu v. Azerbaijan, no. 31709/13, 5 November 2015). Pursuant to a presidential pardon decree of 17 March 2016, Mr Yaqublu was released from serving the remainder of his prison sentence. 10. The circumstances relating to the Ismayilli events and the applicant’s visit to Ismayilli are described as follows in Ilgar Mammadov (cited above, §§ 9-12): “B. The Ismayilli events of January 2013 9. On 23 January 2013 rioting broke out in the town of Ismayilli, located to the northwest of Baku. According to media reports quoting local residents, the rioting was sparked by an incident involving V.A., the son of the Minister of Labour and Social Protection and nephew of the Head of the Ismayilli District Executive Authority (‘IDEA’). It was claimed that after being involved in a car accident, V.A. had insulted and physically assaulted passengers of the other car, who were local residents. On hearing of the incident, hundreds (perhaps thousands) of local residents took to the streets and destroyed a number of commercial establishments (including the Chirag Hotel) and other property in Ismayilli thought to be owned by V.A.’s family. 10. On 24 January 2013 the Ministry of Internal Affairs and the Prosecutor General’s Office issued a joint press statement, placing the blame for the rioting on E.S., a hotel manager, and his relative [El.M.], who had allegedly been drunk and who, it was claimed, had committed acts of hooliganism by damaging local residents’ property and inciting people to riot. 11. Meanwhile, [N.A.,] the Head of IDEA, V.A.’s uncle, publicly denied that the Chirag Hotel belonged to his family. C. The applicant’s role in the Ismayilli events 12. On 24 January 2013 the applicant travelled to Ismayilli to get a firsthand account of the events. On 25 January 2013 he described his impressions from the trip on his blog. The entire post read as follows: ‘Yesterday afternoon I spent a little longer than two hours in Ismayilli, together with [another member] of our Movement [REAL] and our media coordinator... First, here is [the summary of] what I wrote on Facebook during those hours using my phone: - We have entered the town. - There is a lot of police and their number is growing. The protesters gather each hour or two and make speeches. We are in front of the building of the [Ismayilli District] Executive Authority. There are around 500 police officers in this area. - The cause of the events is the general tension arising from corruption and insolence [of public officials]. In short, people have had enough. We are having conversations with local residents. - The [ethnic] Russians of the village of Ivanovka are also fed up; they tried to come to [Ismayilli] to support the protest, but the road was blocked and they were sent back. - Everybody is preparing for the night. - We are leaving Ismayilli, returning to Baku. The matter is clear to us. Quba was the first call. Ismayilli is the second. After the third call, the show will begin. We came back after having fully investigated the situation in Ismayilli. I wrote that clashes would again take place in the evening, by posting ‘everybody is preparing for the night’ [on Facebook]. People there had been saying ‘We’ll give them hell in the evening; we have procured supplies’ (meaning the fuel for Molotov cocktails had been bought). People are angry. There are also those who do not care and who are afraid, but those who are not afraid are very exasperated and will continue the protest at night. This is no longer a political situation where we could stay there and try to change something; this is already a situation of disorderly crisis which requires conciliatory steps by the State to be resolved. No one should fool oneself or others. The events in Ismayilli were not and are not a calm peaceful protest, it is an extremely violent but just protest and the responsibility for it lies with Ilham Aliyev. As it is with all revolutionary processes, in the beginning the political initiative is still in the hands of the President, but by not taking action he is gradually losing this initiative. When [such leaders] begin to react to the situation, it is usually too late and their actions have no effect. Mubarak, the Shah of Iran, and all others have gone this way’.” 11. A day before posting the above in his blog, on his way back by car from Ismayilli to Baku on 24 January 2013, between 5.41 and 5.46 p.m. the applicant gave a live interview to Azadliq Radio by phone, stating in particular as follows (as quoted in the domestic courts’ judgments): “Our impressions are such that, after the Quba events, this is the most serious warning to the Azerbaijani leadership that the State can no longer be governed in this manner. So, we saw a lot of police. And so, we saw up to five hundred members of various forces, the police and internal troops in front of [the IDEA building]. And people held discussions in small groups and from time to time small groups united and, for example, shouted slogans. Their main demand was for [the Head of the IDEA] to apologise for these events. Because it is claimed that his relative had caused the initial incident [that sparked the riot]. However, the government representatives consider that the State is not responsible [for these events]. Thereafter we spoke to many people from the local population. All of them were discontent, and the main reason was, of course, last night’s event, that is apparently the car accident [that sparked the riot]. But in reality there are deep social and economic problems at the root of this incident. A few families, a few small groups control the entire economy of the whole region, all of them are one another’s relatives, there can be no talk of any competitive, just economy, social infrastructure is undeveloped, people live from pension to pension. Then, there are many complaints. Ordinary people say, for example, that when cash for pensions is brought [to the region] by a bank car, the cash is put into ATMs and is available for withdrawal a week later. The people suspect that that money is invested for interest during that week and those responsible for this make profit from the interest gained on the social funding of the entire region.” 12. Subsequent circumstances are described as follows in Ilgar Mammadov (cited above, §§ 13-15): “13. On 28 January 2013 the applicant posted more information on his blog concerning the events, citing the official websites of the Ministry of Culture and Tourism and the Ministry of Taxes and publishing screenshots of those sites. In particular, he noted that, according to those sources and to information posted on V.A.’s Facebook account, the Chirag Hotel was actually owned by V.A. This directly contradicted the earlier denial by the Head of IDEA. The information cited by the applicant was removed from the aforementioned Government websites and V.A.’s Facebook page within one hour of the applicant publishing his blog entry. However, the blog entry itself was extensively quoted in the media. 14. On 29 January 2013 the Prosecutor General’s Office and the Ministry of Internal Affairs issued a new joint press statement concerning the events in Ismayilli. It noted that ten people had been charged with criminal offences in connection with the events of 23 January 2013, and had been detained pending trial. In addition, fiftytwo people had been arrested in connection with their participation in ‘actions causing a serious breach of public order’; some of them had been convicted of ‘administrative offences’ and sentenced to a few days’ ‘administrative detention’ or a fine, while others had been released. The statement further noted that ‘lately, biased and partial information has been deliberately disseminated, distorting the true nature of the mentioned events resulting from hooliganism’, including information about large numbers of injured people and the disappearance of one individual. The statement refuted that information, noting that only four people had been admitted to the regional hospital with injuries and that no one had disappeared. It further stated, inter alia, the following: ‘Following the carrying out of inquiries, it has been established that on 24 January 2013 the Deputy Chairman of the Musavat Party, Tofiq Yaqublu, and the Cochairman of the REAL Movement, Ilgar Mammadov, went to Ismayilli and made appeals to local residents aimed at social and political destabilisation, such as calls to resist the police, not to obey officials and to block roads. Their illegal actions, which were calculated to inflame the situation in the country, will be fully and thoroughly investigated and receive legal assessment.’ 15. On 30 January 2013 the applicant commented on that statement on his blog. He noted that the Government had taken a decision to ‘punish and frighten’ him, and that there were several reasons for that: firstly, the applicant’s blog posting of 28 January 2013, which had revealed facts embarrassing the Government; secondly, the fact that REAL had raised a public debate on the June 2012 legislative amendments aimed at keeping secret information concerning shareholders in companies, creating ‘a more clandestine environment for stealing the oil money’; thirdly, the applicant’s earlier criticism of the National Assembly, in which he compared it to ‘a zoo’, following enactment of the legislation placing ‘severe limitations on the freedom of assembly’ by ‘introducing unjustifiably high monetary penalties for attending unauthorised demonstrations’; and lastly, the REAL Movement’s ‘quickly accumulating strength’ prior to the presidential election, becoming a ‘serious barrier in the eyes of the traditional [political] players’ and threatening ‘to spoil the repeat of the election farce performed year after year’.” 13. On 4 February 2013 the Prosecutor General’s Office charged the applicant with criminal offences under Articles 233 (organising or actively participating in actions causing a breach of public order) and 315.2 (resistance to or violence against public officials, posing a threat to their life or health) of the Criminal Code, in connection with his alleged involvement in a riot in the town of Ismayilli on 24 January 2013. On 30 April 2013 the applicant was charged under Articles 220.1 (mass disorder) and 315.2 of the Criminal Code, thereby replacing the original charges. 14. The applicant, Tofiq Yaqublu and two other defendants, E.I. and M.A., charged solely in connection with the events of 24 January 2013 (see paragraph 20 (b) and (c) below) were joined as defendants to the existing criminal case concerning the events of 23 January 2013. 15. The specific actions attributed to the applicant were described as follows: “Beginning at around 3 p.m. on 24 January 2013, Ilgar Eldar oglu Mammadov, having taken advantage of the fact that from around 9.30 p.m. on 23 January 2013 a group of persons in the town of Ismayilli had engaged in acts of malicious hooliganism causing a serious breach of public order, had deliberately burned, in a publicly dangerous manner, property belonging to various persons [including] the Chirag Hotel, four cars, five mopeds and scooters, and an auxiliary building located in the yard of a private residential house, and had committed acts of violence against Government officials, having, in his false way of thinking, considered [the above events] as a ‘rebellion’, aiming to make the above acts develop and acquire a continuous character in order to create artificial tension and to violate the social and political stability in the country, being a resident of Baku, arrived in Ismayilli and, together with Tofiq Rashid oglu Yaqublu and with the active participation of others, [committed the following:] organised, as an active participant, acts causing a serious breach of public order, by means of openly and repeatedly inciting town residents [E.I.], [M.A.] and others, who had gathered at the square near the administrative building of the Regional Education Department located on the Nariman Narimanov Street opposite to the administrative building of [the IDEA], [to do the following:] [i] to enter in masses into the area in front of the building of [the IDEA], which is the competent body of the executive power of the Republic of Azerbaijan, and by doing so to create difficulties for the movement of traffic and pedestrians, [ii] to disobey the lawful demands to disperse, made by Government officials wanting to stop their illegal behaviour, [iii] to resist uniformed police officers protecting the public order, by way of committing violent acts posing danger to [police officers’] life and health, using various objects, [iv] to disrupt the normal functioning of [the IDEA], State enterprises, bodies and organisations, as well as public-catering, commercial and public-service facilities, by way of refusing to leave, for a long period of time, the areas where the acts seriously breaching the public order were being committed, and [v] to stop the movement of traffic, by way of blocking the central avenue and the Nariman Narimanov Street, and was finally able to achieve that, at around 5 p.m. of the same day in the town of Ismayilli, a group of persons consisting of [E.I.], [M.A.] and others had marched in masses from the mentioned square in the direction of the administrative building of [the IDEA] and had thrown stones at officers of the relevant bodies of the Ministry of Internal Affairs who were preventing [this march] in accordance with the requirements of the law. By these actions, Ilgar Eldar oglu Mammadov committed the criminal offences under Articles 233 [later replaced by Article 220.1] and 315.2 of the Criminal Code of the Republic of Azerbaijan.” 16. The circumstances relating to the applicant’s pre-trial detention and the pre-trial proceedings are described in detail in Ilgar Mammadov (cited above, §§ 16-55). 17. In that judgment, the Court found that, during the pre-trial period, the applicant had been deprived of his liberty without a “reasonable suspicion” of having committed a criminal offence, in breach of the requirements of Article 5 § 1 (c) of the Convention (ibid., §§ 87-101), that he had not been afforded a proper judicial review of the lawfulness of his detention in breach of Article 5 § 4 of the Convention (ibid., §§ 111-19), that his right to presumption of innocence under Article 6 § 2 of the Convention had been breached owing to the prosecuting authorities’ prejudicial statements made before he had been proved guilty according to law (ibid., §§ 125-28), and that the restriction of the applicant’s liberty had been applied for purposes other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence, constituting a breach of Article 18 of the Convention taken in conjunction with Article 5 of the Convention (ibid., §§ 137-44). 18. After completion of the pre-trial investigation, the applicant’s case was sent to trial at the Sheki Court for Serious Crimes. The applicant was to be tried, together with seventeen others, in connection with the Ismayilli events. 19. The applicant’s formal indictment sent by the prosecution to the trial court appears to have essentially repeated the initial accusations against him (see paragraph 15 above). It added, however, that as a result of the acts of mass disorder committed at around 5 p.m. on 24 January 2013, six specifically named police officers had been subjected to violence threatening their lives and health (see paragraph 48 below). 20. Out of the seventeen other defendants: (a) fourteen were accused of participating in the riots on 23 January 2013 (which involved actions breaching public order, burning of private property, and acts of violence against public officials). They were charged under Articles 186.2.1, 186.2.2, 220.1 and 315.2 of the Criminal Code; (b) one defendant, Mr Tofiq Yaqublu, also an opposition politician, was accused, like the applicant, of “organising” and actively participating in public disorder on 24 January 2013 by means of inciting local residents to commit acts breaching public order and acts of violence. Like the applicant, he was charged under Articles 220.1 and 315.2 of the Criminal Code; and (c) two defendants, E.I. and M.A., were accused of participating, together with the applicant and Tofiq Yaqublu, in the continuation of the riot on 24 January 2013 (which involved actions breaching public order and acts of violence against public officials). They were also charged under Articles 220.1 and 315.2 of the Criminal Code. 21. On 4 November 2013 the Sheki Court for Serious Crimes held a preliminary hearing at which it examined a number of applications lodged by the applicant and other defendants. 22. In particular, the applicant applied to the court requesting, firstly, that it hold its hearings in a larger courtroom which could accommodate media representatives and, secondly, that it allow for video and audio recording of the hearings. The court rejected the first request, noting that no media representatives had asked to attend the hearings. It also rejected the second request, finding that the victims of the criminal offences participating in the preliminary hearing had objected to being recorded during the trial. 23. After a break in the preliminary hearing, the defence lodged an objection to the composition of the court, referring to the fact that it had rejected the two previous requests. The court refused to examine the objection, finding that it was ill-founded and intended to delay the trial. It noted in this connection that most of the text of the objection had been preprinted before the hearing, indicating an intention by the defence to object to the composition of the court no matter what happened at the hearing. 24. The defence then applied to the court with the following requests: (a) that the applicant be released from detention, with reference to Article 5 of the Convention and various provisions of the domestic law; (b) that the proceedings against the applicant be discontinued owing to the absence of corpus delicti and on the grounds that the charges against him were false; and (c) that the evidence against the applicant obtained at the pre-trial stage, including statements by a number of prosecution witnesses (including those mentioned in paragraphs 48 and 52-56 below), be declared inadmissible on the grounds that it had been unlawfully obtained, and that letters from the Ismayilli Region Police Department (“the Ismayilli RPD”) and the Ministry of National Security (“the MNS”) (see paragraph 73 below) also be declared inadmissible on the grounds that they contained information that had not been verified independently by the prosecution authorities. 25. By an interim decision of 5 November 2013, delivered following the preliminary hearing, the Sheki Court for Serious Crimes decided to reject the applicant’s requests as unsubstantiated, and to “keep unchanged” the preventive measure of remand in custody. 26. The trial spanned approximately thirty hearings. During the course of the hearings, the Sheki Court for Serious Crimes examined testimonial evidence, as well as video recordings and other material. 27. At the time of communication of the application to the respondent Government, the Court requested the parties to submit, inter alia, “the transcripts of the first-instance and higher courts’ hearings, in the parts relating to the applicant”. The applicant was not in possession of copies of the trial transcripts, as he was allowed only to consult them. The Government failed to submit full copies of the transcripts of the firstinstance hearings in the parts relating to the applicant, and limited themselves to submitting a small selection of transcripts of the preliminary hearing and transcripts of hearings of 29 November and 29 December 2013 and 13 January 2014, where the first-instance court dealt with various procedural matters. Parts of the transcripts containing full statements of the witnesses and their cross-examination were not submitted. The Government also submitted a selection of transcripts of appellate and cassation hearings. 28. Below is a brief summary of the evidence examined by the trial court, as described in the court’s judgment itself as well as, where relevant, in the indictment and in the parties’ submissions. 29. The statements of the fourteen defendants charged with participation in the events of 23 January 2013 (see paragraph 20 (a) above) concerned only the events of 23 January 2013 and did not include any pertinent information about the events of 24 January 2013. The court examined both the statements they had made at the trial hearings and their pre-trial statements. 30. When heard at the trial hearings, thirteen of the above-mentioned fourteen defendants pleaded not guilty and made statements differing from those made at the pre-trial stage. Ten of them alleged that they had given their pre-trial statements under duress, either psychological pressure or physical ill-treatment. At the conclusion of the trial, two of them retracted their allegations of ill-treatment in custody. 31. One of the above-mentioned fourteen defendants admitted his guilt and confirmed his pre-trial statement admitting participation in public disorder on 23 January 2013. 32. E.I. and M.A., the defendants charged with participation in clashes with the police in the morning (around 10:30 a.m.) and the afternoon (around 5 p.m.) of 24 January 2013 (allegedly after having been incited by the applicant) (see paragraph 20 (c) above), did not mention the applicant or Tofiq Yaqublu in their statements. 33. At the trial hearings, E.I. pleaded not guilty and alleged that he had been beaten and tortured by investigators at the pre-trial stage of the proceedings with the purpose of obtaining a statement favourable to the prosecution. He stated that between about 10 a.m. and 11 a.m. on 24 January 2013, there was a crowd of a hundred or so people moving in the direction of the IDEA building. The police used tear gas and rubber bullets to disperse the crowd, and in response the protesters threw stones at the police. E.I. further stated that in the afternoon of 24 January 2013, and more specifically between 4 p.m. and 5 p.m., he had not been in the town at all but had been attending a funeral in a nearby village. A number of other witnesses gave statements, some of which confirmed his version of the events (see paragraph 46 below). 34. In his pre-trial statement, E.I. had stated that he had been in the town in the afternoon of 24 January 2013 and had participated in the clashes with the police; he had not specified the exact time. 35. At the trial hearings, M.A. pleaded not guilty and alleged that he had been beaten by investigators at the pre-trial stage with the purpose of obtaining a statement favorable to the prosecution. In addition, the investigators had demanded a bribe in the amount of 2,000 US Dollars from him. As to the events of 24 January 2013, M.A. stated that he had been in the town between about 10 a.m. and 11 a.m. and that there had been many people in the town centre. In the afternoon, he had left Ismayilli for another town. According to the applicant, in order to prove this, M.A. had asked the court to examine records of the calls made from his mobile phone during the afternoon of 24 January 2013, but the court failed to do so. 36. In his pre-trial statement, M.A. had stated that on 24 January 2013 he had joined the crowd of protesters and thrown stones at the police; he had not specified the exact time. 37. Lastly, Tofiq Yaqublu and the applicant testified as follows. 38. At the trial hearings, Tofiq Yaqublu stated that he had arrived in Ismayilli at or shortly after 4 p.m. on 24 January 2013, together with journalists M.K. and Q.M. (see paragraphs 61 and 64 below) and another journalist. They parked close to a Unibank building located near the IDEA building. They saw a number of police officers in the area. There were also many journalists waiting to interview the head of IDEA. Tofiq Yaqublu spoke to those journalists for two minutes. He then received a call on his mobile phone and, while talking on the phone, saw the applicant together with a REAL member, N.C. (see paragraph 58 below). He stopped for five to ten seconds to quickly greet the applicant. The situation in the area was calm. He then went to see the burned hotel, where he was approached by two or three police officers who asked him to accompany them to a police station. In the police station, he was taken to S.K., a senior police officer of the Ismayilli RPD (see also paragraph 45 below), who enquired about the reasons for his visit to Ismayilli. A little later M.K. was also asked by phone to go to the police station. Both of them were told to leave Ismayilli and to report in Baku that the situation in the town had calmed down. They were then allowed to leave the police station. According to Tofiq Yaqublu, not counting the time he had spent at the police station, he spent about ten minutes in total in Ismayilli. During that time, he did not see any crowds or any clashes and did not hear anyone shouting slogans. He left Ismayilli at around 5 p.m. 39. Tofiq Yaqublu’s statement at the trial slightly differed from his pre-trial statement. In particular, in his pre-trial statement, Tofiq Yaqublu had stated that he had arrived in Ismayilli at around 3 p.m. There he had seen a small group of eight to ten young locals. He had approached them and questioned them very briefly about the events of the previous night. 40. In his statement at the trial hearings, the applicant submitted that his arrest had been politically motivated. As to the events in question, he stated that, after hearing about the events of 23 January 2013 in the news, the next day he and N.C. (see paragraph 58 below) had gone to Ismayilli by car. At around 3.30 p.m. on 24 January 2013 they had entered the Ismayilli Region and had arrived in the Ismayilli town centre at around 4 p.m. On the way to the town centre, they stopped from time to time and spoke to local residents, without getting out of the car, to receive information about the events that had taken place up to that time. In the town centre, they parked at the central square, where there was a group of journalists. He spoke to the journalists who told him that, despite the situation being calm at that moment, there was an atmosphere of tension in the town. While standing next to the journalists, he then posted some observations on his Facebook page. Just then he saw Tofiq Yaqublu passing by, speaking on his mobile phone. They greeted each other. After that, he, N.C. and one of the journalists went to a nearby teahouse. While they were in Ismayilli, there were no crowds of protesters and no violent clashes happening. After spending around thirty minutes in the teahouse, they left the town. On the way back to Baku, he gave a telephone interview to Azadliq Radio. 41. The trial court heard around one hundred witnesses, the majority of whom were prosecution witnesses. Twenty-three of them had the status of victims of criminal offences and were mostly either police officers who had allegedly suffered minor injuries or owners of damaged or destroyed property. 42. The majority of witnesses and victims of the criminal offences gave statements concerning solely the events of 23 January 2013. According to their statements, there was a spontaneous riot by local residents in the evening of 23 January 2013, sparked by violent behaviour of the director of the Chirag Hotel (E.S.) and his companion (El.M.), both of whom were heavily inebriated, after a car accident in which they had been involved. E.S. and El.M. repeatedly insulted and physically assaulted the other car’s driver and some local residents who were in the vicinity of the accident. This resulted in a fight where E.S. and El.M. got beaten up and, with more people joining the fight, it eventually escalated into a riot. The riot continued late into the night and resulted in injuries to a number of people, including several police officers, and the destruction of various property. 43. The victims included the owner, employees and guests of the hotel and a few bystanders who had lost their property, as well as a number of injured police officers. For example, one of the victims, V.Az., a maid employed by the hotel, stated that some of her personal belongings had been destroyed during the events of 23 January 2013. 44. Two police officers stated that there was public disorder on the morning of 24 January 2013 (according to one, between about 10 a.m. and 11 a.m.; according to the other, between about 11 a.m. and noon). A crowd moved from the area near the administrative building of the Regional Education Department in the direction of the IDEA building, throwing stones at the police. One of the two police officers, E.A., stated that between about 10 a.m. and 11 a.m., he had been injured by a stone thrown at him and had been immediately taken to hospital. 45. S.K., a senior police officer of the Ismayilli RPD, gave a lengthy statement about the events of 23 January 2013. As to those of 24 January 2013, he stated that Tofiq Yaqublu had been detained and brought to him at the police station, and that at that time he had been informed that the applicant had also been in Ismayilli but had been “lost among the crowd and disappeared”. S.K. had spoken to Tofiq Yaqublu for about half an hour, and thereafter the latter had been released. According to S.K., there had been outbreaks of unrest throughout the day on 24 January 2013. 46. Thirteen residents of Ismayilli or various villages around Ismayilli made statements, mostly very scant, containing various types of information relating to the events of 24 January 2013. None of those witnesses’ statements related directly to the charges against the applicant or Tofiq Yaqublu. Seven of them stated that on the afternoon of 24 January 2013, they had travelled in the same bus as E.I. (see paragraph 33 above) from one of the villages in Ismayilli Region to the town of Ismayilli, and had arrived in the evening, by which time there was unrest in the town. Three of them specified that they had arrived in the town between 5 p.m. and 6 p.m., while three others stated that they had arrived between 7 p.m. and 8 p.m. or when “it was already dark”. One did not specify the time of arrival. 47. Ten police officers mentioned in their pre-trial statements that they had seen the applicant on 24 January 2013. Some of them stated that there had been disorder between about 10 a.m. and 11 a.m. on 24 January 2013. They further stated that on the afternoon of 24 January 2013 (according to three of them, at around 4 p.m.; according to two of them, at around 5 p.m.; according to four of them, between 4 p.m. and 5 p.m.; and one of them did not specify the exact time), they had seen a crowd gathered near the administrative building of the Regional Education Department (only two of them specified the size of the crowd, one of whom stated that there were twenty people, and the other – two hundred people). According to the documents in the case file, at least three of them stated that the people moved to the area close to the Regional Education Department along the “hospital road”, which was the informal name for M.F. Akhundov Street used by locals. All ten of them further stated that they had also seen the applicant and Tofiq Yaqublu among the crowd, inciting people to act unlawfully by telling them to “block the road, disobey orders, throw stones, go towards the IDEA building”, and that, following this, the crowd had moved towards the IDEA building and thrown stones at the police. 48. According to their own pre-trial statements (as summarised in the first-instance court’s judgment), six of the above-mentioned police officers had allegedly been hit by stones thrown by the crowd on the afternoon of 24 January 2013. All six of them were recognised as “victims of crime”. Two of them stated that they had not sustained any injuries because they had been wearing thick winter coats, while the others either stated that they had received only minor injuries or did not mention any injuries. One of them was the police officer who subsequently retracted his pre-trial statement (see paragraph 49 below), including the allegation that he had been hit by a stone. There were no medical records or other evidence in respect of any injuries to those police officers. According to the applicant, the very first time the above-mentioned six police officers were questioned about the events of 24 January 2013 was five months later, between 24 and 27 June 2013, and it was at that time that it was first alleged that they had had stones thrown at them on the afternoon of 24 January 2013. The Government remained silent in respect of these specific allegations by the applicant and did not submit any relevant documentary evidence refuting them. Neither did the Government submit full copies of these police officers’ pre-trial statements or relevant excerpts of the trial transcripts reflecting their statements at the trial hearings. 49. One of the above-mentioned six police officers gave a differing statement during the trial hearings, claiming that he had been at the police station the whole day on 24 January 2013. He stated that he had not seen any of the accused committing or inciting others to commit acts of disorder. He explained that he had signed his pre-trial statement without having read it. According to the applicant, three months after the first-instance court had delivered its judgment, that police officer was dismissed from the police service. 50. According to the applicant, another police officer also initially retracted his pre-trial statement, giving a similar explanation to that of the above-mentioned officer, but after a break in the hearing, he asked to be heard again and informed the court that he confirmed the content of his pretrial statement. The Government did not submit the transcripts reflecting the statements of this witness at the trial and did not otherwise comment on the above allegation by the applicant. 51. The other police officers’ statements at the trial hearings appeared to confirm their pre-trial statements. 52. According to the first-instance court’s judgment, two residents of Ismayilli, R.N. and I.M., stated that between about 5 p.m. and 6 p.m. on 24 January 2013 they had seen a crowd of people near the administrative building of the Regional Education Department. They had also seen the applicant and Tofiq Yaqublu inciting them to riot, after which the crowd moved in the direction of the IDEA building committing acts of mass disorder. Both R.N. and I.M. specified that the crowd moved in the direction of the building of the Regional Education Department, and from there in the direction of the IDEA building, along the “hospital road” (M.F. Akhundov Street). 53. According to the applicant, during cross-examination by the defence, which was not reflected in the first-instance court’s judgment, both of those witnesses, especially R.N., had given answers contradicting their earlier statements. In particular, the applicant claimed in his appeal (see paragraph 117 below) that, in his witness statement, R.N. had said that from around 3 p.m. on 24 January 2013 he had been at his relative’s home for lunch. After lunch, sometime before 5 p.m., he had gone to the area next to the Regional Education Department, where he had seen the applicant and Tofiq Yaqublu inciting a large crowd of people to riot and that thereafter the crowd had attacked the police with stones. During cross-examination at the trial hearings, in response to a question by the defence, he had stated that, in connection with this criminal case, he had participated as a witness in the questioning by the prosecution authorities only two days after the Ismayilli events, and that he had not been a participant in any other investigative steps and had not signed any other procedural documents relating to this case. Following that response, the defence produced a copy of the record of the inspection of the damage to the Chiraq Hotel and N.A.’s house, which had been conducted from 10 a.m. to 4.10 p.m. on 24 January 2013 (see paragraph 65 below). According to the record, R.N. had been present during the inspection as an attesting witness and had signed the inspection record. Despite the fact that this had revealed a clear inconsistency between the record and R.N.’s testimony and his responses to the defence’s questions, raising a number of questions as to the witness’s integrity and the truthfulness of his statements, the presiding judge had hastily dismissed the witness without giving the defence an opportunity to ask any more questions. 54. Similarly, according to the applicant, witness I.M.’s statement contained contradictory details and he had been unable to respond to the defence’s questions seeking clarification. Moreover, the defence had found out that that witness’s son was an employee of the burned hotel owned by V.A. 55. The Government remained silent in respect of the above-mentioned allegations by the applicant in respect of R.N. and I.M.’s self-contradictory statements and did not submit any relevant documentary evidence refuting them. Neither did the Government submit full copies of these witnesses’ pre-trial statements or relevant excerpts of the trial transcripts reflecting their statements at the trial hearings. 56. One resident of a nearby village, R.B., who had been in the town on 24 January 2013, stated, briefly, that there had been disorder in the centre of the town between about 4 p.m. and 5 p.m. and that he had seen the applicant and Tofiq Yaqublu in the crowd. R.B. specified that the protesters moved towards the town centre along the “hospital road” (M.F. Akhundov Street). According to the applicant, R.B. also stated that he had not heard exactly what the applicant and Tofiq Yagublu had been saying to people around them (see paragraph 116 below for more detail). 57. N.M., a journalist, stated that he had arrived in Ismayilli between about 3 p.m. and 4 p.m. together with N.C. He had seen several other journalists in the town centre. There had been no rioting or clashes with the police at that time. The applicant did not make any inflammatory statements to local residents. After a while, the witness had gone to a teahouse together with the applicant. 58. N.C., the applicant’s colleague from REAL who had travelled together with the applicant and N.M. to Ismayilli, stated that they had arrived in the town at around 4 p.m. There had been no rioting or clashes with the police at that time. After staying in the square near the IDEA building for twenty-five to thirty minutes, they had gone to a teahouse. At around 5 p.m. they had left the town. 59. I.A., a journalist, stated that there had been some disturbances in the town between about 10 a.m. and 11 a.m. and that the police had used water cannons and rubber bullets against the protesters. At around 4 p.m. other journalists had arrived from Baku. The applicant and Tofiq Yaqublu had arrived with them. At that time, there had been no unrest and no clashes with the police. The applicant had invited him for a tea, but he had refused. At around 5 p.m. the applicant had left the town together with N.M. and N.C. After they had left, in the evening, there had been clashes between protesters and the police, which had continued until around 11 p.m. 60. M.R., a journalist, stated that she had contacted the applicant by phone from Baku while he was in Ismayilli on 24 January 2013. 61. M.K., a journalist, stated that he had travelled to Ismayilli together with Tofiq Yaqublu. They had arrived a little after 4 p.m. Very shortly after their arrival, Tofiq Yaqublu had been taken by plain-clothed individuals to the police station. A few minutes later, he himself had gone to the same police station, where both of them had been told that the situation in the town was now calm and had been asked to go back to Baku. No inflammatory statements were made by Tofiq Yaqublu while they were in Ismayilli. 62. R.C., a journalist, stated that between about 3 p.m. and 4.p.m. he had seen Tofiq Yaqublu in Ismayilli. A little while later, sometime between 4 p.m. and 5 p.m., he had seen the applicant and N.C. and had spoken to them for a few minutes. At around that time, plain-clothed individuals had taken Tofiq Yaqublu to the police station. After the applicant and Tofiq Yaqublu had left the town, between about 8 p.m. and 9 p.m. there had been a new round of clashes between the protesters and the police. 63. E.M., a journalist, stated that he had seen Tofiq Yaqublu being taken to the police station; he did not specify the time. He had also seen the applicant. In the evening, after the applicant and Tofiq Yaqublu had left the town, there had been clashes between protesters and the police. 64. Q.M., a journalist, stated that he had arrived in Ismayilli at around 4 p.m., together with M.K. and Tofiq Yaqublu. The latter had been taken to the police station a few minutes later. There had been no rioting or clashes with the police at that time. He had not seen the applicant at all while he had been in Ismayilli. 65. The court also examined various material evidence, including video recordings and photographs of the events; inspection reports of damage to the Chirag Hotel, a house owned by the head of IDEA, several burned cars and scooters, public light fixtures, and other public and private property; and property documents showing, inter alia, that V.A. had property rights to the hotel. It appears that one of the formal inspections of the damaged property was conducted from 10 a.m. to 4.10 p.m. on 24 January 2013, in the presence of R.N. (see paragraph 53 above) as an attesting witness. 66. As for the injuries to police officers during the events of 23 and 24 January 2013, the court took note of six forensic reports dated between 24 and 26 January 2013 documenting various injuries sustained by six police officers on either 23 or 24 January 2013, and a record of 25 February 2013 showing that one more injured police officer had been admitted to hospital on 24 January 2013. None of these seven injured police officers were the same as the six who had allegedly been hit by stones on the afternoon of 24 January 2013 (see paragraph 48 above). 67. The court ordered forensic examinations in respect of allegations of ill-treatment by a number of the accused, including E.I. and M.A. (see paragraphs 30, 33 and 35 above). According to the forensic reports issued on 25 January 2014 (a year after the events in question), no injuries had been found on them. The court questioned four police officers named by the accused in connection with the alleged ill-treatment, all of whom denied that the accused had been ill-treated. The court noted that the majority of the accused, except one, had not complained of ill-treatment before being heard at the trial hearings. A criminal complaint by one of the accused had been examined by the Sabunchu District Prosecutor’s Office and dismissed. In such circumstances, the court concluded that the defendants’ allegations of ill-treatment were ill-founded. 68. In so far as directly relevant to the specific charges against the applicant, the court examined the following evidence. 69. According to the description given in the court’s judgment, a video recording of 24 January 2013 showed the applicant and Tofiq Yaqublu “standing in the centre of the town of Ismayilli, opposite to the administrative building of the Education Department, at a place where acts of mass disorder had been committed”. The description did not specify the time of day when that scene had been shot. 70. Another set of video recordings of the events of 24 January 2013 showed a group of local residents in the centre of the town, in N. Narimanov Street and M.F. Akhundov Street, blocking the roads, shouting slogans and disobeying repeated orders by the police to disperse. The same video contained scenes showing E.I. and M.A. throwing stones at the police and encouraging others in the crowd to do the same and to disobey the police. There was also a scene showing a police officer (who was not one of the officers who claimed to have been injured on the afternoon of 24 January 2013 (see paragraphs 44 and 48 above)) getting injured by a stone and leaving the area limping. Lastly, the video showed the police using a water cannon against the crowd and the protesters dispersing in various directions. The description of the above recordings did not specify the time of day when those scenes had been shot. 71. The court also examined the applicant’s mobile phone geolocalisation records for 24 January 2013. They indicated that at 2.41 p.m. he had been within the zone of the antenna in the town of Gobustan; at 3.39 p.m. – the antenna in the village of Diyalli in the Ismayilli region; at 3.46 p.m., 3.59 p.m., 4.27 p.m., 4.40 p.m. and 4.58 p.m. – the antenna on Javanshir Street in the town of Ismayilli; at 6.09 p.m. – the antenna in the village of Bizlan in the Ismayilli region; at 7:25 p.m. – the antenna in Gobustan; and at 8.41 p.m. – an antenna in Baku. 72. The court further examined the content of the applicant’s blog post (see paragraph 10 above) and the content of the telephone interview he had given to Azadliq Radio between 5.41 p.m. and 5.46 p.m. on 24 January 2013 (see paragraph 11 above). 73. The court also examined information given by the Ismayilli RPD and the MNS, described in the judgment as follows: “According to letter no. 2/117 of the Ismayilli District Police Department dated 1 April 2013, on 24 January 2013, at places where people were densely gathered in front of the Education Department in Ismayilli, [Tofiq Yaqublu], together with [the applicant], incited people to make assertions against the State and government bodies and their activities. According to letter of 6/2274 of the Ministry of National Security dated 20 April 2013, on 24 January 2013 [Tofiq Yaqublu and the applicant] were in Ismayilli and called on residents to resist the police, to block roads ... and to commit other similar acts aimed at disturbing social and political stability.” 74. On 18 November 2013 the applicant’s lawyers applied to the trial court with a number of requests, in particular: (a) that the applicant be released from pre-trial detention, with reference to Article 5 of the Convention and various provisions of domestic law (this request was similar to the one lodged at the preliminary hearing); (b) that various pieces of evidence against the applicant obtained at the pre-trial stage be declared inadmissible, including statements by a number of prosecution witnesses (including those mentioned in paragraphs 48 and 52-56 above) on the grounds that they had been unlawfully obtained, and the letters from the Ismayilli RPD and the MNS (see paragraph 73 above) on the grounds that they contained information that had not been verified independently by the prosecution authorities (this request was also similar to the one lodged at the preliminary hearing); (c) that additional witnesses for the defence be heard (including I.A., R.C., and E.M. (see paragraphs 59 and 62-63 above)) and other additional evidence (inter alia, contemporaneous media reports concerning the events of 24 January 2013) be examined; and (d) that the hearings be held in a larger courtroom which could accommodate media representatives. 75. The court examined those requests at the hearing held on 29 November 2013 and decided: (a) to reject the request for release on the grounds that the applicant’s circumstances had not changed; (b) to reject the request concerning the inadmissibility of the evidence produced by the prosecution, on the grounds that it was ill-founded; (c) to postpone the examination of the request for admission of additional evidence, because it was not sufficiently substantiated; and (d) to reject the request to change the hearing venue, because media representatives were able to attend the hearings in the current venue. 76. It appears from the transcript of the hearing of 29 November 2013 that there was a verbal altercation between the applicant and Tofiq Yaqublu on one side, and some prosecution witnesses on the other, and that the presiding judge called the accused to order on several occasions. The judge also issued a warning to one of the applicant’s lawyers, Mr F. Agayev, for loudly objecting to the court’s decisions to reject the defence’s requests. 77. On 2 December 2013, after having consulted the transcript of the preliminary hearing, the applicant’s lawyers applied to the court to amend some of the wording used in the transcript to describe the applicant’s statement during the preliminary hearing to the effect that he considered the trial to be a sham and did not accept the trial court as a fair tribunal. On 13 December 2013 the court held that the transcript had been correct and that the amendments proposed had the purpose of justifying the applicant’s and his lawyers’ disrespectful attitude towards the court during the preliminary hearing. 78. On 29 December 2013 the applicant applied for access to the transcripts of the trial hearings, arguing that under the Code of Criminal Procedure, the transcript of each hearing had to be drafted within three days of the hearing and made available to the parties within the following three days. The court rejected the request, ruling that the transcripts should be made available to the parties not after each trial hearing, but after the completion of the trial. On 13 January 2014 the court reiterated its position on that matter. 79. On 11 January 2013 one of the applicant’s lawyers applied to the court to terminate the participation in the trial as “victims of crime” of six police officers who had allegedly been hit by stones during the afternoon of 24 January 2013 (see paragraph 48 above). He claimed that the decision granting them victim status had been unsubstantiated. In support of the request, the lawyer argued that all of those police officers had first been questioned five months after the events by the same investigator. He further argued that it had not been shown that the police officers had sustained any injuries, and that there were no forensic reports in this respect. Moreover, having been given victim status, unlike regular witnesses, those persons had been present in the courtroom throughout the entire trial, giving them an ability to coordinate their statements, not only with each other but with other prosecution witnesses. 80. It appears that the above-mentioned application was dismissed by the court. 81. At the hearing held on 13 January 2014 one of the applicant’s lawyers, Mr F. Agayev, lodged a second objection to the composition of the court, arguing, inter alia, that the court was biased: it had rejected all of the defence’s requests and created obstacles to the proper questioning of “fake witnesses” by the defence. The court dismissed the objection, finding, inter alia, that it was ill-founded, that the reasons for the objection were artificial and unsubstantiated, and that it appeared to have been lodged with the purpose of delaying the trial. The court also imposed a fine on the lawyer in the amount of 220 Azerbaijani manats (AZN), under Article 107.4 of the CCrP, for disrupting the court proceedings. 82. In February 2013 the applicant’s lawyers applied to the court to admit and examine as evidence contemporaneous reports by various news agencies, including the Azerbaijan Press Agency (“the APA”) and Trend, showing that no clashes had been reported to be happening in Ismayilli at the time the applicant was there. It appears that this request was rejected. 83. After the Sheki Court for Serious Crimes had delivered its judgment (see paragraphs 85 et seq. below), on 17 March 2014 the applicant’s lawyers and on 19 March 2014 the applicant himself applied for access to the transcripts of the court hearings. On 4, 10, 16 and 22 April 2014 the applicant was given access to the transcripts for a total of seventeen hours and thirty minutes. It appears that one of the applicant’s lawyers, Mr F. Agayev, was not given access to the transcripts because he had refused the demand by a court clerk to hand over all of the technical devices he had been carrying (his mobile phone, tablet, and so on) which could have been used to photograph pages of the transcripts. He had refused that demand on the grounds that there were more than ten volumes of transcripts (a total of about 2,000 to 3,000 pages) and that there was not enough time to properly consult them without the use of technical devices. It appears from the documents in the case file that the applicant’s other lawyer, Mr K. Bagirov, was given access to the transcripts for an unspecified period of time. However, he was not allowed to make copies of the transcripts. 84. On 28 April 2014 the applicant submitted to the Sheki Court for Serious Crimes his remarks concerning the transcripts of the trial hearings, of which he had time to read about 500 pages. He alleged that in a number of instances various statements by witnesses had been distorted or misrepresented in the transcripts in a manner unfavourable to him. By a decision of 12 May 2014 the court refused to accept the applicant’s remarks, holding that the transcripts were accurate. 85. On 17 March 2014 the Sheki Court for Serious Crimes delivered its judgment, deciding as follows. 86. As to the accused whose allegations of ill-treatment were considered to be ill-founded (see paragraph 67 above), the court decided to take into account their pre-trial statements, in which they had admitted the factual accusations against them, as more truthful than their statements at the trial hearings, in which they had pleaded not guilty and claimed to have been illtreated at the pre-trial stage. 87. In respect of the other accused and witnesses who had given differing statements at the pre-trial stage and during the trial hearings, including the police officer who had retracted his pre-trial statement (see paragraph 49 above) and the accused E.I. and M.A., the court decided to take into account the pre-trial statements as being more “truthful and objective”, reasoning that the statements they had made later at the trial hearings, which had been more favourable to the accused, had been inconsistent with other evidence and had been designed to help the accused “avoid criminal liability”. 88. With regard to the accusations against the applicant in particular, the court found as follows. 89. The statements of prosecution witnesses, video recordings and other evidence proved that there had been mass disorder in Ismayilli between about 4 p.m. and 5 p.m. on 24 January 2013, that the applicant had been in Ismayilli at that time, and that, together with Tofiq Yaqublu, he had incited local residents, including E.I. and M.A., to commit those violent acts of mass disorder, threatening the lives and health of six police officers. 90. The court further held that the statements made by the applicant on his blog (see paragraph 10 above) and in his interview to Azadliq Radio (see paragraph 11 above) also proved that, even before traveling to Ismayilli, he had had an “intention to organise mass disorder” and that, when in Ismayilli, he was guilty of inciting people to commit acts of disorder and to disobey the police. 91. As to the statements of witnesses Q.M., E.M., R.C., M.K., I.A., N.C. and N.M., who had said that there had been no clashes between protesters and the police in the town at that time and that neither the applicant nor Tofiq Yaqublu had incited anyone to violence or disobedience, the court found that there were inconsistencies in their statements. In particular, the court found as follows: “However, [Q.M.] stated that, after he had greeted [the applicant], he had gone to sleep in the car. In fact, he had not known the whereabouts of [the applicant and Tofiq Yaqublu] during that period of time. [M.K.] stated that, after getting out of the car, Tofiq Yaqublu had gone on foot towards the building of the IDEA, whereas during the pre-trial investigation [M.K.] had stated that [Q.M.] had left them, that he himself had frequently changed his location in order to record the people moving around in the square, that he had separated from Tofiq Yaqublu, that Tofiq Yaqublu had been at another place, that [another journalist] had been taking photos, that [N.A., the Head of the IDEA] had started to give an interview at that time, and that, when he had been going for the interview, Tofiq Yaqublu ... had been arrested and taken away by plain-clothed individuals. [E.M.] stated that Tofiq Yaqublu had been arrested before the interview given by [the Head of the IDEA], while [R.C.] stated that the interview ... had lasted about twenty minutes at most and that, during that period of time, he had not been aware of the whereabouts of [the applicant] and Tofiq Yaqublu. As it can be seen from the above, the witnesses who stated that they had been next to [the applicant] and Tofiq Yaqublu at all times concealed the essence of the matter by giving contradictory statements.” 92. The court found that the statements by those witnesses were favourable to the applicant and Tofiq Yaqublu because those witnesses knew the defendants personally and wanted to “help them avoid criminal liability”. Their statements were not accepted as “objective, sincere and truthful” because they were “incompatible with the facts of the case and contradicted the irrefutable evidence” of the applicant’s guilt. 93. The court further found that, likewise, the applicant’s and Tofiq Yaqublu’s statements at the trial hearings claiming that there had been no mass disorder while they had been in Ismayilli did not reflect the actual circumstances, and had been made in order to “avoid criminal liability”. 94. The Sheki Court for Serious Crimes convicted the applicant under Articles 220.1 and 315.2 of the Criminal Code and sentenced him to seven years’ imprisonment. 95. The other defendants were also found guilty as charged and given sentences ranging from two years and six months’ to eight years’ imprisonment, with some sentences being conditional. 96. On 14 April 2014 one of the applicant’s lawyers, Mr F. Agayev, lodged an appeal against the judgment of the Sheki Court for Serious Crimes of 17 March 2014. 97. The lawyer pointed out at the outset that at the time of lodging the appeal, neither a full copy of the text of the judgment of 17 March 2014 nor the transcripts of the trial hearings had yet been made available to him. 98. The lawyer argued that the applicant had been convicted following a sham trial by a court which had tried him from a position of “presumption of guilt” throughout the entire proceedings. The applicant’s visit to Ismayilli, as an opposition politician, to find out the reasons for the events of 23 January 2013 had been used by the Government as an excuse to punish him for his legitimate political criticism, a decision which had been taken long before the Ismayilli events. 99. The rights of the defence had been seriously restricted in that the majority of their well-founded requests and objections had been routinely dismissed; the defence had not been given adequate access to trial transcripts and some of the evidence (including some video material); the defence lawyers had not been allowed to use various technical devices, such as laptop and tablet computers, during the trial hearings, and so on. 100. The formal accusations against the applicant (see paragraphs 15 and 19 above) had been written in a manner which did not comply with the norms of the Azerbaijani language, making it difficult to understand exactly what the applicant was accused of. The factual allegations against him were unclear and did not fit the elements of the criminal offences proscribed under Articles 220.1 and 315.2 of the Criminal Code. Given that the applicant had been in Ismayilli for only about one hour and had no prior personal acquaintance with anyone implicated in the riots of the previous night, it was highly improbable – and even physically impossible – for him to have “organised” mass disorder within such a short time frame, as described in the formal accusations. 101. The applicant had been accused and convicted of organising an outbreak of mass disorder which had never happened. All the reliable and meaningful evidence produced at the trial had clearly shown that there had been no acts of mass disorder during the afternoon of 24 January 2013 while the applicant was in the town. 102. Firstly, all video recordings and other relevant material evidence showed that there had been no clashes with the police in the afternoon of 24 January 2013 and that the applicant had not incited anyone to violence or disobedience. 103. In particular, a video recording originally taken from the website of Obyektiv TV, operated by an NGO named the Institute for Reporters’ Freedom and Safety (“the IRFS”), had been edited before its examination by the court (see paragraphs 69-70 above). As to the parts of the video showing clashes between protesters and the police (it appears that, here, the lawyer referred to the scenes described in paragraph 70 above), it was clear from the size and direction of the shadows cast by buildings, people and other objects that the video had been shot during the morning. That fact had been additionally confirmed by the chairman of the IRFS in a letter dated 24 January 2014. The full, unedited version of the video attached to the letter contained scenes shot during the afternoon of 24 January 2013 showing numerous police vehicles on M.F. Akhundov Street advancing in the direction of the IDEA building with no protesters present. Then it showed the applicant, N.C. and N.M. standing near the Education Department and calmly talking to each other, with no one else in the vicinity. Afterwards, Tofiq Yaqublu could be seen talking to R.C. and two others (it appears that the above scenes correspond to the scenes described in paragraph 69 above). Then, it showed Tofiq Yaqublu being taken by the police to a car and driven away. Later, an interview with the head of the IDEA was shown. Throughout the entire video, the situation in the town during the afternoon of 24 January 2013 was calm and under the control of the police. 104. A video made available by the Yeni Musavat newspaper showed the absence of any clashes between protesters and the police during the afternoon of 24 January 2013. According to the applicant’s lawyer, the firstinstance court added that video to the case file but, for unexplained reasons, decided not to use it as evidence. 105. A third video that was examined during the trial had been recorded by a camera installed on the Unibank building, directed at the area of M.F. Akhundov Street near the building of the Regional Education Department. From that angle, if any crowd had passed in the vicinity of the Education Department and headed towards the IDEA building, it would certainly have been reflected in the recording. However, the parts of the video corresponding to the period between 4 p.m. and 5 p.m. on 24 January 2014 did not show any crowd or even a small group of protesters in that area. 106. The applicant’s mobile phone geo-localisation records showed that he had left the town of Ismayilli by 4.58 p.m. Similarly, Tofiq Yaqublu’s mobile phone geo-localisation records showed that he had left the town by 5.17 p.m. 107. On several occasions the defence had requested the trial court to examine a number of contemporaneous news reports by various information agencies, television and radio stations, and other mass-media sources which had closely followed the Ismayilli events. None of them had reported any unrest happening in Ismayilli in the afternoon of 24 January 2013 and had only reported clashes happening in the evening, starting at around 8 p.m. However, the court had rejected the defence’s requests to examine that material. 108. Secondly, the applicant’s version of the events was strongly corroborated by the statements of Tofiq Yaqublu, N.C., N.M., M.K., R.C., I.A., Q.M., E.M. and others. They had all stated that there had been no clashes during the afternoon of 24 January 2013 and that the applicant had not incited anyone to commit any acts of disorder. Those statements were mutually consistent and were also corroborated by all the material evidence, as described above. 109. Two of the accused, E.I. and M.A., had both stated that there had been unrest in Ismayilli during the morning of 24 January 2013, but that they had both been out of town during the afternoon. Neither the investigating authorities nor the court had bothered to check their alibis. Their statements also indirectly corroborated the applicant’s version of the events, namely that there had been no unrest during the afternoon of 24 January 2013. Also, both of them had alleged before the court that they had been ill-treated by the investigating authorities with the aim of obtaining statements incriminating the applicant. 110. Three police officers had mentioned in their statements that there had been no unrest during the afternoon of 24 January 2013. One police officer had testified that he had been injured by a stone during the morning. Their statements also corroborated the applicant’s version of the events. 111. As to the witnesses who had testified against the applicant, the majority of them were police officers. Their statements were contradictory, false, inconsistent in various details (such as, for example, the time and exact locations where they had seen the applicant and Tofiq Yaqublu) and conflicted with all the video recordings and other material evidence. 112. In particular, the assertion that six police officers had been hit by stones on the afternoon of 24 January 2013 was false. None of those police officers had reported being injured or hit by stones immediately or soon after the alleged incident. All of them had been recognised as “victims of crime” and questioned by the prosecution for the first time only between 24 and 27 June 2013, five months after the events. There had been no medical evidence of their injuries. By contrast, the injuries sustained by seven police officers on 23 January and during the early hours of 24 January 2013 had been promptly documented either on the same day or a couple of days later. In such circumstances, it was clear that the above-mentioned six police officers had given false testimony against the applicant. The applicant had formally applied to the court to exclude them from the trial as “victims of crime”, but to no avail. 113. When cross-examined by the defence at a trial hearing, one of the above-mentioned six police officers had been unable to name the personnel of the police unit to which he had been deployed and, until assisted by a prosecutor, could not pinpoint his own exact location in Ismayilli at the time when he had allegedly seen the applicant. When the defence lawyer had tried to get him to show, on an official map of Ismayilli, exactly where he had seen the applicant and Tofiq Yaqublu standing and inciting the crowd, the presiding judge had forbidden the use of the map. When the defence lawyer had then asked the police officer to describe his location with reference to various landmarks next to the Regional Education Department, the presiding judge had dismissed the question. The defence lawyer had then lodged a second objection to the composition of the trial court. In response, the presiding judge had decided, firstly, to leave the objection unexamined and, secondly, to fine the lawyer in the amount of AZN 220 for having lodged an allegedly unsubstantiated objection designed to delay the hearing. Thereafter, the defence lawyers for all of the accused had been dissuaded from lodging any further objections, having been clearly shown that doing so would be meaningless. 114. Similarly, other police officers had been unable to answer the defence’s questions seeking clarification, or had given statements that differed significantly from their pre-trial statements, only to radically revert back to their pre-trial statements immediately after a break in the hearing announced by the court. On some occasions, the court had dismissed police officers from the witness stand before the defence could complete the crossexamination. 115. Furthermore, at the trial one of the police officers (see paragraph 50 above) had retracted the written statement he had signed at the pre-trial stage, stating that everything in it had been a product of an investigator’s imagination. 116. The applicant’s lawyer argued that, at the trial hearings, witness R.B. (see paragraph 56 above) had stated that he had seen only about twenty people in the town centre between about 4 p.m. and 5 p.m. on 24 January 2013, and that, although he had seen the applicant and Tofiq Yaqublu among them, he had not heard what they had been talking about with the people around them. 117. The lawyer further argued that R.N. was a ”fake witness” engaged by the police and claimed that both witnesses R.N. and I.M. had given knowingly false and contradictory statements as described in paragraphs 5354 above. 118. In conclusion, the applicant’s lawyer argued that a proper assessment of the available evidence clearly showed that, contrary to the prosecution’s version of the facts, there had been no acts of mass disorder at the time when the applicant had been in the town (between about 4 p.m. and 5 p.m.) and that some clashes between protesters and the police had taken place several hours before he had arrived in the town (between about 10 a.m. and 11 a.m.) and several hours after he had left the town (after 8 p.m.). Statements given by the prosecution witnesses, to the contrary, had been shown to be contradictory, unreliable or false, and uncorroborated by the available material evidence. Accordingly, there was no corpus delicti in respect of the criminal offences for which the applicant had been convicted. 119. Before the examination of the appeal, on 2 June 2014 the applicant applied to the Sheki Court of Appeal for access to the remaining part of the transcripts of the trial hearings for consultation. His request was granted and the date for his consultation of the transcripts was scheduled for 9 June 2014. However, on 6 and 9 June 2014 he lodged two applications withdrawing his previous request and, instead, asking for a speedy examination of his appeal. 120. During the examination of the appeal by the Sheki Court of Appeal, the applicant’s lawyers lodged a number of applications repeating those lodged with the first-instance court. It appears that all of them were rejected. 121. By a judgment of 24 September 2014 the Sheki Court of Appeal upheld the applicant’s conviction and sentence, essentially reiterating the reasoning of the first-instance court in respect of the charges against him. The judgment did not address any of the arguments raised in the applicant’s appeal. 122. In November 2014 the applicant’s lawyers submitted a number of remarks concerning the transcript of the appellate hearings, and requesting amendments. The Sheki Court of Appeal refused to amend the transcripts. 123. On 14 November 2014 the applicant’s lawyers lodged a cassation appeal with the Supreme Court, reiterating the points raised in the previous appeal. 124. On 19 November 2014 a judge of the Supreme Court requested all the material of the case file from the Sheki Court for Serious Crimes. At the first hearing held on 13 January 2015 the Supreme Court decided, in the absence of any objections, to postpone further hearing of the case for an indefinite period because more time was needed for examination of the case file. The hearing was resumed on 13 October 2015. 125. By a decision of 13 October 2015, the Supreme Court quashed the Sheki Court of Appeal’s judgment of 24 September 2014, having found that the lower courts’ rejection of the defence’s requests for the examination of additional defence witnesses (in particular, two members of REAL and one NGO director) and other evidence (in particular, contemporaneous news reports by various media agencies, additional mobile-phone records, additional video recordings, and so on) had been insufficiently reasoned and were in breach of the domestic procedural rules and the requirements of Article 6 of the Convention. The case was remitted for a new examination by the appellate court. 126. Before the repeat examination of the case by the Sheki Court of Appeal, the applicant, who at that time was serving his sentence in Penal Facility No. 2 in Baku, wrote to the appellate court several times waiving his right to be personally present at the appeal hearings to be held in Sheki, expressing confidence that his lawyers would conduct his defence adequately in his absence. The Sheki Court of Appeal responded each time with an explanation that, under domestic law, the defendant’s presence at appeal hearings was mandatory and invited him to attend the hearings. Finally, on 20 April 2016 the court ruled that the applicant should be brought to Sheki for the appeal hearings. 127. During the hearings at the Sheki Court of Appeal, the applicant’s lawyers lodged a number of applications, including requests for the applicant’s release from detention; for the allegedly unlawfully obtained statements of prosecution witnesses (including those mentioned in paragraphs 48 and 52-56 above) and other evidence produced by the prosecution (including the letters of the Ismayilli RPD and the MNS) to be declared inadmissible; for additional defence witnesses to be heard; for the admission and examination of contemporaneous news reports by various information agencies; and for examination of the video recording taken by the camera installed on the Unibank building. It appears that, apart from the first two requests, all the others were granted. 128. The appellate court re-examined the case material of the firstinstance trial and, in addition, examined new evidence. In particular, it heard two new defence witnesses (both members of REAL). Their statements do not appear to have contained any significant details in respect of the accusations against the applicant. The court also examined a number of contemporaneous news reports and the “Unibank video recording”. 129. By a judgment of 29 April 2016, the Sheki Court of Appeal upheld the applicant’s conviction and sentence. Below is the summary of the appellate court’s reasoning contained in its judgment. 130. The court’s assessment of the evidence examined at the first-instance and appeal hearings began as follows: “Having viewed the recording of the video surveillance camera installed at the ATM of Unibank in the town of Ismayilli, directed at M.F. Akhundov street leading towards the administrative buildings of the IDEA and the Education Department, the court determined that between 4 p.m. and 5 p.m. on 24 January 2013 [the situation] was relatively calm on that street. Having examined [reports] of APA, Trend and other mass media ..., the court noted that the media had reported that, as a continuation of the events starting on 23 January 2013, between 4 p.m. and 6 p.m. on 24 January 2013 there was a general situation of confrontation and tension in the centre of Ismayilli, [and had also reported] about growing numbers of people on the streets in the vicinity of buildings of government bodies. ... It is noted in the 25 January 2013 issue of the Yeni Musavat Online newspaper ... that [E.M.], the newspaper’s correspondent sent to Ismayilli, reported at 4.05 p.m. on 24 January 2013 that ‘currently numerous vehicles – buses, water cannons, and other vehicles, thought to be coming from Baku – are entering the town. The crowd around the area where the government bodies are located has been growing and tension remains.’ At 5 p.m. he reported that ‘... despite the engagement of additional forces, the crowd is growing on the streets where the government bodies are located and around them. According to local rumours, the protest, which started in the town centre yesterday, would continue tonight after dark’.” 131. The court also referred to, as evidence, the letters from the Ismayilli RPD and the MNS, as described in the first-instance judgment (see paragraph 73 above). 132. The judgment continued as follows: “The court does not accept as evidence the statements of witnesses [Q.M., E.M., R.C., M.K., I.A., N.C. and N.M.] that there were no riots between 4 p.m. and 5 p.m. on 24 January 2013 and the statements of [the applicant and Tofiq Yaqublu] that they did not incite the public to riot or resist the police, that there were no riots between 4 p.m. and 5 p.m. on 24 January 2013, and that they spent only five to ten minutes in Ismayilli. In particular, [Q.M.] stated that, after he had greeted [the applicant], he had gone to sleep in the car and, in fact, had not known the whereabouts of [the applicant and Tofiq Yaqbulu] during that period of time. [M.K.] stated that, after getting out of the car, Tofiq Yaqublu had gone on foot towards the building of the IDEA, while during the pre-trial investigation [M.K.] had stated that [Q.M.] had left them, that he himself had frequently changed his location in order to record the people moving around in the square, that he had separated from Tofiq Yaqublu, that Tofiq Yaqublu had been at another place, that [another journalist] had been taking photos, that [the head of the IDEA] had started to give an interview at that time, and that, when he had been going for the interview, Tofiq Yaqublu ... had been arrested and taken away by plain-clothed individuals. [E.M.] stated that Tofiq Yaqublu had been arrested before the interview given by [the head of the IDEA], while [R.C.] stated that the interview ... had lasted about twenty minutes at most and that, during that period of time, he had not been aware of the whereabouts of [the applicant] and Tofiq Yaqublu. As it can be seen from the above, the witnesses who stated that they had been next to [the applicant] and Tofiq Yaqublu at all times, concealed the essence of the matter by giving conflicting statements. Moreover, in his interview to ... Azadliq Radio given from 5.41 to 5.46 p.m. on 24 January 2013, Tofiq Yaqublu stated that ‘[he had been] detained at the police station for approximately forty minutes ... [He had been] taken to [S.K.’s] office at the police station [who alleged that Tofiq Yaqublu] had come here to organise sabotage and to prepare people for more protests. [The police were then reassured that Tofiq Yaqublu was indeed a columnist for a newspaper]. For that reason, [he] was released.’ This interview proves that Tofiq Yaqublu was not taken to the police station without a reason, but that he was detained ... because of his actions aimed at disruption and sabotage.” 133. The court then noted that the statements of ten police officers, including five of the six alleged victims of crime (see paragraphs 47-48 above) and witnesses R.N., I.M. and R.B. (see paragraphs 52-56 above) indicated that between about 4 p.m. and 5 p.m. on 24 January 2013 there was mass disorder in front of the building of the Regional Education Department and that the applicant and Tofiq Yaqublu had incited people to riot and resist the police. 134. The court referred to the applicant’s interview with Azadliq Radio (see paragraph 11 above). According to the court’s interpretation, contrary to what the applicant had stated in the court proceedings, the content of his interview showed that the situation had not been calm in Ismayilli during his visit. 135. In respect of the witness statements favouring the applicant, the court concluded as follows: “Having come to the same conclusion as the first-instance court, the court considers that ... the witnesses [Q.M., E.M., R.C., M.K., I.A., N.C., and N.M.] wanted to help [the applicant and Tofiq Yaqublu], whom they knew and had relations with, avoid criminal liability. The specific circumstances mentioned in their statements cannot be accepted as objective, sincere and genuine because they do not fit the fconflict with other, irrefutable evidence.” 136. As to the video recording by the camera installed on the Unibank building, the court assessed it as follows: “The court holds that the statements of [the applicant and Tofiq Yaqublu] ... do not fit[Their] statements ... are of a self-defence nature and designed to avoid criminal liability. As the main evidence proving their statements, they rely on the recording dated 24 January 2013 of the video surveillance camera installed at the ATM of Unibank, directed at M.F. Akhundov Street leading towards the administrative buildings of the IDEA and the Education Department. Although the recording shows that between about 4 p.m. and 5 p.m. the situation was relatively calm on that street, it is not the only street leading to the centre (the IDEA [building]); moreover, it cannot be ruled out that individuals could have gone along that street towards the building of the [IDEA] one-by-one and gathered there [afterwards], or could have arrived in the centre from other directions. ...” 137. As to the video evidence originally examined by the first-instance court, the Sheki Court of Appeal mentioned the video recording showing the applicant and Tofiq Yaqublu “standing in the centre of the town of Ismayilli, opposite to the administrative building of the Education Department, at a place where acts of mass disorder had been committed”, without specifying the time of day when that scene had been shot (see paragraphs 69 and 103 above). However, the Sheki Court of Appeal did not mention any of the other video recordings of 24 January 2013 relied on by the first-instance court, showing clashes between protesters and the police (see paragraphs 70 and 103 above). 138. The court further noted that, according to the information obtained from the first-instance court, throughout the day on 24 January 2013 fortyfour people had been arrested under the Code of Administrative Offences, including nine people arrested between 4 p.m. and 7 p.m. The court concluded that this was an indication that the situation in the town had not been calm while the applicant was there. 139. The judgment continued as follows: “[The applicant and Tofiq Yaqublu] claimed that the evidence gathered by the prosecution against them had been false. As an example, they referred to the testimony of [R.N.] who had participated, as an attesting witness, in the inspection of the scene of the events [of the previous night] from 10 a.m. to 4.10 p.m. on 24 January 2013, and had later testified that at around 5 p.m. on the same day he had seen [the applicant and Tofiq Yaqublu inciting people to commit acts of disorder]. [They] argue that [R.N.] is a person who cooperates with the police and that the police had instructed him to testify against them. However, the court holds that [R.N.’s] presence during the inspection of the scene of the events as an attesting witness does not make it impossible for him to have observed and witnessed an event occurring one hour later.” 140. The appellate court then digressed to discuss at significant length the Court’s judgment in Ilgar Mammadov (cited above). 141. The appellate court’s judgment continued as follows: “Being far from an intention to give an assessment of the European Court’s position in its above-mentioned judgment, the court holds that, first of all, [the applicant’s and Tofiq Yaqublu’s] unlawful actions should be evaluated through the prism of the events that took place in Ismayilli on 23 and 24 January 2013. That is so because those events constituted the reason and grounds for instituting criminal proceedings and the criminal prosecution of [the applicant, Tofiq Yaqublu] and others. As described above, on 23 and 24 January 2013 in Ismayilli, under the organisation and with the active participation of the accused persons, a crowd formed by a large number of residents spontaneously joined together and destroyed, by burning, and partly looted the building of the Chirag Hotel, destroying equipment and items found inside the building, as well as personal belongings of the hotel guests and staff; [they also destroyed, by burning,] three cars in the grounds of the hotel, damaged houses and cars on the streets with stones, [and also destroyed, by burning,] private property of people who had no connection to the events, and inflicted bodily injuries on individuals, including many police officers who were performing their official duty to restore public order. In connection with these events, on 23 January 2013 criminal proceedings were instituted under Articles 186.2.2, 221.2.1, 233 and 315.2 of the Criminal Code of the Republic of Azerbaijan and eighteen individuals were charged [in the framework of those proceedings], over fifty individuals were found administratively liable, and twenty-four individuals were recognised as victims. The criminal events that occurred in Ismayilli were the most widely covered news for several days by both local and reputable foreign mass media. In other words, they were not ordinary events that happened in Ismayilli. In connection with the participation of [the applicant] in those events and the criminal offences committed by him, as well as the evidence concerning those offences, the court finds it necessary to reiterate once more the following. Although [the applicant] states that he arrived in Ismayilli at 3.46 p.m. and left before 5 p.m. on 24 January 2013, examination of the detailed invoice of his incoming and outgoing mobile calls, and his blog post of 25 January 2013, where he shared his impressions from his trip by writing ‘yesterday I was in Ismayilli for a little more than two hours together with another member of our movement (REAL) and a media coordinator’, proves that on 24 January 2013 [the applicant] was in Ismayilli from 3.46 p.m. to 6 p.m. [The applicant] insists that, when he was in Ismayilli, there was no mass disorder there. However, this statement is completely refuted by the case material.” 142. In this connection, the court continued: “Victims [in particular, five police officers (of the six mentioned in paragraph 48 above), E.A. (see paragraph 44 above) and V.Az. (see paragraph 43 above)] and witnesses [in particular, R.N., I.M. and R.B. (see paragraphs 52-56 above), as well as S.K. (see paragraph 45 above) and four other police officers (see paragraph 47 above)] stated during both the pre-trial investigation and the first-instance hearings that throughout the day on 24 January 2013, including between 4 p.m. and 6 p.m., mass riots had continued, crowds of people had attacked the [IDEA] building and had stoned police officers. They also testified that they had seen [the applicant and Tofiq Yaqublu] standing separately from each other, raising their hands, talking to people surrounding them and saying ‘do not be afraid of anything, enter the building of the IDEA, stone the police officers’. At their instigation, a group of individuals started moving towards the building of the IDEA and [the applicant and Tofiq Yaqublu] were also among them. The police attempted to isolate [the applicant and Tofiq Yaqublu] from the crowd by requesting them to [step aside], but they disobeyed and moved to the back of the crowd. Another circumstance worth noting is that [two police officers] gave those statements on 28 January 2013 and [R.N. and I.M.] gave their statements on 2 February 2013, that is before [the applicant’s] arrest. At the same time, [R.N. and I.M.] confirmed their statements during face-to-face confrontations with [the applicant].” 143. The court then once again referred to the information reported by the Yeni Musavat Online newspaper (see paragraph 130 above) and the information the applicant had published on his Facebook page (see paragraph 10 above). It then reiterated that nine people had been arrested between 4 p.m. and 7 p.m. on 24 January 2013. 144. The judgment continued: “The above-mentioned circumstances show that on 24 January 2013, when [the applicant and Tofiq Yaqublu] were in Ismayilli, the events were unfolding there and that the crowd attacked the IDEA building and committed acts of violence against the police.” 145. The court then found that it was not “believable” that the applicant had visited Ismayilli simply to gather “first-hand information”, considering, inter alia, that his Facebook posts were aimed at “promoting disobedience”. 146. The court also found that the applicant’s Facebook posts of the afternoon of 24 January 2013 and his blog post of 25 January 2013 (see paragraph 10 above) were proof of his intention to organise mass disorder. In particular, it stated: “The above-mentioned [posts by the applicant] demonstrate once again that, before traveling to Ismayilli, the applicant had an intention to organise mass disorder with the aim of defending the REAL movement’s demands for the creation of conditions for a revolt, and that, after he had arrived in Ismayilli, he had carried out his intention.” 147. The court concluded its analysis as follows: “The above-mentioned circumstances of the case prove beyond doubt that on 24 January 2013 [the applicant] travelled to Ismayilli and organised mass disorder there together with [Tofiq Yaqublu]. Moreover, at around 5 p.m. on the same date, as active participants, [they] were able to achieve that a group of individuals formed of [E.I.], [M.A.] and others marched in masses in the direction of the administrative building of the [IDEA], and threw stones at police officers who were preventing [this march] in accordance with the requirements of the law, resulting in the use of violence posing a danger to the lives and health of [six named police officers]. As for [the applicant and Tofiq Yaqublu] arriving from Baku and, within two hours, managing to convert unorganised riots into organised acts of subversion, the court considers that in normal circumstances it would not appear convincing that [this could have been done]; however, it must be taken into account that [the rioters] considered [N.A.], the Head of the [IDEA], responsible for the events, they were enraged and, as [the applicant] himself stated, ‘the situation was flammable’. [The applicant and Tofiq Yaqublu] took advantage of this factor and, using anti-government slogans, attracted [the rioters’] attention, enraged them even more and then committed the criminal offences described above.” 148. On 21 June 2016 the applicant’s lawyer, Mr F. Agayev, lodged a cassation appeal against the Sheki Court of Appeal’s judgment of 29 April 2016, reiterating the points in his previous appeals and arguing further that the appellate court had assessed the evidence in a manifestly arbitrary manner. As an example, he pointed out that the court had failed to duly take into account that the video recording by the Unibank camera clearly refuted the prosecution’s version of the events, according to which the crowd had allegedly moved specifically along M.F. Akhundov Street in the direction of the police positioned near the IDEA building. Moreover, the court had wrongly concluded that the applicant had left Ismayilli at 6 p.m., whereas the mobile phone geo-localisation records showed that his mobile had been last registered in the centre of the town at 4.58 p.m. 149. By a decision of 18 November 2016 the Supreme Court upheld the Sheki Court of Appeal’s judgment of 29 April 2016, finding that the lower court had correctly assessed the evidence and correctly applied the provisions of criminal law and criminal procedure. 150. After the first-instance trial at the Sheki Court for Serious Crimes, on 17 March 2014 the presiding judge sent letters to the Bar Association requesting that disciplinary measures be taken against the applicant’s lawyers, Mr F. Agayev and Mr K. Bagirov. The court stated that they had breached procedural rules and the rules on lawyers’ conduct on numerous occasions throughout the trial, by making unauthorised objections and offensive and disrespectful remarks about various parties and the court, and refusing to wear lawyers’ robes despite numerous demands by the presiding judge. 151. After the proceedings at the Sheki Court of Appeal, on 25 September 2014 the presiding judge of that court also sent letters to the Bar Association requesting that it take disciplinary measures against both lawyers, stating that they had behaved similarly throughout the appellate proceedings. 152. On 10 December 2014 the Bar Association held that Mr K. Bagirov had breached the rules for ethical conduct of advocates. It decided to refer his case to a court with a view to his disbarment and to suspend his activity as an advocate pending a decision by the court. On 10 July 2015 the Nizami District Court delivered a judgment ordering Mr K. Bagirov’s disbarment. The judgment was upheld by the higher courts. Mr K. Bagirov has lodged an application with the Court concerning the matter (Bagirov v. Azerbaijan, no. 28198/15, communicated to the respondent Government on 24 June 2016).
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test
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001-158266
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ENG
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HRV
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GRANDCHAMBER
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CASE OF DVORSKI v. CROATIA
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Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Legal assistance of his own choosing;Article 6 - Right to a fair trial);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
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Dean Spielmann;Dmitry Dedov;Erik Møse;Guido Raimondi;Helen Keller;Ján Šikuta;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Mark Villiger;Päivi Hirvelä;Paul Mahoney;Paulo Pinto De Albuquerque;Zdravka Kalaydjieva;Ksenija Turković
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10. The applicant was born in 1986 and lives in Rijeka. 11. On 13 March 2007, between 2 and 3.30 a.m., three murders, an armed robbery and an arson attack were committed in Vežica, a residential neighbourhood of Rijeka. 12. Later that day, a number of people from Vežica were brought in for questioning at the Rijeka Third Police Station of the Primorsko-Goranska Police Department (Policijska uprava Primorsko-goranska, Treća policijska postaja Rijeka; hereinafter “Rijeka Police Station”). 13. At about 1 p.m. the same day, the applicant was brought to Rijeka Police Station for questioning. Blood samples were taken from him for DNA analysis and the police searched his flat and mobile phone and seized a number of his personal items. 14. The applicant was kept at Rijeka Police Station until his formal arrest at 9.50 a.m. on 14 March 2007 in connection with the above offences. 15. According to the applicant, at about 10.40 a.m. on 14 March 2007 his mother, who lived and worked in Italy, called a lawyer, G.M., and asked him to represent the applicant. G.M. came to Rijeka Police Station at 10.45 a.m. but the police officers refused to let him see the applicant. G.M. remained in Rijeka Police Station until midday. He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession, but the police officers refused to accept his complaint on the grounds that he had no power of attorney and pushed him out of the police station. G.M. immediately informed the Rijeka Deputy County State Attorneys, D.K. and I.B., about the incident and they made a note in their case file. The Rijeka County Court was also immediately informed. 16. At around 1.30 p.m. the applicant’s father signed a power of attorney in favour of the lawyer G.M. to defend his son. A legal trainee, B.P., then tried to submit the power of attorney to the police but was told to leave. 17. At some time between 3 and 3.30 p.m. G.M. again tried to contact the applicant in Rijeka Police Station but was denied access to him. 18. At about 3.30 p.m. G.M. reported the events described above to the Chief of the Primorsko-Goranska Police Department, Mr V., who made a note about their conversation. 19. The applicant was never informed by the police that G.M. had been hired and had come to Rijeka Police Station. 20. According to the applicant, he had repeatedly asked the police officers in Rijeka Police Station for G.M. to be called, but was told that they had tried to contact him but there had been no answer. 21. According to the Government, at 6 p.m. on 14 March 2007 the applicant agreed to be represented by a lawyer, M.R., a former chief of the Primorsko-Goranska Police. He arrived at Rijeka Police Station at about 7.45 p.m. The Government state that the applicant chose M.R. from a list of lawyers of the Rijeka Bar Association presented to him by the police and that the questioning of the applicant began at 8.10 p.m. According to the record of the applicant’s questioning, the police advised him of his right not to incriminate himself and his right to remain silent and he expressly stated for the record that his lawyer was M.R. 22. The relevant part of the record of the police questioning of the applicant by officers T.K. and Z.N. on 14 March 2007, which commenced at 8.10 p.m. and concluded at 11 p.m., reads as follows: “I have been informed of the reasons for my arrest, the criminal offences of which I am accused, my rights, the right not to answer and the right to be legally represented, as well as the right to have members of my family informed about my arrest. I have chosen and authorised a defence lawyer from Rijeka, M.R., to represent me in these proceedings, and I have consulted him in private; following the consultation with the lawyer [M.]R. I have decided to give my evidence. ...” The record then gives the applicant’s description of the relevant events concerning the charges against him: he confessed that on the night of 13 March 2007, together with L.O. and R.Lj., he had gone to Đ.V.’s flat in Vežica, where he had taken a certain amount of money from Đ.V. and then shot and killed him, his girlfriend and his father. He had then set their flat on fire in order to destroy any trace of his having been there. He also stated that he had promised L.O. and R.Lj. that he would confess to the crimes and take the blame himself if they were arrested. The final part of the report reads: “I am not experiencing any withdrawal symptoms or any other crisis. I have given my evidence voluntarily in the presence of my lawyer and a County State Attorney. I have read the entire statement and after that I am signing it as truthful.” Every page of the record of the applicant’s statement is signed by him. 23. The relevant part of the written record of the applicant’s questioning by an investigating judge reads: “In response to a question by the court about the choice of defence counsel since the case file includes a record of the questioning of the suspect in the presence of defence counsel M.R., and also a power of attorney signed by the parents in favour of the lawyer G.M., the suspect answers: ‘I will sign the power of attorney for Mr G.M., a lawyer from Rijeka, and I am hereby withdrawing the power of attorney for the lawyer M.R.’ ... In response to a question by defence counsel as to whether he had hired the lawyer [M.]R., the suspect answers: ‘No, I did not hire him. I specifically told the police officers that I wanted G.M. to represent me. I do not know anything about G.M. coming to the police premises.’ ... In response to a further question by defence counsel as to whether he was under the influence of drugs, the accused answers: ‘I was under the influence of alcohol and drugs.’ ...” 24. On 16 March 2007 G.M. applied to the investigating judge for the Rijeka County State Attorney and all his deputies to be removed from the case. The investigating judge forwarded the request to the Rijeka County State Attorney’s Office. The relevant part of the request reads: “About thirty minutes ago, counsel for the defence learned that the Rijeka County State Attorney, D.H., had been present during the questioning of Ivan Dvorski as a suspect by police officers of Rijeka Police Station on 14 March 2007 at around 7 p.m., in the presence of the ‘defence lawyer’ M.R. On the same date at around 10.40 a.m. the mother of Ivan Dvorski, Lj.D., who lives and works in Italy, called [G.M.] and asked him to defend her son Ivan, who was suspected of the offence of aggravated murder. At around 10.45 a.m. [G.M.] came to Rijeka Police Station but the police officers refused to let him see Ivan Dvorski and also did not tell [Ivan Dvorski] that his mother had hired a lawyer. [G.M.] remained in Rijeka Police Station until 12 noon. He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession, but the police officers refused to accept his complaint on the grounds that he had no power of attorney and pushed him out of the police station. [G.M.] immediately informed the Rijeka Deputy County State Attorneys, D.K. and I.B., about the incident and they made an official note in their case file. Therefore, at around 12.30 p.m. the Rijeka State Attorney already knew that [G.M.] had been hired by [Ivan Dvorski’s] mother and that he had not been able to contact his client. The [Rijeka] County Court was also immediately informed. At around 1.30 p.m. Ivan Dvorski’s father signed a power of attorney for the defence of his son. A legal trainee, B.P., [then] tried to submit the power of attorney to the police but was told to ‘fuck off with that power of attorney’ and therefore it was not submitted. At around 3 to 3.30 p.m. the defence lawyer [G.]M. again tried to contact his client in Rijeka Police Station but was denied access to him ... However, the defendant was never informed that a defence lawyer had been hired and had come to Rijeka Police Station. At around 3.30 p.m. [G.M.] informed the Chief of the Primorsko-Goranska Police Department ... Mr V., who apparently made an official note concerning their conversation. However, the defendant was never informed that a defence lawyer had been hired and also never asked whether he wanted to be represented by the lawyer hired by his family. Besides that, ever since he had been brought to Rijeka Police Station [Ivan Dvorski] had asked on a number of occasions for [G.M.] to be called but was told by the police officers that they had tried but there had been no answer. When he was brought to the police station, blood samples were taken from the defendant. They show that he had a high level of alcohol and drugs in his blood. Between 1 p.m. on 13 March 2007 and around 7 p.m. on 14 March 2007 (these time periods are only known to [G.M.] from informal sources because he had no access to the Rijeka County State Attorney’s case file) the defendant was not given any food. It is clear that although all these facts were known to the Rijeka State Attorney, D.H., he disregarded them and, although present in person, allowed the defendant to be questioned in the presence of a lawyer who had [neither been requested by him] nor ... hired by his family. This amounts to unlawfully extracting a confession, in breach of Article 225 § 8 of the Code of Criminal Procedure, given that the Rijeka State Attorney, since about 12.30 p.m. [on 14 March 2007], had known who the [applicant’s chosen] defence lawyer was. On the same date [G.M.] sent the power of attorney to the Primorsko-Goranska Police Department and written complaints were also sent to the Supreme Court of the Republic of Croatia, the State Attorney General of the Republic of Croatia, the Rijeka County State Attorney’s Office, the Croatian Bar Association, the Ministry of Justice, the Ministry of the Interior, the Chief of the Primorsko-Goranska Police Department and the Rijeka County Court. ...” 25. On 16 March 2007 an investigation was opened in respect of the applicant, L.O. and R.Lj. on suspicion of having committed the three aggravated murders and arson in Vežica on 13 March 2007. 26. On 23 March 2007 the State Attorney General of the Republic of Croatia (Glavni državni odvjetnik Republike Hrvatske) dismissed G.M.’s request for the removal of the Rijeka County State Attorney on the grounds that there were no reasons for disqualifying him from dealing with the case. The relevant part of the decision reads: “... a statement from D.H., the Rijeka County State Attorney, has been obtained. In his statement the Rijeka County State Attorney says that on 14 March 2007 at about 10 a.m. he was in the premises of the Rijeka Third Police Station together with his colleague I.B.-L., where they were informed about the evidence thus far obtained, and all the evidence that remained to be taken in connection with the events at issue. He came back to the County State Attorney’s premises at about 1 p.m., when the deputies D.K. and I.B. informed him that the lawyer G.M. had come to the premises of the County State Attorney and complained about the conduct of the police officers of the Rijeka Third Police Station in refusing him access to Ivan Dvorski, even though he had been given an oral authorisation by Ivan Dvorski’s mother, [who had called him from] Italy. The lawyer had not presented any proof of his authority to represent Ivan Dvorski or of his telephone conversation with Ivan Dvorski’s mother. He had not been able to make contact with the suspect’s father, having been unable to find him since he had no fixed address. After [the Rijeka County State Attorney D.H.] had left the premises of the County State Attorney, he had had no further information about the actions of the above-mentioned lawyer. At 5 p.m. [D.H.] returned to the Rijeka Third Police Station in connection with the case at issue. There, an inspector of the Primorko-Goranska Police Department told him that the suspect Ivan Dvorski was willing to submit his defence in the presence of his defence counsel, M.R., and it was agreed that the questioning would start at about 7 p.m. M.R. arrived at the Third Police Station at 6.40 p.m. and together they went to the room where the suspect Ivan Dvorski was. There, the suspect signed the power of attorney in favour of the lawyer M.R. and agreed that [M.R.] would be present during his questioning by the police. After that, at the request of M.R., the suspect was allowed to talk to the lawyer in private. After ten minutes they all moved to another room, where the suspect, in the presence of his lawyer, the County State Attorney, two police inspectors and a typist, put forward his defence, which was recorded in writing, and all this lasted for more than three hours. After that they all signed the written record [of questioning] and he left the room together with the lawyer M.R. ...” 27. On 26 March 2007 the Rijeka County State Attorney dismissed the request for the removal of his deputies on the same grounds. The relevant part of that decision reads: “A deputy Rijeka County State Attorney, I.B.-L., said that she had not participated at all in the questioning of Ivan Dvorski by the police, and that she had no knowledge about that stage of the proceedings and, in particular, that she had no information about Ivan Dvorski’s representation by or choice of defence counsel during his questioning. She only knew that on 14 March 2007 the lawyer G.M. had come to the premises of the Rijeka County State Attorney, where she had met him. He had complained about the choice of defence counsel for Ivan Dvorski. He had said that he was Ivan Dvorski’s defence counsel, having been authorised by his mother in a telephone conversation. She [I.B.-L.] commented that that could not constitute a valid power of attorney ... The statements of the Rijeka County deputy state attorneys D.K. and I.B. show that the only information they had about the conduct of the police came from the lawyer [G.]M., who wanted to complain about the conduct of police officers in connection with the choice of lawyer to represent and defend Ivan Dvorski. ... D.K. drew up an official note about this matter and presented it to G.M. The statements of the Rijeka County deputy state attorneys D.K. and I.B. show that [G.M.] had mentioned a power of attorney given to him by Ivan Dvorski’s mother, who lived in Italy and with whom G.M. had talked on the telephone. The deputies told him that a power of attorney given by telephone could not be considered valid. They had no knowledge of any other acts, including the obtaining of a power of attorney from Ivan Dvorski’s father ...” 28. On 28 March 2007 G.M. informed the Rijeka County Court that he would no longer represent the applicant and on 30 March 2007 the President of the Rijeka County Court appointed a legal-aid lawyer, S. Maroševac-Čapko, to represent the applicant. 29. During the investigation, evidence was taken from a number of witnesses, and a report on the inspection of the crime scene and the search and seizure, as well as medical, fire and ballistics expert reports, were obtained by the investigating judge. 30. On 12 July 2007 the Rijeka County State Attorney’s Office indicted the applicant, L.O. and R.Lj. in the Rijeka County Court on three counts of aggravated murder and one count of arson committed on 13 March 2007 in Vežica. 31. The applicant, represented by the legal-aid lawyer S.M.Č., lodged an objection against the indictment with the Rijeka County Court on 24 July 2007 on the grounds that it had contained numerous substantive and procedural flaws. He also argued that he had given his statement to the police under the influence of alcohol and drugs. He made no comments as to his legal representation during the police questioning. 32. The applicant’s objection against the indictment was dismissed as ill-founded by a three-judge panel of the Rijeka County Court on 28 August 2007. 33. On 9 October 2007, the first day of the trial, the applicant and the other accused pleaded not guilty to all charges and the trial court heard evidence from seven witnesses. 34. Another hearing was held on 11 October 2007, at which the trial court examined video-recordings of the crime-scene investigation and the autopsy of the victims. 35. Further hearings were held on 12 November 2007 and 11 January 2008, at which the trial court heard evidence from nine witnesses. 36. At a hearing on 14 January 2008 two experts in toxicology, a fingerprint expert, a ballistics expert and a DNA expert gave evidence. The defence made no objections in respect of their evidence. At the same hearing four other witnesses gave evidence. 37. At a hearing on 15 January 2008 the trial court heard evidence from another expert in toxicology and a pathologist, as well as thirteen other witnesses. The defence made no objections in respect of the evidence of the expert witnesses but asked the trial court to commission a psychiatric report concerning the applicant. 38. At the same hearing the defence lawyer asked for a handwriting expert’s report to be commissioned in respect of the applicant’s signature on the record of his statement given to the police on 14 March 2007. She argued that the applicant had not signed any record during his questioning by the police. 39. The trial court considered that for the time being it was not necessary to commission a psychiatric report and thus dismissed the applicant’s request to that effect. However, it commissioned a handwriting expert’s report in respect of the signature on the record of the applicant’s statement given to the police. 40. On 23 January 2008 the handwriting expert submitted her report. She found that the applicant had signed the record of his statement given to the police on 14 March 2007. 41. Another hearing was held on 12 March 2008, at which a medical expert, fire expert witnesses and one other witness gave evidence. The handwriting expert also gave oral evidence confirming her previous findings. The applicant’s lawyer challenged the veracity of these findings and applied to have another report commissioned, but the application was dismissed by the trial court. At the same hearing, the trial court commissioned a psychiatric report in respect of the applicant and the other accused. 42. On 2 April 2008 the applicant asked the Rijeka County Court to call the lawyer G.M. as a witness in connection with the alleged unlawful extraction of his confession by the police. He pointed out that G.M. had not been allowed to see him while he had been in police custody and stated that he had been forced to confess by the police officers. 43. On 24 April 2008 the two psychiatric experts submitted their report to the Rijeka County Court. They found that the applicant suffered from borderline personality disorder and addictions to heroin and alcohol. However, they found no distinctive mental disorder or illness. They concluded that, even assuming that he had been intoxicated at the time when the murders had been committed, he had retained the mental capacity to understand the nature of his acts, although it had been diminished to a certain degree. As to his mental capacity concerning the charge of arson, they concluded that, at the time when the offence had been committed, the applicant had been able to understand the nature of his acts and to control his actions. 44. At a hearing on 26 June 2008 the psychiatric experts confirmed their findings and the parties made no objections in respect of their evidence. The trial court also dismissed the applicant’s request for the lawyer G.M. to be heard as a witness, on the grounds that all the relevant facts had already been established. 45. At the same hearing one of the accused, R.Lj., confirmed the course of the events as described by the applicant in his statement given to the police on 14 March 2007. R.Lj. claimed, however, that he had not personally participated in the killings, because he had panicked and had left the flat when he had heard fighting. 46. After R.Lj. had given his statement, the Deputy County State Attorney amended the indictment. The applicant was charged with three counts of aggravated murder, armed robbery and arson, and L.O. and R.Lj. were charged with armed robbery and aiding and abetting the perpetrator of an offence. The applicant and the other accused pleaded not guilty to the charges listed in the amended indictment. 47. On 27 June 2008 L.O. gave oral evidence confirming the course of the events as described by R.Lj. He stated that after the applicant had got into a fight with Đ.V., he had heard gunshots, after which he had panicked and had left the flat. 48. At the same hearing the parties submitted their closing arguments. The applicant’s defence lawyer argued that it had not been proved that the applicant had committed the offences he was charged with. She pointed out, however, that if the trial court took a different view, then the applicant’s confession to the police and his sincere regret had to be taken into consideration in sentencing him. 49. On 30 June 2008 the Rijeka County Court found the applicant guilty of the three counts of aggravated murder and of the charges of armed robbery and arson and sentenced him to forty years’ imprisonment. The trial court first examined the applicant’s confession against those of the other co-accused, L.O. and R.Lj., and found that his confession was essentially consistent with the evidence provided by them. In finding the applicant guilty, the trial court also assessed his confession against the evidence from the case file. 50. The trial court relied in particular on the search and seizure records and photographs depicting the accused L.O. holding the same type of handgun as had been used for the murders. On the basis of the witness statements and the recording of a nearby video-surveillance camera, the trial court concluded that the applicant and the other co-accused had come to Đ.V.’s flat on the critical date. Furthermore, the ballistics reports and the crime-scene reports indicated that the details of the statements of the applicant and his co-accused were accurate, and the course of the events was ascertained on the basis of the fire, ballistics and toxicology reports and the DNA report. The trial court also found that the statements of the accused as to the manner in which the murders had been carried out were supported by the autopsy report, the evidence of the pathologist provided at the trial, the crime-scene report and the witness statements about the gunshots that had been heard in Đ.V.’s flat. Furthermore, as to the arson charge, the trial court examined the material from the crime-scene investigation and the evidence from the fire expert report, as well as medical records and damage reports submitted by the victims, and the statements of a number of residents in the building where the fire had occurred. 51. As regards the applicant’s questioning by the police and the request made by the defence to hear evidence from the lawyer G.M. (see paragraphs 41 and 43 above), the Rijeka County Court noted: “The first accused Ivan Dvorski confessed to the criminal offences of robbery, aggravated murder of Ɖ.V., M.Š. and B.V. ... exactly as is stated in the operative part of this judgment, in front of the police and in the presence of a defence lawyer. He later tried to contest that statement, claiming that he had not hired the lawyer M.R., that he had told the police officers that he wanted G.M. as his lawyer, that at the time he had been taken to the police station he had been under the influence of alcohol and drugs and so on. However, this defence is not acceptable. The written record of arrest shows that the first accused Ivan Dvorski was arrested on 14 March 2007 at 9.50 a.m. at the Rijeka Third Police Station, and the lawyer [M.]R., in favour of whom the first accused Ivan Dvorski signed the power of attorney, came to the police station on 14 March 2007 at 7.45 p.m. The written record of the questioning of the then suspect Ivan Dvorski shows that M.R. was informed at 6.15 p.m. and that the questioning started at 8.10 p.m. Besides the officers of the Rijeka Police, a typist and the defence lawyer of the then suspect Ivan Dvorski, the County State Attorney was also present during the questioning. The introductory part of the written record [indicates] that the then suspect Ivan Dvorski clearly stated that he had chosen and authorised M.R. to act as his defence lawyer and had consulted with him, after which he decided to give his statement. The written record is properly signed by the persons present. The first accused Ivan Dvorski had read the written record before signing it. Thus, the above shows without doubt that the contentions of the first accused Ivan Dvorski that he had not hired M.R. as his lawyer are unfounded. During the trial, at the request of Ivan Dvorski’s defence, a handwriting expert gave her opinion about the signature of Ivan Dvorski on the written record of his questioning by the police. The expert opinion proved beyond any doubt that the contested signature was that of Ivan Dvorski. The panel accepts such findings in their entirety; the findings were further explained at a hearing by the expert Lj.Z. Her findings were given in an objective, impartial and professional manner. Therefore, the questioning of the first accused Ivan Dvorski by the police was carried out in compliance with the provisions of the Code of Criminal Procedure. ... The request made by [Ivan Dvorski’s] defence to call the lawyer G.M. as a witness ... was dismissed as irrelevant, since the documents from the case file do not reveal that there was any extraction of a confession by the police, but only [record] the time at which the lawyer [M.]R. came [to the police station], whereupon the questioning of [Ivan Dvorski] in the presence of the lawyer for whom he had signed a power of attorney started ... Nobody, including [Ivan Dvorski’s] defence lawyer who was present during the police questioning – [M.]R. – has alleged any unlawful extraction of a confession and there is no indication of this in the record of the statement given by Ivan Dvorski, [who] at the time [was] only a suspect.” 52. The applicant lodged an appeal against the first-instance judgment with the Supreme Court (Vrhovni sud Republike Hrvatske) on 6 November 2008. He complained, inter alia, that the conviction had been based on his confession to the police, which had not been given in the presence of a lawyer of his own choosing, namely G.M., but in the presence of a lawyer, M.R., who had been offered to him by the police. The applicant also referred to the request for the removal of the Rijeka County State Attorney and all his deputies lodged by G.M. on 16 March 2007, highlighting the part of that request which stated that he had been denied food during his detention in police custody. The relevant part of the applicant’s appeal reads: “The statement given by the first accused to the police was unlawfully obtained, for the following reasons. When the first accused was brought to the Rijeka Third Police Station his defence rights were seriously infringed. However, during the trial this infringement was ignored. On 14 March 2007, the first accused’s mother and then also his now late father hired G.M. as his defence lawyer before the police, after he had been arrested. However, G.M. was not allowed access to the accused, and subsequently informed the relevant authorities thereof, but they ignored this. G.M. therefore lodged an action in the Rijeka Municipal Court in respect of an unlawful act, as well as a request for the removal of the Rijeka County State Attorney and all his deputies. In that request he alleged that the first accused had not been given any food by the police from 13 March 2007 at 1 p.m., when he had been brought to the Rijeka Third Police Station, until he had agreed to be represented by the lawyer M.R. on 14 March at about 7 p.m. so as to give a self-incriminating statement, which was in violation of Article 225 § 8 of the Code of Criminal Procedure. Because of that the defence asked for the lawyer G.M. to be examined [at the trial] since he had knowledge about the questioning of the first accused by the police.” 53. On 8 April 2009 the Supreme Court dismissed the applicant’s appeal as ill-founded. As regards his complaints concerning his statement to the police, that court noted: “... The lawfulness of [the statement given to the police] was not put in doubt by the appellant’s complaints that M.R. was not his lawyer and that his lawyer was G.M., who had been hired by his father and mother on the same day, or by the appellant’s complaints that he had been denied food in the period between 1 p.m. on 13 March 2007 and 7 p.m. on 14 March 2007 until he had agreed to hire M.R. as his lawyer, since according to the record of his arrest (pages ...), the appellant was arrested at 9.50 a.m. on 14 March 2007 and the lawyer M.R. arrived [at the police station] at 6.45 p.m. on the same day.” 54. The applicant lodged a further appeal against the appeal court’s judgment with the Supreme Court on 14 September 2009, reiterating his previous arguments. The relevant part of the appeal reads: “The first accused has to comment on the conclusions of the appeal court that the allegation that food was denied to him from 1 p.m. on 13 March 2007 until he agreed to be represented by the lawyer M.R. at 7 p.m. on 14 March 2007 had no bearing on the lawfulness of the evidence [the record of his questioning] because the written record of his arrest showed that he had been arrested on 14 March 2007 at 9.50 a.m. and that the lawyer M.R. had arrived on the same day at 6.45 p.m. The Record of Attendance F/949, which is in the case file, shows that the first accused was brought to the police station on 13 March 2007 at 2 p.m. and was kept there. He was arrested the next day, as found by the first-instance court. However, it is not true that the lawyer M.R. came to the police station at 6.45 p.m.: he came at 7.45 p.m., which shows that the allegations of the first accused are true. That fact could have been verified by the evidence of the lawyer G.M., who represented the first accused during the investigation ...” 55. On 17 December 2009 the Supreme Court, acting as the court of final appeal, dismissed the applicant’s appeal as ill-founded. That court pointed out that the record of the applicant’s statement suggested that he had chosen M.R. to represent him during police questioning and that M.R. had provided him with adequate legal advice. The Supreme Court also noted that there was nothing in the case file to indicate that the applicant had been ill-treated or forced to confess. The relevant part of the judgment reads: “The appellant erroneously argues that the first-instance court committed a grave breach of criminal procedure, contrary to Article 367 § 2 of the Code of Criminal Procedure, in basing his conviction on the defence he gave to the police in the presence of a defence lawyer, which [in the appellant’s view] constitutes unlawfully obtained evidence for the purposes of Article 9 § 2 of the Code of Criminal Procedure, and that the record of his questioning as a suspect by the police (in the presence of a defence lawyer) should thus have been excluded from the case file. In so doing, the appellant challenges the reasoning of the second-instance judgment to the effect that the lawfulness of the evidence was not affected by the appellant’s arguments that during his apprehension and arrest he had not been given food until he had agreed to be represented by M.R. These arguments of the appellant were refuted by the second-instance court on the basis of all the formally established information contained in the record of [his] questioning in the presence of a lawyer on 14 March 2007. This third-instance court notes that [the complaint] regarding the question of the presence of a lawyer [during the questioning], as a legal requirement for the lawfulness of evidence obtained in this way during the police investigation, relates to two objections. The first objection concerns the restriction of access to the lawyer of [the defendant’s] own choosing, and the second objection relates to the pressure exerted on the suspect through the denial of food (Article 225 § 8 of the Code of Criminal Procedure), which, according to the appeal, eventually made him accept legal representation by the lawyer imposed on him, M.R., although his parents had already engaged the services of the lawyer G.M. on the morning of 14 March 2007. It is to be noted that during the police criminal investigation, a number of persons with a background of drug abuse, and with links to the victim Đ.V., were arrested, in particular from the neighbourhood of Gornja Vežica, and it was in the course of this action that the accused Ivan Dvorski was also apprehended. Only when a probable cause was established that the accused could have been the perpetrator of the offences at issue was he arrested on 14 March 2007 at 9.50 a.m. At the same time the father of the accused, who was in Croatia whereas the accused’s mother was in Italy, was informed [of the arrest] by the police at 2.10 p.m., which shows that from that moment the father of the accused (after a telephone conversation with his mother) could have engaged the services of a lawyer for the accused, for which he would most certainly have needed some time. In such circumstances, this third-instance court finds that the parents of the accused could not already have signed a power of attorney for the lawyer of the accused’s choice by 1.30 p.m. on the day in question. The other information from the record of the accused’s arrest and from the record of his questioning by the police shows that on 14 March 2007, as is indicated by the record of the arrest, the accused was brought to the Rijeka Third Police Station, and, as is apparent from the record of Ivan Dvorski’s questioning by the police, the defence lawyer M.R. was informed at 6.15 p.m. and came to the police station at 7.45 p.m. The questioning itself commenced at 8.10 p.m. and ended at 11 p.m., with a break between 10.35 p.m. and 10.38 p.m. It should be emphasised that in the introductory part of the record [of his questioning] the suspect Ivan Dvorski expressly stated that he had chosen M.R. as his defence lawyer and had signed the power of attorney in favour of him, and the record of the questioning shows that the defence lawyer had almost half an hour for consultation with the suspect before the questioning, in which time he was able to advise him of his rights. Thus, the relevant fact which follows from the formal procedural action described in the record of the suspect’s questioning is that the chosen lawyer came at least half an hour before the questioning commenced, and in the consultation with [the suspect] before the questioning he was able to give [the suspect] genuine legal advice as his chosen lawyer. It should also be noted that the essence of the suspect’s right to have a lawyer present during his questioning by the police lies in the necessity for legal protection of his rights, which is why the beginning, conduct and end of this formal [procedural] action is fully registered in the record [of the questioning]. This is why all arguments to the contrary, as set out in the appeal against the second-instance judgment, and particularly those relating to the need to question the lawyer G.M. as the second concurrent lawyer of [the suspect’s] choosing, have no support in the content of the formal record of the suspect’s questioning of 14 March 2007, because the record contains formally registered information about the contact with the chosen lawyer, the time when the chosen lawyer came into the Rijeka Third Police Station, the time when the questioning of the suspect commenced, the period in which a short break took place, and the time when the procedural action finished, all of which was confirmed by the suspect and the defence lawyer of his choosing by signing the record without any objections as to its content. However, irrespective of the fact that the defence of the accused in the context of police questioning formally satisfied the requirements of Article 177 § 5 of the Code of Criminal Procedure, the general thrust of the defence, as well as the substance of the defence as regards particular acts, and the confession, were provided voluntarily by the suspect, and his chosen lawyer was most certainly unable to have any influence on this, which at the same time rules out the possibility of any mental pressure being exerted on the suspect, as well as his subsequent arguments about the lawyer having been imposed on him during the police investigation. On the contrary, the suspect’s defence rights were fully secured, as required under the Constitution and the Code of Criminal Procedure. There is therefore no breach of Article 367 § 2 in conjunction with Article 9 § 2 of the Code of Criminal Procedure. The refusal of the request to have the record of the suspect’s questioning by the police in the presence of a lawyer of his choosing excluded from the case file as unlawfully obtained evidence does not constitute a breach of his defence rights because the record of the suspect’s questioning by the police clearly and undoubtedly shows that the lawyer who was present [during the questioning] was the lawyer of the suspect’s free choice, and this also follows from the signed power of attorney in favour of the lawyer in question, who protected the suspect’s rights during the questioning. Accordingly, the refusal of the defence’s request did not have any bearing on the lawfulness and correctness of the judgment. At the same time, it was not necessary to question the new chosen lawyer as a witness and, for the reasons set out above, the facts of the case were not insufficiently or erroneously established, as was argued in the defendant’s appeal against the second-instance judgment.” 56. The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 11 March 2010. He complained, inter alia, that he had been ill-treated while in police custody and that he had been forced to confess. He also complained that he had been denied the chance to have a lawyer of his own choosing conduct his defence. He reiterated his arguments from his previous appeals and added: “It is also important to stress that at the session of the Supreme Court as the court of third instance, held on 17 December 2009, the defence indicated that the applicant had been brought to the police station at 2 p.m. on 13 March 2007, and that that fact was shown in the Record of Attendance F/949, which was in the case file. The defence asked the panel [of the Supreme Court] to have a look at that record. However, after a brief examination of the case file it was established that the document in question could not be found, and that it would be looked at later. However, the judgment of the Supreme Court, acting as a third-instance court, shows that the document had [still] not been found ...” 57. On 16 September 2010 the Constitutional Court dismissed the applicant’s constitutional complaint. The Constitutional Court, endorsing the reasoning of the Supreme Court, noted that the proceedings as a whole had been fair and that there was no evidence in the case file that the applicant had been ill-treated while in police custody.
| 1 |
test
|
001-140020
|
ENG
|
SWE
|
CHAMBER
| 2,014 |
CASE OF F.G. v. SWEDEN
| 4 |
No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Iran);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran)
|
André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
|
6. The applicant is an Iranian national who was born in 1962 and is currently in Sweden. 7. The applicant applied for asylum and a residence permit in Sweden on 16 November 2009. Before the Migration Board (Migrationsverket) he stated the following. In Iran, he had worked with persons, connected to different universities, who were known to oppose the regime. He had mainly worked on creating and publishing web pages. He and one of the other persons had been arrested in April 2007. He had been released after 24 hours and then hospitalised for ten days due to high blood pressure. Before the elections on 12 June 2009, the applicant had worked with the Green Movement, who had supported Mousavi for the presidential position, by spreading their message via the Internet. The day before the elections, he and his friends had been arrested, questioned and detained in the polling station overnight. After the elections, the applicant had participated in demonstrations and other activities. He had been arrested once again in September 2009 and imprisoned for twenty days. In October 2009 he had been taken before the Revolutionary Court, which had released him after a day on condition that he cooperate with the authorities and spy on his friends. He had agreed to the demands and given his business premises as a guarantee. He had also assured them that he would not participate in any demonstrations and that he would respond to their summons. Following his release in a park, he had found that his business premises had been searched. He had kept politically sensitive material there, which the authorities must have noticed, and his passport and other documents were gone. On 2 November 2009 the applicant had been summoned to appear before the Revolutionary Court. He had contacted a friend who, in turn, had obtained the help of a smuggler to enable him to leave the country. He had converted to Christianity after coming to Sweden. The applicant submitted, inter alia, a summons from the Revolutionary Court which stated that he should present himself at Evin prison in Teheran on 2 November 2009. 8. On 29 April 2010 the Migration Board rejected the request. It first stated that the applicant had not proven his identity but that he had made it and his citizenship probable. Turning to the applicant’s asylum story, the Board held that participation in demonstrations or affiliation with the Green Movement could not, of itself, give rise to a risk of persecution, ill-treatment or punishment on return to Iran. The Board noted that the applicant had changed his story in some parts during the proceedings; in particular, he had changed his statements concerning how many times he had been arrested. Furthermore, he had not been able to name the park where he had been released. Thus, the Board found reason to question whether he had been arrested at all. The Board further considered that the applicant’s political activities had been limited. After the questioning in 2007 and until the elections in 2009, he had been able to continue working with the web pages that contained the critical material, even though the authorities at this time were allegedly aware of his activities. For these reasons, the Board found that the applicant could not have been of interest to the authorities on account of his activities and the material he had in his possession. As to the applicant’s conversion to Christianity, the Board noted that he had not submitted a baptism certificate and that he had initially been unwilling to refer to his religious affiliation as grounds for asylum since this, he claimed, was a private matter. In these circumstances, it was not plausible that the applicant would risk persecution in Iran due to his religious affiliation. In conclusion, the Board found that the applicant had not shown that he was in need of protection in Sweden. 9. The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and adding the following. The reason why, at first, he had not wanted to refer to his religious affiliation was that he had not wanted to trivialise the seriousness of his belief. He submitted a baptism certificate to the court. During the oral hearing, the applicant added that his computer had been taken from his business premises while he was in prison. Material that was critical of the regime was stored on his computer, since he had visited some web pages and had received caricature drawings via email. Therefore, there was enough evidence to prove that he was an opponent of the system. The summons to appear before the Revolutionary Court was submitted to the Migration Court. The applicant had not been summoned again and his family had not been targeted, or at least they had had no problems with which they wanted to burden him. He did not claim that his conversion constituted grounds for asylum but contended that it would clearly create problems for him if he had to return to Iran. 10. On 9 March 2011 the Migration Court rejected the appeal. It did not question the applicant’s story or that the uncertainties that had been pointed out by the Migration Board had been satisfactorily explained. However, as regards the summons to the Revolutionary Court which had been submitted to the Migration Board, the court found that, regardless of the authenticity of the document, it could not of itself substantiate a need for protection for the applicant. This was because the document was merely a summons and because no reason was given as to why the applicant should present himself at Evin prison. Turning to the applicant’s asylum story, the court considered that the information concerning his political activities had been vague and lacked details. The applicant had only stated that he had participated in the campaign for the opposition before the elections in 2009 by joining demonstrations and having contact with students and the student movement in order to help them with their web pages. Moreover, the applicant had stated that the material he had had in his possession when he was questioned in 2007 had not differed from the material he had in 2009. These circumstances, together with the fact that he had not been summoned again to appear before the Revolutionary Court after November 2009 and that his family had not been targeted, made the court doubt that his political activities had been of such a nature and extent to have resulted in the consequences he had alleged. The court found that the applicant had exaggerated the importance of his political activities and their consequences and therefore also the authorities’ interest in him. For these reasons, the court considered that the applicant had not made out that the Iranian authorities had a special interest in him and, thus, he was not in need of protection. 11. The applicant appealed to the Migration Court of Appeal (Migrationsöverdomstolen) which, on 8 June 2011, refused leave to appeal. 12. In September 2011 the applicant requested the Migration Board to stay the enforcement of his expulsion and to reconsider its previous decision due to new circumstances. He stated, inter alia, that the act of converting from Islam to another religion was punishable by death in Iran. 13. On 13 September 2011 the Migration Board found that no new circumstances had been presented which could justify staying the enforcement of the applicant’s expulsion order or granting him a residence permit. The Board noted that the applicant had, in the previous proceedings, stated that he had been baptised by a Christian church and that he had converted to Christianity. The Board also noted that the applicant had stated that his conversion was a personal matter which he did not wish to invoke as a ground for asylum. In the Board’s view, it was remarkable that the applicant now raised the question of conversion when he had been given the chance to elaborate on it during the oral hearing before the Migration Court but had declined to do so. 14. The applicant appealed to the Migration Court, maintaining his claims. 15. On 6 October 2011 the Migration Court rejected the appeal. It observed that the authorities had already been aware of the applicant’s conversion in the previous proceedings. Therefore, the conversion could not be considered as a “new circumstance”. The fact that the applicant had previously chosen not to invoke the conversion as a ground for asylum did not change the court’s assessment in this regard. 16. The applicant appealed to the Migration Court of Appeal which, on 22 November 2011, refused leave to appeal. 17. On 12 July 2011 the applicant lodged his application with the Court and requested it to apply Rule 39 of the Rules of Court in order to stay the enforcement of his expulsion. He stated that he had been active against the regime in Iran prior to, and during, the presidential elections in 2009. More importantly, he had converted to Christianity a couple of years earlier. The conversion had taken place prior to any decisions in his asylum proceedings. Conversion from Islam to another religion or faith was harshly punished by the Iranian system and society. 18. In support of his claims the applicant submitted, inter alia, a copy of a certificate, dated 13 April 2011, in which a pastor and a congregation member stated that they had first met the applicant in the summer of 2010, that he had converted from Islam to Christianity and that he had been a member of their congregation since February 2011. They also stated that their church services were broadcast on the Internet, meaning that anyone could have access to the transmissions.
| 0 |
test
|
001-173475
|
ENG
|
ROU
|
CHAMBER
| 2,017 |
CASE OF ROMANESCU v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
|
Egidijus Kūris;Ganna Yudkivska;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1948 and lives in Bucharest. 6. As an officer in a subunit of the special anti-terrorist unit within the special forces for State security (hereinafter “the Securitate”), the applicant participated in the events which commenced in Bucharest on 21 December 1989 and led to the fall of the Ceausescu dictatorship on 22 December 1989. 7. The applicant was arrested by army forces and held in detention from 22 December until 23 December 1989. He was then held by the unit’s commander from 25 December 1989 until 2 February 1990. During this period of time, he was subjected to ill-treatment and, as a result, he suffered depression and he was placed on the officers reserve list on the grounds of poor health (see paragraphs 8 - 13 below). 8. On 29 April 1990 the applicant filed a criminal complaint with the military prosecutor, alleging that he had been ill-treated and illegally detained in the Securitate building and requesting the punishment of various officials, including the unit’s commander, G.A. The military prosecutor questioned the defendants and a large number of witnesses during the criminal investigation and gathered medical evidence. 9. On 2 December 1993 the military prosecutor found that the unit’s commander G.A. had been responsible for the applicant’s deprivation of liberty and his injuries; however, criminal proceedings could not be initiated because the commander had died. 10. On 16 December 1993 the applicant asked the military prosecutor to extend the investigation to other officials he alleged were involved, including doctor P.I. and various Securitate officers. 11. On 2 March 1995 the military prosecutor decided not to initiate criminal proceedings against the doctor P.I. on the ground that the constituent elements of the alleged offence were not present. Following the applicant’s appeal, this decision was set aside by a decision of 25 September 1996 and the investigation continued. 12. On 21 October 1997 the military prosecutor found doctor P.I. liable to pay an administrative fine; however, the type of offence he committed had been pardoned by a decree of July 1997. The military prosecutor discontinued the investigation in respect of the dead defendant, G.A. The criminal case related to the other defendants, the Securitate officers, was severed into separate proceedings. 13. On 20 February 1998 and 16 February 1999 the military prosecutor decided not to initiate criminal proceedings against some of the defendants as the applicant’s complaint had become partly statute-barred. The investigation into crimes allegedly committed by three of the defendants was severed and jurisdiction was relinquished to the prosecuting authorities at the High Court of Cassation and Justice in order to be joined to the main criminal investigation into the events of December 1989. 14. On 27 June 2005 and 23 August 2007 the applicant was heard as a witness and as a civil party in the main criminal investigation. 15. The most important procedural steps taken in the main criminal investigation are summarised in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011), and Alecu and Others v. Romania (nos. 56838/08 and 80 others, §§ 10-13, 27 January 2015). Subsequent developments are as follows. 16. Following the entry into force of the new Code of Criminal Procedure in February 2014, jurisdiction over the case was relinquished in favour of the military prosecutor’s office. 17. On 14 October 2015 the prosecutor’s office closed the main investigation, finding that the complaints were partly statute-barred and partly ill-founded. The parties have not submitted any information on whether there was an appeal against that decision.
| 1 |
test
|
001-173464
|
ENG
|
MDA;RUS
|
CHAMBER
| 2,017 |
CASE OF PADURET v. THE REPUBLIC OF MOLDOVA AND RUSSIA
| 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;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)
|
Dmitry Dedov;Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Ksenija Turković
|
5. The applicant was born in 1983 and lives in Cocieri. 6. The background to the case, including the Transdniestrian armed conflict of 1991-1992 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004VII) and Catan and Others v. the Republic of Moldova and Russia ([GC], 43370/04 and 2 others, §§ 8-42, ECHR 2012 (extracts)). 7. On 22 August 2010 the applicant, who is an entrepreneur, was transporting merchandise to an agricultural market in the town of Dubasari in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT”). He was stopped by two persons presenting themselves as customs officers of the “MRT” who seized his van and the merchandise contained therein on account of his having allegedly failed to register the vehicle. On 7 October 2010 the “MRT” customs authority issued a decision obliging the applicant to pay a fine of some 1,320 euros (EUR) in return for being able to recover his van and merchandise. The applicant paid the fine. 8. In the meantime the applicant complained to the authorities of the Republic of Moldova about the seizure of his van and merchandise. On 9 September 2010 the Dubasari prosecutor’s office initiated a criminal investigation into the facts of the case and several suspects were declared wanted. However, the investigation was suspended in 2014.
| 1 |
test
|
001-169524
|
ENG
|
UKR
|
CHAMBER
| 2,016 |
CASE OF IGNATOV v. UKRAINE
| 3 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
5. The applicant was born in 1989 and lives in Nyzhni Sirogozy. 6. On 31 May 2013 the Solonyansky district police department in Dnipropetrovsk Region instituted criminal proceedings in respect of a carjacking. 7. On 4 June 2013 the applicant was arrested as a suspect in connection with the incident. 8. On 5 June 2013 the investigating judge of the Solonyansky District Court remanded the applicant in pre-trial detention until 4 August 2013 on the grounds that he was suspected of a serious crime, was unemployed, had no funds, did not live in the area and was not living at his official registered address. It was also considered that he might evade his procedural obligations and abscond to avoid investigation and trial. 9. On 21 June 2013 the applicant was charged with the robbery of G., committed together with V. 10. On 21 June 2013 the pre-trial investigation ended and the case against the applicant and V. was referred to the Solonyansky District Court. The case was then transferred to the Krasnogvardiysk District Court in Dnipropetrovsk (“the District Court”). 11. On 2 August 2013 the District Court remitted the case for further investigation and remanded the applicant in custody until 1 October 2013, noting that he had been suspected of a serious crime and might continue his criminal activities. 12. On 1 October 2013 the District Court held a preliminary hearing in the case and extended the detention of the applicant and V. until 29 November 2013. It noted, without going into any detail or indication to which of the co-accused it referred, that “other preventive measures will not ensure the appropriate behaviour of the accused” during the trial. 13. On 26 November 2013 the District Court extended the applicant’s detention until 24 January 2014, noting that he and V. had been charged with serious crimes, did not live in the area and were unemployed. It was also considered that they might influence witnesses and other participants in the proceedings or otherwise obstruct criminal proceedings, given that the trial had not yet started. 14. On 27 December 2013 the applicant applied for release to the District Court complaining about, among other things, his state of health. 15. On 21 January 2014 the District Court examined and rejected that application. The court extended the applicant’s detention until 21 March 2014 on the same grounds as those given in its previous decision of 26 November 2013. As to his health problems, the court noted that he had been treated successfully for renal colic and was fit for trial. 16. On 19 March 2014 the District Court rejected a further application for release lodged on 26 February 2014 and extended the applicant’s detention until 19 May 2014 on the same grounds as those given on the two previous occasions, adding that he was aware of the punishment for the crime he had been charged with and thus might obstruct the criminal proceedings to avoid criminal liability. 17. On 22 April, 17 June and 15 July 2014 the District Court extended the applicant’s detention until 20 June, 15 August, and 12 September 2014 respectively, on the same grounds as those given in its decisions of 26 November 2013 and 21 January 2014. 18. On 15 August 2014 the applicant lodged another application for release with the District Court. 19. On 4 September 2014 the District Court examined and rejected that application, extending the applicant’s detention until 2 November 2014. It repeated its previous reasoning, adding that he was aware of the punishment for the crime he had been charged with and thus might obstruct the criminal proceedings to avoid criminal liability. It also added that he and his coaccused V. had no strong social ties. 20. On 30 September 2014 the applicant lodged another application for release, which was rejected on 9 October 2014. The District Court repeated its previous reasoning, noting in addition as grounds for his detention that he was not studying. 21. On 31 October 2014 the District Court rejected that application and extended the applicant’s detention until 29 December 2014, giving reasons similar to those given on 4 September 2014. 22. On 9 December 2014 the District Court extended the applicant’s detention until 6 February 2015, repeating the reasoning given in its previous decisions. 23. On 27 January 2015 the applicant and V. were convicted by the Krasnogvardiysk District Court of robbery and carjacking and sentenced to five years’ imprisonment. The court also decided to reduce the remainder of the prison sentence (namely the part not covered by the pre-trial detention) by half under the Amnesty Act. 24. On 12 June 2015 the Mensky District Court in Chernigiv Region allowed the applicant’s application for early release.
| 1 |
test
|
001-180296
|
ENG
|
ESP
|
CHAMBER
| 2,018 |
CASE OF CUENCA ZARZOSO v. SPAIN
| 4 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life)
|
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1930 and lives in Valencia. He has lived in San José, a residential district of Valencia since 1962. Since 1974 Valencia City Council (“the City Council”) has allowed licensed premises, such as bars, pubs and discotheques, to open in the vicinity of his home. In view of the problems caused by the noise, the City Council resolved on 22 December 1983 not to permit any more licensed premises to open in the area. However, the resolution was never implemented and new licences were granted. In 1993, the Polytechnic University of Valencia carried out a study of the levels of night-time noise during the weekend on behalf of the City Council. It was reported that in the San José district the noise levels were notably higher to the legally accepted norm. 6. In 1994, the applicant became president of the neighbourhood association of his district. In that position, and in an attempt to improve the noise-pollution situation for both himself and his neighbours, he lodged various claims against the City Council. He also asked for the withdrawal of the business licences of several establishments. The City Council replied that in fact no business activities were being carried out in some of the premises, and that the business activities carried out in the others could not be considered as producing a high level of noise (for example bakeries). Lastly, the licences had in any case expired in many of the establishments. 7. On 28 June 1996 the City Council adopted the municipal Ordinance on noise and vibrations (Ordenanza Municipal de Ruidos y Vibraciones hereinafter “the Ordinance”). Furthermore, in July 2000, at the applicant’s request, the municipality required the pub located in the basement of the applicant’s building to install a noise limiter. 8. Following a resolution of the City Council, sitting in plenary session on 27 December 1996, which was published in the Valencia Official Gazette on 27 January 1997, the area in which the applicant lives was designated an “acoustically saturated zone” (zona acústicamente saturada). 9. In view of the fact that the levels of noise pollution did not decrease, the applicant decided to replace his windows with double glazing and to install air conditioning in order to alleviate the high temperatures caused by having the windows permanently closed in summer. 10. On 14 June 1999 the applicant brought a preliminary State liability claim before the City Council, relying on Article 15 (right to life and to physical integrity) and Article 18 § 2 (right to privacy and inviolability of the home) of the Constitution. The applicant asked for compensation for the expenses incurred, as well as for compensation in respect of pecuniary and non-pecuniary damage. 11. Having received no reply from the authorities (silencio administrativo negativo), the applicant lodged a complaint with the Valencia High Court of Justice (“the High Court”) on 5 December 2001. On 5 January 2001 the City Council issued a resolution denying his preliminary State liability claim. The City Council joined the proceedings before the High Court. 12. The applicant provided the court with two reports: the first one of 1 April 1998 prepared by the municipal service for the environment stated that: “Prior to the entry into force of the declaration of an acoustically saturated zone, the levels of disturbance by noise during the night exceeded 65 decibels, mainly during the nights from Thursdays to Sundays from 10 p.m. to 5 a.m. in the morning. ... after the declaration [of the area] as an acoustically saturated zone and the adoption of some corrective measures the levels of disturbance still exceed [those permitted for night-time]. 13. The second report was issued on 28 March 2000 by the same municipal service, which admitted that: “... it must be concluded that ... the limits established in Article 30 § 2 of [the Ordinance] are still being exceeded.” 14. In order to sustain his arguments, the applicant also produced an expert report, produced by an applied physics professor, which was joined to his complaint. The report noted as follows: “The measured noise on the street and the noise perceived by neighbours in their homes, in the Xuquer area of Valencia – which is where the applicant lives – rise high total levels of ... 70 decibels ... Those levels are clearly related to the presence of a concentration of the entertainment industry in that area (pubs and discotheques). 15. As a result of this situation, the expert stated that it could be estimated that the sound levels for instance in a front facing bedroom were approximately 50 decibels (hereinafter dBA) and sometimes they could even reach 60 dBA. The expert highlighted that the City Council had recommended a maximum permitted level at night of 30 dBA. Consequently, there was a difference of 20-30 dBA. However, the expert report pointed out that this was a general estimation and that it was made without measuring the inside of the dwellings concerned. 16. Lastly, the applicant produced a medical report stating that he was suffering from anxiety due to the excessive noise inside his flat. The report concluded by considering that there was a relationship of cause-effect between the noise pollution and his psychiatric illness. 17. During the proceedings, the High Court ordered a legal medical expert report by a specialist in preventive medicine. The appointed expert reported that: “... the nocturnal noise altered necessarily the physiological sleep of Mr Cuenca and his family, [although it is not] possible to ascertain the intensity of the disturbance owing to the lack of corresponding sleep studies”. “... the sleep disturbance as a consequence of that noise produced in Mr Cuenca an ‘anxious depressive syndrome reacting to the noise, change in his psychiatric state manifested by irritability with his, anxiety, diminution of intellectual ability and somatization’”. 18. The City Council maintained that it was not proven that the applicant was suffering the noise level which he claimed in his home, as the environmental noise is perceived differently in each home, according to its height, aspect and other particularities. Furthermore, the City Council had been carrying out extensive activities in order to enforce compliance with the legislation on noise. It could not be said that the City Council tolerated infractions of that legislation. 19. In a judgment of 20 June 2003 the High Court dismissed the complaint. It found that there was no causal connection between the noise pollution and the alleged damage caused to the applicant, since there was no evidence proving that in his particular flat the level of noise pollution exceeded the established limits. Indeed, the applicant had decided to replace his windows without previously asking for a measurement of the noise inside his flat, as provided by Article 54 of the Ordinance. Furthermore, it should be taken into account that the applicant’s flat was on the fourth floor, where the noise would certainly be less intense than on a lower floor. 20. The applicant lodged an amparo appeal before the Constitutional Court, claiming that the State had violated his fundamental rights protected by Articles 14 (equality before the law), 15 (right to life and to physical and moral integrity), 18 (inviolability of the home) and 24 (right to a fair trial) of the Spanish Constitution. This appeal was initially dismissed on 18 October 2004. 21. On 16 November 2004 the European Court of Human Rights (hereinafter “the Court”) delivered a judgment in the case of Moreno Gómez v. Spain (no. 4143/02, ECHR 2004X). In the light of this judgment, the public prosecutor lodged an appeal against the Constitutional Court’s decision, asking for the admission of the applicant’s amparo appeal. On 31 January 2005 the Constitutional Court upheld the public prosecutor’s appeal and declared the amparo appeal admissible. The Constitutional Court stated that the judgment issued by the European Court of Human Rights in the case of Moreno Gomez: “... justifie[d] entirely the reconsideration of the present amparo appeal, in order to ascertain the measure in which it might deal with an analogous case, and to examine whether the objects of analysis of the [Strasbourg] Court [had been] the same fundamental rights as in this amparo appeal”. 22. In the proceedings before the Constitutional Court, the public prosecutor claimed that there had been a violation of Articles 15 and 18 § 2 of the Constitution. He argued that the Court had already addressed this issue in the case of Moreno Gómez, which had dealt with the exact same situation suffered by the applicant’s neighbour, and declared that Spain had violated Article 8 of the Convention. The prosecutor considered that Moreno Gómez and the applicant’s case were similar in terms of the facts as well as in the object and the merits, which was in principle sufficient to deliver a judgment on the merits on the alleged violations of the right to private and family life and to inviolability of the home. 23. In a judgment of 29 September 2011, served on the applicant on 19 October 2011, the plenary of the Constitutional Court dismissed the amparo appeal, arguing that (1) both cases were not identical, (2) the applicant had not proved that in his particular case the noise at his flat was above the permitted level, (3) that the City Council had indeed adopted specific measures to reduce noise pollution at the applicant’s neighbourhood and (4) that he had not proved that his health problems had been directly caused by noise pollution. The judgment was not adopted by unanimity. 24. Three judges out of twelve issued a dissenting opinion holding that there had been a violation of Articles 10 § 2, 18 §§ 1 and 2 of the Constitution. In particular, the dissenting judges argued that the standard employed by the Constitutional Court to decide when the right to privacy and family life had been infringed should have been based on the case-law of the Court and that prolonged exposure to a high levels of sound that could be qualified as avoidable and unbearable deserved the protection of the courts, given that it impeded him from living a normal life. They reiterated that according to the judgment delivered in the Moreno Gómez case (cited above), the assessment of a violation no longer depended on the evidence provided by the applicant about the seriousness of the noise pollution inside his home. Instead, the decisive element was to be hereafter the location of the house in an excessively noisy area and it would be enough for the applicant to prove the excessive level of noise in the street. Furthermore, the effects of noise on the applicant’s health had been confirmed by the expert report issued in the proceedings before the High Court.
| 1 |
test
|
001-144937
|
ENG
|
SVN
|
COMMITTEE
| 2,014 |
CASE OF PETEK v. SLOVENIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
|
Ann Power-Forde;Helena Jäderblom
|
4. The applicant was born in 1963 and lives in Žalec. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 4 May 2008, the applicant lost control over his motorcycle on a bend by, allegedly, failing to adjust his speed to the road conditions. Consequently, he was severely injured. 7. On 29 July 2008 the police sent the applicant a penalty notice fining him 460 euros (EUR) and six penalty points for failing to adjust his speed according to the road conditions under Section 30 (5) of the Road Traffic Safety Act. 8. On 1 August 2008 the applicant lodged a request for judicial review. He argued that he had not exceeded the speed limit since he had been driving together with his friends during a Sunday trip and the bends on the relevant part of the road prevented a speed which exceeded the speed limit. In this regard, B. and G., who were driving behind him with their motorcycles, could confirm that he had not exceeded the speed limit. Firstly, in his view, the road could have been covered with sand, as it was the end of the winter time. Secondly, he argued that the road could have been slippery. Whatever the nature of the obstacle on the road, it was that obstacle that caused the traffic accident. In his further submissions he stressed again that he had been driving within the speed limit. He further drew attention to the fact that a sign should have been installed earlier, considering that many accidents involving motorcycles had happened in the past on that road. According to the applicant, one or two days after the accident a slippery road sign had been installed. Therefore, he requested the hearing of the responsible person of the Slovenian Roads Agency. Finally, he pointed out that he was a careful and experienced driver who had followed several trainings on road security. 9. On 20 May 2009 the Slovenske Konjice Local Court rejected the applicant’s request without holding a hearing. On the basis of the police record of the scene visit, the sketch of the road accident, the notice of the applicant’s physical injury, the penalty notice and the request for judicial review it held that the applicant had been driving carelessly. According to the police findings of fact, the accident happened on a sharp bend with poor visibility due to a forest embankment. Moreover, the road was divided by a solid line. The Local Court held that the applicant should have expected a slippery road and the presence of sand but he failed to adjust his speed accordingly. It further considered that the applicant’s complaints related only to exceeding the speed limit, an offence with which he was not charged. The Local Court did not comment on the applicant’s request for a hearing. 10. On 24 August 2009 the applicant proposed to the Supreme State Prosecutor’s Office to file a request for the protection of legality. 11. On 21 September 2009 the Supreme State Prosecutor’s Office notified the applicant that it would not use this legal remedy, having found no violation of a legislative provision. 12. The applicant lodged a constitutional appeal and a petition for a review of the constitutionality and legality of the Minor Offences Act (hereinafter referred to as “the MOA”). 13. On 22 June 2011 the Constitutional Court rejected the constitutional appeal and the petition as inadmissible. On 18 July 2011 this decision was served on the applicant.
| 1 |
test
|
001-147286
|
ENG
|
LVA
|
CHAMBER
| 2,014 |
CASE OF Y v. LATVIA
| 4 |
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
5. The applicant was born in 1959 and lives in Liepāja. 6. On 1 November 2007, when the applicant was in the courtyard of her apartment building, two officers from the municipal police force (J.M. and J.L.) pulled up in a car. After having a conversation with the applicant they twisted her arms behind her back and forced her to approach their car. She was eventually let go, but later she started feeling ill and had to call an ambulance. The applicant submits that she still felt ill effects on her health more than a year after the events of 1 November 2007. 7. On 2 November 2007 the applicant wrote to the Liepāja City Public Prosecutor’s Office and requested that criminal proceedings be instituted against the officers responsible. The applicant stated that she had told the officers that they could go and talk in her apartment, after which one of them had grabbed her right upper arm and twisted her arm behind her back, she avoided the grip owing to pain, while the police officer shouted that he would teach her a lesson about resisting the police. At that moment the second policeman had grabbed and twisted the applicant’s left arm. The policemen had then tried to push the applicant into the back of their car. They eventually let her go after her neighbours intervened. Immediately after the policemen had left, the applicant had started experiencing health problems, namely, sharp pain in her chest, high blood pressure, pain in her back, neck and head, and a loss of feeling in her hands. She had called an ambulance and had been given an injection. The following day a general practitioner had issued the applicant with a sick leave certificate until 12 November 2007 and had prescribed painkillers and sedatives. The applicant asked the prosecutor to order an appointment with a forensic medical expert, pointing out that there were haematomas on her upper arms. 8. It appears that the prosecutor instituted criminal proceedings the same day. The case was forwarded to the State police for investigation. 9. On 4 November 2007 the applicant submitted a complaint to the head of the Liepāja City Municipal Police. In substance she repeated her account of the events of 1 November. In the concluding part of her complaint, the applicant requested that the actions of the two officers of the municipal police be investigated. She also pointed out that as a result of their actions she had suffered mental anguish and material and psychological harm. 10. On 21 January 2008 an inspector from the Liepāja City and District Police Department adopted a decision to terminate the criminal proceedings which had been initiated by the prosecutor. The decision was adopted on the basis of statements made by the applicant (see paragraph 11 below), by J.M. and J.L. (see paragraph 12 below) and by three other witnesses (see paragraph 14 below) as well as the forensic medical expert’s report (see paragraph 13 below) and a decision of the Liepāja City Municipal Police to take disciplinary measures in respect of J.M. and J.L. for having failed to properly document the administrative infraction committed by the applicant (see paragraph 15 below). 11. The applicant had testified that she had been washing her car in the courtyard of her neighbour’s house and that, after she had parked the car near her house, two policemen had pulled up. They had asked the applicant to approach their car, which she had not done because she had needed to return to her apartment urgently. The policemen had then warned her that she was disobeying police orders and had subsequently twisted her arms behind her back; she had tried to free herself from the grip. 12. The policemen J.M. and J.L. stated that they had been called out about an administrative violation – a car being washed in a public courtyard. Upon arrival at the scene they had noticed the applicant standing next to a car holding a bucket. J.L. had then invited the applicant to approach the police car so that a record of an administrative violation could be drawn up, which the applicant had refused to do and had started to walk away. The policemen had then taken her by the arms and started directing her towards the police car. Since the applicant had not demonstrated resistance, J.L. and J.M. had released their hold and subsequently taken statements from the applicant’s neighbours for the purpose of initiating administrative proceedings against her. 13. The forensic medical expert who had examined the applicant noted that each of her upper arms bore two haematomas. It was concluded that the haematomas could have appeared in the circumstances described by the applicant. The haematomas were described as minor injuries which would not have adverse medical effects for more than six days (“kas neizraisa īslaicīgus veselības traucējumus uz laiku virs 6 dienām”). The fact that the applicant had actually sought medical treatment for longer than six days was considered irrelevant, since the expert considered that the nature of her injuries did not warrant such extended treatment. 14. The three eyewitnesses to the events of 1 November all agreed that the applicant had ignored the requests of the police and that the policemen had therefore tried to detain her. The applicant had resisted and the officers had twisted her arms behind her back. After the applicant had stopped resisting, she had been released. 15. The findings of the internal investigation of the Liepāja City Municipal Police of 16 November 2007 disclosed that the policemen J.L. and J.M. had been penalised for their lack of diligence in drawing up a record of the administrative violation allegedly committed by the applicant (failure to obey the lawful order of a police officer). No mention appears to have been made of the alleged use of force against the applicant. 16. Taking into account the information set out above, the inspector concluded that the applicant had intentionally disobeyed the lawful order of a police officer (thus committing an administrative offence under Latvian legislation). As a result, J.L. and J.M. had used special restraint techniques (“pielietoja speciālos cīņas paņēmienus”), namely holding the applicant’s arms behind her back in order to detain her. The applicant had shown resistance while she was being directed towards the police car. Once she had stopped resisting, she had been released and J.L. had informed his supervisor of the events. In consultation with J.L.’s supervisor it had been decided not to bring the applicant to the police station but instead to initiate administrative proceedings against her. Administrative proceedings were initiated on 13 November 2007 and discontinued on 18 February 2008 because procedural time-limits had not been observed by the police. 17. The decision stated that, since the applicant had refused to cooperate with the police and had started to walk away, the policemen had had legitimate grounds for detaining her, as long as they observed the requirements set out in the Law on Police (see paragraphs 24 and 25 below). Nevertheless, J.L. and J.M. had failed to fulfil the requirements of section 13 in fine of the Law, which prohibits the use of special restraint techniques against women, other than in exceptional circumstances. As a result, the applicant had sustained minor injuries. Infliction of minor injuries is an offence proscribed by section 130 of the Criminal Law. Under section 7(3) of the Criminal Law, infliction of minor injuries is one of the crimes that are prosecuted privately by the victim. 18. The inspector further noted that J.L. and J.M. had not exceeded their official authority in contravention of section 317 of the Criminal Law. It was established that even though the policemen had violated the requirements of section 13 in fine of the Law on Police, it had to be taken into account that the applicant herself had disobeyed and resisted the police. Thus, taking into account the “nature, circumstances and consequences of the officers’ actions”, the inspector concluded that, pursuant to the explanations contained in section 23(1) of the Law on the Coming into Force and Application of the Criminal Law, there had been no substantial harm done to state authority, administrative order or the rights and interests of any person. Accordingly the inspector held that the municipal police had to decide whether J.L. and J.M. should be held disciplinarily liable for the violation of section 13 in fine of the Law on Police. In conclusion, it was decided to terminate the criminal proceedings for absence of corpus delicti. 19. The decision was conveyed to the applicant in a letter of 24 January 2008. The letter stated: “... You may appeal against the adopted decision to the Liepāja City Public Prosecutor’s Office within 10 days of receiving the decision. Please also note that section 7(3) of the Criminal Procedure Law provides that the offence mentioned in section 130 of the Criminal Law (intentional infliction of a minor injury) is prosecuted privately. In the course of private prosecution criminal proceedings, the prosecutorial functions are carried out by the victim, who must lodge an application with a court. ...” 20. The applicant did not appeal against the decision of 21 January 2008. She did, however, submit a complaint to the Liepāja Court stating her intention to initiate a private prosecution under sections 130 and 156 of the Criminal Law. The complaint was dated 29 April 2008 and was marked as having been received at the court on 30 April. The applicant indicated that J.M. and J.L. had used special restraint techniques against her in contravention of the Law on Police, as a result of which she had been injured, which had been confirmed by a forensic medical expert. She further pointed out that she had incurred pecuniary and non-pecuniary losses. Accordingly, she claimed damages. 21. On 7 May 2008 a single judge of the Liepāja Court issued a decision concerning the applicant’s complaint. The judge held that the limitation period of six months had expired and criminal proceedings could therefore not be instituted. He noted that he had received the applicant’s complaint on 6 May 2008, that is to say after the expiry of the statutory time-limit. Furthermore, the decision noted that the applicant had failed to specify which paragraph of section 130 formed the legal basis of her complaint, and had not substantiated in any way her claim under section 156. 22. The applicant appealed. On 2 June 2008 a single judge of the Kurzeme Regional Court dismissed her appeal. The decision noted that the last day on which J.L. and J.M. could have been charged by the way of private prosecution had been 1 May 2008. Since the applicant had lodged her complaint on 30 April 2008, it would have been physically impossible to initiate proceedings on 1 May 2008 because of the large number of procedural steps that would have had to be taken (for example, a copy of the complaint would have had to be sent to the accused, the accused would have had to be informed about their rights, the applicant would have had to be informed about the time and the place of the hearing, and the accused and other persons would have had to be called to the hearing). The judge further noted that the police’s decision not to initiate criminal proceedings was made on 21 January 2008, yet the applicant had waited for almost three months before lodging a request to initiate private prosecution proceedings. The decision had also explained that a refusal to initiate criminal proceedings did not preclude the applicant from lodging a civil claim in order to obtain compensation for the harm allegedly done. Finally it was remarked that the judge of the first-instance court had correctly held that the applicant had failed to specify which of the three paragraphs of section 130 of the Criminal Law formed the legal basis of her complaint. Under the Criminal Procedure Law, the judge of the first-instance court had a duty to establish whether the legal categorisation of the alleged crime was correct, since the accused had a right to know the exact content of the accusations against them. The decision of the Kurzeme Regional Court was final and not subject to further appeal.
| 0 |
test
|
001-158034
|
ENG
|
CYP
|
ADMISSIBILITY
| 2,015 |
PAPAIOANNOU v. CYPRUS
| 4 |
Inadmissible
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev
|
The applicant, Mr Yiannakis Papaioannou, is a Cypriot national, who was born in 1967 and lives in Frenaros. He was represented before the Court by Mr A. S. Angelides, a lawyer practising in Nicosia. 1. The Physical Education Teachers’ Appointment List is used to fill vacancies for physical education teachers in the Cypriot public education system. The procedure for inclusion on the list is defined by section 28B of the Public Educational Service Law of 1969 (“the Law of 1969”) and is as follows. 2. The list is published every February. Those wishing to be included on the list must submit applications by the end of December of the previous year. The Educational Service Committee (“the Committee”) then examines the applications and ranks the candidates on the list. 3. A candidate’s position on the list is determined with reference to various criteria. For first-time candidates, their position is determined first, by the year they obtained their degree and then by other criteria which are set out in section 28B(3) of the Law such as their class of degree, whether they undertook military service, whether they have obtained any additional post-graduate qualifications and so on. For candidates who were already included on the list in previous years, their position on the new list is determined first, by the year they were first included on the list and, thereafter, by the other criteria set out in section 28B(3). 4. The applicant is a holder of a degree in Physical Education. He finished his studies in 1992, having previously deferred those studies in order to complete twenty-six months’ compulsory military service. The same year, he applied for inclusion on the list. His request was accepted by the Committee and he was included in the list for the year 1992. While it appears he did not apply for inclusion on the list every year thereafter, in 2008 he applied for inclusion in the 2009 list. 5. The Committee published its 2009 list on 27 February 2009. The applicant was placed 174th. He then filed a recourse before a single judge of the Supreme Court (revisional jurisdiction) seeking the annulment of the Committee’s decision to place him 174th. He submitted that section 28B of the Law of 1969 was unconstitutional. According to the applicant, by determining ranking on the list by reference to the year an applicant first applied to be on the list, section 28B created indirect discrimination against male candidates. This was because, unlike their female counterparts, male candidates had to complete twenty-six months’ military service prior to applying for registration. The effect of this was to provide a two-year head start in the rankings to women. 6. The Supreme Court at first instance upheld the applicant’s recourse and annulled the Committee’s decision. 7. The Government, on behalf of the Committee, appealed to the Supreme Court (revisional appeal jurisdiction) inter alia on the grounds that the court did not have jurisdiction to entertain the recourse. This was because, in the Government’s submission, the applicant had failed to prove that he was challenging an executory administrative act since he had failed to establish an appropriate comparison between his position and the position of other candidates on the list. Thus, according to the Government, the judgment of the Supreme Court at first instance was based on entirely hypothetical facts. The Government submitted that this was an issue which went to the core of the proceedings. 8. The applicant argued that the matter raised by the Government on appeal had not been raised in the first instance proceedings. In any case the applicant submitted that the Government’s submissions were groundless and should be rejected. 9. On 12 September 2011 the Supreme Court allowed the Government’s appeal. The court found that the applicant’s challenge to the Committee’s decision to rank him 174th on the list was not a valid recourse against an executory administrative act. This was because, by its nature, the Committee’s ranking decision was an act of comparison between candidates: it did not merely affect the position of one person on the list. The court could not annul the applicant’s position on the list without automatically affecting the position of other candidates. In his recourse the applicant should have set out the reasons why he considered the Committee’s decision was wrong and should have done so by a direct comparison with those candidates to whom the better rankings had been given. This would have given the other candidates an opportunity to set out their arguments or objections before the court and be heard, as required by the rules of natural justice. The fault in question went to the core of the recourse and could not be remedied. 10. For this reason, the Supreme Court did not examine the applicant’s complaints that the Law was unconstitutional and discriminatory; a decision on the admissibility of the recourse preceded such substantive issues. 11. Article 28 of the Constitution prohibits discrimination providing that: “1. All persons are equal before the law, the administration and justice, and are entitled to equal protection thereof and treatment thereby. 2. Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution. ...” 12. Article 146 of the Constitution states that the Supreme Court has exclusive jurisdiction to: “(1)...decide on a recourse filed against a decision... of an authority... exercising executive or administrative functions when such a decision is contrary to the constitution or the law or is made in excess or abuse of the powers vested in such body, authority or person. (2) Such a recourse may be made by a person whose existing legitimate interest ... is adversely and directly affected by such decision, act or omission. ...” 13. Article 8 of the above Law (“the 2002 Law”) where relevant provides: “(1) Men and women enjoy equal treatment, prohibiting any discrimination on the ground of gender – (a) In access to employment or to a job opening, permanent or temporary...; (b) in the definition and implementation of the terms and conditions of employment, including the qualifications and other terms and conditions and placement criteria...” 14. According to case law of the Supreme Court, only “executory administrative acts” can be the subject of a recourse to the Supreme Court under Article 146 of the Constitution (Republic of Cyprus v. Andrea Chrysostomou and another [1999] 3 A.A.D. 391). An executory administrative act is one which, inter alia, grant rights to individuals and creates obligations for the administration (see Ioanna Demetriou v. the Republic [1991] 4 A.A.D. 3029; and Fedias Stefanides and others v. Municipality of Engomi [1994] 3 A.A.D. 49). 15. Issues as to the admissibility of a recourse to the Supreme Court may be considered by the court of its own motion even if these are not raised by the parties (see Protopapas v. Republic [1967] 3 A.A.D. 411). 16. It is well-established that, where there is a dispute between various candidates on a list or where, for example, there is a selection process amongst a number of candidates for a particular post, a candidate wishing to challenge the validity of the administrative body’s preference for one candidate over another, ought not merely to challenge his position on the list or his non-selection, as the case may be, but instead should challenge the position of other people by indicating which candidates in his opinion lacked in qualifications or were unjustifiably favoured in comparison to him. All the other candidates whose positions are affected should be given the opportunity as interested parties to set out their case and objections before the court. Since the administrative authority’s decision affects a number of candidates, it means that the entirety of the decision should be challenged as that is what constitutes the executory administrative act. The part of the decision affecting solely the applicant cannot be considered an autonomous executory act, as that is only one link in the entire chain of considerations which the administrative body makes in order to form the final decision (see, among other authorities, Republic of Cyprus v. Andrea Chrysostomou and another [1999] 3 A.A.D. 391; Georgios Koukkoulis v. Minister of Defence, no. 1224/2008, judgment of 11 October 2010, unreported; Costas Neophytou and Ioannis Ioannou v. Ministry of Defence [2007] 4 A.A.D. 602; Nayias Petousi v. Committee of State Scholarships and others, no. 1309/99, judgment of 27 November 2000, unreported).
| 0 |
test
|
001-183296
|
ENG
|
TUR
|
CHAMBER
| 2,018 |
CASE OF GÜLBAHAR ÖZER AND YUSUF ÖZER v. TURKEY
| 3 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
|
5. The applicants were born in 1963 and 1965 respectively and live in İzmir. They are brother and sister. Their respective children, Sibel Sartık and Nergiz Özer, aged 24 and 15 respectively, were killed by soldiers on 19 January 2005 in south-east Turkey. During the same incident the soldiers also killed three other young people, aged 13, 16 and 22 (see Gülbahar Özer and Others v. Turkey, no. 44125/06, 2 July 2013). The bodies of those three individuals were subsequently handed over to their families, who buried them in Diyarbakır. 6. On 23 January 2005 the prosecutor ordered the release of the bodies of the applicants’ two children. The applicants took the bodies from the morgue in order to take them to the city of Siirt, where they wanted to bury them and where their graves had already been prepared with the help of the municipal officials. 7. On the same date the governor of Siirt issued a decision stating that crowds had gathered at the cemetery in Siirt and had attacked the municipal workers who were preparing the graves. Subsequently, the incidents at the cemetery had escalated and turned into “unlawful demonstrations”. Therefore, “in order to prevent any unwanted consequences”, the governor decided to order the burial of the applicants’ children in the two villages named in the respective birth register records of the two deceased. 8. While the applicants, together with the coffins of their two children, were on their way to Siirt, their vehicles were stopped by gendarme soldiers who told the applicants that they were not allowed to bury their children in Siirt. The soldiers told the applicants that, in accordance with the decision taken by the Siirt governor, the bodies would be buried in two other villages. The applicants told the soldiers that they had no connection with the two villages in question which, in any event, had been evacuated by soldiers in the 1990s. They stated that they wanted to bury their children side by side in their family cemetery in Siirt. Despite their objections, the bodies of the two children were confiscated and taken away by the soldiers. 9. The same day the second applicant made an official request to the office of the governor and asked for permission to bury the children in the city of Batman instead. This request was refused but the governor amended his decision so that the applicants’ children could be buried in the same cemetery in the town of Eruh, instead of being buried in two separate villages as he had previously ordered. In accordance with that decision, the applicants’ children were buried by the authorities in the municipal cemetery in Eruh at 1.45 a.m. on 24 January 2005 without any religious ceremony. 10. On 11 March 2005 the applicants brought a case before the Diyarbakır Administrative Court and asked for the Siirt governor’s decision to be annulled. They also requested that the Administrative Court issue an interim measure allowing them to exhume the bodies before they decomposed, and to bury them in a cemetery of their choice. The applicants agreed, in particular, that it was important and necessary to maintain public order. However, they argued that the governor’s decision had completely disregarded the moral values of their society and had aroused anger. The news that their children would not be buried in Siirt and that their bodies had been confiscated by the soldiers had caused an upsurge of emotion in the people waiting at the cemetery in Siirt and as a result they had attacked members of the security forces and local shops with sticks and stones. When the security forces responded to those attacks heavy handedly, scores of people had been injured and more than a hundred people had been arrested. All of that unrest had been caused by the governor’s unlawful decision. No such incidents had taken place during the burial of the three other individuals who had been killed at the same time as their children. In their complaint the applicants also referred to their rights under Articles 8 and 9 of the Convention. 11. On 30 March 2006 the Diyarbakır Administrative Court rejected the case. It noted that the governor’s decision had been based on section 11/C of the Law on the Administration of Provinces, which provided that the governor had a duty to maintain peace and public order in the province under his responsibility. The decision had been taken because the people who had gathered at the cemetery in Siirt and who were waiting for the bodies to arrive had thrown stones at municipal workers and members of the security forces. The decision to bury the bodies in the town of Eruh had therefore been taken with a view to maintaining public order. The Administrative Court considered that, although the applicants had the right to bury their children in a cemetery of their choice, the refusal to permit them to do so had been in compliance with the restrictions set out in the second paragraphs of Articles 8 and 9 of the Convention and in section 13 of the Turkish Constitution. 12. The applicants appealed against the decision and maintained that the incidents at the cemetery referred to by the Administrative Court had only occurred after the crowds had found out about the authorities’ refusal to allow them to bury their children in Siirt. They repeated their argument that the three others killed by the soldiers at the same time as their children had been buried by their families in Diyarbakır without incident. The applicants also reiterated their request for an interim measure. 13. The request for an interim measure was rejected by the Supreme Administrative Court on 13 December 2006. In a decision of 24 October 2008 the Supreme Administrative Court also rejected the appeal lodged by the applicants against the decision of the Diyarbakır Administrative Court. In reaching its conclusion the Supreme Administrative Court stated that the incidents at the Siirt Cemetery had begun when the people who had gathered there had insisted that the applicants’ two children be buried next to the graves of members of the PKK. 14. The decision of the Supreme Administrative Court was communicated to the applicants on 19 March 2009.
| 1 |
test
|
001-141630
|
ENG
|
RUS
|
COMMITTEE
| 2,014 |
CASE OF ZHULIN v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev
|
6. The applicant was born in 1971 and lives in Nizhniy Novgorod.
| 1 |
test
|
001-141384
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF GORDIYENKO v. RUSSIA
| 4 |
No 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 - Effective investigation) (Procedural aspect)
|
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
|
5. The applicant was born in 1966 and lives in the village of Verhnyaya Serebryakovka, the Rostov Region. 6. On 1 June 2005 the Volgodonsk Town Department of the Interior ("the ROVD") ordered a test purchase of drugs from the applicant, as he was suspected of drug trafficking. 7. On the same date undercover police officer K. called the applicant and indicated that he wished to buy two doses of opium. The applicant agreed to procure it. At around 11.30 a.m. he met two undercover police agents in the street and sold them two sachets of opium. 8. At around midday, police officers G. and K. arrested the applicant near his flat in the presence of his partner E. and her sister B. The police officers took him to the ROVD station. From the arrest record it follows that the applicant was advised of his right to be assisted by counsel, but decided not to use this possibility. 9. According to the applicant, during the next eight hours he spent in detention police officers G. and K. put pressure on him to confess. They repeatedly beat him up, damaging his kidneys and causing other injuries. Regardless of this, he did not admit his involvement in drug trafficking. 10. Thereafter the applicant was taken to the office of police officer M., who, in the presence of attesting witnesses, examined his hands with a view to finding traces of drugs. Allegedly, the police officers also removed and examined money from the applicant’s pocket. 11. At 9.12 p.m. the applicant was transferred to a temporary detention facility. A paramedic on duty examined him upon arrival there and made the following entry in the medical record: “[The applicant] complains of back pain. [He makes] no complaints in connection with the scratch noted on his right knee. [The applicant] said that scratch had been inflicted during his arrest ...” 12. At 11.27 p.m. police officers G. and K. carried out a search of the applicant’s flat and found a resinous substance which was subsequently determined to be opium. It does not appear that the applicant brought any proceedings to contest the lawfulness of the search. 13. At the detention facility the applicant repeatedly complained of pain in his lower back. On an unspecified date a paramedic of the emergency services examined the applicant in this connection, having diagnosed soft tissue bruising of the lower back (see paragraph 34 below). 14. Between 1 and 10 June 2005 he complained on a few occasions of lower back pain. It appears that detention facility paramedics measured his body temperature, blood pressure and gave him injections of painkillers. 15. On 9 June 2005 the applicant asked the Volgodonsk town prosecutor’s office (“the prosecutor’s office”) to institute criminal proceedings in connection with the alleged ill-treatment of 1 June 2005. 16. On 18 July 2005 the prosecutor’s office refused this request as unfounded. 17. The applicant appealed against that decision in court and before a higher prosecutor. 18. It appears that on 15 August 2005 the applicant was taken to the emergency services of a hospital, where surgeon Tr. performed an X-ray examination of the applicant’s kidneys and some other tests in relation to his alleged back pain. The examination did not reveal any anomalies in his condition. 19. On 17 August 2005 a higher prosecutor quashed the decision of 18 July 2005 and remitted the case for additional preliminary inquiry. It stated: “... The examination of the case file shows that the investigation was perfunctory and the decision not to institute criminal proceedings was premature. In the course of the additional [preliminary inquiry] the investigator should question [police officer] G., and [the sister of the applicant’s partner] B., order a medical examination of [the applicant] and take other steps required to carry out the necessary check at the end of which [he] should take a decision in accordance with the law...” 20. On 19 August 2005 the Volgodonsk Town Court rejected the applicant’s appeal against the decision of 18 July 2005, as it had already been quashed by a higher prosecutor. 21. On 20 August 2005 the prosecutor’s office issued a new decision not to institute criminal proceedings. That decision was challenged in court and before a higher prosecutor. 22. It appears that on 16 September 2005 a supervising prosecutor quashed it and ordered an additional preliminary inquiry into the applicant’s complaints, having noted that the investigative authorities should examine the detention facility paramedics who provided the applicant with first aid. 23. On 19 September 2005 the Volgodonsk Town Court rejected the applicant’s appeal against the decision of 20 August 2005, as it had already been quashed. 24. The investigating authorities questioned E. and B., eyewitnesses to the applicant’s arrest, G. and K., the police officers who had allegedly illtreated him and detention facility paramedic Zyu. 25. On 21 September 2005 the prosecutor’s office rejected the applicant’s request to institute criminal proceedings, having held as follows: “On 8 July 2005 [the prosecutor’s office] received file no. 1195 pr. 05 related to [the applicant’s] complaint of ill-treatment by police officer K. [The applicant] stated that K. ... applied physical and psychological pressure on him. When questioned, K. stated that in May 2005 the police had received information about [the applicant’s] involvement in opium trafficking. On 1 June 2005 G. ordered a test purchase... [Following the test purchase] he and G. arrested [the applicant] and took him to the ROVD station. During [the applicant’s] arrest, his transportation and the subsequent investigation no one used physical or psychological force on him. [The applicant] did not complain about his health and did not ask for an ambulance. All of the investigative actions were performed in the presence of attesting witnesses. K. also submitted that on 1 June 2005 he and G. carried out a search of [the applicant’s] flat. The search was performed in the presence of [the applicant’s] neighbours, attesting witnesses and the owner of the flat. During the search the police found vessels which [contained] traces of drugs and opium [The page is missing].... When questioned, [the applicant] stated that on 1 June 2005 he, accompanied by E. and B., went out of the entrance to the block of flats. He had car keys, [his] driving licence, car [registration] documents and 900 Russian roubles in his pocket. After a short conversation with an acquaintance, he was knocked down by two men who handcuffed him. One of these men introduced himself as police officer K. In the presence of E. and B. that officer took the car keys, driving licence and car [registration] documents from [the applicant]. At 11.40 a.m. [the applicant] was taken to the ROVD station. He was taken to an office where K. and G. began to hit him [on the] lower back with a plastic bottle filled with water. They forced him to confess to drug trafficking. Thereafter he was taken to M.’s office, where in the presence of attesting witnesses a police officer took 1,200 Russian roubles from his pocket. A special examination showed that [both the applicant’s] hands and the banknotes had fluorescent marks [on them]. [The applicant] refused to give a statement in the presence of G. and K. During [the applicant’s] detention he asked for an ambulance three times. A detention facility doctor gave him injections of painkillers [every day] for ten days. On 15 August 2005 he was examined by a hospital doctor. [The applicant] asked to be present at the search of his flat. However, this request was rejected by the police... When questioned, B. explained that her sister E. was the applicant’s partner and lived with him and their daughter in a flat which belonged to B... On the day of [the applicant’s] arrest she, E. and [the applicant] had gone to a garage. On their way there while the applicant was walking behind them, two young men knocked him down. The men introduced themselves as police officers. She did not see the police officers taking [the applicant’s] belongings from his pockets. She had never seen those officers before. They did not put any pressure on her. When questioned, [detention facility paramedic Zyu.], stated that [the applicant] was brought to the detention facility at 9.12 p.m. and examined there by [him]. From the medical records it was clear that [the applicant] had complained of lower back pain but only the scratch on his knee was noted, received, from his own description during the arrest. [The applicant] complained of chest pain. No other visible injuries were detected. Later he complained about pain in the area of the right shoulder, pain in the chest, in the area of ninth and tenth ribs. On 15 August 2005 he was brought for examination in emergency services of a hospital, where [the applicant] made a X-ray scan and ultrasound examination of his kidneys. No pathologies in his condition were detected. When questioned, E. submitted that on 1 June 2005 at about 11 a.m. she, her sister E. and [the applicant] had gone to a garage. On their way there while the applicant was walking behind them, two young men knocked him down. The men introduced themselves as police officers. She did not see the police officers taking [the applicant’s] belongings from his pockets. The police officers did not use force against [the applicant] during his arrest. They did not put any pressure on her. Having regard to the above, it was established in the course of the inquiry that ... there is no evidence that G. and K. committed the alleged criminal offence...” 26. The applicant appealed and argued that the decision of 21 September 2005 had been based on incomplete information and that the assessment of the available evidence had been wrong. 27. On 10 February 2006 the Volgodonsk Town Court dismissed the applicant’s appeal against the decision of 21 September 2005 and upheld it in full. The court noted that: “... - from the explanations given by [the investigator in charge of the case] it follows that he ... interviewed paramedic Zyu. ... who had examined [the applicant] on 1 June 2005 ... and she explained that there were no injuries on [the applicant’s body], but [the applicant] complained about the pain in the back, which was why it was unnecessary for the investigator also to interview the doctors of the emergency services. In the copies of documents there were statements of paramedic Zyu. ... as well as statements of doctor Tr. of the emergency services who examined [the applicant] on 15 August 2005 making complaints only about the pain in the back and not about anything else; - from the explanation of [the investigator] it also follows that he interviewed [the applicant’s partner E.] who did not communicate any information that on 1 June 2005 during [the applicant’s] arrest in her presence the police officers used physical force in respect of [the applicant] ... On the basis of the above, the court concludes that the investigator’s decision ... was well-grounded and lawful ...” 28. The applicant appealed, having argued that the first instance court had taken the decision in his absence and that its legal and factual conclusions contradicted the case file materials. 29. On 25 April 2006 the Rostov Regional Court examined the applicant’s appeal and quashed the decision of the lower court and remitted the case to the Volgodonsk Town Court for a fresh examination at first instance. It held that: “... in breach of the Code of Criminal Procedure of Russia (“CCrP”), the court did not duly examine the investigator’s decision not to institute criminal proceedings. Thus, the [lower] court did not take into account [the fact] that the investigative authorities had disregarded the prosecutor’s recommendations of 16 September 2005 and had not questioned the doctors of the emergency services who provided [the applicant] with medical assistance. Moreover, the court did not assess the thoroughness of the investigation. The court did not take into account certain contradictions in the witnesses’ statements. In particular, detention facility paramedic Zyu. stated that [the applicant] had repeatedly complained of chest and back pains. In connection with this he was provided with first aid by paramedics. On 15 August 2005 [the applicant] was taken to the city hospital. X-ray and ultrasound examinations showed no signs that the applicant had a medical condition. However [surgeon Tr.] noted that no ultrasound examination had been performed because police officers took the applicant out of the hospital. [Tr.] also submitted that [the applicant] had undergone a blood test and a urine test. The [lower] court did not take into account [the fact] that the investigator’s conclusion that there was an absence of any evidence of the [applicant’s] ill-treatment was unfounded. From the case file it is evident that between 1 and 10 June 2010 a detention facility doctor and paramedics provided [the applicant] with first aid. The [lower] court did not notice that the investigating authorities had failed to establish the cause of [the applicant’s] health problems and to check whether [the applicant] had had kidney disease before his arrest. This indicates the superficial character of the investigation. The court cannot accept the [lower] court’s references to [the applicant]’s conviction because [the applicant’s] allegations of ill-treatment were not examined on the merits in the proceedings against him...” 30. On an unspecified date a higher prosecutor, acting in parallel to the then pending court proceedings, quashed the decision of 21 September 2005 as unlawful and remitted the case to the prosecutor’s office for an additional investigation, having required to interview the paramedic who had provided the applicant with medical aid in prison. 31. On 14 June 2006 the Volgodonsk Town Court left the applicant’s complaint about the decision of 21 September 2005 without examination, noting that that decision had already been quashed by the higher prosecutor. 32. Apparently in response to the prosecutor’s previous recommendations (see paragraph 30 above), the investigating authorities performed some additional investigating measures, in particular, they questioned E. as well as paramedics Ya. and Z. who had provided the applicant with medical aid in prison, doctor Tr. of the emergency services of the hospital and again questioned police officer M., who had carried out investigating actions in respect of the applicant on 1 June 2005. 33. On 14 June 2006 the applicant’s partner E. was interviewed by an investigator of the Volgodonsk Town Prosecutor’s office and gave the following statement: “With [the applicant] I resided together as of the time of his release from prison after he had served his [previous] sentence for extortion. During the time we lived together [the applicant] complained about the pain in kidneys and pain in the area of ribs. I cannot remember the side. From [his] words I learned that during his detention [the applicant] had been severely beaten, as a result of which they broke his rib and contused the kidneys. With these complaints, as long as I remember, he never applied for aid in medical institutions. More than once, including in my presence, in pharmacies he used to buy medicine to relieve the mentioned pain. He also complained about pain in the area of the liver. I don’t know if [the applicant] talked about [this] to anyone. Because he failed to apply for medical aid, the broken rib recovered incorrectly.” 34. On 24 April 2007 the prosecutor’s office refused to open a criminal case. This decision reiterated the findings of the decision of 21 September 2005 and added as follows: “When questioned, Tr. explained that he worked as a surgeon in the emergency services of the hospital and ... that ... [the applicant] applied to him with complaints about the pain in the lower back. He examined [the applicant] and made him undergo the blood and urine tests, failing to detect any anomalies... It was expected also to make an ultrasound test of kidneys, buy the convoy and [the applicant] left the building... When questioned, M. stated that she had been working for the ROVD since September 2000. She was on duty when she received information about [the applicant’s] arrest by police officers G. and K. She carried out initial investigating actions in his regard and examined his hands for traces of drugs. [The applicant] made no complaints about his state of health. He had no visible injuries. She ordered G. and K. to perform an urgent search in [the applicant’s] flat. Neither she, nor other police officers acted unlawfully towards the applicant. When further questioned on 14 June 2006, E. stated that she had been living with [the applicant] since his release from prison. During their cohabitation [the applicant] had complained of lower back, chest and stomach pains. She knew from what [the applicant] had said that he had been beaten in prison. He had never consulted a doctor on account of his health problems. He used painkillers to cope with these pains and never applied to [medical institutions] for [medical] aid. When questioned, [paramedic Ya. of the emergency services] noted that she attended the ROVD’s temporary detention facility upon the [applicant’s] request on account of his lower back pain. No hematomas or bruises were noted on his lower back. Since [the applicant] had no bodily injuries as well as signs of any diseases, she made a preliminary diagnosis – a bruise of soft tissue in the lower back area. To confirm the diagnosis it was necessary to have [the applicant] examined by a surgeon and, if necessary, by other doctors. She did not remember whether [the applicant] complained of ill-treatment or not. Similar statements were given by [paramedic Za. of the emergency services]... When questioned [the applicant’s acquaintance T.] stated that on 1 June 2005 on his way to a [bus stop] he met [the applicant] and his partner, who were going to a garage. They had a conversation for a minute. During that conversation he did not give [the applicant anything] or take anything from [the applicant]. Thereafter, on the way to the bus stop he was stopped by two police officers who checked his documents. He did not see [the applicant’s] arrest. Several days later he learned about [the applicant’s] arrest on suspicion of drug trafficking... Having regard to the above, the investigator concludes that [the applicant’s] allegations of ill-treatment were made in an attempt to escape criminal liability for his offence... In the light of the above considerations, and taking into account Articles 145 and 148 of the CCrP, the investigator orders the refusal of [the applicant’s] request that criminal proceedings against [the police officers] be instituted. There is no evidence of the crimes provided by Articles 286 § 1 [abuse of power] and 303 § 2 [falsification of a criminal case file] of the Criminal Code of Russia having taken place...” 35. The applicant did not appeal against the decision of 24 April 2007. 36. On 17 May 2011 the applicant obtained, for the purposes of the present case, the following statement from his partner E. The statement is made in relation to the earlier statement of E. (see paragraphs 33 and 34) and reads as follows: “Before [the prosecutor’s office] [I] gave false statements about [the applicant]. He never had kidney disease or complained of lower back pain. He had never bought medicine to cope with the pain. I gave those false statements because I thought that [the applicant] would evict me from my flat. I was also unhappy because I had to pay for our flat while he was in detention.” 37. Throughout the proceedings before the trial court the applicant denied his involvement in drug trafficking, claiming that the criminal case against him had been falsified by police officers. 38. According to the applicant, during the trial court hearings he was unable to cross-examine two of the witnesses against him. He also stated that the Volgodonsk Town Court did not ensure the attendance of a witness on his behalf. 39. On 18 October 2005 the Volgodonsk Town Court convicted the applicant of drug trafficking and sentenced him to four years and six months of imprisonment. 40. The applicant appealed against the judgment, having argued that the criminal case against had been falsified by the police. In his appeal brief he did not state his complaints about the alleged inability to cross-examine some of the witnesses and call a witness on his behalf. 41. On 31 January 2006 the Rostov Regional Court examined and rejected the applicant’s arguments, having upheld his conviction and the sentence in full. 42. On 21 September 2006 the Presidium of the Rostov Regional Court upheld the judgments of the lower courts, having re-characterised the applicant’s crime as an attempt to sell drugs and reduced his sentence to four years and three months of imprisonment.
| 0 |
test
|
001-154197
|
ENG
|
ITA
|
COMMITTEE
| 2,015 |
CASE OF RUSSO v. ITALY
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney
|
4. The applicant was born in 1943 and lives in Rome. 5. The applicant was the owner of a plot of land in Randazzo (Catania). The land in issue was recorded in the land register as Folio no. 57, Parcels no. 24, 28, 31, 32, 35 and 360. 6. By an order issued on 5 August 1981, the regional administrative authorities approved a land development plan for the construction of a road on the applicant’s land. 7. On 24 February 1984 the Mayor of Randazzo issued a decree authorising the Randazzo Municipality to take possession, through an expedited procedure and on the basis of a public-interest declaration, of a portion of the applicant’s land in order to begin the construction of the road. 8. On 2 April 1984 the authorities took physical possession of the land. 9. By a writ served on 26 July 1991, the applicant brought an action for damages against the Randazzo Municipality before the Catania District Court. They alleged that the occupation of the land was illegal and that the construction work had been completed without there having been a formal expropriation of the land and payment of compensation. They claimed a sum corresponding to the market value of the land and a further sum in damages for the loss of enjoyment of the land during the period of lawful occupation. 10. On an unspecified date the court ordered an expert valuation of the land. In his report the expert concluded that the occupied land covered a surface area of 2,235 square metres and confirmed that it could be classified as agricultural land. He further concluded that the market value of the land on the date the occupation became unlawful, which was identified as having occurred on 2 April 1990, amounted to 9,000,000 Italian Lire (ITL). 11. By a judgment delivered on 26 May 1999 and filed with the court registry on 8 June 1999, the Catania District Court declared that the possession of the land, which had been initially authorised, had become unlawful as of 2 April 1990. It found that the land had been irreversibly transformed by the public works. As a result, in accordance with the constructive-expropriation rule (occupazione acquisitiva or accessione invertita), the applicant had been deprived of his property, by virtue of its irreversible alteration, on the date on which the possession had ceased to be lawful. In the light of those considerations, the court concluded that the applicant was entitled to compensation in consideration for the loss of ownership caused by the unlawful occupation. 12. The court drew on the expert valuation to conclude that the land could be classified as agricultural land and that its market value on the date the occupation had become unlawful in 1990 corresponded to ITL 9,000,000 (approximately EUR 4,600), to be adjusted for inflation, plus statutory interest. The court further awarded the applicant ITL 2,339,600 (approximately EUR 1,200) as compensation for the damage occasioned by the unavailability of the land during the period from the beginning of the lawful occupation (24 February 1984) until the date of loss of ownership (13 July 1990), as well as ITL 5,150,000 (approximately EUR 2,700) as compensation for the decrease in the value of the adjoining land. 13. On 17 July 2000 the Municipality appealed against the judgment before the Catania Court of Appeal, primarily contesting the assessment of the property’s market value by the court-appointed expert and arguing that the District Court’s awards for damages ought to be reduced. 14. The applicant lodged a cross-appeal whereby he also challenged the court-appointed expert’s findings with regard to the calculation of the land’s market value and criticised the expert’s assessment methods which led, in his view, to an under-evaluation of the land. 15. By a judgment delivered on 30 July 2002 and filed with the court registry on 25 June 2003, the Court of Appeal reduced the amount to be awarded as compensation concerning the adjoining land that had not been subject to occupation but that had nonetheless been damaged to 4,950,000 ITL (approximately EUR 2,500). The court upheld the remainder of the Catania District Court’s judgment. It considered that the first instance court had awarded a sum equal to the property’s full market value. In the court’s view, the latter sum had been correctly determined by the court-appointed expert, who had taken into account the land’s actual characteristics and reached his conclusions by means of a standard methodology. 16. The judgment became final in September 2004.
| 1 |
test
|
001-152387
|
ENG
|
SRB
|
COMMITTEE
| 2,015 |
CASE OF TOMOVIĆ AND OTHERS v. SERBIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Ján Šikuta
|
5. All the applicants were employed by Raketa-Putnički Saobraćaj AD, a company based in Užice (hereinafter “the debtor”). 6. Since the debtor had failed to fulfil its obligations toward its employees, the applicants brought numerous separate civil claims, seeking payment of salary arrears and various social security contributions. 7. The applicants obtained final court decisions ordering the debtor to pay them certain sums. The essential information as to the domestic proceedings in respect of each application is indicated in the annexed table. 8. On 12 July 2010 the Commercial Court (Privredni sud) in Užice opened insolvency proceedings in respect of the debtor. As a result, all of the ongoing enforcement proceedings against the debtor were terminated. 9. The applicants duly reported their respective claims based on the above-mentioned court decisions to the insolvency administration. 10. On 8 June 2011 the court accepted the applicants’ claims. 11. On 29 July 2014 the applicants’ representative informed the Court that some of the decisions at issue had been partially enforced in the insolvency proceedings. 12. The insolvency proceedings in respect of the debtor are still ongoing. 13. The debtor, which operated as a socially-owned company, was privatised on 27 December 2002. 14. On 17 July 2007 the privatisation was annulled because the buyer in question had failed to fulfil his contractual obligations. 15. Following the annulment of the debtor’s privatisation the State owned 58.18% of shares in the company. 16. On 11 December 2008 the State sold its shares to a private company.
| 1 |
test
|
001-145583
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF KADIRZHANOV AND MAMASHEV v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
|
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
|
6. The applicants are of Uzbek ethnic origin. They lived in the JalalAbad region of Kyrgyzstan. After mass disorders and inter-ethnic clashes in the region in June 2010, they left Kyrgyzstan for Russia to flee, together with many other ethnic Uzbeks, ethnically motivated violence. 7. Mr Kadirzhanov was born in 1970. He currently lives in Orel, Russia. 8. In July 2010 the applicant arrived in the town. Before June 2012 he had not lodged any applications for refugee status or temporary asylum. 9. On 3 October 2011 the Kyrgyz authorities charged the applicant in absentia with violent crimes committed in the course of the inter-ethnic violence of June 2010, when a group of individuals had barricaded a road near the village of Suzak, which had led to a number of deaths. 10. On 11 November 2011 the Suzak District Court ordered the applicant’s detention for two months. The Kyrgyz authorities also added the applicant’s name to an international wanted list. 11. On 14 May 2012 the applicant was arrested in Orel and placed in remand prison no. 1. It appears that he first learnt about the criminal prosecution and charges against him in Kyrgyzstan on that day. He denied his involvement in the June 2010 violence. On an unspecified date, the applicant was provided with the services of a State-appointed lawyer for the purposes of the extradition proceedings. 12. On 15 May 2012 the Severnyy district prosecutor of Orel ordered the applicant’s custodial detention on the basis of the decision of 11 November 2011, referring to Article 61 of the 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”). 13. The Kyrgyz authorities confirmed their intention to seek the applicant’s extradition. 14. On 12 June 2012 the Kyrgyzstan Prosecutor General’s Office lodged a formal extradition request with its Russian counterpart. It submitted the following diplomatic assurances: that the applicant would be provided with every opportunity, as prescribed by international and Kyrgyz criminal law, to defend himself, including by way of legal assistance; that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment; and that he would not be prosecuted on political, racial, ethnic or religious grounds. 15. On 15 June 2012 the Severnyy district prosecutor again ordered the applicant’s custodial detention, referring to Article 466 § 2 of the Russian Code of Criminal Procedure (“CCrP”). 16. On the same date the applicant applied to the regional migration authority for refugee status. 17. On 10 July 2012 the Severnyy District Court of Orel examined the Severnyy district prosecutor’s request to extend the applicant’s detention for four months. Noting that the prosecutor had not substantiated the need for such a long period by reference to specific measures to be taken during the “extradition check” procedure (экстрадиционная проверка) and noting the need to take account of the upcoming decision on the application for refugee status (which could bar further extradition proceedings), the judge extended the applicant’s detention for one month only, until 14 August 2012. On 25 July 2012 the Orel Regional Court upheld the extension order. 18. On 25 July 2012 the applicant’s lawyer made submissions to the Russian Prosecutor General’s Office in relation to, inter alia, the risk of illtreatment in the event of the applicant’s extradition to Kyrgyzstan. 19. On 9 August 2012 the Russian Ministry of Foreign Affairs wrote to the Russian Prosecutor General’s Office, indicating that it had no specific information disclosing any impediment to the applicant’s extradition. At the same time it indicated that because the applicant was of Uzbek ethnic origin “there could be a risk of premeditated biased attitude in the Kyrgyz authorities’ examination of his case”. 20. On 9 August 2012 the Severnyy District Court extended the applicant’s detention until 14 November 2012. The decision was upheld on appeal on 31 August 2012. 21. On 31 October 2012 the regional migration authority dismissed the applicant’s refugee status application. The authority relied on a note dated 13 July 2012 by the Federal migration authority on the general political and human rights situation in Kyrgyzstan in 2010-11. The applicant’s allegation that he had received threats from ethnic Kyrgyz while in Kyrgyzstan was dismissed, because the reason behind the threats had been his wealth, not ethnic origin. The applicant appealed to the Federal migration authority. On 25 December 2012 his appeal was dismissed. The risk of ill-treatment remained unassessed. 22. In the meantime, on 13 November 2012 the Severnyy District Court extended the term of the applicant’s detention until 14 February 2013, despite the lawyer’s request to release the applicant on bail. The Orel Regional Court upheld the decision on appeal on 28 November 2012 arguing, inter alia, that there was no reason to vary the preventive measure in accordance with Article 110 of the CCrP. 23. On 11 February 2013 the Severnyy District Court extended the applicant’s detention until 14 May 2013. The applicant lodged an appeal with the court on the same day. On an unspecified date the case was transferred to the Orel Regional Court for examination. 24. On 26 February 2013 the Orel Regional Court held an appeal hearing and, finding that there was no reason to vary the preventive measure in accordance with Article 110 of the CCrP, upheld the extension order of 11 February 2013. 25. In the meantime, on 20 February 2013 the Kyrgyzstan Prosecutor General’s Office amended its extradition request, with reference to the amended decision listing the charges against the applicant. 26. On 18 March 2013 the Russian Prosecutor General’s Office granted the extradition request. The extradition order contained no assessment of the factual and legal matters relating to the alleged risk of ill-treatment in the requesting country, and did not mention any of the diplomatic assurances given by the Kyrgyz authorities. 27. On 2 April 2013 the applicant appealed against the extradition order claiming, inter alia, that the Russian Prosecutor General’s Office had failed to assess the alleged risk of ill-treatment. 28. On 22 April 2013 the Basmannyy District Court of Moscow upheld the migration authorities’ decisions of 31 October and 25 December 2012. The risk of ill-treatment was not assessed. On 12 July 2013 the Moscow City Court upheld the judgment. 29. In the meantime, on 23 April 2013 the Orel Regional Court held a judicial review hearing against the extradition order and upheld it. It summarily dismissed the allegations regarding the risk of ill-treatment, referring to the assurances given by the Kyrgyz authorities and to the fact that the applicant had been charged with “ordinary crimes” and thus was not being persecuted on political or ethnic grounds. The applicant appealed to the Supreme Court of Russia. 30. In May 2013 the Orel regional prosecutor sought the extension of the applicant’s detention. The matter was submitted to the Orel Regional Court. 31. On 13 May 2013 the Orel Regional Court extended the applicant’s detention for six months, to reach the maximum statutory period of eighteen months on 14 November 2013. It found that there were no grounds to vary the preventive measure in accordance with Article 110 of the CCrP. The applicant appealed. 32. On 24 May 2013 the Appeal Section of the Orel Regional Court held a hearing and upheld the detention order. 33. On 4 July 2013 the Supreme Court of Russia confirmed the judgment of 23 April 2013, thus upholding the extradition order. It summarily dismissed the applicant’s arguments relating to the risk of illtreatment. The court also stated that the Kyrgyz authorities had provided guarantees relating to legal assistance and the absence of ill-treatment. 34. On 20 September 2013 the applicant’s lawyer, N., filed a request with the regional prosecutor’s office for the applicant’s release. 35. On 25 September 2013 the Orel regional deputy prosecutor ordered the applicant’s release from custody under, inter alia, Articles 103 and 110 of the CCrP. He reasoned that the examination of the case pending before the Court, which had indicated interim measures pursuant to Rule 39 of the Rules of Court in respect of the applicant, would last longer than the maximum period of detention permissible. The deputy prosecutor varied the preventive measure to release from custody, after a personal guarantee was given by N. The ruling was not challenged and the applicant was released from custody. 36. Mr Mamashev was born in 1984. He currently lives in Manyukhino, a village in the Moscow region of Russia. 37. The applicant arrived in Moscow in early August 2010. In 2010 and 2011 he did not lodge any applications for refugee status or temporary asylum in Russia. 38. On 24 August 2010 the Kyrgyz authorities charged the applicant in absentia with violent crimes committed in June 2010, when a group of individuals had barricaded a road near the village of Suzak, which had led to a number of deaths. The Kyrgyz authorities also added the applicant’s name to an international wanted list. 39. On 25 August 2010 the Suzak District Court in Kyrgyzstan ordered the applicant’s arrest and authorised his custodial detention for two months. 40. On 6 February 2012 he was arrested in Moscow and placed in a remand prison. It appears that he first learnt about the criminal prosecution and charges against him in Kyrgyzstan on that day. 41. On 7 February 2012 the Babushkinskiy inter-district prosecutor’s office applied the preventive measure of custodial detention to the applicant, which was authorised by the Suzak District Court on 25 August 2010. 42. On an unspecified date the applicant was provided with the services of a State-appointed lawyer for the purposes of the extradition proceedings. 43. On 16 March 2012 the Kyrgyzstan Prosecutor General’s Office submitted an extradition request to its Russian counterpart. The request contained the following diplomatic assurances: that the applicant would be provided with every opportunity, as prescribed by international and Kyrgyz criminal law, to defend himself, including by way of legal assistance; that he would not be extradited to a third country and would only stand trial in relation to the charges that gave rise to the extradition request; that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment; and that he would not be prosecuted on political, racial, ethnic or religious grounds. 44. On the same date the Babushkinskiy inter-district prosecutor’s office again applied the Suzak District Court’s chosen preventive measure to the applicant, thus extending his custodial detention. 45. On 30 March 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 June 2012. 46. On 12 April 2012 the applicant applied to the Moscow migration authority for refugee status, arguing persecution on the grounds of ethnic origin. On 17 July 2012 the authority dismissed the applicant’s application at the admissibility stage. The Federal migration authority quashed this decision. His application was examined in October 2012. 47. In the meantime, on 18 April 2012 the Russian Ministry of Foreign Affairs wrote to the Russian Prosecutor General’s Office, indicating that it had no specific information disclosing any impediment to the applicant’s extradition. At the same time, it indicated that because the applicant was of Uzbek origin “there could be a risk of premeditated biased attitude in the Kyrgyz authorities’ examination of his case”. 48. On 23 April 2012 the applicant’s lawyer made submissions to the Russian Prosecutor General’s Office on the issue regarding the risk of illtreatment in the event of the applicant’s extradition to Kyrgyzstan. On 21 May 2012 it acknowledged receipt of the above-mentioned submissions and stated that they would be taken into consideration. 49. On 28 May 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 August 2012. The Moscow City Court dismissed an appeal against the decision on 9 July 2012. 50. On 8 June 2012 the Ostankinskiy District Court of Moscow dismissed complaints lodged by the applicant under Article 125 of the CCrP against the prosecutor’s decisions of 7 February and 16 March 2012. The Moscow City Court upheld the decision on 1 August 2012. 51. On 2 August 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 October 2012. The Moscow City Court upheld the decision on appeal on 10 September 2012. 52. On 1 October 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 December 2012. The applicant’s lawyer filed a statement of appeal dated 3 October 2012, which was registered by the Babushkinskiy District Court on 10 October 2012. On an unspecified date it was forwarded to the Moscow City Court. 53. On 11 October 2012 the Moscow migration authority examined the applicant’s refugee status application on the merits, but dismissed it for lack of evidence regarding the applicant’s allegations of possible persecution on the grounds of ethnic origin. The risk of ill-treatment was not assessed. The applicant challenged the refusal of 11 October 2012 before the Federal migration authority. His appeal was summarily dismissed on 26 December 2012. On an unspecified date he sought a judicial review of the refusals issued by the migration authorities. 54. On 4 December 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 February 2013. On 6 December 2012 the applicant’s lawyer filed a statement of appeal, which was registered by the Babushkinskiy District Court on 13 December 2012. On an unspecified date it was forwarded to the Moscow City Court. 55. On 24 January 2013 the Russian Prosecutor General’s Office requested further guarantees from its Kyrgyz counterpart, in relation to the possibility of visits to the applicant by Russian diplomatic staff during his detention in Kyrgyzstan. On 6 February 2013 the Kyrgyzstan Prosecutor General’s Office submitted the required guarantees. 56. On 28 January 2013 the Moscow City Court heard appeals against the decisions of 1 October and 4 December 2012, but dismissed them. 57. On 1 February 2013 the Moscow City Court extended the applicant’s detention until 5 August 2013. It received the applicant’s appeal against this decision on 12 February 2013. The date on which it was filed remains unknown. 58. On 27 February 2013 the Russian Deputy Prosecutor General granted the extradition request. The extradition order did not contain any reasoning in relation to the alleged risk of ill-treatment in Kyrgyzstan. On 12 March 2013 the applicant was notified of the decision and appealed against it. 59. On 14 March 2013 the Appeal Section of the Moscow City Court dismissed the appeal against the decision of 1 February 2013. 60. By a judgment of 10 April 2013 the Basmannyy District Court of Moscow upheld the refugee application refusals issued by the migration authorities. The alleged risk of ill-treatment was not mentioned. 61. On 15 April 2013 the Moscow City Court upheld the extradition order on judicial review. It summarily dismissed the allegations regarding the risk of ill-treatment, stating that the applicant had been charged with “ordinary crimes” and thus was not being persecuted on political or ethnic grounds, and relied on the diplomatic assurances given by the Kyrgyz authorities. 62. On 19 June 2013 the Supreme Court of Russia upheld the judgment of 15 April 2013 on appeal, thus upholding the extradition order. 63. On 8 July 2013 the Moscow City Court confirmed the judgment of 10 April 2013 concerning the refusals issued by the migration authorities. It stated that the first-instance court had analysed the applicant’s situation sufficiently. 64. On 31 July 2013 the Babushkinskiy district prosecutor of Moscow ordered the applicant’s release because interim measures under Rule 39 of the Rules of Court had been indicated in respect of the applicant. The applicant was released on 1 August 2013 after a personal guarantee given by his lawyer.
| 1 |
test
|
001-145668
|
ENG
|
POL
|
ADMISSIBILITY
| 2,014 |
KOCENIAK v. POLAND
| 4 |
Inadmissible
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
|
1. The applicant, Mr Zbigniew Koceniak, is a Polish national, who was born in 1963 and lives in Mielec. He is represented before the Court by Ms A. Żuraniewska, a lawyer practising in Kraków. 2. The Polish Government (“the Government”) are represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 16 February 1994 the Mielec Municipal Office (Urząd Gminy) issued a building permit allowing the applicant’s neighbour, H.K., to construct a storehouse (budnek inwentarsko-składowy) and a midden (gnojownia) on her land adjacent to the applicant’s plot. It was specified that the building should be situated along the boundary between the plots, half a metre from the applicant’s land. It was further required that the walls facing the applicant’s property should be without windows or doors and that rainwater should run off onto H.K.’s land. It appears that on an unspecified date in 1993 another of the applicant’s neighbours, K.Ś., obtained a similar construction permit concerning her land. 5. On 11 October 1996 the applicant wrote to the Mielec District Office (Urząd Rejonowy) to complain that H.K. and K.Ś. had constructed on their land large buildings serving as slaughterhouses (ubojnia) and meatprocessing plants (masarnia). The applicant submitted, inter alia, that H.K.’s building was too close to his property and that rainwater from her roof ran off directly onto his land. He maintained that the neighbours’ activities were a nuisance to him and his family. 6. On 17 October 1996 the Mielec District Office scheduled an inspection of the properties concerned, which was carried out on 28 October 1996. It was established that H.K.’s building on the land adjacent to the applicant’s was being constructed in accordance with the building permit issued on 16 February 1994 by the Mayor of the Mielec Municipality. It was further established that despite the fact that the building had not yet been completed, H.K. was already using it as a meatprocessing plant. H.K. was fined in the amount of 50.00 zlotys (PLN). 7. As regards the property of K.Ś., the applicant submitted that he had not been informed of the result of the relevant inspection or the course of the administrative proceedings which had followed. This was so because the authorities considered that he had no legal interest in the outcome of those proceedings since her land did not directly adjoin his. 8. On 15 November 1996 the Mielec District Office ordered that the construction work on H.K.’s land be stopped. The order was to remain valid for two months and a new decision as to the continuation of the work was to be issued before its expiry. Subsequently, on 18 December 1996 the Mielec District Office ordered H.K. to submit, by 30 June 1997, certain technical documents concerning the construction. The authority informed her that if she wanted to use the building as a meat-processing plant, she would have to apply for so-called “initial planning permission” (decyzja w sprawie warunków zabudowy i zagospodarowania terenu). It was further established that the dimensions of the building were smaller than those stipulated by the original building permit of 16 February 1994; windows and doors had been placed in different places; the rainwater draining system was inadequate, mainly because the building was situated very close to the boundary between the plots; and the building was already being used as a slaughterhouse and a meatprocessing plant. 9. On 21 December 1996 the Mielec District Office issued a similar decision in respect of K.Ś.’s land. The decision was subsequently quashed by the Rzeszów Governor. On 18 May 1998 the National Building Inspector upheld the Governor’s decision. 10. On 12 June 1997 the Mielec District Sanitary Inspector gave a positive opinion with regard to the sanitation of the building on H.K.’s property. The inspector considered that the modification of the use of that building as a slaughterhouse and meat-processing plant was legally permitted, on condition that a maximum of 50 porkers were slaughtered per month. On 8 July 1998 the Rzeszów Regional Sanitary Inspectorate quashed that decision. 11. Following a request by the applicant, on 8 June 1998 the Mielec District Office summoned the applicant and H.K. to another inspection of H.K.’s property to be carried out on 29 June 1998. It was established during that inspection that H.K. had failed to comply with the terms of the original building permit. On 16 July 1998 the Mielec District Office asked the Minor Offences Adjudicative Board to impose a fine on her. 12. On 26 June 1997 the applicant complained to the Mielec District Office that his neighbours had not ceased their business activities. He submitted that H.K.’s company was slaughtering approximately ten animals per day and continuing the meat-processing activities. He asked for an expert in environmental matters to be appointed to inspect the property. In reply, on 15 July 1997 the Mielec District Office informed the applicant that the deadline which had been set for H.K. to submit the relevant technical documents (see paragraph 8 above) would expire on 30 November 1997 and that the proceedings had therefore been stayed until that date. 13. By way of a decision given on 29 August 1997, the Rzeszów Governor ordered H.K. to submit, within four months, an environmental impact assessment of the slaughterhouse and meat-processing plant, referring to an ordinance of 13 May 1995 issued by the Minister for Environmental Protection, Natural Resources and Forestry. 14. On 5 November 1997 the Mielec District Office warned H.K. that noncompliance with the deadline for submission of the documents which she was obliged to submit could lead to criminal sanctions under the Construction Act 1994 (Prawo budowlane) (“the 1994 Act”). 15. On 12 November 1997 H.K. submitted the environmental impact assessment in respect of her slaughterhouse and meat-processing plant to the regional office of the Department of Environmental Protection. 16. In his letter of 18 September 1997 the applicant asked the Rzeszów Governor to carry out an environmental impact assessment of H.K.’s business. He complained that H.K. and K.Ś. were running two slaughterhouses and meat-processing plants, which were causing pollution and posed a real risk to the health of the neighbourhood. He stressed that his complaints to the Mielec Municipal Office and District Office, the Rzeszów Regional Sanitary Inspectorate (Państwowy Wojewódzki Inspektorat Sanitarny) and the Rzeszów Veterinary Hygiene Inspectorate (Wojewódzki Weterynaryjny Inspektorat Sanitarny) had been to no avail. On 3 October 1997 the Governor’s Office forwarded the letter to the Regional Environmental Protection Inspectorate and on 8 October 1997 asked the Regional Veterinary Hygiene Inspectorate to inform the Governor’s Office and the applicant about the measures taken as a result of his complaint. 17. On 16 October 1997 the Regional Veterinary Hygiene Inspectorate informed the applicant that on 29 April 1997 the Mielec District Veterinary Surgeon (Powiatowy Lekarz Weterynarii) and the State Sanitary Inspectorate had conducted an on-site inspection of the company and established that the applicant’s allegations were unfounded. The inspectors had no objections to the sanitation of the sites. The liquid sewage was drained to concrete containers with covers and removed by a waste-disposal company at least once per week. The owners had been keeping records of the water used and sewage removed from the premises. 18. On 29 October 1997 the Regional Environmental Protection Inspectorate informed the regional office of the Department of Environmental Protection that four inspections had been carried out on the sites of both companies between October 1996 and May 1997. As a result, certain obligations had been imposed on the owners in order to rectify any irregularities identified during the inspections. Otherwise, the inspectors had found that the companies had been complying with the applicable environmental requirements. In particular, the bacteriological soil tests confirmed that the land had not been contaminated and that no danger to health or the environment could originate from it. 19. On 9 February 1998 the applicant applied to the Mielec District Office for an order to demolish the buildings constructed by K.Ś. and H.K. on their plots. He argued that the buildings did not comply with the original building permits issued in 1993 and 1994. On 12 March 1998 the Rzeszów Governor informed the applicant that he had enquired into why the firstinstance authority had not yet enforced decisions concerning the illegal construction on H.K.’s land. 20. On 28 April 2000 the Mielec District Office informed the applicant that section 48 of the 1994 Act, which provided for the demolition of buildings constructed in breach of building permits, was not applicable to the buildings on K.Ś.’s and H.K.’s property. This was so essentially because the local land development plan allowed for the type of business activity conducted in those buildings. A demolition order could not therefore be issued in respect of those buildings. 21. On 25 November 1997 H.K. lodged an application for retrospective permission to use the building on her property as a slaughterhouse and meat-processing plant (postępowanie w sprawie zalegalizowania poprzez wydanie pozwolenia na użytkowanie budynku gospodarczego za zmianą sposobu uzytkowania jego części na rzeźnięmasarnię wybudowanego niezgodnie z pozwoleniem). She submitted the documentation requested on 18 December 1996 by the Mielec District Office (see paragraph 8 above). On 16 January 1998 the Rzeszów Governor’s Office (Urząd Wojewódzki) informed her that under the Environmental Protection Act of 29 August 1997 (Ustawa z dn. 29.08.1997 o zmianie ustawy o ochronie i kształtowaniu środowiska) (“the 1997 Act”) she was obliged to lodge her application for a retrospective permit with the Mielec District Office. It was pointed out that the new application should contain a report on the environmental impact of her business activities. 22. On 10 February 1998 the Mielec District Office informed H.K. that her application could not be examined as it did not meet the formal requirements. On 17 February 1998 H.K. renewed her application. On 11 March 1998 the Mielec District Office, having noted that the building on her land did not comply with the original building permit, requested an expert opinion from the Rzeszow Regional Office as to the compatibility of the meat-processing plant with the provisions of the 1997 Act. 23. On 7 April 1998 the Director of the Environmental Protection Department of the Rzeszow Governor’s Office (Wydział Ochrony Środowiska Urzędu Wojewódzkiego) refused H.K.’s application for a retrospective conversion permit on the grounds that her business plan was flawed. It was further noted that appropriate tests should be performed to assess the environmental impact of her business activities on the neighbourhood. On 8 June 1998 the Mielec District Office requested another expert opinion from the Rzeszow Regional Office as to the compatibility of that business with the requirements of the environmental legislation. 24. On 29 June 1998 the Rzeszów Regional Office ordered H.K. to submit, by 15 July 1998, supplementary documents concerning her company (concerning, inter alia, the results of soil contamination tests, noise levels caused by the operation of the plant and the waste disposal survey). On 15 July 1998 she complied with that order. On 23 July 1998 she informed the Rzeszów Regional Office that the regional agronomy laboratory had been commissioned to carry out the soil contamination test. However, the test could not be carried out because the applicant had not allowed soil samples to be taken from his property. Subsequently, samples were taken from H.K.’ s property close to the boundary with the applicant’s property. 25. On 29 July 1998 the director of the environmental protection department of the Rzeszów Governor’s Office issued an administrative decision declaring that H.K.’s business activity was compatible with the requirements of the environmental legislation. It was held that it had not caused any environmental degradation and its continuation was unlikely to pose any environmental risks in the future. The meat-processing plant fulfilled the requirements laid down by environmental protection regulations. In particular, its operation did not exceed permissible levels of pollution and noise, and the waste and sewage-disposal system worked properly. On 10 August 1998 the applicant appealed against that decision to the Minister for Environmental Protection, Natural Resources and Forestry. 26. On 17 March 1999 the Minister quashed the contested decision, stating that under new environmental legislation that had entered into force on 1 August 1998 (when the proceedings were ongoing) it was no longer necessary to determine whether the plant complied with environmental requirements, essentially because the plant could not be qualified as being particularly harmful to the environment and/or human health. The proceedings were therefore discontinued. 27. On 8 June 1998 the Mielec District Office scheduled an inspection of H.K.’s property. On 23 June 1998 the applicant informed the Office that H.K. had continued the construction work. On 28 June 1998 the inspection was carried out. There were no signs of ongoing construction work at that time. It was established that H.K. had continued to run her meat-processing business in the unfinished building. On 21 July 1998 the Mielec District Office ordered H.K. to refrain from using her slaughterhouse and meatprocessing plant, since the building was considered an illicit construction (samowola budowlana). H.K. appealed. On 7 September 1998 the Rzeszów Governor quashed the contested decision and remitted the case to the firstinstance authority. 28. On 23 November 1998 the Mielec District Office stayed the proceedings ex officio because H.K. had, in the meantime, applied to have her case decided under the legal provisions applicable at the time when the construction work had stopped. On 3 December 1998 the applicant lodged an interlocutory appeal against that decision. On 14 January 1999 the Rzeszów Governor quashed the contested decision and remitted the case to the first-instance authority. On 18 April 2000 the District Building Inspectorate (Rejonowy Inspektor Nadzoru Budowlanego) informed the Mielec District Office that H.K. had complied with the requirements imposed on her by the decision of 18 December 1996 (see paragraph 8 above). 29. On 2 May 2000 the Mielec District Office issued a decision authorising H.K. to run her business on her property (decision No. AB 7353/16/00). The applicant appealed. On 23 August 2000 the Podkarpacki Governor quashed the first-instance decision and refused to issue the permit sought (no. AB V 7114/12/1/00). On 23 October 2002 the Supreme Administrative Court quashed both the first and second-instance decisions. It referred to the number of proceedings conducted in H.K.’s case and found that all of them, including the proceedings concerning the request for retrospective permission to use the building as a meat-processing plant should have been dealt with by the District Building Inspectorate. 30. On 21 June 2004 the Mielec District Office gave a positive opinion with regard to the partial use of the building on H.K.’s property as a slaughterhouse and meat-processing plant. It had regard to a report concerning that business’s environmental impact. By a decision of 29 November 2004 the Podkarpacki Regional Building Inspectorate (Wojewódzki Inspektor Nadzoru Budowlanego) authorised H.K. to use part of the building for meat-processing activities (decision No. 79/2004). On an unspecified date the applicant appealed against that decision. On 20 April 2009 the Regional Building Inspectorate quashed the contested decision and remitted the case to the first-instance authority. The applicant and H.K. appealed. On 29 July 2009 the Rzeszów Regional Administrative Court rejected the applicant’s appeal. On 12 October 2009 the court rejected H.K.’s appeal. 31. A number of decisions given in subsequent proceedings were quashed upon appeal and the case was remitted to the firstinstance authority. On 15 February 2011 the local Building Inspectorate again authorised H.K. to use part of the building for meat-processing activities. This decision was quashed upon appeal. The owner was ordered to submit an expert opinion on the technical state of the building. In the proceedings conducted afterwards H.K. acknowledged, in December 2013, that she had been conducting meat processing business in a building which had never been certified as suitable for these purposes within the meaning of construction laws. On 17 January 2013 the local Building Inspectorate ordered the owner to cease operation of her business. This decision was subsequently quashed and the proceedings were discontinued. The applicant’s efforts to have them reopened remain unsuccessful. In the relevant correspondence the authorities stated repeatedly that in his complaints the applicant had failed to make it clear what procedural steps should be taken by the authorities in respect of the decision to discontinue the proceedings. 32. By a decision of 18 December 1996 (see paragraph 8 above) the head of the Mielec District Office ordered H.K. to apply for a permit to continue construction of the storehouse. On 21 July 1999 the District Building Inspectorate discontinued the proceedings, finding that they had become devoid of purpose given that the construction had been finalised. On 14 October 1999 the Podkarpacki Regional Building Inspectorate quashed that decision as premature and remitted the case to the firstinstance authority. 33. On 2 December 2002, in accordance with the Supreme Administrative Court’s judgment of 23 October 2002 (see paragraph 29 above), the Mielec District Office transmitted the case file to the District Building Inspectorate. On 4 February 2003 the inspector summoned H.K. and the applicant to participate in an administrative hearing and inspection of H.K.’s property. By a decision of 6 May 2003 the District Inspectorate ordered H.K. to stop using the storehouse for meat-production purposes, having noted that she had not obtained the relevant retrospective permission (decision No. NB 7355/38/99-03). On 29 July 2003 the Podkarpacki Regional Building Inspectorate upheld that order (decision No. OA 7144/12/14/03). 34. On 7 October 2003 the authority inspected H.K.’s property. It was established that she had continued to use the building for meat-processing purposes in breach of the decision of 6 May 2003. As a result, H.K. was fined on the basis of a judgment given on 5 April 2004 by the Mielec District Court. 35. On an unspecified date H.K. appealed against the decision of 29 July 2003 (see paragraph 34 above) to the Rzeszów Regional Administrative Court. On 28 April 2005 that court stayed the appellate proceedings because the applicant’s sister, who was a party to the proceedings, had died. On 4 September 2006 the proceedings were resumed. On 23 January 2007 the Rzeszów Regional Administrative Court quashed the decision of 6 May 2003 and the subsequent decision given on 29 July 2003. On 4 June 2008 the Supreme Administrative Court quashed that judgment and remitted the case to the Rzeszów Regional Court. The proceedings are apparently pending. 36. On 4 January 1995 H.K.’s company began to operate under its business licence of 2 January 1995 issued by the Mielec Municipal Office. The District Veterinary Surgeon (Rejonowy Lekarz Weterynarii) was charged with administrative supervision of the company. Subsequently, after the local administration reform of 1999, the County Veterinary Surgeon (Powiatowy Lekarz Weterynarii) took over. 37. On 3 March 2000 the company obtained a favourable opinion from the District Sanitary Inspectorate with regard to the wastedisposal system on her land. On 27 March 2000 the County Veterinary Surgeon issued a decision obliging H.K. to eliminate some irregularities found in the functioning of the company during a previous inspection. 38. On 24 July 2000 the applicant complained to the County Veterinary Surgeon about the company’s operation and requested that it be closed down. On 31 July 2000 the County Veterinary Surgeon inspected the company’s premises. The inspection established certain shortcomings as to the compatibility of the company’s operation with animal husbandry regulations. The company was ordered to rectify them by 15 August 2000. On 1 August 2000 the County Veterinary Surgeon informed the applicant about the results of the inspection and the obligations imposed on the owner. On 22 August 2000 the County Veterinary Surgeon conducted a further inspection and found that the orders had been complied with. 39. On 11 January 2001 the applicant again complained to the County Veterinary Surgeon. On 17 January 2001 that authority conducted an inspection of the company with a view to checking whether the previous orders had been complied with. It was established that the orders concerning the meat-processing plant had been fulfilled for the most part, but those concerning the slaughterhouse had not been followed. 40. Certain obligations imposed on H.K. were subsequently modified by a decision of 17 January 2001. On 25 January 2001 the County Veterinary Surgeon ordered H.K. to cease operation of the slaughterhouse until the orders had been complied with. On 26 January 2001 the applicant was informed accordingly. On 27 February 2001 the County Veterinary Surgeon conducted another inspection of the company. It was established that all obligations imposed previously on the owner had been met. On 1 March 2001 the County Veterinary Surgeon revoked his decision of 25 January 2001 accordingly. 41. On 7 March 2001 the applicant again complained of the alleged nuisance caused by the company. A new inspection of the site was carried out on 14 March 2001. No infringements of the applicable regulations were found. In his letters of 7 and 14 March 2001 the County Veterinary Surgeon informed the applicant accordingly. 42. Subsequent inspections were carried out on 23 May and 5 July 2001. No breach of the applicable regulations was established. The company remained under regular supervision by the County Veterinary Surgeon, who inspected its site in order to take samples for analysis on the following dates: 10 August, 22 August, 18 September, 5 November 2001, 28 January, 30 January, 1 March, 13 March, 13 May, 5 June, 16 July, 12 September, 22 October, 12 December 2002, 12 March, 21 May, 25 June, 30 June, 16 September, 9 October, 2 December 2003, 6 January, 23 February, 15 March, 17 June, 21 July, 16 September, 5 November 2004, 17 January, 14 April, 30 August, 20 October 2005, 15 February, 5 April, 1 June 2006, 29 March, 24 April 7, 3 July, 3 October 2007, 25 April, 10 September, 23 October 2008, 26 March, 2 July, 17 November 2009, 13 January, 22 February and 4 June 2010. The results of the tests were in accordance with the applicable norms. 43. With regard to the outcome of those inspections the County Veterinary Surgeon issued decisions of 27 October 2003, 5 September 2005, 7 April 2006 and 25 February 2010 ordering H.K. to bring certain aspects of the company’s operation into conformity with the law. On 29 March 2007 H.K. was fined for certain irregularities. Subsequent inspections showed that all irregularities had been removed and the requirements of the sanitation laws had been fulfilled. 44. As a result of a serious flood which occurred in June 2010, the company ceased to operate. On 7 July 2010 the County Veterinary Surgeon inspected the site and ordered its cleaning and disinfection. Tests carried out after cleaning of the site showed that there was no contamination, and the administrative authority renewed authorisation for production.
| 0 |
test
|
001-156272
|
ENG
|
FIN
|
CHAMBER
| 2,015 |
CASE OF SATAKUNNAN MARKKINAPORSSI OY AND SATAMEDIA OY v. FINLAND
| 3 |
Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev
|
5. The applicant companies have their seat in Kokemäki. 6. The first applicant company Satakunnan Markkinapörssi Oy has been publishing Veropörssi magazine since 1994. The magazine publishes yearly information about natural persons’ taxable income and assets. This information is public according to Finnish law. Several other publications and media companies also publish such information. The editor-in-chief of the magazine lodged an application with the Court in 2010 (see Anttila v. Finland (dec.), no. 16248/10, 19 November 2013). 7. In 2002 the magazine appeared 17 times and each issue concentrated on a certain geographical area of the country. Data on 1.2 million persons’ taxable income and assets was published, which constituted at the time a third of all taxable persons in Finland. The magazine also published taxrelated articles and announcements. 8. The first applicant company Satakunnan Markkinapörssi Oy has worked in cooperation with the second applicant company, Satamedia Oy. The companies are owned by the same persons. In 2003 the second applicant company, together with a telephone operator, started an SMSservice. By sending a person’s name to a service number, taxation information concerning that person could be obtained if information was available in the database. The database was created using data already published in the magazine. Since 2006 the second applicant company has also been publishing Veropörssi magazine. 9. On an unspecified date the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen) contacted the applicant companies and advised them to stop publishing taxation data in the manner and to the extent that had been the case in 2002. Collecting data which was not to be published was not forbidden. The companies declined because they felt that this request violated their freedom of expression. 10. By letter dated 10 April 2003 the Data Protection Ombudsman requested the Data Protection Board (tietosuojalautakunta, datasekretessnämnden) to order that the applicant companies be forbidden to process taxation data in the manner and to the extent that had been the case in 2002 and to pass such data to an SMS-service. He claimed that, under the Personal Data Act, the companies had no right to establish such personal data registers and that the derogation provided by the Act concerning journalism did not apply to the present case. The collecting of taxation information and the passing of such information to third parties was not journalism but processing of personal data which the applicant companies had had no right to do. 11. On 7 January 2004 the Data Protection Board dismissed the request of the Data Protection Ombudsman. It found that the derogation provided by the Personal Data Act concerning journalism applied to the present case. As concerned the SMS-service, the data used in the service had already been published in Veropörssi magazine and the Act did not therefore apply to it. 12. By letter dated 12 February 2004 the Data Protection Ombudsman appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), reiterating his request that the applicant companies be forbidden to process taxation information in the manner and to the extent that had been the case in 2002 and to pass such data to the SMS-service. 13. On 29 September 2005 the Administrative Court rejected the appeal. It found that the derogation provided by the Personal Data Act concerning journalism, which had its origins in Directive 95/46/EC, should not be interpreted too strictly as it would then favour protection of privacy over freedom of expression. The court considered that Veropörssi magazine had a journalistic purpose and that it was also in the public interest to publish such data. The court emphasised, in particular, that the published data was public. The derogation provided by the Personal Data Act concerning journalism thus applied to the present case. As concerned the SMS-service, the court agreed with the Data Protection Board that, as the information had already been published in the magazine, the Act did not apply to it. 14. By letter dated 26 October 2005 the Data Protection Ombudsman appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court. 15. On 8 February 2007 the Supreme Administrative Court decided to request a preliminary ruling from the Court of Justice of the European Union on the interpretation of Directive 95/46/EC. 16. On 16 December 2008 the Court of Justice of the European Union, sitting in a Grand Chamber composition, gave its judgment (see Case C3/07 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, judgment of 16 December 2008 (Grand Chamber)). It found first of all that the activities in question constituted “processing of personal data” to which the Directive applied. Moreover, activities involving the processing of personal data such as that relating to personal data files which contained solely, and in unaltered form, material that had already been published in the media, also fell within the scope of the Directive. In order to take account of the importance of the right to freedom of expression in every democratic society, it was necessary to interpret notions relating to that freedom, such as journalism, broadly. However, in order to achieve a balance between the two fundamental rights, the protection of the fundamental right to privacy required that the derogations and limitations in relation to the protection of data provided for in the Directive had to apply only in so far as was strictly necessary. In conclusion, activities such as those involved in the domestic proceedings, relating to data from documents which were in the public domain under national legislation, could be classified as “journalistic activities” if their object was to disclose to the public information, opinions or ideas, irrespective of the medium which was used to transmit them. They were not limited to media undertakings and could be undertaken for profitmaking purposes. 17. On 23 September 2009 the Supreme Administrative Court quashed the previous decisions and referred the case back to the Data Protection Board. It requested the Board to forbid the processing of taxation data in the manner and to the extent carried out in 2002. The court noted first that the term “journalism” was not defined in Directive 95/46/EC but that, according to the Court of Justice of the European Union, it was necessary to interpret notions relating to freedom of expression, such as journalism, broadly. However, when balanced against the right to privacy, any derogations to the latter were to be kept only to what was strictly necessary. When balancing the right to freedom of expression against the right to privacy, the Court had found that the decisive factor was to assess whether a publication contributed to a public debate or was solely intended to satisfy the curiosity of readers. The Supreme Administrative Court found that the publication of the whole database collected for journalistic purposes could not be regarded as journalistic activity. The public interest did not require such publication of personal data to the extent seen in the present case, in particular as the derogation in the Personal Data Act was to be interpreted strictly. The same applied also to the SMS-service. 18. The SMS-service was shut down after the decision of the Supreme Administrative Court was served on the applicant companies. The magazine continued publishing taxation data in autumn 2009 when its content was only one fifth of the previous content. Since then the magazine has not appeared. 19. On 26 November 2009 the Data Protection Board forbade the first applicant company to process taxation data in the manner and to the extent that had been the case in 2002 and to forward this information to an SMSservice. The second applicant company was forbidden to collect, save or forward to an SMS-service any information received from the first applicant company’s registers and published in Veropörssi magazine. 20. By letter dated 15 December 2009, after the Data Protection Board had made its decision, the Data Protection Ombudsman asked the applicant companies to indicate what measure they were envisaging to take in view of the Board’s decision. In their reply, the applicant companies asked the Data Protection Ombudsman’s view on the conditions under which they could continue publishing public taxation data at least to a certain extent. In his reply the Data Protection Ombudsman stated that, according to the Supreme Administrative Court’s decision, the applicant companies lacked the legal right to maintain their taxation database and to publish it, and reminded them of his duty to report any breach of the Personal Data Act to the police. 21. By letter dated 9 February 2010 the applicant companies appealed against the decision of the Data Protection Board to the Helsinki Administrative Court which transferred the case to the Turku Administrative Court. They complained that the decision violated the prohibition of censorship guaranteed by the Constitution as well as their freedom of expression. The Finnish Constitution provided better protection than the international human rights treaties as the latter did not prohibit censorship fully. According to the domestic law, it was not possible to prevent publication of information on the basis of the amount of information to be published or of the means used for its publication. Nor was it possible to use “public interest” as a criterion for preventing publication when preventive restriction of freedom of expression was concerned. Accepting that would mean that the authorities would be able to prevent publication, if they thought that the publication did not promote discussion of a topic of public interest. 22. On 28 October 2010 the Turku Administrative Court rejected the applicant companies’ appeal. It found that, as far as the matter had been decided by the Supreme Administrative Court in its decision of 23 September 2009, it could not take a stand on the issue. In the latter decision the Supreme Administrative Court had stated that the case was not about the public nature of the taxation documents, nor about the right to publish such information. As the court was now examining only the decision rendered by the Data Protection Board which was issued as a result of the Supreme Administrative Court’s decision of 23 September 2009, it could not examine the issues which the Supreme Administrative Court had excluded from the scope of its decision. As the Board’s decision corresponded to the content of the Supreme Administrative Court’s decision, there was no reason to change it. 23. By letter dated 29 November 2010 the applicant companies appealed further to the Supreme Administrative Court, reiterating the grounds of appeal already presented before the Administrative Court. They noted in particular that the decision issued by the Data Protection Board had prohibited the processing of taxation information for publishing purposes as well as requiring that the internal registers of the first applicant company be protected in a manner required by the Personal Data Act. In practice the companies were prevented from collecting information for publishing purposes, which meant that there was an interdiction to publish such information. The companies noted that the Finnish Constitution also prohibited indirect preventive censorship. 24. On 18 June 2012 the Supreme Administrative Court upheld the judgment of the Administrative Court. It found that the case was not about the right to publish taxation information as such, nor about preventive censorship. On these grounds and the grounds mentioned in the Administrative Court’s reasoning, the court found that there was no reason to change the latter’s decision.
| 1 |
test
|
001-148657
|
ENG
|
ROU
|
COMMITTEE
| 2,014 |
CASE OF BUTI AND OTHERS v. ROMANIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court;Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Ján Šikuta
|
4. On the dates set out in the appended table domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts and/or to have certain actions taken by State authorities in their favour. However, the applicants were unable to obtain the enforcement of the decisions in due time.
| 1 |
test
|
001-181588
|
ENG
|
TUR
|
COMMITTEE
| 2,018 |
CASE OF ÖZTOP AND OTHERS v. TURKEY
| 4 |
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
|
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić
|
4. The applicants, whose names are listed in the appendix, are Turkish nationals and and at the time of lodging their applications they were serving their prison sentences in various establishments. 5. The names and dates of birth of the applicants, as well as the names of their representatives, and the dates of introduction of the applications appear in the appendix. 6. All of the applicants were found guilty of breaching prison order by decisions of the respective disciplinary boards of prisons in which they were held. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicants were sentenced respectively between 11 to 15 days’ solitary confinement on the orders of the respective Prison Disciplinary Boards (referred hereafter as “the board”). 7. Their objections were subsequently rejected by the Enforcement Judges and the Assize Courts, on the basis of the case file, without hearing the applicants or their lawyers, pursuant to Law no. 4675 on Enforcement Judges, dated 16 May 2001.
| 1 |
test
|
001-158708
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF MIKHAYLOVA v. RUSSIA
| 3 |
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Criminal charge) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Criminal charge) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);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;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque
|
5. The applicant was born in 1949 and lives in Saint Petersburg. 6. On 25 November 2007 the applicant took part in a march. 7. The applicant was then taken to a police station and was accused of disobeying the police order for the march to disband, as it was considered to be a non-authorised public gathering. The applicant was suspected of an offence under Article 19.3 of the Code of Administrative Offences (CAO), which punishes disobedience of a lawful order by a public official. The police also considered that the applicant had committed an administrative offence under Article 20.2 of the CAO, on account of her participation in a public gathering which had not been subject to prior notification to the authorities, as required by the 2004 Public Gatherings Act. 8. On the same day, the administrative offence record was submitted to a justice of the peace of the 201 district. The applicant was then apprised of her procedural rights under Article 25.1 of the CAO. 9. The applicant lodged a request for adjournment in respect of both cases, since she needed time to retain counsel. The judge granted an adjournment until 28 November 2007. 10. On 27 November 2007 the applicant sought another adjournment, referring to the need for time to study the case material. The judge adjourned the cases until 5 December 2007. 11. On 28 November 2007, referring to the European Court’s case-law under Article 6 of the Convention, the applicant sought free legal assistance in these proceedings. 12. On 5 December 2007 the judge adjourned the case again, since the applicant sought to call witnesses. 13. By a procedural order of 19 December 2007, the justice of the peace dismissed the request for free legal assistance as follows: “Having examined the administrative offence record and the other documents in the case file, I dismiss the request because the CAO contains no rule concerning provision of legal assistance to the defendant. [The applicant] has been apprised of her rights under Article 25.1 of the CAO and thus must take her own decision whether she wants to retain an advocate, with due regard to her financial situation ...” 14. By a judgment of 19 December 2007 the applicant was found guilty of the administrative offence under Article 19.3 of the CAO and was sentenced to a fine of 500 Russian roubles (RUB). 15. On the same date, the same justice of the peace found the applicant guilty of breaching the requirements of the Public Gatherings Act, which is an administrative offence under Article 20.2 of the CAO. The applicant was ordered to pay a fine of RUB 500. 16. The applicant appealed against both judgments and sought free legal assistance for the appeal proceedings. 17. On 19 February 2008 the Dzerzhinksiy District Court of St Petersburg gave her leave to call witnesses but dismissed her request for free legal assistance as follows: “[The applicant] has submitted a request for free legal assistance, submitting that she is a pensioner and has insufficient means to retain an advocate; she has no knowledge in the area of jurisprudence. Having examined the request, the court cannot grant it because the CAO contains no rule concerning provision of legal assistance to the defendant. [The applicant] has been apprised of her rights under Article 25.1 of the CAO and thus must take her own decision whether she wants to retain an advocate, with due regard to her financial situation ...” 18. On 11 March 2008 the District Court granted the applicant’s request to admit a video recording in evidence. The applicant’s renewed application for free legal assistance was again dismissed. 19. On 17 March 2008 the District Court upheld the judgments of the justice of the peace. The appeal court also stated as follows: “There has been no violation of [the applicant’s] right to legal assistance. She was apprised of her procedural rights ... There is no evidence that the justice of the peace impeded [the applicant’s] exercise of her rights.” 20. The applicant sought further review of the above court decisions. On 16 and 19 June 2008 the deputy President of the St Petersburg City Court re-examined the case files and upheld the judgments. 21. The applicant sought review before the Supreme Court of Russia. On 31 July and 25 September 2008 the Deputy President of this court dismissed her applications, stating as follows: “The applicable legislation contains no rule concerning provision of legal assistance free of charge.” 22. Lastly, the applicant lodged a constitutional complaint regarding the non-availability of free legal assistance under the CAO. By decision no. 236-O of 5 February 2015 the Constitutional Court of Russia declared her application inadmissible and made the following findings: “The Constitution of the Russian Federation ... provides for a right to legal assistance, in the circumstances prescribed by law, free of charge ... The federal legislator is empowered to specify the means of access to the right to legal assistance, without impinging upon the essence of this right ... The Code of Administrative Offences contains provisions allowing the person, who is being prosecuted for an administrative offence, to seek legal assistance ... by way of retaining a defender ... The defendant has a possibility to retain an advocate or another person. Therefore, the possibility to find and retain a defender is wider as compared to the situation of a suspect or accused in criminal proceedings ... Unlike in criminal cases, the person concerned does not bear any procedural costs ... Therefore, the decision not to prosecute for an administrative offence or a favorable decision following the prosecution for such offence may entail reimbursement of the expenses relating to legal assistance ... The Constitutional Court previously acknowledged the need for a heightened level of protection of the citizens’ rights and freedoms in the areas entailing administrative or another type of public liability ... The relevant legislative regulations should comply with the requirements of fairness, proportionality and legal certainty ... At the same time, the constitutional requirements of fairness and proportionality entail some differentiation of liability on account of the seriousness of the facts, the extent and type of damage caused, the extent of the person’s guilt and other relevant factors ... Classification of offences as administrative or criminal entails corresponding statutory sentences and a set of corresponding procedural rules ... Unlike criminal cases, which include, as a rule, pre-trial proceedings, the cases under the CAO are focused on and processed by way of the non-judicial procedure. It has a more simplified and expedited nature, thus normally not requiring an investigation. Therefore, these proceedings are fit for the person to defend himself and are less financially burdensome as regards recourse to assistance from an advocate or another person ... Therefore, the federal legislator should not be deprived of the choice in favour of a differentiated approach when putting in place specific modalities concerning legal assistance, with due regard to the type of offences, the severity of penalties, procedural specificities of the procedures and other legitimate criteria ... In view of the above, as well as the case-law of the European Court of Human Rights, the State’s positive obligation to ensure provision of legal assistance, with recourse to public funding, primarily concerns the need to protect vulnerable groups ... and has a special significance in the criminal procedure, in particular on account of the importance of the consequences that may result during or after this procedure ... The issue of free legal assistance in CAO cases may acquire constitutional significance in situations where the degree of actual intrusion into constitutional rights and freedoms, by way of prosecution under the CAO, becomes comparable to measures prescribed by criminal law ... In substance, the applicant alleges a violation of her constitutional rights on account of the lacunae in Article 25.5 of the CAO that allowed the courts to reject her request to use free of charge the services of the lawyer that would be appointed. At the same time, she referred to a risk of an administrative sentence of fifteen days’ detention ... A theoretical possibility of administrative detention of up to fifteen days was only available as a penalty in respect of one of the two charges against the applicant ... As a matter of fact, with due regard to various circumstances, she was fined only 500 roubles, which was one-fifth the minimum statutory fine under the Criminal Code ... In view of the above and the other factors (the penalty of administrative detention is only prescribed for some offences, is to be used only in exceptional circumstances; it cannot not be imposed in respect of certain categories of people; the applicant was not subject to any pre-trial detention longer than forty-eight hours), there are no compelling reasons to consider that during the CAO proceedings the applicant was placed in a position which could be compared to that of a defendant in a criminal case and that she ran a risk of being subjected to measures which would be comparable to those under criminal law ... ’s allegations are abstract ... Article 25.5 cannot be perceived as violating the applicant’s rights in the specific case ... Thus, the complaint should be declared inadmissible ... However, the foregoing considerations should not prevent the federal legislator from specifying conditions for obtaining legal assistance in CAO cases, including by way of singling out categories of CAO cases and related criteria to determine whether free legal assistance in court proceedings is necessary ...”
| 1 |
test
|
001-164948
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF VORONINA AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
4. The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained of the excessive length of civil proceedings. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-154400
|
ENG
|
GEO
|
CHAMBER
| 2,015 |
CASE OF IDENTOBA AND OTHERS v. GEORGIA
| 3 |
Remainder inadmissible;Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture;Effective investigation;Positive obligations);Violation of Article 14+11 - Prohibition of discrimination (Article 14 - Discrimination) (Article 11 - Freedom of assembly and association;Positive obligations;Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
5. With the exception of the first applicant, a legal entity registered under Georgian law on 8 November 2010, the remaining fourteen applicants live in Tbilisi. Their dates of birth are indicated in the attached annex. 6. The first applicant, a Georgian non-governmental organisation set up to promote and protect the rights of lesbian, gay, bisexual and transgender (LGBT) people in Georgia, planned to organise a peaceful march on 17 May 2012 in the centre of the capital city to mark the International Day Against Homophobia. 7. In advance of the march, on 8 May 2012 the first applicant gave the Tbilisi City Hall and the Ministry of the Interior prior notice of its intention to hold a peaceful demonstration on the above-mentioned date. It informed the authorities of the planned route of the march, which would start from the grounds of the Tbilisi Concert Hall and proceed to Orbeliani Square, and the approximate number of participants. In addition, in the light of a foreseeable protest from those opposed to the LGBT community in Georgia, given the general background of hostility towards the sexual minorities, the applicant organisation specifically requested that the authorities provide sufficient protection from possible violence. 8. On 14 May 2012 the Tbilisi City Hall acknowledged receipt of the first applicant’s request and explained, in reply, the rights and responsibilities of demonstrators, as provided for by the relevant law. 9. On 15 May 2012 the applicant organisation was contacted by a senior officer of the Ministry of the Interior, who clarified the details of the planned march and confirmed to the organiser that police forces would be deployed to ensure that the procession took place peacefully. 10. The second to fourteenth applicants submitted written statements describing the exact circumstances surrounding the incident. At around 1 p.m. on 17 May 2012, members of the LGBT community, staff members of Identoba and other LGBT activists, including the thirteen abovementioned applicants – approximately thirty people in total (“the LGBT marchers”) – gathered in the grounds adjacent to the Tbilisi Concert Hall. They were holding banners with slogans such as “I am gay”, “I love my gay friend”, “Love is love” and “Get colourful”, as well as rainbow flags and umbrellas. A police patrol was present, as agreed, near the Tbilisi Concert Hall. 11. Shortly before the beginning of the demonstration, members of two religious groups, the Orthodox Parents’ Union and the Saint King Vakhtang Gorgasali’s Brotherhood, arrived in the Tbilisi Concert Hall area. Journalists were also present, recording interviews with the LGBT marchers. 12. Approximately 200 metres from the starting point of the march, members of the two above-mentioned religious groups (“the counterdemonstrators”) stopped some of the LGBT marchers and started arguing with them. The counter-demonstrators claimed that nobody was entitled to hold a Gay Pride Parade or to promote “perversion”, as it was against moral values and Georgian traditions. In reply, the marchers tried calmly to explain that it was not a Gay Pride Parade but a public event dedicated to supporting the fight against homophobia, and continued to walk. 13. When the LGBT marchers reached Rustaveli Avenue, they were met there by a hundred or more counter-demonstrators, who were particularly aggressive and verbally offensive. The counter-demonstrators blocked the marchers’ way, made a human chain and encircled the marchers in such a way as to make it impossible for them to pass. The marchers were subjected to threats of physical assault and to insults, accused of being “sick” and “immoral” people and “perverts”. Further pejorative name-calling such as “fagots” and “sinners” was also repeated. At that moment, the police patrol cars which had been escorting the marchers from the Tbilisi City Hall suddenly distanced themselves from the scene. 14. The LGBT marchers, feeling threatened, immediately telephoned the police, alerting them to the danger and requesting the immediate dispatch of additional forces. While waiting for the arrival of the requested police support, the marchers noticed a few police officers present at the scene. However, when they approached them and asked for help, the officers replied that they were not part of the police patrol and it was not their duty to intervene. 15. The aggression towards the LGBT marchers continued to escalate and after approximately twenty to thirty minutes, the counter-demonstrators grabbed the banners from the hands of several activists and tore them apart. The counter-demonstrators then resorted to physical attack by pushing and punching the marchers in the front row. As a result of that assault, the sixth applicant (Mr G. Demetrashvili), who was in the front line of the march, was knocked down, beaten and kicked. Shortly afterwards, several police patrol cars arrived at the scene. Some of the law-enforcement officers intervened by stopping the beating of the sixth applicant. The police officers then separated the opposing parties by standing between them. At that time, the aggressive and agitated counter-demonstrators were still making particularly vitriolic threats, including that the marchers “should be burnt to death” and “crushed”. 16. The third applicant (Mr L. Berianidze), who was standing on the pavement with other LGBT marchers, asked the police to take more active measures to protect the demonstration. The police responded by forcing him into a patrol car and driving him to the Old Tbilisi Police Department of the Ministry of the Interior, where he was detained for some twenty minutes. He was given no official explanation for his arrest at that time. However, as subsequently explained by the Government, the police had simply sought to distance him from the scene in order to protect him from the angry counter-demonstrators. 17. Three other employees of Identoba – the sixth, seventh and tenth applicants (Mr G. Demetrashvili, Ms G. Dzerkorashvili and Ms M Kalandadze) – were also arrested by the police when they moved from the pavement to the road. They were forced into police patrol cars and driven around the city for some twenty minutes before being returned to Rustaveli Avenue. As subsequently explained by the Government, the aim of the applicants’ short-term retention was twofold: to prevent them from committing an administrative offence – impeding road traffic – and to protect them from the counter-demonstrators’ assault. 18. Later on 17 May 2012, the third and sixth applicants (Mr L. Berianidze and Mr G. Demetrashvili) sought medical help for their injuries. The third applicant had a bruised left knee, grazes on his left palm and fingers, a haemorrhagic forearm and a haematoma on the right eyebrow. The sixth applicant had a closed head trauma, cerebral contusions, and bruises on the left side of his chest. Two days later, on 19 May 2012, the fourteenth applicant (Ms M. Tsutskiridze) also visited a doctor. She was diagnosed with a contusion of the left wrist. 19. The clashes between the marchers and counter-demonstrators were recorded by journalists present at the scene and broadcast in the evening of 17 May 2012 by a number of national television channels. The faces of the applicants who had been attacked and the assailing counter-demonstrators were clearly recognisable. 20. On 18 May 2012 members of the board of the applicant organisation filed several complaints with the Ministry of the Interior and the Chief Public Prosecutor’s Office concerning the violent acts committed during the march of 17 May 2012 by representatives of the two religious groups. The complaints were mostly based on the account of the circumstances as described in the thirteen individual applicants’ written statements (see paragraphs 10-19 above). 21. On 19 May 2012 a criminal investigation was launched into the infliction of light bodily harm on the fourteenth applicant (Ms M. Tsutskiridze) by unidentified persons. When questioned as a witness the same day, she stated that unidentified men had grabbed her poster and hit her with the handle of the poster. On 23 May 2012 the eighth applicant (Ms E. Glakhashvili) was also questioned about the fourteenth applicant’s injury to her hand. Subsequently, on 21 June 2012 a forensic medical examination was commissioned by the investigation, the results of which suggested that the bruising and excoriation the fourteenth applicant had sustained on her wrist represented light bodily injuries. The fourteenth applicant was not granted victim status within the framework of that criminal investigation at that time. 22. On 26 June 2012 the first applicant received a letter from the deputy director of the police patrol department of the Ministry of the Interior in response to the board members’ complaints of 18 May 2012. The response stated that, as there were no signs of illegality in the actions of the police during the demonstration, there was no need to launch an investigation against them for abuse of power. As to the counter-demonstrators’ actions, two of them had indeed been arrested for transgression under Article 166 of the Code of Administrative Offences – minor breach of public order – and fined 100 Georgian laris (some 45 euros (EUR)) each. 23. On 3 and 5 July 2012 the first applicant and thirteen individual applicants in the present case (from the second to the fourteenth) filed additional criminal complaints with the Chief Public Prosecutor and the Minister of the Interior. The applicants specifically requested that criminal investigations be launched on account of two factual situations: firstly, the verbal and physical attacks perpetrated against them by the counter-demonstrators with clear discriminatory intent; and, secondly, the acts and/or omissions of the police officers who had failed to protect them from the assaults. The applicants emphasised that criminal inquiries should be conducted with due regard to Article 53 of the Criminal Code, which provided that the existence of homophobic intent was an aggravating circumstance in the commission of a criminal offence. 24. The criminal complaints of the third, sixth, seventh and tenth applicants focussed on the attacks against them by the counterdemonstrators and the lack of police protection. Those applicants did not request an inquiry into the alleged restriction of their liberty by the police during the incident of 17 May 2012 (Article 147 of the Criminal Code, see paragraph 33 below). 25. By a letter of 17 July 2012, the Ministry of the Interior replied to the first applicant and the relevant thirteen individual applicants that during the incident of 17 May 2012 the police had called upon both the LGBT marchers and the counter-demonstrators to exercise their right to demonstrate in a peaceful manner. The Ministry’s letter then reiterated the information concerning the imposition of administrative sanctions on two of the counter-demonstrators (see paragraph 22 above). 26. On 24 October 2012 a criminal investigation was opened into the alleged beating of the sixth applicant (Mr G. Demetrashvili) by unidentified persons on 17 May 2012. On the same day that applicant was interviewed as a witness. He stated that he had been encircled and insulted by five or six counter-demonstrators. The attackers then started kicking and hitting him. The ill-treatment lasted for a few minutes, until a police officer finally intervened and removed him from the scene. On 6 November 2012 a forensic medical expert issued an opinion confirming that the sixth applicant had sustained a contusion and closed head trauma. He was not granted victim status at that time. 27. In September 2014 the two counter-demonstrators who had previously been fined for administrative misconduct were examined as witnesses in relation to the beating of the sixth applicant. The latter, questioned again in September 2014 about the incident of 17 May 2012, stated that he could no longer remember certain circumstances due to the significant lapse of time. Nevertheless, he confirmed that he would still be able to recognise the faces of those individuals who had assaulted him. 28. According to the latest information available in the case file, the two criminal investigations opened on 19 May and 24 October 2012 into the light bodily injuries sustained by the sixth and fourteenth applicants are still pending, and the two applicants have never been granted victim status.
| 1 |
test
|
001-144783
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,014 |
PŘÍPLATA v. ROMANIA
| 4 |
Inadmissible
|
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos
|
1. The applicant, Mr Frantisek Příplata, is a Czech national who was born in 1948 and lives in Uherske Hradiste, in the Czech Republic. He was represented before the Court by Mr D. Strupek, a lawyer practising in Prague. 2. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs. 3. The Czech Government exercised their right under Article 36 § 1 of the Convention to intervene in the Court’s proceedings, and submitted written observations. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is a Czech business man who had invested in Romania after 1990. As he was familiar with the Romanian business environment, he was empowered by a Czech company (“the company ZV”) to represent it in the process of the privatisation of the company S.C. Tepro S.A. (“Tepro”), which had its headquarters in Iași. The company ZV won the bid, which was managed by the State Property Fund (Fondul Proprietatea), and the contract for the transfer of shares was concluded on 21 July 1998. 5. The transfer of control of the company Tepro to company ZV was followed by the dismissal of many local employees. The privatization was strongly opposed by the workers’ trade union, Sindicatul Liber Tepro (“the SLT”) led by Mr S. (“the SLT leader”) who challenged the validity of the privatisation contract in court and organised strikes. 6. In June 2000, the applicant recommended to the Czech manager of company ZV the services of a company (“company P.”) for guarding and security services, headed by Mr C. (“the manager of company P.”). It was the same company which was providing similar security services to the applicant’s companies in Romania. 7. The terms of the contract between the two companies were discussed on 10 August 2000 at a hotel. All the Czech managers were present. A press conference was organized on that occasion. The applicant was present at a drinks reception after the press conference there; however, he denied that he had taken any part in a conversation between Mr Z. (“the manager of ZV”), the manager of company P., and Mr B. (“the manager of Tepro”) during which it was allegedly decided to eliminate the SLT leader. 8. The contract on provision of security services was signed by company P. and Tepro on 16 August 2000. 9. On 19 August 2000 an attempt by the manager of company P. and his employees to take over the security posts in Tepro was physically prevented by the SLT. According to the applicant, on that day the manager of company P. indicated to his employees that the SLT leader should be assaulted to prevent him from organising the workers of the SLT against the takeover of the security posts at Tepro. 10. On 20 August 2000 staff members of company P. succeeded in taking over Tepro’s security posts. However, the next day they were forced out again. 11. According to the prosecuting authorities, the manager of company P. gave B., S. and V. the address of the SLT leader so that he could be attacked. 12. B. invited his friend T. to take part in the assault. On 5 September 2000, he allegedly informed the manager of company P that he and T. had agreed to use a knife during the assault. The manager of company P. allegedly consented to the use of the knife, stating that the reward they had been promised would be doubled if the SLT leader was killed. 13. On 7 September 2000, at about 8 a.m., B. and T. attacked the SLT leader in the hallway of the building where he was living and caused him fatal injuries. He died shortly after being transported to hospital. 14. The perpetrators of the killing and the manager of company P. were arrested on 9 September 2000. They did not mention any involvement by the applicant in their initial statements. However, on 11 September 2000 the manager of company P. did mention that the applicant was involved in the attack. 15. The manager of Tepro was also arrested on 10 September 2000. On 18 September 2000 he gave a statement which began by mentioning the applicant’s involvement in the discussions which took place at the hotel on 10 August 2000. 16. Mr. P., a friend of the manager of company P., was heard as a witness on 20, 21, 22 and 28 September 2000. On 10 October 2000 he alleged that he had been present when a conversation took place between the manager of company P. and the applicant, during which the latter had allegedly told the former that the problems could be solved by the physical elimination of the SLT leader. 17. On 13 September 2000 the prosecutor began an investigation in respect of the applicant too, and instructed the police not to allow him to leave the country. 18. In the evening of 19 September 2000 the applicant was stopped at the Romanian border in Borș, while he was trying to leave the country. He was transported to Iași by police officers. He was questioned on arrival there. He pleaded not guilty and denied any involvement in the killing of the SLT leader. 19. The applicant was assisted by two lawyers of his choice during the investigation stage. 20. On 21 September 2000 the prosecutor in charge set up a confrontation between the applicant and the manager of company P. 21. On the same day the applicant was officially arrested and remanded in custody. 22. On 2 November 2000 the applicant was heard in connection with another charge against him concerning fraud in respect of public assets. 23. On 25 November 2000 the prosecutor filed with the Iași County Court an indictment of the applicant for fraud in respect of public assets, conspiracy to commit an offence, and incitement to aggravated homicide. The killers of the SLT leader and the managers of the companies P. and Tepro were also charged. 24. By a decision of 23 January 2001 the Supreme Court of Justice granted the applications of the applicant, the Czech embassy and the Ministry of Justice for the referral of the case from the Iași County Court to another court, because of the political pressure in Iași. The file was transferred to the Satu Mare County Court. 25. Initially the applicant was assisted by three lawyers of his choice. Starting from 4 September 2001 he was assisted by one lawyer of his choice, H.C. 26. On 5 February 2001 the Satu Mare County Court appointed a Czechlanguage interpreter (C.E.). The applicant requested the appointment of the same authorised interpreter used by the prosecutor during the investigation stage and the hearings before the Iași County Court. His request was refused on the ground that the cost would be too great since he resided in Iași. 27. On 3 April 2001 the court appointed a new authorised interpreter, G.I., on the ground that the applicant alleged that he had not understood the interpretation done by the previous one. He acted as the applicant’s interpreter at the subsequent hearings before the county court. 28. On 19 July 2001 the Oradea Court of Appeal allowed the appeal lodged by the applicant and the manager of Tepro against the interlocutory judgment on the extension of their pre-trial detention. It replaced their detention with an obligation not to leave their place of residence, and ordered their release. It also stated that the events as described in the indictment were not completely confirmed by the statements of the defendants and the witnesses heard before the court. The judgment had a dissenting opinion which stated that the extension of the detention was justified, as the grounds for taking the preventive measure had not changed. 29. After the applicant had been released from detention, workers of Tepro gathered in the streets of Iași protesting against the release. On 21 July 2001 the Prime Minister of the time attended one of these meetings and expressed support for the workers. He called the killing of the SLT leader a “political murder” and promised to ask the General Prosecutor to explain to the people of Iași why those considered by the citizens of Iași to be guilty of the murder were being prosecuted without being detained. 30. After two days, the decision to release the applicant was challenged by the General Prosecutor, who submitted a complaint of breach of law to the Supreme Court of Justice. He also ordered that the applicant be rearrested. 31. By an interlocutory judgment of 24 July 2001, the Satu Mare County Court ordered the suspension of the decision of the Oradea Court of Appeal of 19 July 2001 until the examination of the General Prosecutor’s complaint. It also ordered the re-arrest of the applicant and of the manager of Tepro and the extension of his detention 32. On 26 September 2001 the Supreme Court dismissed the extraordinary appeal lodged by the General Prosecutor, and consequently the Satu Mare County Court replaced the detention of the applicant and of the manager of Tepro with an obligation not to leave their places of residence. They were released from prison. 33. On 27 July 2001, the Ministry of Justice applied to the Supreme Court of Justice for referral of the case to another court than the Satu Mare County Court. The request was justified by the wide media coverage of the case and its effect on public opinion. The Ministry stated that the request for the referral of the file to another court had been made at the insistence of the Czech embassy. The Czech embassy attended the hearing at the Supreme Court and contested that measure. The request of the Ministry of Justice was dismissed. 34. On 18 December 2001 the hearing was adjourned until 22 January 2002 because the applicant’s interpreter and part of the witnesses were absent. 35. At the hearing of 22 January 2002 the applicant and his lawyer consented to the hearing of three witnesses in the absence of the interpreter. Interpreter G.I. was present at the following hearings before the Satu Mare County Court. Neither the applicant nor his lawyer complained about the services provided by him during the proceedings before the Satu Mare County Court. 36. At the hearing of 12 March 2002, the applicant requested the hearing of four witnesses in his behalf. The Satu Mare County Court had granted the applicant’s request for the hearing of three witnesses, while it considered that the hearing of the fourth witness was not relevant as he had heard about the facts of the case from the applicant indirectly during their detention in the same cell. 37. By a judgment of 5 November 2002 the applicant was acquitted of the charge of fraud and found guilty of conspiracy to commit a crime and of incitement to battery with fatal results (instigare la infracțiunea de lovituri cauzatoare de moarte). He was sentenced to six years’ imprisonment. The court held that the applicant and the managers of the companies P. and Tepro had instructed the attackers only to cause the SLT leader injuries that would stop his activities in Tepro for a few weeks. It also held that the attackers had exceeded their instructions. The applicant’s conviction was based on evidence that comprised the statements of coaccused and witnesses whom he had had the opportunity to cross-examine in the presence of his lawyers. 38. The applicant, the other defendants and the prosecutor’s office all lodged appeals with the Oradea Court of Appeal. 39. In the appeal proceedings the applicant was assisted by two lawyers of his choice (one of them was the same lawyer who had assisted him before the Satu Mare County Court, H.C.). 40. At the first hearing before the appellate court the interpretation services were provided by the same interpreter as before the county court, G.I. On 8 May 2003 the appellate court ordered an adjournment of the hearings because the applicant’s lawyer required the services of another interpreter claiming that the applicant was not satisfied with the services provided by G.I. A new interpreter, R.P., was appointed for the hearing of 5 June 2003. 41. On 5 June 2003 the newly appointed interpret was absent. The court appointed another interpreter, D.M. from the list of authorized interpreters provided by the Ministry of Justice. The hearing was adjourned for 26 June 2003. 42. On 10 July 2003 the appelate court adjourned again the hearings at the request of D.M., who informed that she was abroad. 43. According to the applicant, at the hearing of 21 August 2003 the court had informed the applicant that the next hearing, scheduled for 10 September 2003, would take place in the absence of an interpreter if he did not secure one himself. In response to that statement the Czech embassy sent a note to the Supreme Court of Justice, which subsequently informed the appeal court that the services of an interpreter must be secured by the judicial authorities. The interlocutory judgment of 21 August 2003 did not contain such a statement. The hearings were adjourned at the request of one of the applicant’s lawyers. 44. The appellate court had difficulties in finding an available interpreter. It contacted by telephone most of the eleven interpreters found on the list provided by the Ministry of Justice and none was able to ensure interpretation services at the hearing of 10 September 2003. At that hearing the applicant did not accept the interpretation ensured by a person who knew Czech language, invited by the Czech Embassy to help the applicant. The court adjourned the hearings in order to find an authorized interpreter for the applicant. 45. At the last hearing before the appeal court, on 24 September 2003, the interpretation services were provided by an authorized interpreter, L.A. The applicant asked the court to allow more witnesses to be heard on his behalf, submitting a list of eight names in this respect. The list included the name of four Czech managers of Tepro, among whom were Z.Z. and the interpreters who had provided the service for the meeting held on 10 August 2001. The list also included witness R., who had shared a prison cell with the applicant. His request was refused, on the ground that the hearing of these new witnesses did not appear to be necessary at this stage of the proceedings. 46. By a decision of 8 October 2003 the Oradea Court of Appeal quashed the judgment of the Satu Mare County Court in part. It found the applicant guilty of fraud in respect of public assets, conspiracy to commit a crime, and incitement to aggravated murder. He was sentenced to fourteen years’ imprisonment, with deprivation of civil rights for a period of five years. He was also ordered to pay a monthly allowance to the daughter of the victim until she reached the age of 25, provided that she continued her studies after reaching the age of majority. He was also ordered to pay the costs of the interpretation provided by A.L., which had been paid for by the Court of Appeal. 47. The applicant lodged an appeal on points of law against the decision, submitting that Article 6 § 3 (e) of the Convention had been violated. In this respect he claimed that most of the written procedural acts had been delivered to him in the Romanian language, and that interpreting services at the Satu Mare County Court were provided by non-authorised interpreters who were not well understood by him. He also contended that he had been ordered to pay for the interpreting services provided by interpreter A.L. at the Oradea Court of Appeal. 48. He also complained that his right to defence had been infringed, because his request for further evidence made before the appellate court was dismissed without sufficient reasons. 49. Another complaint concerned lack of impartiality on the part of the domestic courts, because certain judges who had examined his appeal against the extension of his pre-trial detention had also examined the merits of the case. He referred in particular to Judge P.N. 50. In the proceedings before the High Court the interpretation services were ensured by two interpreters. The fees for interpretation were paid by the State. 51. The applicant was assisted before the High Court by the same two lawyers who had assisted him before the appellate court. 52. By a decision delivered on 2 June 2005 the High Court of Cassation and Justice quashed the decision of the Oradea Court of Appeal in part. It acquitted the applicant of the charge of fraud in respect of public assets, maintained the other two charges, and sentenced him to eight years’ imprisonment with five years’ deprivation of civil rights. It also rescinded the applicant’s obligation to pay the costs of interpretation provided at the Oradea Court of Appeal. 53. As regards the alleged infringement of the applicant’s right to an interpreter, the High Court held that from the examination of all interlocutory judgments it could be noted that no hearing had been held in the absence of an interpreter. Whenever the interpreter was absent the hearing was adjourned, and the court took all necessary steps to ensure the presence of an interpreter for the subsequent hearing. 54. As regards the applicant’s allegation that he could not understand the translation offered by the court-appointed interpreters because some of them were authorised to provide interpretation in the Slovak language and not in the Czech language, the High Court noted that according to the statements of A.C., a Romanian citizen of Slovak origin, the applicant had no difficulty in communicating with her. It also referred to B.G., who was hired as an interpreter at Tepro and also used as an interpreter at the meeting held on 10 August 2001. It noted that he was of Slovak origin too. The High Court further stated that “Whenever the applicant requested the replacement of the interpreters they were changed”. The court also noted that the applicant’s counsel had never complained before any court of difficulty in establishing proper communication with the applicant through the court-appointed interpreters. 55. As regards the applicant’s complaint about the dismissal by the Oradea Court of Appeal of his request for new evidence, the High Court noted that the Czech witness, Z.Z., had been summoned to be heard in different proceedings in connection with offences related to the applicant’s case, but he had not returned to Romania to be heard. The court also noted that taking into account his involvement in the applicant’s case it could not be expected that Z.Z. would give accurate statements. Moreover, there was enough evidence in the file attesting to the applicant’s involvement in the killing of S.V. The other three Czech managers indicated by the applicant in his list of witnesses were only involved in economic activities. As regards the statements by the two interpreters of Slovak origin, B.G. and A.C., who had attended the meeting 10 August 2001, the High Court noted that both of them had often provided interpretation to the Czech managers in their economic activity and were very much involved in profitable activities with the latter. Furthermore, A.C. was not only his business partner but also his life partner. The court concluded that their testimony in connection with the discussions held on 10 August 2001 could not be considered reliable, as both had provided interpreting services for the conversations held on that occasion. They could not acknowledge that they had thus become aware of the defendants’ intention to eliminate the leader of the SLT, because they could thereby have been held responsible for not preventing his killing. 56. For medical reasons the applicant was allowed to start serving his sentence on 7 September 2005. However, taking advantage of the lack of vigilance of the border authorities, he escaped from Romania to the Czech Republic in July 2005. 57. The Oradea District Court issued a European Arrest Warrant in his respect on 24 April 2008. By a decision of 9 October 2008 the Brno District Court refused to allow his extradition to Romania. 58. The Romanian Ministry of Justice requested the Czech Republic to take over the execution of the prison sentence. The Czech Ministry of Justice submitted, in accordance with the relevant provisions of the Czech Code of Criminal Procedure, a request to the Brno District Court for approval of the Romanian courts’ decisions. 59. In the course of the proceedings before the Brno District Court there were three hearings. The court heard several witnesses, who included one of the applicant’s defence counsel before the Romanian courts, two employees of the Czech embassy in Romania, and the applicant’s interpreter and partner A.C. 60. By a judgment of 2 September 2009 the Brno District Court refused to approve the Romanian courts’ decisions, on the ground that the applicant had not benefitted from a fair trial in Romania. The main reason for the refusal was infringement by the Romanian court of Article 6 § 3 (e) of the Convention, as the applicant had not been provided with the free assistance of an interpreter. 61. In accordance with Article 8 of the Romanian Code of Criminal Procedure (“the CCP”), in force at the material time, parties who did not speak or did not understand the Romanian language, or who could not express themselves in it, were given the opportunity, free of charge, to acquaint themselves with the documents in the file, to speak in court and to submit conclusions, through the services of an interpreter and translator. 62. The Framework Decision 2002/584/JHA on the European Arrest Warrant and the surrender procedures between the Member States, transposed into Romanian law since 2004, has as main purpose to simplify and expedite procedures for extradition of persons convicted or accused of crimes between the EU member states.
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test
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001-180850
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ENG
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LTU
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CHAMBER
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CASE OF RAMANAUSKAS v. LITHUANIA (No. 2)
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No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
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Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano
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4. The applicant was born in 1966 and lives in Kaišiadorys. 5. The applicant worked as a lawyer in his own private practice. 6. On 28 January 2011 V.Š., a convicted prisoner, provided a statement to the Special Investigation Service (Specialiųjų tyrimų tarnyba, hereinafter “the STT”) and stated the following. He had heard from other inmates that the deputy head of Pravieniškės Correctional Facility, L.D., took bribes to transfer inmates to units with lighter security and that L.D. had mentioned to V.Š. that it was possible to be released on probation for money. V.Š. was questioned by the STT and stated that in December 2010 L.D. had asked him to his office and enquired whether he wanted to be released early. L.D. had indicated that he had a friend who could help V.Š. obtain release on probation and promised to organise a meeting with him. V.Š. was asked again that month by L.D. to go to the latter’s office, where he met the applicant (see paragraph 7 below). V.Š. asked the applicant what he should do in order to obtain release on probation. The applicant stated that V.Š. would first have to be transferred to a unit with lighter security. V.Š. asked the applicant how much it would cost him and the applicant replied that Kaišiadorys [District Court] would cost him 7,000 Lithuanian litai (LTL, approximately 2,027 euros (EUR)). After that the applicant indicated several judges that would agree to release V.Š. on probation. The applicant also stated that the cost for the same thing in the Kaunas Regional Court would be approximately LTL 10,000 (approximately EUR 2,896) but that that was not the final amount. The applicant also mentioned that V.Š. would have to pay LTL 1,000 (approximately EUR 290) for the transfer to a unit with lower security. After that conversation V.Š. started recording his discussions with L.D. and the applicant using a voice recorder watch which he said he had obtained from other inmates in exchange for cigarettes. Figures mentioned during the other meetings were LTL 2,000 (approximately EUR 579) for the transfer to another unit and LTL 12,000 (approximately EUR 3,475) for the judges at the Kaunas Regional Court as that amount could be more easily divided in three than LTL 10,000. V.Š. stated that no agreement on legal services had been concluded with the applicant. V.Š. then contacted an acquaintance, G.T., a former police officer who promised to contact the authorities. 7. The transcript of the conversation recorded between V.Š. and the applicant on 26 January 2011 showed that V.Š. had around LTL 35,000 (approximately EUR 10,137). The conversation went as follows: “The applicant: ‘ ...You understand that the intermediary who will go will also need some, and..’ ... The applicant: ‘You know, salaries there are [LTL] 7,000, so you know...’ The applicant: ‘As with [D], when he brought, looked, he went there with those pennies, [they] said no, and he did not have any more...’ V.Š.: ‘Listen, I will be honest, for example I said, the deputy head asked me, asked. I told him that I will have ten, ten euros, so to say thirty five litai.’ The applicant: ‘... With that, we can easily talk about Kaunas.’ ... The applicant: ‘I believe you. I think that it will go through with such an amount of money.’” The applicant told V.Š. that that amount might not actually be necessary. V.Š. then told the applicant that G.T. would contact him and give him LTL 2,000 (EUR 579). The applicant also told V.Š. that he had won a case against Lithuania at the Court and that he had not accepted a bribe in that case. The conversation went as follows: “The applicant: ‘I have already been burnt and only got things straight in Strasbourg. I have won [in] the Strasbourg Court against Lithuania. I previously worked as a prosecutor.’ V.Š.: ‘The deputy did not tell me anything.’ The applicant: ‘I could go back to being a prosecutor. I have won a case against Lithuania in Strasbourg.’ V.Š.: ‘I will ... shake your hand. I can say ... that this seems unreal to me.’ The applicant: ‘... The prosecutor with a bribe... Strasbourg proved that it was a provocation. I proved it in Strasbourg. The proceedings [there] took eight years.’ The applicant: ‘It was nothing to do with a bribe .... I ... bought an apartment, I asked someone to give me a loan... He ... was in prison later. He was released... and became a snitch.’ V.Š.: ‘A friend’. The applicant: ‘... He used to sleep at my mother’s place... I don’t know where he disappeared to. He will not die a natural death. I was not the only one he set up. Two judges in Kaunas as well.’ ... The applicant: ‘And I won a case in Strasbourg later. The Supreme Court rehabilitated me.’ V.Š.: ‘Yes.’ The applicant: ‘The Grand Chamber of seventeen judges, the plenary session for criminal cases.’ ... The applicant: ‘So look. When will that person come? So that I know what ...’ V.Š.: ‘So I can call you and simply say one word. Tomorrow, the day after tomorrow.’” The applicant asked V.Š. to make sure that G.T. did not tell anyone about the agreement and V.Š. assured him that G.T. would not ask any questions. 8. On 31 January the STT asked a prosecutor to apply to a pre-trial judge for authorisation for G.T. and V.Š. to offer and give a bribe to L.D. and the applicant, in accordance with the provisions of domestic law. The prosecutor also sought permission to make video and/or voice-recordings, to take pictures and to allow three officers to monitor L.D.’s and the applicant’s telephone conversations. The prosecutor also asked the Vilnius City Second District Court on the STT’s behalf to authorise covert surveillance of the applicant and L.D. for two months. The STT additionally informed the prosecutor that a pre-trial investigation had been opened against L.D. and the applicant. 9. On the same day the Vilnius City Second District Court authorised taps on the telephones of L.D., V.Š., G.T. and the applicant and allowed G.T. and V.Š. to perform actions which imitated criminal conduct for two months, until 31 March 2011. V.Š. was allowed to use various types of telecommunications and electronic network measures. 10. On 31 January 2011 V.Š. was transferred to a unit with lighter security, based on good behaviour and active participation in the commemoration of the Day of the Defenders of Freedom. 11. On 31 January 2011 G.T. was questioned by the STT. He stated that he had visited V.Š. earlier in January 2011 and that the latter had asked him whether he could give LTL 2,000 to someone. G.T. had agreed. 12. On 1 February 2011 V.Š. and G.T. signed documents stating that they were not allowed to incite someone to commit an offence. 13. On the same day the applicant visited V.Š. and they talked about the situation of V.Š. 14. Later that day G.T. called the applicant and agreed to meet him the following day. After the meeting G.T. left LTL 2,000, given to him by the STT officers, in the side pocket of the applicant’s car. 15. On 3 February 2011 V.Š. called the applicant and asked how matters were proceeding. The applicant said that he would call back, but later asked to call the following Tuesday. On 10 February 2011 V.Š. called the applicant and said that they would be in touch; he also asked if the applicant would pay him a visit and the applicant said that he would come at some point in the future. On 14 February 2014 V.Š. called the applicant and said that he had received a character reference from the psychologist and the applicant stated that he would be in touch. V.Š. then asked the applicant whether he should call him and the applicant said that he could call when the documents for his transfer to a unit with lighter security were ready. On 19 February 2011 V.Š. called the applicant and informed him that the documents for the court had already been prepared. The applicant stated that he would be in touch and would come to visit V.Š. because they could not talk on the telephone. The applicant said that V.Š. could call him the following Wednesday or Thursday but then decided that Wednesday would be the best day. On 1-3 March 2011 V.Š. called L.D. and complained that he could not reach the applicant and asked for help in finding him. On 3 March 2011 L.D. called a certain A. and asked him where the applicant was. A. told him that it was not the first time that the applicant had disappeared. 16. On 7 March 2011 L.D. called the applicant and said that people were looking for him. The applicant said that V.Š.’s case was still in progress. L.D. asked the applicant to come and meet V.Š. and the applicant said that he had understood. V.Š. then called the applicant, who said he was going to visit him in a few hours and that they would talk in person. V.Š. again called the applicant later that day and asked whether he should bring the medical certificate to the meeting and the applicant said that he was already in the correctional facility. During the visit they discussed the fact that V.Š.’s case had not yet been transferred to court. V.Š. asked whether the applicant still had the necessary access [in the Kaunas Regional Court]. The applicant confirmed that he did, that the person concerned was coming back from Austria the following Monday and that without that person the matter could not be settled there. The applicant asked whether V.Š. wanted him to participate in a hearing before the court of first instance and V.Š. said yes. Then they talked about someone else’s situation and the applicant said that he knew the prosecutor and had bought him. The applicant further said that not every prosecutor could be bought but there were two he could buy. V.Š. said that he had LTL 30,000 (approximately EUR 8,689) and it did not matter for what [court] he had to pay. The applicant then asked V.Š. to speak quieter. He also asked V.Š. to call him from time to time. V.Š. asked whether he would have to pay something before the hearing in the Kaišiadorys District Court and the applicant said he would not have to give much because the chances were fifty-fifty. The applicant also stated that the rest of the money would be held in reserve for Kaunas [Regional Court] and he would take LTL 1,000 for Kaišiadorys [District Court]. Later in the same conversation he mentioned LTL 1,500 (approximately EUR 434). The applicant asked V.Š. to get in touch with his contact person, who was to call and meet the applicant in the evening. After the applicant had left the correctional facility V.Š. called him and told him that the papers had been sent to the court on the twenty-third. The applicant asked V.Š. to call him in an hour. When V.Š. called, the applicant told him that the hearing would take place on 23 March and that the applicant would participate in it; he also asked to call him in the evening. 17. On 9 March 2011 V.Š. called the applicant, who said that he would write him a message. On 14 March 2011 V.Š. called the applicant and they again discussed V.Š.’s situation. On 17 March 2011 V.Š. called the applicant and the applicant said that they would keep in touch after the following Sunday, and V.Š. was asked to call on Monday after lunch. On 18 March 2011 V.Š. called the applicant, who said that he would not participate in the hearing at the court of first instance regarding V.Š.’s release on probation and that if something happened he would inform V.Š. On 21 March 2011 V.Š. called the applicant, who confirmed his intention as regards the court of first instance because he did not expect anything good to come out of it. However, he said he would try to talk to someone and V.Š. said he would not forget his debt to the applicant. On 23 March 2011 V.Š. called the applicant and informed him that the Kaišiadorys District Court had decided not to release him on probation. The applicant then said that he would visit V.Š. so he could sign an appeal. On 23 March 2011 V.Š. called L.D. and asked him to ask the applicant about his chances to be released on probation. L.D. called the applicant the same day and asked how matters were proceeding with their client. The applicant said that he would come on Friday and that they would talk then. On 25 March 2011 the applicant visited V.Š., who signed some blank pieces of paper, on which the applicant said he would later write an appeal. V.Š. asked whether they would be covered by the amount they had discussed before. The applicant said that he would see, that he had talked with the men in question and asked them to do everything and that they would receive some money. V.Š. then told the applicant that his contact person would come the following Monday. After that, they discussed amounts and the applicant told V.Š. that the entire sum discussed would be necessary. V.Š. asked whether they were talking about thirty [thousand] and whether that amount included the applicant’s share and the applicant said it did. The applicant also said that before that amount would have guaranteed his release on probation one hundred percent but that now there was some trouble. The applicant then told V.Š. to call his contact person and ask him to meet the applicant on Monday. V.Š. asked whether his person (G.T.) should bring thirty (thousand) and the applicant confirmed that he should. 18. On 29 March 2011 the applicant and G.T. met in the applicant’s car, where LTL 30,000 was given to the applicant so that he could secure V.Š.’s release on probation. The applicant was arrested by STT officers immediately afterwards and the money was found in the side door pocket of the applicant’s car. 19. V.Š. was questioned additionally on 30 March 2011. He stated that L.D. had talked of the applicant as a reliable person who had access to prosecutors and judges. V.Š. also showed that L.D. had been the first one to start a conversation about the possibility of V.Š. being released on probation and that L.D. had told him several times before that “serious men pay money and are released and do not sit in prison” (rimti vyrai moka pinigus ir eina į laisvę, o ne sėdi kalėjime). 20. On 8 April 2011 the Kaunas Regional Court dismissed V.Š.’s appeal and upheld the first-instance decision not to release him on probation. 21. On 9 August 2011 a bill of indictment was drawn up against L.D. and the applicant. The applicant was accused of promising to influence L.D. and the judges at the Kaišiadorys District Court and the Kaunas Regional Court with a bribe so that V.Š. would be released on probation. He was also accused of taking a bribe of LTL 2,000 and LTL 30,000 respectively on two occasions. 22. On 31 August 2011 the Court of Appeal examined an application by the prosecutor to transfer the criminal case from the Kaišiadorys District Court. The Court of Appeal held that the applicant had stated that he could influence two judges in Kaišiadorys and thus decided to transfer the case to the Kėdainiai District Court so that the proceedings would be fair. 23. On 19 October 2011 the Vilnius City Third District Court approved an application by V.Š. to be released on probation. The court held that at that time V.Š. was serving his sentence in Vilnius Correctional Facility, where he had taken part in the social rehabilitation, legal and social education programmes and had provided information that he would be employed on release. 24. By a judgment of 18 July 2012 the Kėdainiai District Court found the applicant guilty of bribing an intermediary and sentenced him to sixty days in prison. The court found it established that G.T. had given the applicant LTL 2,000 and LTL 30,000 respectively during their meetings on 2 February and 29 March 2011 in return for a promise that the applicant would help in the proceedings for V.Š.’s release on probation. The applicant pleaded not guilty and stated that an act of provocation had been organised against him. He also stated that the money he had received was remuneration for his services as V.Š.’s lawyer. The applicant said that although no agreement on the provision of legal assistance had been concluded, he had intended to conclude one after the proceedings for V.Š.’s release on probation. The applicant refused to provide comments on the recordings and stated that his conversations with V.Š. were irrelevant because he had only wanted to show that he was working on his case. Those conversations had not been of any consequence as he had not been able to influence L.D. or the judges at Kaišiadorys District Court and Kaunas Regional Court (Pokalbių telefonu ir įrašu su V.[Š.] nekomentuoja, paaiškindamas, kad visi jo pokalbiai su V.[Š.] buvo dėl akių, kadangi kažką kalbėti su V.[Š.] reikėjo, tad nieko nereiškiančiais pokalbiais jis tik siekė parodyti, kad dirba, tačiau tuo jis nesiekė sukelti jokių pasekmių, kadangi negalėjo paveikti nei L.[D.], nei Kaišiadorių apylinkės ar Kauno apygardos teismo teisėjų). G.T. stated that he had known V.Š. since 2000 and that V.Š. had called him and asked for help. When G.T. had gone to Pravieniškės Correctional Facility, V.Š. had told him that the applicant required money and that V.Š. doubted that the money would be used in the proper way. The court’s conclusions were based on the evidence given by V.Š., G.T., L.D. and other employees of Pravieniškės Correctional Facility. It also addressed the secret recordings of the applicant’s conversations, including those recorded prior to the authorisation for actions imitating criminal conduct. The court held that the transcripts of the conversations between the applicant and V.Š. showed that the applicant had been the first to indicate the amounts of money to be paid. The applicant’s statement that he had been going to conclude an agreement on legal services after he had taken LTL 30,000 were refuted by his conversation with G.T., where the applicant had stated that in case of failure he would keep 20% of the money and return the rest. The video-recordings showed that the applicant had not counted the money and that he had indicated to G.T. to put it in the side pocket of the car door. That allowed the court to draw the conclusion that the applicant realised that the money was remuneration for his criminal activity. The court further held that V.Š.’s testimony, voice and videorecordings showed that the applicant had not been incited to take a bribe and that the criminal conduct simulation model had been applied within the limits prescribed by the court (see paragraph 12 above). By the same judgment the Kėdainiai District Court found L.D. guilty of abuse of office and forgery, which had allowed V.Š. to be transferred to a unit with lighter security (see paragraph 10 above). It ordered L.D. to pay a fine of LTL 12,480 (approximately EUR 3,614). L.D. pleaded guilty, but stated that V.Š. had named the applicant as a lawyer that could help him obtain release on probation. The court decided to return the recorder watch to V.Š. 25. The applicant and L.D. lodged an appeal. The applicant argued that the provisions of domestic law had been applied incorrectly, that V.Š. and G.T. used undue pressure, and that V.Š. had used unauthorised equipment, the recorder watch, which he had not been allowed to have in prison. The applicant asked the appellate court to question V.Š. and ask him how he had acquired such a watch in a correctional facility. The applicant also stated that L.D. had overseen matters relating to V.Š.’s transfer to a unit with lighter security and that there was no evidence that he had tried to bribe L.D. The applicant also stated that he had never named any specific person in the courts whom he would have bribed because he had not intended to perform such an act. He had only talked to V.Š. about the outcome of the proceedings for release on probation because V.Š. had called him constantly. 26. On 23 October 2012 the Court of Appeal approved an application by the prosecutor to transfer the case to Panevėžys Regional Court from Kaunas Regional Court for examination on appeal in order to have a fair trial. 27. The Panevėžys Regional Court held an oral hearing where several witnesses, including V.Š., had been questioned. On 13 June 2013 the Panevėžys Regional Court held that V.Š. had purchased the watch for his personal use and that the provisions of domestic law did not directly prohibit the use of such equipment in prison. The court also held that the initial contact between V.Š. and the applicant had been arranged by L.D., that V.Š. had not known the applicant beforehand and had not had any motive to incite him to commit a crime. The court also found that no agreement on the provision of legal services had been concluded between the applicant and V.Š. and that the applicant’s argument that he had intended to conclude one later had been dismissed as an attempt to improve his situation. On the basis of the audio-recordings, the court also observed that the applicant had been the first to say that he could settle the matter for money. The court also found that there had been no incitement and that the authorities had not put any active pressure on the applicant to commit an offence. On the contrary, the applicant had incited V.Š. to give him an amount that would be sufficient for himself, an intermediary and three court judges. The court also held that at the time the offence had been committed, Article 226 § 1 of the Criminal Code provided for two alternative sentences for bribery of an intermediary: arrest or imprisonment for up to three years. On 5 July 2011 the Criminal Code had been amended and the applicant’s offence had then satisfied the requirements of Article 226 § 2 of the Criminal Code, which provided for various sentences: a fine, arrest or imprisonment for up to five years. As the provision in force provided for a more lenient sentence, the court decided to impose a fine of LTL 65,000 (approximately EUR 18,825). The court dismissed L.D.’s appeal by the same judgment. 28. The applicant lodged an appeal on points of law. He again argued that he had been incited to commit an offence, that V.Š., as a convicted prisoner, was not allowed to have recording equipment, that he had been provided with that equipment by the STT, and that the transcripts of the recordings should not have been used as evidence against him in the case. The applicant also alleged that the LTL 2,000 had been remuneration for his legal services and that he had not actually taken the LTL 30,000 from G.T., who had simply left the money in his car. The applicant further complained that the court of first instance had not even assessed whether the evidence had been lawfully collected. The appellate court, in turn, had approved evidence that had been gathered unlawfully and had misinterpreted domestic law. The applicant also argued that V.Š.’s testimony had contradicted itself: it was not clear who had informed the STT about the alleged crime. 29. On 28 January 2014 the Supreme Court dismissed the applicant’s appeal on points of law. The court held that the pre-trial investigation had been opened on 28 January 2011 upon the request of V.Š. Together with his testimony, V.Š. had given the authorities his voice-recording watch, where he had recorded his conversations with L.D. and the applicant. The court held that convicted prisoners who used voice recorders breached internal prison regulations, but that did not mean that officers who carried out a pretrial investigation and obtained information from such a voice recorder acted unlawfully. The court also held that the finding of the applicant’s guilt had not been based solely on the evidence obtained from V.Š.’s watch. The court observed that L.D. had suggested the applicant as a lawyer because he knew the prosecutors and judges dealing with V.Š.’s case, while L.D. had not incited the applicant to take bribes. By the same judgment the Supreme Court left an appeal on points of law by L.D. unexamined because therein he had raised arguments that had not been raised before the appellate court. 30. On 19 December 2014 the Supreme Court examined an application by the applicant to reopen the proceedings. It decided not to do so, but reduced the fine to LTL 13,000 (approximately EUR 3,765).
| 0 |
test
|
001-141167
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,014 |
APANDIYEV v. RUSSIA
| 4 |
Inadmissible
|
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
|
1. The applicant, Mr Apandi Magomedovich Apandiyev, is a Russian national who was born in 1978 and lives in Tadmagitli in the Republic of Dagestan. He is currently serving a prison sentence in the Sverdlovskiy Region. The Russian Government (“the Government”) were represented by their Agent, Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 11 February 2002 criminal proceedings were instituted in connection with a double murder and arson committed the previous day. 4. On the same date the applicant was questioned as a witness. He made no self-incriminating statements. In the transcript of the questioning it was noted that the applicant spoke Russian, did not need an interpreter’s assistance and wished to be interviewed in Russian. The transcript was signed by the applicant, who also made a handwritten note in Russian to the effect that the content of the transcript correctly reflected his statement. The investigator also seized a number of the applicant’s personal items, including the boots, trousers, shirt, sports jacket and leather jacket that he was wearing at the time, so as to attach them as exhibits. 5. According to the applicant, on 11 February 2002 police officers escorted him to a police station and interviewed him as a witness in the case. After they seized his clothes, he was provided only with old trousers and was not given any footwear. Thereafter the police officers and one of the attesting witnesses – who, in the applicant’s submission, was known to the police officers – started beating him with truncheons and kicking him in an attempt to extort a confession from him. Allegedly, he was beaten for several hours and then, wearing only trousers and socks, was placed in a cold cell, where he spent the next two days, during which time he was not given any food. 6. According to the Government, before the questioning on 11 February 2002 the applicant’s rights were explained to him. However, neither during the questioning nor afterwards did the applicant make any complaints concerning either his health or the actions of the police officers. 7. On 12 February 2002 the applicant was again questioned as a witness. As in the course of his questioning he confessed to the murder, he was subsequently detained as a suspect, and a record of detention was drawn up. As the applicant expressed the wish to be provided with counsel, lawyer R. from the Sverdlovsk bar association was assigned to him. After her arrival the applicant was again questioned as a suspect and confirmed his previous statement in the presence of counsel. In the transcript of the applicant’s interview as a suspect dated 12 February 2002 and signed by him it was noted that he spoke Russian, did not need an interpreter’s assistance and wished to be interviewed in Russian. The transcript also contained a handwritten note by the applicant to the effect that his statements were reflected accurately in the transcript, that he had made them without any duress, and that he confirmed them. 8. According to the applicant, in the course of the questioning on 12 February 2002 the police officers beat him again and the investigator put pressure on him, forcing him to sign the transcripts of the interviews of that day. The applicant allegedly requested the investigator to provide him with a lawyer and an interpreter, as his mother tongue was Avarian and he had a poor understanding of Russian, which meant that the contents of the transcripts were unclear to him. Allegedly, these requests were refused and, unable to resist the beatings and physiological pressure, the applicant finally signed the transcripts without reading them. 9. According to the Government, before the questioning on 12 February 2002 the applicant’s rights were again explained to him. However, as on the previous day, neither during the questioning nor afterwards did the applicant make any complaints concerning either his health or the actions of the police officers. 10. On 13 February 2002 the applicant was taken to the scene of the incident, where a reconstruction of the events was carried out in his presence and that of his lawyer and the attesting witnesses. It was video recorded. 11. Later that day the applicant was escorted from the police station to the Ekaterinburg temporary detention facility (“the IVS”). 12. Also on 13 February 2002, the applicant was seen by a doctor, who issued a certificate stating that the applicant had an abrasion on his back that he had sustained two weeks earlier. 13. According to the applicant, the IVS authorities refused to admit him without a medical certificate. The police officers then took him to city hospital no. 36 where a doctor issued him with a certificate attesting to the presence of abrasions on his back. As he had been allegedly threatened by the police officers who escorted him, the applicant did not disclose the cause of his injuries to the doctor, and the latter, upon the police officers’ advice, noted in the certificate that the injuries had been received by the applicant a fortnight before. 14. Thereafter the applicant was taken back to the IVS, where he remained until his transfer to remand prison IZ-66/1 on 15 February 2002. 15. On 15 February 2002 formal charges of aggravated murder were brought against the applicant in the presence of lawyer G., who had been assigned to represent him. On the same date the applicant confirmed in writing in the presence of his lawyer that he preferred to give evidence in Russian, and he was subsequently questioned. In the transcript of the questioning it was indicated that Russian was his mother tongue. The applicant also made a handwritten note in Russian on the transcript to the effect that he admitted his guilt in part but wished to avail himself of the right to remain silent until he had had a chance to study all the case-file materials. He also noted that he had written the note in his own hand and under no pressure. The text was followed by the signatures of the applicant’s counsel and the investigator. There is no indication that the applicant made any complaints concerning the alleged ill-treatment. 16. On 15 February 2002 the applicant was transferred from the IVS to remand prison IZ-66/1, where he remained until 6 June 2003. The applicant had no injuries when he was admitted to the remand prison and during his custody there he never requested medical treatment. 17. The applicant and his counsel studied the case-file on 2 August 2002 from 9 a.m. to 2 p.m., on 27 September 2002 from 9 a.m. to 11 a.m., and on 28 November 2002 from 9 a.m. to 12 noon. The applicant and his counsel made handwritten notes on the relevant procedural records to the effect that they had studied the case-file materials in their entirety. On 25 November 2002 the investigator also familiarised the applicant with eight forensic examination reports. 18. On 11 December 2002 a bill of indictment was served on the applicant. 19. In the proceedings before the trial court the applicant was represented by lawyer R. 20. According to the transcript of the hearing of 16 January 2003, the applicant requested the court to allow him access to the case file, the exhibits and the video recording of the reconstruction of events, stating that he had been unable to study the case file fully at the pre-trial stage. He further requested the court to call the witnesses he had previously indicated, stating that they could give oral evidence regarding the circumstances of the incident. Lastly, the applicant requested the court to provide him with an interpreter. He claimed that his understanding of legal terminology in Russian was insufficient. In reply to the court’s questions, the applicant confirmed that he understood the words “murder”, “being accused” and “[he] committed”. He went on to say that he had learned Russian at school, that he had lived in Ekaterinburg for two years before the relevant events and, that he understood everyday language well. 21. In the prosecutor’s opinion, the applicant did not need an interpreter’s assistance as he had been born and had grown up in Russia, had done his military service there and had written documents in Russian. 22. Having examined the parties’ submissions, the court rejected the applicant’s request to be provided with an interpreter, noting that he spoke and wrote Russian adequately. The court further rejected the applicant’s request concerning witnesses as premature. It also dismissed his request regarding the exhibits, stating that those items had been seized from the applicant and were therefore familiar to him. The court further ordered that the applicant be allowed additional time to study the case file and, to that end, suspended the proceedings until 20 January 2003. 23. The applicant studied the case-file on 16 January 2003 from 3 p.m. to 4 p.m. and on 17 January 2003 from 10.30 a.m. to 12.30 p.m. Thereupon the applicant made a hand-written note in the procedural record to the effect that he had studied the case-file materials. Neither the applicant nor his lawyer made any requests for additional time to study the case file. 24. During the subsequent hearings the applicant stated that he understood the charges against him and pleaded not guilty. He further gave his version of the incident, alleging that the murder had been committed by another person. The applicant repudiated his self-incriminating statements made during the preliminary investigation, stating that they had been extracted under duress and threats of ill-treatment. He stated that he had been beaten by the police officers, with the result that he had signed certain documents without reading them and had copied his “confession” rather than written it voluntarily. 25. The court called and examined a number of witnesses, including expert witness Ts. and witnesses S. and M.V. The court further noted that it had not been possible to call witness R., as she was paralysed. Her statements and those of witness Ves. made during the preliminary investigation were read out in court, after the applicant gave his consent. The applicant also stated that he no longer insisted on the examination of witness Sm. 26. The court further called and examined the investigators in charge of the case, Ye. and K.. They denied putting any pressure on the applicant or using any unlawful methods of investigation, such as beatings. Investigator K. also testified that while studying the case file the applicant had not requested an interpreter’s assistance, and that at a certain point he had refused to continue with the study of the case file, following which the materials in the file had been photocopied and given to him. Investigator K. also stated that the video record of the reconstruction of events of 13 February 2002 had been shown to the applicant. 27. By a judgment of 3 February 2003 the Regional Court convicted the applicant of aggravated murder and sentenced him to fifteen years’ imprisonment. 28. The court admitted in evidence the applicant’s confession made during the preliminary investigation, rejecting as unsubstantiated his allegation that it had been extorted under duress. In this regard the court noted that the applicant had always been questioned in the presence of a lawyer, and a lawyer had also participated in the reconstruction of events of 13 February 2002. Moreover, after being detained, the applicant had been informed on several occasions of his right not to testify against himself. The court also noted that the applicant had not objected to Ye.’s statement made in court to the effect that Ye. had not put any pressure on the applicant during the investigation. As regards the applicant’s allegation of beatings by the police officers, the court stated that the medical certificate of 13 February 2002 only attested to the presence of abrasions on his back sustained two weeks earlier and did not mention any “dark blue” bruises on the applicant’s legs and shoulders, as he had alleged in court. 29. The court further based its findings on other pieces of evidence, including statements by a number of witnesses, several expert reports, and, in particular, a forensic report on the clothes seized from the applicant on 11 February 2002 which attested to the presence on the applicant’s trousers of blood, which could have come from of one of the victims. 30. In their appeal submissions, the applicant and his lawyer complained, inter alia, that the self-incriminating statements made by the applicant during the preliminary investigation had been extorted from him as a result of ill-treatment by the police. 31. On 28 April 2003 the Supreme Court of Russia (“the Supreme Court”) granted the applicant’s request to be present at the appeal hearing. 32. On 10 June 2003 the applicant was transported from remand prison IZ-66/1 in Ekaterinburg to remand prison IZ-77/3 in Moscow. 33. On 21 June 2003 the Supreme Court notified the applicant and counsel R., who had represented him before the trial court, that the appeal hearing was scheduled for 21 July 2003. 34. The applicant requested an interpreter’s assistance for the examination of his case before the appeal court. He further requested the appeal court to allow him to study the case file, alleging that he had not been given enough time to do this at the pre-trial stage. 35. The applicant and his counsel were present at the hearing of 21 July 2003. The Supreme Court noted that during the proceedings before the trial court the applicant had demonstrated sufficient command of Russian, being well able to understand what was being said to him in Russian and to express himself clearly in that language. Nevertheless, noting that everyone had the right to use his mother tongue, the appeal court decided to grant the applicant’s request and provide him with an interpreter during the examination of his appeal. The Supreme Court accordingly postponed the hearing to 18 August 2003. 36. At the hearing of 18 August 2003 the applicant was present but his counsel did not appear. The applicant did not make any requests in this regard, such as for the postponement of the hearing. The Supreme Court refused the applicant’s request for additional time to study the case file. It referred to the case-file materials, stating that on 28 November 2002 the applicant and his lawyer had had access to and studied all the materials, including the exhibits and the video recording, and that they had not made any requests upon the completion of their study. Moreover, the first-instance court had granted the applicant additional time to study the case file, which he had done on 16 and 17 January 2003. 37. On the same date the Supreme Court, in the presence of the applicant and the prosecutor, upheld the judgment of 3 February 2003. It confirmed that the trial court had correctly assessed the evidence and applied the domestic law. It noted, in particular, that on 12 February 2002 the applicant had been interviewed as a witness and that the procedural law then in force had not provided for a lawyer’s assistance during such interviews. However, after the applicant had made self-incriminating statements during his witness interview, he had then been questioned as a suspect in the presence of a lawyer and confirmed his statement. The applicant’s defence counsel had been present at all subsequent interviews and investigative actions. 38. The court further rejected as unsubstantiated the applicant’s allegations of ill-treatment during the investigation, stating that they were not corroborated by the results of the applicant’s medical examination as recorded on the certificate of 13 February 2002. It also pointed out that the applicant had not complained about any injuries upon his arrival at the IVS, nor had he complained at the pre-trial stage about the alleged ill-treatment, although he had had the opportunity to do so, as he had always given oral evidence in the presence of his defence counsel and, during the reconstruction of events, also in the presence of the attesting witnesses. 39. The court went on to note that when his rights were being explained to him at the pre-trial stage, the applicant had stated that he understood his rights, that he spoke Russian, would give oral evidence in that language and did not need an interpreter’s assistance. Furthermore, when interviewed both as a suspect and an accused, the applicant had expressed his wish to give oral evidence in Russian and refused an interpreter’s assistance. Further, when studying the file of his criminal case, the applicant had not requested an interpreter’s assistance. The court further noted that the case file contained the applicant’s confession written in Russian, his handwritten notes made on the transcript of his interview of 15 February 2002 and other documents which confirmed that he had an adequate command of Russian. The appeal court added that the applicant had received secondary education in Russia, had learned Russian at school, had done his military service in 1995-1997 in Russia and had lived in Ekaterinburg since 2000. During the hearings before the trial court the applicant had stated that he understood everyday Russian, had testified in Russian and had actively participated in the examination of his criminal case. The appeal court therefore concluded that in such circumstances the fact that the applicant had not had an interpreter’s assistance during the preliminary investigation and before the first-instance court had not violated his rights. 40. The applicant’s attempts to have his case reopened in supervisory review proceedings were to no avail. 41. On 20 August 2009 the applicant’s sentence was reduced to thirteen years and four months’ imprisonment because of changes in the criminal law. 42. On 15 December 2002 the applicant complained in writing to the prosecutor’s office of the Sverdlovskiy Region about various irregularities in the preliminary investigation, including ill-treatment by the police and refusals of his requests to be provided with a lawyer and an interpreter, to have the case-file materials and the bill of indictment translated into his mother tongue, and to be granted access to the exhibits. 43. On 3 February 2003 the prosecutor’s office of the Kirovskiy District of Ekaterinburg refused to institute criminal proceedings in respect of the applicant’s allegations. It noted in its decision that it was clear from the medical certificate of 13 February 2002 that the applicant had sustained the abrasion on his back two weeks before the examination, that is, in late January 2002, before he was questioned and subsequently detained. Thus, there was no evidence of an offence. 44. A copy of that decision was sent to the applicant on 4 February 2003. 45. On an unspecified date the applicant resubmitted his complaint to the prosecuting authorities. 46. In a letter of 10 November 2003 the prosecutor’s office of the Sverdlovskiy Region informed the applicant that the inquiry into his allegations of ill-treatment by the police officers carried out by the prosecutor’s office of the Kirovskiy District of Ekaterinburg had been incomplete and that therefore the decision of 3 February 2003 had been quashed and the relevant materials sent back to the prosecutor’s office of the Kirovskiy District of Ekaterinburg for an additional inquiry. The letter further stated that the applicant would be apprised of the results of that inquiry. 47. On 18 November 2003 the prosecutor’s office of the Kirovskiy District of Ekaterinburg again refused to institute criminal proceedings in respect of the applicant’s allegations on the ground that following an additional inquiry they had been found to be unsubstantiated. In particular, there was no evidence that the applicant had sustained any injuries apart from an abrasion on his back that had been sustained approximately two weeks before he had been questioned and detained. A copy of the decision was sent to the applicant. 48. In the autumn of 2004 the applicant contested the decision before a higher prosecutor’s office. His complaint was dismissed by the prosecutor’s office of the Sverdlovskiy Region on 23 November 2004. 49. On 14 January 2004 the authorities of detention facility USHCH349/52 (“the prison authorities”) accepted for dispatch from the applicant an envelope addressed to the Court which contained a completed application form which, with its enclosures, totalled eighty-one pages. The next day, the applicant was informed that it had been entered in the prison correspondence register under number 225 and sent out. 50. On 27 January 2004 the prison authorities returned the envelope to the applicant. They explained that it had been returned by the postal service on the ground that the stamps placed on the envelope by the applicant, which corresponded to the postage for a standard letter, were insufficient, and that the applicant needed to pay 120 Russian roubles (RUB) in postage for the excess weight. 51. According to the applicant, on 29 January 2004 he again handed his letter to the prison authorities and requested them to take the necessary amount from his account to cover the postage. However, the authorities returned the letter to him. He allegedly resubmitted it for dispatch on 4 February 2004. 52. Between 14 January and 9 February 2004 there was no money in the applicant’s account. On the latter date the account was credited with the amount of RUB 1,000. 53. On 12 February 2004 the applicant requested the prison authorities to send a letter to the International Protection Centre, an NGO based in Moscow, and to debit his account for the amount of the postage. In the letter he asked the International Protection Centre to forward his application to the Court. 54. On 14 May 2004 the Court received a five-page letter from the applicant dated 6 April 2004, which was the first piece of correspondence it had received from him. In the letter the applicant explained that on 14 January 2004 he had tried to send an application form to the Court but it had subsequently been returned on account of insufficient postage. He went on to note that as he had then had to apply to the International Protection Centre with a request for his application to be forwarded to the Court, there might be a delay in the application reaching the Court. 55. On 27 May 2004 the Court acknowledged receipt of the applicant’s letter of 6 April 2004 and invited him to submit a duly completed application form. 56. On 8 July 2004 the Court received a four-page letter from the applicant dated 17 June 2004. In the letter the applicant again described his attempt to send the application form to the Court on 14 January 2004 and his subsequent application to the International Protection Centre. He added, however, that the International Protection Centre had refused to forward his application form to the Court and that he had being trying to send it to the Court himself. He noted, without specifying any reasons, that he was having difficulty in doing so, which might lead to the dispatch of the application form being delayed. He therefore asked the Court not to reject it on the ground of expiry of the six-month time-limit. 57. On 31 August 2004 the Court reminded the applicant that he still had to submit a duly completed application form. 58. On 1 February 2005 the Court received a two-page letter from the applicant dated 22 December 2004, in which he stated that he had been unable to send the application form to the Court because of the prison authorities’ refusal to forward it, but that he would persist in his attempts to send it. 59. On 2 March 2005 the Court received an eight-page letter from the applicant dated 23 December 2004, in which he again outlined his previous attempts to send the application form to the Court and made lengthy observations on the Court’s admissibility criteria, in particular the application of the six-month time-limit. 60. On 9 and 23 March 2005 the Court again reminded the applicant that he still had to submit a duly completed application form. 61. On 29 April 2005 the Court received a letter from the applicant dated 16 March 2005 in which he asked it to confirm receipt of the application form. 62. On 3 May 2005 the Court received a letter from the applicant dated 16 February 2005 enclosing the application form dated 14 January 2004. 63. On 9 May 2005 the Court received an additional application form sent by the applicant on 30 March 2005. The applicant once again stated that, following the return of his application form of 14 January 2004 and after his account had been credited with a sum of money, he had asked the prison authorities to send the form to the International Protection Centre on 12 February 2004. 64. On 20 May 2005 the Court confirmed receipt of both application forms. 65. Thereafter the applicant continued to send correspondence to the Court on a regular basis. The following documents, inter alia, were enclosed with the applicant’s correspondence: – An undated certificate signed and stamped by the head of detention facility USHCH-349/52 confirming that the applicant had indeed submitted an application to the Court to the prison authorities on 15 January 2004, which had been registered under the outgoing number 68/52-225 and forwarded to the post office, which had then returned it, stating that the envelope containing the applicant’s correspondence weighed more than twenty grams and therefore additional payment needed to be made. The certificate also indicated that the prison authorities had sent out the application immediately upon receipt of the necessary sum of money from the applicant. – A letter of 8 April 2005 from the Main Department for Execution of Punishments of the Sverdlovskiy Region informing the applicant that his application to the Court comprising eighty-one pages had been registered by the prison authorities on 15 January 2004 under the number 68/52-225. The letter went on to say that the post office to which the applicant’s letter had been taken had pointed out that its weight exceeded the maximum allowed and that therefore it was necessary to pay a supplement; however, at that time there had been no money in the applicant’s account and therefore his letter had been sent out later, when the necessary sum had been credited to the account. – A letter of 16 May 2005 from the head of detention facility USHCH349/52 informing the applicant that his application had been sent to the Court after 15 January 2004, when the supplement for the postage had been paid. The letter assured the applicant that 15 January 2004, the date on which his letter had been accepted for dispatch by the prison authorities, would be considered as the date of dispatch. 66. Article 91 (1) of the Penal Code states that detainees may receive and send unlimited letters, postcards and telegrams at their own expense. The correspondence sent by detainees must comply with the applicable postal requirements. After receipt of requests by detainees, the prison administration informs them of the transfer of their correspondence to the postal service for delivery to the addressee. 67. Article 125 of the Russian Code of Criminal Procedure provides for judicial review of decisions, acts or failure to act on the part of an inquirer, investigator or prosecutor which affect constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision, act or failure to act, and to grant the following forms of redress: (i) to declare the act or failure to act unlawful or unreasonable and order the relevant authority to remedy the violation; or (ii) to reject the complaint.
| 0 |
test
|
001-157971
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF TURGUNOV v. RUSSIA
| 3 |
Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Non-pecuniary damage - finding of violation sufficient (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. The applicant was born in 1979 in the town of Osh, Kyrgyzstan, and lives in St Petersburg. 7. The applicant is an ethnic Uzbek. In June 2010 ethnic violence erupted in the town of Osh, where the applicant lived at the material time, during which around 400 people were killed. 8. On 15 July 2010 the applicant came to Russia, and has not returned to Kyrgyzstan since. 9. On 9 April 2012 the police of the town of Osh charged the applicant in absentia with participation in the mass riots and several other offences. 10. On 10 April 2012 the Osh Town Court issued an arrest warrant against the applicant, and on 20 April 2012 his name was put on the crossborder wanted list. 11. On 23 January 2013 the applicant was arrested in St Petersburg and remanded in custody two days later by a court order. His detention was extended several times. 12. On 7 March 2014 the St Petersburg transport prosecutor noted the interim measure indicated by the Court and ordered the applicant’s release from detention under the personal guarantee of his lawyer. 13. On 11 February 2013 the Kyrgyzstan Prosecutor General’s Office requested the applicant’s extradition for prosecution for participation in mass riots in June 2010, intentional infliction of grievous bodily injury and use of violence against a police officer, car-jacking, and intentional destruction of property. 14. On 24 May 2013 the applicant’s lawyer submitted to the Prosecutor General of Russia a letter referring to reports of international organisations and the Court’s case-law evidencing that there was a high risk that the applicant would be subjected to inhuman treatment if he were extradited. 15. On 24 July 2013 a deputy Prosecutor General of the Russian Federation granted the request of the Kyrgyzstan Prosecutor General’s Office for the applicant’s extradition. He held that there were no grounds in Russian or international law for refusing to extradite the applicant. 16. The applicant appealed, maintaining that, as a member of the ethnic Uzbek community which was being persecuted and discriminated against, he ran a serious and real risk of being subjected to torture in detention. 17. On 6 November 2013 the St Petersburg City Court rejected that appeal, finding as follows: “Taking into account the materials submitted, there are no grounds under Article 464 of the Criminal Procedure Code of Russia that exclude the possibility of extraditing an individual ... The applicant’s argument that the extradition is unlawful because he has refugee proceedings pending is untenable, and the arguments about his possible persecution by the law-enforcement authorities of Kyrgyzstan because of his ethnic origin are unsubstantiated and do not constitute a ground to refuse the extradition. The information of [the Ministry for Foreign Affairs of Russia] according to which the examination of the criminal case against [the applicant] by the authorities of Kyrgyzstan might be biased, is conjecture and is not based on any proof ... The Prosecutor General of Kyrgyzstan has provided assurances that, according to the standards of international law and the criminal law of Kyrgyzstan, [the applicant] would be afforded all means of defence, including legal assistance, would not be handed to a third country without the approval of the Russian Prosecutor General, or charged with and convicted of any offence committed before the extradition and for which he was not extradited. He would not be subjected to torture or to cruel, inhuman and degrading treatment or punishment ... Furthermore, the requesting party provided assurances that, after [the applicant’s] extradition to the Republic of Kyrgyzstan, Russian diplomats would be allowed to visit [the applicant] in remand prisons to ensure respect for his rights ... The evidence submitted by the defence, according to which persecution of ethnic Uzbeks in connection with the events of 2010 continues in Kyrgyzstan, concerns isolated cases and cannot be regarded as evidence that [the applicant] will be subjected to cruel treatment, bearing in mind that he is accused of an offence which is not political in nature; there are currently measures put in place by the authorities of the Republic of Kyrgyzstan to remedy the violations of human rights disclosed by international organisations ... furthermore, the requesting party provided sufficient and real assurances that [the applicant’s] right to a fair trial would be respected and that he would not be subjected to ill-treatment. The general situation in the Republic of Kyrgyzstan was thoroughly analysed in the decision refusing [the applicant] refugee status by the St Petersburg Regional Office of the Federal Migration Service.” 18. The applicant’s lawyers appealed against that decision, arguing that the first-instance court had failed to address their arguments concerning the risk that the applicant would be subjected to inhuman treatment if extradited. 19. By its final decision of 25 February 2014 the Supreme Court of the Russian Federation, having endorsed the lower court’s reasoning, rejected the appeal. 20. On 6 February 2013 the applicant asked the St Petersburg Regional Office of the Federal Migration Service to grant him refugee status. He pointed out that he feared returning to Kyrgyzstan, where he would face arbitrary prosecution and inhuman treatment. 21. On 29 May 2013 the St Petersburg Regional Office of the Federal Migration Service refused the above request for lack of reasons which would justify the applicant’s allegations. In particular, it found that the latter had referred to the events of 2010 as a pretext to avoid criminal prosecution. The Regional Office further analysed the situation in Kyrgyzstan on the basis of several news items of mainly Kyrgyz and Russian newspapers and information agencies. Referring to these items, it stated that “... the situation in Kyrgyzstan had substantially changed, the inter-ethnic clashes had ceased, and the government was taking enhanced measures to protect citizens and to improve the social and economic situation in the country”. 22. On 23 August 2013 the Federal Migration Service of the Russian Federation upheld this decision. The applicant complained before the Moscow Basmanniy District Court. 23. On 3 December 2013 the Basmanniy District Court dismissed the complaint. It endorsed the findings of the migration authorities and noted that the applicant was not a member of any political, religious, military or non-governmental organisations. Neither had he been persecuted or threatened by the authorities. Therefore, there was neither a threat to the applicant’s life nor any medical indications indicating a need for urgent medical intervention. 24. On 20 May 2014 the Moscow City Court upheld the decision of 3 December 2013 on appeal. 25. On 20 September 2013 the applicant asked the St Petersburg Regional Office of the Federal Migration Service to provide him with temporary asylum in the Russian Federation. 26. On 26 November 2013 his request was refused. According to the applicant, he was not informed of this decision. 27. On 5 May 2014 the applicant lodged a new application for temporary asylum, which was dismissed on 1 August 2014. 28. On 1 October 2014 the applicant’s lawyer lodged an appeal against the decision of 1 August 2014. However, the outcome of the appeal remains unknown.
| 1 |
test
|
001-161227
|
ENG
|
MNE
|
ADMISSIBILITY
| 2,016 |
KECOJEVIĆ v. MONTENEGRO
| 4 |
Inadmissible
|
Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani
|
1. The applicant, Ms Vera Kecojević, is a Montenegrin national, who was born in 1957 and lives in Nikšić. She is represented before the Court by Mr M. Vojinović, a lawyer practising in Nikšić. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 28 December 2004 the President of the Municipality of Nikšić issued a decision appointing a Restitution and Compensation Commission (Komisija za povraćaj i obeštećenje, hereinafter “the Commission”). This decision was not confirmed by the Municipal Assembly and the remuneration of the members of the Commission was never specified. The Commission functioned until 8 July 2005, when it was replaced by a new one. The applicant was a member of both Commissions. 4. On an unspecified date in 2006 the applicant instituted proceedings against the Municipality seeking compensation in the amount of EUR 1,500 in respect of remuneration for her work in the Commission between 28 December 2004 and 8 July 2005, as she had not been paid during the said period. 5. On 2 July 2007 the Court of First Instance (Osnovni sud) in Nikšić ruled against the applicant on the ground that the Commission had had no legitimacy during the specified time, given that the decision on its appointment had not been confirmed by the Municipal Assembly, and as the remuneration for the said period had never been defined. 6. On 3 October 2008 the High Court (Viši sud) in Podgorica upheld the first-instance judgment, essentially endorsing the reasons contained therein. 7. On 6 October 2008 the High Court in Podgorica overturned a firstinstance judgment issued in respect of one of the applicant’s colleagues, and awarded him compensation in the amount of EUR 1,380 in respect of remuneration for his work in the same Commission in the same period, plus accompanying interest and the costs of the proceedings. In doing so the court held, in particular, that the Commission had had a temporary character by virtue of the law itself and that therefore the firstinstance court’s conclusion that it had lacked legitimacy was wrong. Also section 58 of the Local Self-Governance Act 2003 specifically provided that if the Assembly did not confirm a certain decision or the President of the Municipality did not submit it for confirmation, the decision would cease to be in force as of the day when the Assembly terminated its session. Therefore, it had to be considered that the Commission had ceased to operate when the decision on its appointment was not confirmed, that is on 8 July 2005 in the given case. The court noted that the Court of First Instance had also taken into account that no act defined remuneration of the members of the Commission. However, the High Court held that, pursuant to section 28 (3) of the Restitution and Compensation Act, members of the Commission had the status of civil servants, and were therefore entitled to remuneration. In any event claimants should not suffer any detriment on account of the legislature’s failure to define the exact amount of their remuneration. 8. Section 28 (1) provided that Municipal Assemblies would establish Restitution and Compensation Commissions within 60 days as of the date when this Act entered into force. Section 28 (3) further provided, inter alia, that members of the Commissions had the status of civil servants. 9. This Act entered into force on 8 April 2004. 10. The said amendments introduced section 41a, which specified that the President of the Municipality could temporarily issue decisions falling within the Assembly’s competence, if the Assembly could not convene or for some other reason it was impossible for it to work and the said decisions were of interest for exercising citizens’ rights and freedoms. The President of the Municipality had to submit such a decision to the Assembly for its confirmation as soon as the Assembly could convene. 11. Section 58 provides that the president of the Municipality can temporarily issue decisions falling within the Assembly’s competence, if the Assembly cannot convene or for some other reason it is impossible for it to work, and the absence of these decisions would endanger lives or property of great value. The President of the Municipality shall submit such a decision to the Assembly for its confirmation at its first session. If the Assembly does not confirm such a decision or the President does not submit it for confirmation, the decision shall cease to be in force (prestaje da važi) on the day when the session of the Assembly terminates. 12. This Act entered into force on 24 July 2003 except for Chapter V, including section 58, which was to enter into force as of the next local elections, which took place in Nikšić on 12 March 2005. Until then the relevant provisions of the earlier Act, including section 41a, continued in force. 13. Section 397 (2) in force at the time provided, inter alia, that an appeal on points of law against a second-instance decision would not be admissible in pecuniary matters unless the value of the claim exceeded EUR 10,000. Section 397 (4) (2) provided that exceptionally to the previous provision, an appeal on points of law was always admissible in disputes “for loss of earnings or other work-related income when these compensations were established or quashed for the first time” (zbog izgubljene zarade ili drugih prihoda po osnovu rada kada su te odštete prvi put određene ili ukinute). 14. Sections 433 - 438 set out details as to employment-related disputes. Section 438 provided in particular that an appeal on points of law was allowed only in disputes relating to employment, as well as continuation and termination thereof. 15. Sections 398 and 410, taken together, provided that the Supreme Court, when deciding upon an appeal on points of law, could either overturn the second-instance decision in cases when the substantive law was misapplied, or quash it and order a re-trial when the facts were incompletely established due to a misapplication of substantive law.
| 0 |
test
|
001-144934
|
ENG
|
CHE
|
ADMISSIBILITY
| 2,014 |
SLAVKOVIC v. SWITZERLAND
| 4 |
Inadmissible
|
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens
|
1. The applicant, Mr Slavko Slavkovic, is a Serbian national, who was born in 1980 and lives in Ebikon, Canton of Lucerne. He was represented before the Court by Mr Franz Dörig, a lawyer practising in Lucerne. 2. The Swiss Government (“the Government”) were represented by their Agent, Mr Frank Schürmann, of the Federal Office of Justice. 3. On 20 September 2010 the Government of Serbia were informed of their right to intervene in the proceedings, in accordance with Article 36 § 1 of the Convention and Rule 44 § 1(b) of the Rules of Court. On 18 October 2010 the Government of Serbia informed the Court that they did not wish to exercise their right to intervene in the present case. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 10 April 2006 the applicant was detained in Bad Feilnbach (Germany) on the basis of an international arrest warrant issued by the Sursee district authority (Amtsstatthalteramt Sursee (Switzerland)) on 1 May 2003. According to the arrest warrant, the applicant was suspected of having committed the offences of serious assault, endangering the life of another person and damaging property, because he had allegedly participated in a brawl on 2 March 2003 in Sursee and shot one of the victims in the leg during the fracas. 6. On 19 July 2006 the applicant was convicted in Germany of a number of offences, including illegal entry, illegally staying in the country and forgery of a document. 7. On 11 September 2006 the German authorities extradited the applicant to Switzerland. On 12 September 2006 his lawyer was appointed to represent him. That same day the Sursee Prefect (Amtsstatthalter) ordered that the applicant be placed in pre-trial detention. In the detention order the Prefect established that the applicant was suspected of having committed a number of offences, including serious assault and endangering the life of another person. The applicant’s pre-trial detention was considered to be further justified because serious concerns existed that he would seek to evade the criminal proceedings by absconding or compromise the efforts of the investigation if left at large. 8. Based on the same reasons, an application for immediate release from pre-trial detention made by the applicant on 14 September 2006 was dismissed by the Prefect on 18 September 2006. 9. On 15 September 2006 the applicant appealed against the Prefect’s detention order to the Court of Appeal for the Canton of Lucerne (Obergericht, hereinafter “the Court of Appeal”). He claimed that the requirements for detaining him had not been fulfilled in a number of respects. 10. The Court of Appeal invited the public prosecutor to submit observations on the applicant’s appeal. On 20 September 2006 the public prosecutor sent an e-mail to the Prefect in response. In this e-mail he stated the following: “Good morning A. As stated yesterday on the phone, I have been asked to submit before tomorrow, 21 September 2006, observations on the representative’s appeal in the pre-trial detention matter regarding S.S. [Slavkovic Slavko]. Please send me, for the attention of the Court of Appeal, [details of] which (investigation) activities have been carried out since the accused’s detention and which investigative activities are planned in the near future. In addition I would ask you – as discussed – to issue as soon as possible the new international arrest warrant against S.S. “amended” with respect to the crimes of assault, brawling, assault and theft; to pass it [in accordance with standard procedure] (keyword: granting of the right to be heard) to the person concerned (not as an accused!) and to subsequently submit both [documents] to the Federal Office for Justice. The Federal Office for Justice will then take the next steps (together with [the assistant]). Please also send the new arrest warrant and the record of the questioning session with S.S. to me by fax or e-mail, so that I can refer to them in my observations to the Court of Appeal. Many thanks for your efforts, which are appreciated. I am at your disposal in case of any questions. Kind regards, G.” 11. On 21 September 2006 the public prosecutor submitted his observations to the Court of Appeal. The applicant was invited to submit observations in response. 12. On 22 September 2006 the Prefect issued a new, amended international arrest warrant against the applicant. By letter of the same date, the applicant wrote to the Prefect stating that he would prefer that the decision regarding the approval of the amended arrest warrant be suspended until the Court of Appeal had decided on his appeal against the order for his pre-trial detention. 13. The applicant submitted observations on 22 and 24 September 2006 to the Court of Appeal. Having become aware of the e-mail exchange (see paragraph 10 above), he claimed that the Prefect was acting under the instructions of the public prosecutor. He alleged that from an objective point of view the Prefect could not be considered as an independent “officer authorised by law to exercise judicial power”, within the meaning of Article 5 § 3 of the Convention. He therefore sought the Prefect’s withdrawal from the case. 14. On 26 September 2006 the Court of Appeal dismissed the applicant’s appeal and established that the requirements for detaining him pending trial had been fulfilled. It held that there were no indications, either in the e-mail exchange between the Prefect and the prosecutor or in other documents, that the Prefect had been acting under the prosecutor’s instructions when ordering the applicant’s pre-trial detention. It found that the prosecutor’s request regarding the amendment of the international arrest warrant of 20 September 2006 had nothing to do with the detention order against the applicant, which had already been issued by the Prefect on 12 September 2006. Since the e-mail exchange between the prosecutor and the Prefect had occurred some days after the detention order had been issued, no doubts as to the Prefect’s independence when ordering the applicant’s pre-trial detention existed. In addition, according to Article 154bis of the Code of Criminal Procedure of the Canton of Lucerne (hereinafter “the CCP”, see paragraph 19 below), the Prefect was not bound by any instructions of the public prosecutor when ordering pre-trial detention. Furthermore, according to Article 129 of the CCP (see paragraph 19 below), he was not competent to bring criminal charges against the applicant before the domestic courts. In addition, the prosecutor’s supervisory responsibilities, as set out in Article 153(1) and (2) of the CCP (see paragraph 19 below), were limited to investigative activities, with a particular emphasis on responsibility for their proper and expeditious completion. Therefore, the legal provisions in force sufficiently guaranteed the Prefect’s independence when ordering pre-trial detention and no conflict of interest existed. 15. The applicant appealed against this decision to the Federal Supreme Court (hereinafter “the FSC”). He reiterated that in the given circumstances the Prefect could not be considered as an independent officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention and accordingly had to be excluded from the case. He also alleged that the Court of Appeal had failed to consider whether the international arrest warrant of 1 May 2003 had been issued by the Prefect under the prosecutor’s instructions. 16. By a judgment of 3 November 2006 the FSC upheld the Court of Appeal’s judgment. It ruled that the provisions of the CCP sufficiently guaranteed the impartiality and independence of the Prefect in accordance with Article 5 § 3 of the Convention. With regard to the e-mail exchange, the FSC further reiterated that it had mainly concerned the amendment of the international arrest warrant and that the prosecutor’s actions had been fully compliant with Article 153(1) and (2) of the CCP. Moreover, the email exchange had occurred some days after the detention order had been issued and contained no indications that the prosecutor had given the Prefect instructions when the latter was ordering the applicant’s pre-trial detention on 12 September 2006. 17. By penal order of 29 November 2006 the Prefect sentenced the applicant to seventy-nine days’ imprisonment for having taken part in a brawl on 2 March 2003 in Sursee. The applicant accepted this sentence and the penal order entered into force on 29 November 2006, in accordance with Article 133 of the CCP (see paragraph 19 below). 18. On 1 January 2011 the Federal Code of Criminal Procedure entered into force and replaced the CCP (see paragraph 19 below). 19. Articles 60, 63, 80, 81, 83bis, 126, 129, 133, 153, 154, 154bis and 158 of the Code of Criminal Procedure of the Canton of Lucerne of 3 June 1957, as in force at the relevant time, provided as follows: 1 The Prefect investigates crimes, an offender’s criminal record and his personal circumstances. (...) "1The Prefect leads investigations. (...) 1 The accused normally remains at liberty. 2 The accused can be put in pre-trial detention if there is a strong suspicion that he has committed a crime or an offence and if one of the following requirements is applicable: 1. A reasonable suspicion that he will seek to evade the criminal proceedings or the anticipated sanction by absconding; [such] a suspicion will be further strengthened if the person is accused of having committed a serious crime or offence; (...) 2. Circumstances which give reason to fear that the accused would seek to compromise the efforts of the investigation; (...) 1 An arrest warrant must be issued in writing and provide the reason(s) for the arrest. 2 The following authorities are entitled to issue an arrest warrant: the Prefect, the Public Prosecutor, the Criminal Courts before which the case is pending, and their presidents. 1 An authority which issues an arrest warrant shall decide immediately after a questioning session with the accused whether he should be kept in detention. ... A detention order shall be issued in writing and provide the reasons for the pre-trial detention. 2 The accused has the right to appeal to the Court of Appeal against a detention order of the Prefect, the public prosecutor, a first-instance court or its president. (...) If sufficient indications of a punishable offence exist, the Prefect shall refer the case to the competent court if the investigation cannot be closed by a penal order. If the District Court or the Court of Appeal has subject-matter jurisdiction, the Prefect may submit a written application regarding [the accused’s] guilt, the penalty [to be imposed] and [other] measures [to be taken] if he has not previously ordered pre-trial detention. 1 The accused may accept in writing, within twenty days, a penal order if: (a) the penal order concerns imprisonment alone, or in combination with another penalty or measure; (b) the penal order concerns community service alone, or in combination with another penalty or measure. 2 Provided that the accused accepts a penal order regarding a crime or an offence within the [above-stated] period, the penal order shall have legal effect from the day of the accused’s declaration of acceptance, if the public prosecutor has subsequently signed it off. 1 The Public Prosecutor shall execute direct supervision over the Prefects. He shall supervise investigations, [with] particular [responsibility for] their proper and expeditious completion. 2 He can require reports on the progress of investigations, issue instructions and assist investigative activities. 1 The Prefect shall regularly provide the Public Prosecutor with updates about pending investigations, especially those of long duration. 2 The Public Prosecutor shall examine the Prefect’s case management, give the necessary instructions and make reports to the Criminal Cases Commission. In matters regarding pre-trial detention, the Prefect takes decisions freely and independently. 1 The Public Prosecutor shall bring criminal charges if, (...) (c) the Prefect has ordered the accused’s pre-trial detention and the District Court or the Court of Appeal has subject-matter jurisdiction. 2 The Public Prosecutor cannot file criminal charges if he has previously issued an arrest warrant or a pre-trial detention order against the accused or if he has dismissed an accused’s application for release from pre-trial detention.
| 0 |
test
|
001-175665
|
ENG
|
RUS
|
CHAMBER
| 2,017 |
CASE OF SMOLENTSEV v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1976 and lives in Barnaul. He has been disabled since childhood and has lacked legal capacity since 1999. The application was brought on his behalf by his mother. 6. At about 5 p.m. on 28 August 2007 the applicant was arrested on suspicion of robbery and taken to Industrialniy district police station, Barnaul (Индустриальный РОВД г. Барнаула, “the Industrialniy ROVD”) by Officers K., S. and Ch., who allegedly beat him when they arrived at the police station. 7. A report on the applicant’s arrest was drawn up at 9 p.m., following which the applicant’s mother was informed about his arrest. She arrived at the police station shortly afterwards. The applicant complained, in the presence of his mother and a lawyer, that he felt unwell and that he had been beaten by the police officers who had arrested him. 8. An ambulance was called to the police station at 10.29 p.m. on 28 August. The applicant was diagnosed as having facial and chest contusions. He told the ambulance medics that he had been physically assaulted by the police. 9. Another ambulance was called for the applicant at 12.24 a.m. on 29 August 2007, to the temporary detention facility. He was diagnosed as having a contusion on the soft tissues of the face and an X-ray examination was recommended. The applicant told the medics that he had injured himself while drunk two days previously after falling down and hitting his head on the ground. 10. The applicant was taken to hospital the same day for the X-ray examination and was diagnosed as having a closed fracture of his nose bones with displacement of bone fragments and a chest contusion. He gave the same explanation for the injuries as he had given previously that day to the ambulance medics at the temporary detention facility. 11. Upon admission to the temporary detention facility, staff seized, among other items, a pledge ticket for a silver chain and cross which were in pawn until 5 September 2007 (worth 4,840 Russian roubles (RUB) and RUB 990 respectively). 12. On 30 August 2007 the Industrialniy District Court of Barnaul (“the District Court”) ordered the applicant to be kept under arrest for an additional forty-eight hours, until 2.30 p.m. on 1 September 2007. 13. On 1 September 2007 the applicant was released. 14. On the same day the District Court granted an application from the investigator to place the applicant in a psychiatric hospital for a psychiatric forensic examination. 15. On 4 September 2007 the applicant was admitted to a psychiatric hospital, where he stayed until 4 October 2007. 16. On 4 October 2007 the report on the forensic psychiatric examination of the applicant was concluded. It established that at the time of the events in question the applicant could understand and take responsibility for his actions. 17. On 11 October 2007 the pawn shop ticket was returned to the applicant. 18. On 9 November 2007 the applicant underwent planned surgery for a fracture of the nose (rhinoplasty). 19. On 17 March 2008 the criminal proceedings against the applicant were discontinued owing to a lack of evidence of his involvement in the crime in question. 20. On 29 August 2007 the applicant’s mother complained to the prosecutor’s office that the applicant had been beaten by the police. 21. On 19 September 2007 a forensic medical expert held that the closed fracture of the applicant’s nose had been caused by a blow from a hard, blunt object with a limited area of impact and that it had resulted in moderately severe health damage. The report went on to say that the injury had occurred shortly before the applicant had sought medical assistance and that it could have been caused on 28 August 2007. The possibility of the injury being caused by a fall or that the applicant had inflicted it on himself was excluded. The diagnosis of a chest contusion was found to be unsubstantiated by the information in the medical documents. 22. On 4 October, 25 November and 24 December 2007, and 1 February and 15 March 2008 the prosecutor’s office refused to institute criminal proceedings against the police officers who had allegedly ill-treated the applicant for lack of the constituent elements of a crime in their actions. The applicant’s statements were found to be contradictory and not consistent with the injuries sustained. The applicant’s mother had not witnessed the alleged beatings and, because the applicant was mentally disabled and had been inebriated when arrested, his statements were assessed in critical fashion. There was also evidence that the applicant had possibly had injuries prior to his arrest. The initial refusal to institute criminal proceedings referred to the following evidence: - the statements of the applicant’s mother, who submitted that the applicant had had no injuries when he had left home on 28 August 2007 and that she had found him at the police station later that day with a swollen face, bruises on his back and with his clothes covered in blood; - a statement by the applicant’s mother that on 26 August 2007 she had witnessed a quarrel between her son and a certain Kar., that she had called the police and that the police had helped her take the applicant home; - statements by a witness, B., who had seen the applicant on 28 August 2007, shortly before his arrest, drunk, but without any visible injuries; B. later saw police officers escorting the applicant to a police car, with the applicant showing no resistance. B. did not see the police officers using physical force against the applicant; - the applicant’s statements on the circumstances of his arrest. He submitted, in particular, that the beatings had taken place at the back entrance to the police station and in an out-of-the-way office inside the police station; the police officers had hit him with truncheons on his back, bottom and legs (at least four to five blows), and had then punched him on the head and nose (no less than seven to ten blows). The applicant had started bleeding and the officers had threatened him, warning him not to tell anyone about the beatings; - information on the applicant’s health and his disability, as well as his previous criminal and administrative offence records; - documents on the applicant’s arrest; - documents on the ambulance doctors’ examination of the applicant on 28 August 2007 in connection with complaints of a bleeding nose and chest pain; - the forensic medical report of 19 September 2007 (see paragraph 21 above); - statements by Officers S. and K. on the circumstances of the applicant’s arrest. In particular, they submitted that when the applicant had seen them he had started to run in the opposite direction. He had stumbled and fallen forward onto the pavement. When they had lifted him up they had noticed that he had old abrasions on the left side of his face and a bleeding nose, probably from falling on the pavement. His breath had also smelt of alcohol. The applicant had then been escorted to the police car and taken to the police station. He had not resisted arrest and no physical force had been applied to him; - statements by Officer Ch., who had been waiting for S. and K. in the police car. He submitted that he had seen S. and K. escorting the applicant to the car and that the applicant had been visibly drunk. He had had abrasions and dried blood on his face and his clothes had been dirty. No physical force had been used against him; - statements by police officers on duty at the police station on 28 August 2007 about the absence of any conflict situations there on that day or any complaints of ill-treatment from the applicant; - statements by Ts., A., D., detained at the police station at the same time as the applicant. They submitted that they had not witnessed any clashes between the applicant and the police and had not seen the police use physical force against him; - statements by the investigator, N., who had questioned the applicant on 28 August 2007 and to whom he had explained that his injuries (a scratch on the face and a swollen nose) had been sustained while he was drunk, either by falling down or in some other way, the applicant had not remembered exactly. The investigator had later called the applicant’s mother. After she had arrived, the applicant had started complaining that he felt unwell and that he had been beaten by the police, after which an ambulance had been called for him; - statements by the investigator D., who said that she had questioned the applicant on 31 August 2007 at the temporary detention facility. He had stated that he had been drinking in the courtyard of his house on 26 August 2007 and had picked a fight with a certain Kar., with whom he had drunk before; - information from the temporary detention facility on the applicant’s injuries at the time of his admission (a closed fracture of the nasal bones and an abrasion on the left cheek) and a handwritten note from the applicant to the effect that he had received the injuries after falling down while in an inebriated state and that he had no complaints about the law-enforcement bodies; - statements by a certain R., who submitted that on 26 August 2007 the applicant and her husband Kar. had been drinking together and had had a quarrel. The subsequent decisions also took into account the following evidence: - statements by Kar., who submitted that he had been drinking alcohol with the applicant on 25 August 2007, that they had been so drunk they could not walk in a straight line and had had to hold to one another, and that on their way home they had fallen down several times. On 26 August 2007 Kar. and the applicant had again spent all day drinking together, but had had no arguments. He could not remember whether the applicant had had any injuries on 25 and 26 August 2007; - an additional forensic medical report of 18 December 2007 which showed that the injury could have been caused on 26 August 2007 but that it could not have been caused by the applicant’s falling down; - statements by the doctors who examined the applicant on 28 and 29 August 2007 and performed the X-ray examination and by the expert who conducted the initial forensic medical examination. 23. The supervising authority set aside all those decisions, except for the most recent one, as unfounded and ordered additional pre-investigation inquiries. 24. In the meantime, on 13 December 2007 the chief of inquiries at the investigations department of the Industrialniy ROVD instituted criminal proceedings against unidentified persons under Article 112 § 1 of the Criminal Code for the intentional infliction of moderately severe damage to the applicant’s health at an unidentified place and time, but no later than midnight of 19 September 2007. 25. On 14 February 2008, 11 March 2009, 20 October 2010 and 5 May 2012 forensic medical examinations of the applicant’s medical file were conducted. The conclusions of the examinations showed that the closed fracture of the nose and swelling of the soft tissues in the nasal area could have been caused between 26 August and 28 August 2007. It was not possible to completely exclude the possibility that the above injury had originated as the result of the impact of a slightly protruding object. The injured area was also accessible to the applicant himself. The report of 20 October 2010 excluded the possibility that the applicant had been injured by falling on the pavement while running away from Officers S. and K. given the absence of other injuries on prominent parts of his face (nose, cheekbones or forehead) or on other parts of his body (the stomach or his extremities). 26. On 12 January 2008 the chief of inquiries at the investigations department of the Industrialniy ROVD decided to suspend the investigation. 27. However, on 29 January 2008 the acting prosecutor of the Industrialniy District of Barnaul set that decision aside. He noted that the case file contained information that police officers at the Industrialniy ROVD had allegedly inflicted the applicant’s injuries and transferred the criminal case from the investigations department of the Industrialniy ROVD to the Barnaul investigations department of the investigation committee of the Altay Regional Prosecutor’s Office. 28. On 11 February 2008 the chief of inquiries at the investigations department of the investigation committee of the Altay Regional Prosecutor’s Office resumed the case. 29. On 13 February 2008 a witness, I., (the victim in the proceedings against the applicant on suspicion of robbery) submitted that when the alleged robbery had taken place, at about 3 p.m. on 28 August 2007, she had noticed that the applicant had an old abrasion on his face. She did not exclude the possibility that she could have scratched the applicant in the course of the struggle, but she had not hit him and had not seen any injuries on his face later that day when she had seen him at the police station. 30. On 16 February 2008 Officer Ch. was questioned as a witness. 31. On 11 April 2008 the proceedings were suspended for the second time. The decision mentioned that the operational-search activities conducted to identify the perpetrator of the assault had not led to any positive results. It provided no further details on the exact measures taken by the investigator. 32. On 16 April 2008 the deputy head of the investigations department set that decision aside and held that it was necessary to give the applicant victim status in the proceedings and question him. He also wanted to give the applicant’s mother the status of the applicant’s legal representative and question her, to carry out a comprehensive psychological and psychiatric examination of the applicant, to question a number of witnesses on the circumstances of the alleged ill-treatment (among them Officer S.), and to join references from work on Officers K., S. and Ch. to the case file. 33. On 17 April 2008 the applicant was given the status of a victim in the proceedings and was questioned as such. The applicant’s mother joined the proceedings as his legal representative and was questioned. 34. On 19 May 2008 the proceedings were suspended for the third time, with reference to the fact that the operational-search activities to identify the perpetrator had not led to any positive result. However, on 21 May 2008 the deputy head of the investigations department set that decision aside and held that it was necessary to question the witnesses to establish all the relevant circumstances of the alleged ill-treatment. 35. Between May and August 2008 the head of the Industrialniy ROVD and the officers present there at the time of the applicant’s arrest were questioned as witnesses. 36. Meanwhile, on 26 June 2008 a fourth decision on suspending the proceedings was taken. However, on 2 July 2008 the deputy head of the investigations department set the decision aside and listed in detail the investigative measures that were needed. They included questioning the police officers S., K. and Ch. about the circumstances of the applicant’s arrest, a forensic psychiatric examination of the applicant and, depending on the results of that examination, deciding on the possibility of carrying out identification parades involving the applicant and S., K. and Ch. 37. On 7 August 2008 Officer K. was questioned as a witness. 38. The proceedings were suspended for the fifth time on 14 September 2008, but were again resumed on 29 September 2008. The acting head of the investigations department considered it necessary, inter alia, to put further questions to certain witnesses. He also wanted to carry out a comprehensive psychological and psychiatric forensic examination of the applicant and, depending on the results of that examination, to decide on the possibility of carrying out identification parades involving the applicant and S., K. and Ch. In addition, he wanted to request documents on the applicant’s hospital treatment after 4 September 2007 and join them to the case file and to carry out an additional forensic medical examination. 39. On 23 October 2008 another witness, D., (an acquaintance of the applicant’s mother) stated that he had seen the applicant’s arrest on 28 August 2007. The applicant had been escorted by two people – one wearing a police uniform and the other in plain clothes. The applicant had not shown any resistance, had had no visible injuries and had not been subjected to physical force. 40. On 28 October 2008 the applicant had an additional forensic psychiatric examination, which established that at the time of the alleged beatings he could not correctly perceive the factual aspect of events or understand the meaning and nature of actions taken in his respect. 41. On 30 October and 8 November 2008 two witnesses, Z. and M., stated respectively that they had seen the applicant on 28 August 2007, shortly before his arrest, that he had been dressed tidily and had had no injuries on his body or blood stains on his clothes. They had later seen him being escorted by two police officers to a police car, the applicant had acted calmly, his clothes had been tidy and no physical force had been applied to him. A similar statement was made by the witness B. 42. On 14 November 2008 the investigator decided to suspend the proceedings for the sixth time. He relied on the results of the applicant’s forensic psychiatric examination of 28 October 2008 and therefore the impossibility for the investigation to rely on his statements, as well as the absence of eyewitnesses of the circumstances in which the applicant had received his injuries. However, on 30 December 2008 the District Court found that decision unlawful and unsubstantiated. 43. On 12 February 2009 the proceedings were resumed, only to be suspended for the seventh time on 12 March 2009 for the same reasons as given in the decision of 14 November 2008. However, on 7 April 2009 the District Court found the decision of 12 March 2009 unlawful and unsubstantiated, and on 14 May 2009 the proceedings were again resumed. 44. On 15 June 2009 the proceedings were yet again suspended. The decision said that the applicant’s statement about his alleged ill-treatment by the police officers S., K. and Ch. could not be admitted as evidence in view of the results of the forensic psychiatric examination of 28 October 2008. The applicant’s mother’s statements had derived from those of the applicant himself. There was no direct evidence proving that the applicant had sustained his injuries at the hands of S., K. and Ch. The fact that those officers had arrested the applicant and taken him to the Industrialniy ROVD had not proved that they had been involved in the alleged ill-treatment. Exhaustive measures had been taken to establish the time the applicant had sustained his injuries. The witnesses B., D. and Z., who had seen the applicant’s arrest, had stated that they had not seen the police officers use any physical force against him. 45. On 12 January 2010 the proceedings were resumed and subsequently suspended for the ninth time on 15 February 2010. The investigation established that on 28 August 2007 the applicant had been taken to the Industrialniy ROVD by Officers S., K. and Ch. The applicant had complained that those officers had beaten him after his arrest. According to the forensic medical examination of 14 February 2008, the applicant had had a closed fracture of bones in the nose and swelling of the soft tissues in the nasal area, which had been caused by the impact of a hard, blunt object and could have occurred between 26 August and 28 August 2007. The investigation had not confirmed any fact of ill-treatment of the applicant by S., K. and Ch. That was in accordance with the statements by the police officers, who had denied inflicting any injuries on the applicant, the witnesses who had seen the applicant’s arrest, the records of identification parades and other evidence. There had been no other evidence attesting directly to the fact that a crime had been committed by the police officers. In addition, the decision reiterated that the applicant’s statements could not be relied on in view of the results of the forensic psychiatric examination of 28 October 2008 and could not be a basis for bringing charges against the police officers. The mother’s statements had derived from those of the applicant and therefore could not be relied on either. 46. On 27 April 2010 the District Court found the decision of 15 February 2010 unlawful and unsubstantiated and on 1 June 2010 the proceedings were again resumed. 47. On 8 June 2010 P., an expert in psychiatry – a doctor of medical sciences and a professor – was questioned as a witness. He submitted that the conclusions of the psychiatric expert examination of 28 October 2008 on the applicant’s mental state at the time of the events in question were more consistent and reliable than those of the applicant’s previous psychiatric expert examination on 4 October 2007. 48. On 11 June 2010 the proceedings were suspended for the tenth time. The decision referred to the applicant’s arrest on 28 August 2007, his statement as to the alleged ill-treatment by the police officers S., K. and Ch., the results of the forensic medical examination of 14 February 2008 with a description of his injuries and the time they were inflicted, and the police officers’ denial of the alleged ill-treatment. 49. Proceedings were resumed on 12 July 2010. Formal confrontations were carried out between the witnesses B. and Z., Officer K. and Z., Officer Ch. and Z., the applicant and the investigator N., the applicant’s mother and N., the applicant and the police officer who had taken him from the Industrialniy ROVD to the temporary detention facility and had allegedly threatened him on their way there by warning him not to tell anyone about the beatings, and the applicant and Officer K. 50. On 19 July 2010 the proceedings were suspended for the eleventh time. The decision noted that it had been impossible to reconcile the statements of the police officers and the witnesses as to whether the applicant had had any injuries on his face at the time of his arrest. However, on 31 August 2010 the District Court found that decision unlawful and unjustified and the proceedings resumed again on 19 October 2010. 51. On 21 August 2010 another police officer, S., was questioned as a witness (the case file contains no earlier record, if any, of the questioning of S. as a witness). 52. The proceedings were again suspended on 26 October 2010, 14 January, 10 February and 17 February 2011, and resumed respectively on 12 January, 8 February, 15 February and 7 April 2012. In addition to the previously collected evidence, the decisions on suspension relied on: - statements by the investigator N.; - statements by Ts., D. and Yer., detained at the police station at the same time as the applicant; - a radiology laboratory assistant K. and the radiologist R.; - an expert, Kl., on the nature of the applicant’s injuries; - statements by Kar.; - a statement by the witness, S., who submitted that she had seen a fight between the applicant and the witness I., but that she had not seen any injuries on the applicant’s body at that time; - Kr., who submitted that she had seen no injuries on the applicant on 26 August 2007 and that when she had seen him on 1 September 2007 he had had a swollen nose. He had had no other visible injuries; - a statement by the officer on duty at the temporary detention facility, P., who called an ambulance for the applicant on 29 August 2007; - the ambulance medics who examined the applicant on 28 August and 29 August 2007, but who could not remember any circumstances of value to the investigation given the length of time since the events in question; - the neurosurgeon R., who examined the applicant on 29 August 2007 at the hospital and submitted that he could have received his injuries several days prior to the examination; - the lawyer M., present at the applicant’s questioning at the police station on 28 August 2007. Owing to the passage of time, he could not remember whether the applicant had any visible injuries or if he had told him anything about the circumstances of the alleged beatings. 53. On 10 May 2012 the proceedings were suspended for the sixteenth and last time. Taking into account the evidence that had been collected, the investigating authority came to the conclusion that the applicant had received his injuries no later than 10.37 p.m. on 28 August 2007 (the time of his examination by ambulance medics at the Industrialniy ROVD). However, it was impossible to make an objective and reliable conclusion as to the exact time and circumstances of the injuries. The results of the applicant’s psychiatric expert examination precluded the investigating authority from relying on the applicant’s submissions as evidence and there was no other evidence proving beyond doubt that his injuries had been inflicted in the circumstances he had described. In addition, the experts had arrived at the conclusion that the injury could have been caused anytime between 26 August and 28 August 2007. 54. According to the applicant, while the investigator was questioning him as a suspect on 28 August 2007, a trainee police officer, I., had taken the keys to his flat and had gone there and searched his room. A gold bracelet had allegedly gone missing after the search. 55. According to the applicant, Officers A. and B. had allegedly threatened him on the same day, warning him not to reveal that he had been beaten at the police station and to say instead that he had injured himself several days before in a fight. 56. From 2008 the applicant’s mother sought to have criminal proceedings instituted against I. and Officers A. and B. for abuse of position. 57. The investigator refused several times to institute criminal proceedings. 58. The most recent refusal to institute criminal proceedings against I. is dated 15 October 2009. On 10 December 2009 the Altay Regional Court found at final instance that the aforementioned decision was lawful and justified. It had been established that the applicant’s mother had let I. into the flat, answered his questions, and had then let him into the applicant’s room and helped him search it. It had also been established that the disappearance of a gold bracelet had been alleged long after the events complained of. For those reasons, there could not reasonably have been an expectation that the incident would be investigated. 59. The most recent refusal to institute criminal proceedings against A. and B. is dated 31 May 2010. The inquiry found no evidence to support the applicant’s allegations. There is no information in the case file as to whether the applicant challenged the lawfulness of that decision in court. 60. The applicant’s mother brought civil proceedings against the Ministry of Finance on behalf of herself and the applicant, seeking compensation for non-pecuniary damage caused by the unlawful prosecution of the applicant and the resulting medical treatment. She also sought compensation for pecuniary damage, representing the cost of the silver chain and cross which could not be recovered from the pawnshop and other costs and expenses. 61. On 10 March 2010 the District Court granted the claim in part and ordered the Ministry of Finance to pay the applicant RUB 15,000 for the non-pecuniary damage caused by his unlawful prosecution. It refused the claim for recovery of the cost of the silver chain and cross, holding that the mother, as the applicant’s legal representative, could have recovered them from the pawnshop herself. 62. On 21 April 2010 the Altay Regional Court upheld the above judgment on appeal, increasing the amount awarded in respect of nonpecuniary damage to RUB 40,000. The court further held that the applicant’s mother had failed to submit any evidence that she had asked the investigator to return the pawnshop pledge ticket and that such a request had been refused.
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test
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001-184665
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ENG
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HRV
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CHAMBER
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CASE OF S.M. v. CROATIA
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Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Trafficking in human beings);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
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Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
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5. The applicant was born in 1990 and lives in Z. Owing to problems in her family, between 2000 and 2004 she lived with a foster family. Then she moved to a public home for children and young persons, where she stayed until she completed her professional training as a waiter. 6. On 27 September 2012 the applicant lodged a criminal complaint with the Z. police against a certain T.M., a former policeman, alleging that in the period between the summer of 2011 and September of the same year he had physically and psychologically forced her into prostitution. He had given her a mobile telephone so that clients could contact her and had driven her to meet clients in various places. He had also forced her to give sexual services in the flat where they had lived together. During that whole period she had been under the control of T.M. When she had refused to give sexual services to other men, he had physically punished her. After she had left him, he had threatened her and her family and had attempted to contact her through a social-networking website. 7. The criminal record of T.M. showed that in 2005 he had been convicted of the criminal offences of pandering and rape and sentenced to six years’ and six months’ imprisonment. He was released from prison on a conditional leave in May 2009 and the conditional leave expired in June 2010. 8. The Z. County State Attorney’s Office opened an investigation in respect of T.M. On 10 October 2012, following an order by the Z. County Court, the police conducted a search and seizure of T.M.’s premises, where they found, inter alia, several pieces of automatic rifles, a number of mobile phones and condoms. 9. On 16 October 2012 the applicant gave her evidence to the prosecuting authorities. She said that T.M. had first contacted her at the beginning of 2011 through a social-networking website and that he had already known her mother and introduced himself as a friend of her parents. She had met T.M. on various occasions in cafés and she had asked him to help her in finding a job. T.M. had told her that he could find a job for her as a waitress or a shop assistant. One day at the beginning of July 2011 he had told her that he would take her to one of his friends who could help her in finding a job. When they had arrived at the house of that man T.M. had told the applicant to go to a room with him. The man had then told the applicant that he had expected sexual services from her. The applicant had said that she had not wanted to do it. That man had also told her that he had answered an advertisement on the Internet under the name Smokvica (“little fig”) and that T.M. had told him that T.M. and the applicant had been a husband and wife who “[had done] such things together”. T.M., who had been eavesdropping outside the room, had stormed into the room and started to shout at her and slap her and had then told her that she had been there with a purpose, that she should not have behaved like that. The man had secretly given her 400 Croatian kunas (HRK); when she had told T.M. about that, he had then taken that money from her. At that time she had still lived with her friend K.Č. who had no knowledge of the events at issue. T.M. had again contacted her and told her that they had needed to talk about what had happened. She had agreed to meet him but they had not discussed what had happened. A few days later T.M. had given her a mobile telephone so that clients seeking sexual services could contact her. T.M. had also told the applicant that she had had to give her physical description to men who would contact her and charge HRK 400 for half an hour of sexual services or HRK 600 for an hour, and that she had had to give half of that money to T.M. The applicant also said that she had acquiesced to all that because she had been scared of T.M. and that he had threatened to tell all to her parents. Some ten days after that T.M. had rented a flat, where the applicant and T.M. had then lived together. She had provided sexual services in that flat and on five to six occasions T.M. had driven her to clients. During the period in question she had had about thirty clients. Since T.M. had lived in the same flat with her, he had controlled everything she had been doing. When she had refused to have sexual intercourse with him or when he had been dissatisfied with the manner in which she had given sexual services to clients, T.M. had beaten her. He had beaten her every couple of days. Questioned as to why she had not contacted the police earlier, the applicant answered that she had been afraid of T.M. Once, when he had been out of the flat and had left the key, the applicant had called her friend M.I., who had known that the applicant had been giving sexual services to men for money. The applicant had asked M.I. to help her escape. After that M.I.’s boyfriend, T., had arrived by taxi, helped the applicant to collect her things and taken her to M.I.’s home. She had stayed with M.I. for about ten days. The applicant also said that T.M. had told her that he had previously had a girlfriend, A., whom he had “treated in the same way” and later on he had told her that after her, the applicant, he had had another girlfriend whom he had “helped in it”. T.M. had told the applicant that he had filmed those girlfriends and punished them when they had been “insolent”. 10. On 6 November 2012 M.I. gave her evidence to the prosecuting authorities. She said that she had never met T.M. but that the applicant was her friend and she had known her for some two years. M.I.’s last contact with the applicant, before the applicant had come to her flat, had been some eight or nine months previously. M.I. had known already at the end of 2010, beginning of 2011 that the applicant had been giving sexual services for money because the applicant had told her so. At the end of summer 2011 the applicant had suddenly come to her home with a bag containing her things. M.I. had then learned that the applicant had agreed with M.I.’s mother to come to stay with them, but did not know any details since she (M.I.) was not in very good relations with her mother. The applicant had told her about T.M., from whom she had escaped because she had no longer wished to be involved in prostitution “for him”. Before the applicant had come to her flat M.I. had not known where or for whom the applicant “did that”. Only then had M.I. learned that the applicant “had being doing it for T.M.”. The applicant had been very distressed and scared. She had told M.I. that T.M. had repeatedly beaten her; watched her through a key lock when she had been giving sexual services to clients and afterwards also beaten her for “not being in a position he had approved of”. M.I. also said that in her understanding the applicant had voluntarily given sexual services because she had needed money. The applicant had told her that she had had an agreement with T.M. to work for him and to share the money, that she had had a mobile telephone for clients to call her and that there had been a small ad through which she had been contacted for appointments by clients. The applicant had said that T.M. had given her that mobile telephone and placed the advertisement. M.I. also said that she could not remember if the applicant had told her that she had opposed T.M. It was true that the applicant had said that she had not wished to “do it” but in M.I.’s understanding that had rather meant that the applicant had been “doing it” because she had had no other means to earn money. The applicant had also told her that T.M. had slapped her for very minor reasons which she (the applicant) had not expected. When she had refused sexual relations with him T.M. would beat her and the applicant had not known what would make him “explode again”. T.M. had also told the applicant that he had had another girlfriend who had worked for him and whom he had also beaten. The applicant told M.I. that she had used the opportunity to run away from T.M. when he had been out of the flat where they had lived. M.I.’s boyfriend, T.R., had told her that he had spoken with the applicant but he had not given any details. M.I. had broken up with him a week after that but still had his address. M.I. also said that the applicant had stayed with her and her mother for several months and that T.M. had continued to contact the applicant through a social-networking website and had threatened her as well as her mother. He had also sent messages, saying that he had loved her and asking her to come back to him. 11. On 6 November 2012 the Z. County State Attorney’s Office indicted T.M. in the Z. Criminal Court on charges of forcing another to prostitution, as an aggravated offence of organising prostitution under Article 195 of the Criminal Code. 12. On 21 December 2012 the applicant was officially given the status of victim of human trafficking by the Office for Human and Minority Rights of the Government of Croatia (Vlada Republike Hrvatske, Ured za ljudska prava i prava nacionalnih manjina). On the same day the police contacted the Croatian Red Cross and its employees informed the applicant of her rights (accommodation, medical check-ups, psycho-social support, legal aid and material support). The applicant told them that she was not interested in the right to safe accommodation since she lived with her mother and sister. According to the Government the applicant contacted the Croatian Red Cross on twelve occasions between 17 January 2013 and 24 April 2015. She received psycho-social support through individual counselling and material support. The Croatian Red Cross also organised individual counselling for the applicant with a psychologist in the Centre for Cognitive-Behavioural Therapy. Further to this the applicant was provided legal aid by a non-governmental organisation, the R. Centre, within the legal-aid scheme supported by the State. 13. The summons served on the applicant contained detailed information on her rights as a victim, such as psychological and practical support and of the possibility to contact the Department for Organising and Providing Support for Witnesses and Victims within the Z. Municipal Criminal Court. Contact details of that Department were also provided. 14. At hearings held on 13 January and 15 February 2013 T.M. gave his evidence. He denied that he had forced the applicant into prostitution. He confirmed that he had contacted the applicant through a social-networking website because he had recognised her surname since he had known her parents. He had also known that the applicant’s mother had been a prostitute. T.M. and the applicant had started to see each other and the applicant had told him that she had had no money and needed a job and that she had some debts. The applicant had also told him that previously she had given sexual services for money and had kept telephone numbers of her clients and asked him whether he could take her sometimes to those clients, which he had done. He confirmed that he had been in a relationship with the applicant during that time. However, he had not lived with her in the flat she had rented but only sometimes spent a night there. He had had the keys of that flat and the applicant had had them as well and she had been free to come and go as she liked. He had also been in the flat on some of the occasions when the applicant had given sexual services there. He had known that the applicant had charged HRK 400 for half an hour and HRK 600 for a full hour but these prices had been set by her and not him. Initially he had lent her some money and from that sum she had bought a mobile telephone on which clients could contact her. Later on she had returned the money she had borrowed from him. She had also given him some money even though he had been reluctant to take it but she had insisted telling him that it had been for petrol. However, it had mostly been he who had given money to the applicant because she had constantly complained that she had had no money. He admitted that he had slapped the applicant once when they quarrelled about her refusal to work in a bakery. He also said that he had found her a job in a restaurant but that after he had told her about it she had disappeared. 15. Both the applicant and M.I. gave their evidence at a hearing held on 29 January 2013. A lawyer was provided to the applicant by the R. Centre. Before giving her evidence the applicant told the trial court that she feared the accused. The accused was then removed from the courtroom and the applicant gave evidence in his absence. 16. The minutes of that hearing indicate that the applicant repeated her statement given on 16 October 2012 (see paragraph 9 above) and also said that T.M. had told her that he had been a former policeman and together with her father in the war. Her father had confirmed that and had said that T.M. was “an okay person”. Her mother on the other had told her that he was not a reliable person. After the first time T.M. had driven her to give sexual services to another man, she had sat in the backseat of his car. T.M. had been very angry and had been nagging her and at one moment he had stopped the car and slapped her. She had exited the car, attempting to run away but he had caught up with her and taken her back to the car. She had agreed to meet him the next day because he had told her that they would discuss what had happened but they had not. She had been afraid of him and for that reason had agreed to give sexual services to other men and also because he had threatened her that he would “tell all” to her parents and that he would “cram her mother into prison”. T.M. had found the flat to rent, but the applicant had signed the contract and paid the rent for the flat. She had not had the keys to that flat. Even though on three to four occasions he had allowed her to leave the flat alone to go to a nearby shop, she had not dared to flee because T.M. had followed where she had been going from the balcony and she had been scared of him. He had set some rules for her: she had been forbidden to talk with the clients; the clients had not been able to touch her; and she had been allowed to give sexual services only in the manner ordered by T.M. When she had refused to have sexual intercourse with him or when he had been dissatisfied with the manner in which she had given sexual services to clients, T.M. had beaten her. Questioned again as to why she had not contacted the police earlier, the applicant said that T.M. had told her that he had “connection” at the police and that he would very soon learn if she reported “anything”. Questioned as to why she had not attempted to run away when T.M. had driven her to the clients the applicant said that she had been sure that T.M. would have found her and that she had been allowed to stay with the clients for exactly twenty-nine minutes. When the applicant had called her friend M.I., who had known that the applicant had been giving sexual services to men for money, the applicant had asked M.I. to help her escape. She had also spoken with M.I.’s mother. T.M. had continued to contact her through a social-networking website, at first sending her love messages and then threatening to tell all to her parents. Then T.M. had sent a letter to the authorities, accusing the applicant’s mother of neglecting the applicant’s younger sister. Her mother had been asked to come to a police station on that account. The applicant had then decided to contact the police. The applicant also explained that she had been very much scared of T.M., that she had feared for her life because he had threatened to “beat her to death”. T.M. had also threatened her with publishing naked photographs of her. She had agreed to being photographed because she had been scared of him. T.M. had also told her that as a former policeman he had known a lot of policemen and if she had reported him he would have fabricated stories about her. Later on she had learned from her mother that T.M. and her mother had lived together for a while and that a former girlfriend of T.M. had reported him to the police for forcing her to give sexual services to other men. 17. M.I. repeated her statement given before the prosecuting authorities (see paragraph 10 above). 18. On 15 February 2013 the Z. Criminal Court acquitted T.M. on the grounds that although it had been established that he had organised a prostitution ring in which he had recruited the applicant, it had not been established that he had forced her into prostitution. However, he had only been indicted for the aggravated form of the offence at issue and thus he could not be convicted for the basic form of organising prostitution. In finding this, the trial court in particular noted that it could not give sufficient weight to the applicant’s testimony because her statement had been incoherent, she had been unsure and that she had paused and hesitated when speaking. At the same time, given that there was no other conclusive evidence, it applied the in dubio pro reo principle and acquitted T.M. The relevant part of the first-instance judgment reads: “On the basis of the evidence given by the accused and the victim in these criminal proceedings the following facts have been established: that the accused and the victim met through the social network Facebook when the accused contacted the victim; ... that the accused gave a mobile telephone to the victim so that she could be contacted by the clients with whom she discussed providing sexual services; that the victim indeed did provide sexual services in the flat where she lived with the accused; that on five or six occasions the accused drove the victim to the addresses of clients where she provided sexual services; that the victim charged for providing sexual services the sum of HRK 400 for half an hour and the sum of HRK 600 for an hour ...” 19. The State Attorney’s Office appealed against this decision, arguing that the first-instance court had erred in its factual findings concerning the charges against T.M. when it did not accept the applicant’s testimony. 20. On 21 January 2014 the Z. County Court dismissed the appeal of the State Attorney’s Office and upheld the first-instance judgment, endorsing its reasoning as well as the facts as established by the trial court. That decision was served on the applicant on 28 February 2014. 21. On 31 March 2014 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining about the manner in which the criminal-law mechanisms had been applied in her case. She relied on Articles 14, 23, 29 and 35 of the Constitution (see below paragraph 23) and Articles 3, 6, 8 and 14 of the Convention. In particular, she alleged that the national authorities had not properly investigated and addressed the element of force. Also, owing to the failure of the authorities to reclassify the offence, T.M. had not been convicted of any offence, to the applicant’s detriment. She further stressed that she had not been provided with any psychological help or assistance during the court hearing to help cope with the fear and pressure she had felt from T.M. while testifying, which all resulted in her testimony being regarded as incoherent by the trial court. The applicant also alleged a failure of the authorities to secure effective respect for her private life in particular through the domestic court’s inadequate assessment of all the relevant circumstances in which she had been recruited to T.M.’s prostitution ring. 22. On 10 June 2014 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the applicant had not had the right to bring a constitutional complaint concerning the criminal proceedings against T.M. since these proceedings had concerned a criminal charge against him. The decision of the Constitutional Court was served on the applicant’s representative on 1 July 2014.
| 1 |
test
|
001-159807
|
ENG
|
NLD
|
CHAMBER
| 2,016 |
CASE OF S.D.M. AND OTHERS 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
|
5. The applicants were born in 1969, 1975 and 2002 respectively. They have been residing in the Netherlands since 1996. 6. The first applicant entered the Netherlands and applied for asylum on 10 March 1996, submitting the following account to the immigration authorities. He stated that he was a single Afghan national of Tajik origin, that he had never joined a political party, and that he had worked from 1988 to 1992 for the Afghan security service Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati (“KhAD/WAD”) of the former communist regime in Afghanistan. 7. In 1988 he had reported for compulsory military service. In response to his request to be posted close to home, he had been assigned to the KhAD/WAD in Herat. After his basic training, which had lasted three months, he had started to work for Department 5 of the KhAD/WAD in Herat, which – under President Najibullah’s national reconciliation policy sought to establish peaceful relations with the mujahideen and their reintegration into Afghan national institutions – did not combat the mujahideen opposition but sought to try to negotiate with and persuade mujahideen groups to conclude peace agreements. These agreements entailed remunerated cooperation with the ruling communist People’s Democratic Party of Afghanistan (“PDPA”). 8. In the first year and as a conscript, he had performed guard duties and certain administrative tasks, such as making propaganda posters for the PDPA’s national reconciliation policy, taking minutes of meetings, copying information from reports into books to be held in the central archives, and collecting and recording neighbourhood reports. 9. After having worked for a year for the KhAD/WAD as a conscript, he had agreed to become a professional soldier. He had been appointed to the rank of Second Lieutenant (“Doham Bridman”). His activities had consisted mainly of administrative duties relating to the processing of information gathered by more senior officers about mujahideen commanders. He had worked for the KhAD/WAD until April 1992, when he left work after the communist Najibullah regime was overthrown by the mujahedin. Shortly after they had seized power, the mujahideen proclaimed an amnesty for persons who had worked for the KhAD/WAD. He had returned to work, had been given other tasks and had worked for the mujahideen until 18 or 19 January 1996, when the Taliban seized power in Herat. Until that moment, Herat had been governed by a commander who, like the applicant, was of Tajik origin. One day after the arrival of the Taliban in Herat in the second half of January 1996 and fearing for his life, the first applicant had fled to Turkmenistan from where he had travelled by air to the Netherlands. 10. On 12 September 1996, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the asylum claim then made by the first applicant, holding that he had failed to establish personal circumstances warranting a decision to grant him asylum. The mere fact that he belonged to the Tajik ethnic minority did not suffice in that respect. Although the Deputy Minister acknowledged that it was not unlikely that former KhAD staff members might experience problems from the new Government in Afghanistan, she found this not to be the case as regards the first applicant, as he had continued working for the Afghan authorities during the rule of the mujahideen from 1992 to 1996 without experiencing any problems. The Deputy Minister further considered it unlikely that the Taliban were or would become aware of the first applicant’s past professional activities for the former communist regime. 11. The Deputy Minister of Justice did, however, grant the first applicant a conditional residence permit (voorwaardelijke vergunning tot verblijf), valid for one year from 10 March 1996, on the basis of the unabated bad situation (“onverminderd slechte situatie”) in Afghanistan. 12. On 11 October 1996, the first applicant submitted an objection (bezwaar) to the Deputy Minister against the decision to reject his asylum request. On 11 December 1996, the Deputy Minister rejected the objection. Although the first applicant could have appealed to the Regional Court (rechtbank) of The Hague, he did not do so. 13. On 4 June 1998, the first applicant made a second asylum claim, which pursuant to article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht) had to be based on newly emerged facts and/or altered circumstances (“nova”) warranting a reconsideration of the initial refusal. The new elements on which the first applicant based his fresh asylum request were his relationship with a woman in 1993 in Afghanistan out of which a child might have been born, his past work for the KhAD, and various documents, including a copy of a judgment handed down in October/November 1995 in which a Taliban Islamic Court in Herat - in proceedings held in absentia – had convicted the first applicant and seven others of conspiracy against the Taliban and sentenced them to death. For identification purposes, photographs of the convicts, including the first applicant, were appended to this judgment. The first applicant had only learned about the existence of this judgment on 26 November 1997, thus after his flight from Afghanistan, when his mother had sent him the judgment by mail from Iran, where she had gone for medical reasons. The first applicant did not know how or when his mother had obtained the judgment, but he assumed that it had been put up around his neighbourhood at some point in time, as local custom prescribed. The first applicant had also been informed, in a letter from his mother, that his brother had been captured and tortured in order to locate him. The first applicant further submitted on 11 September 1998 a detailed written account of his activities for the KhAD. 14. Meanwhile, in March 1999, the situation in Afghanistan not having sufficiently improved, the first applicant’s conditional residence permit was ex lege converted into an indefinite residence permit after he had held it for a period of three years. 15. In her decision of 28 February 2001, after the first applicant had been interviewed again by the immigration authorities during which he stated inter alia that he had held the rank of First Lieutenant in the KhAD, the Deputy Minister rejected the first applicant’s second asylum claim and, considering that there were serious reasons for believing that the first applicant was guilty of acts referred to in Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees (the 1951 Refugee Convention), applied this asylum exclusion clause. 16. Referring to an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether, and if so which, former employees of those services should be regarded as implicated in human rights violations (see A.A.Q. v. the Netherlands (dec.), no. 42331/05, §§ 50-52, 30 June 2015), the Deputy Minister emphasised the widely known cruel character of the KhAD/WAD, its lawless methods, the grave crimes it had committed such as torture, murder, arbitrary executions and other human rights violations, and the climate of terror which it had spread throughout the whole of Afghan society, including the army. 17. Having established, on the basis of elaborate argumentation based on various international documents, that those involved in the KhAD/WAD were likely to fall within the scope of Article 1F of the 1951 Refugee Convention, the Deputy Minister proceeded to an analysis of the first applicant’s individual responsibility under that Convention. She noted that the KhAD/WAD 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, newly recruited officers were initially placed in departments of the KhAD/WAD specifically responsible for investigating “elements of State security”, where – in order to prove their loyalty unequivocally – they were directly involved in the human rights violations. In the light of the above, and noting that KhAD’s Directorate 5, for which the first applicant had worked in Herat, had two interrogation centres in Kabul, the first 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. The Deputy Minister dismissed the first applicant’s claim that he had only performed tasks of an administrative nature. The Deputy Minister found, on the basis of the first applicant’s statements, that he had actually been involved in activities of an operational nature: persuading enemies of the regime to cooperate by accompanying his superiors on field missions and taking minutes of meetings that had taken place between the KhAD and those enemies, namely the mujahideen. The Deputy Minister did not attach credence to the first applicant’s claim that he had been ignorant of the human rights violations committed by the KhAD/WAD. In this regard it was held that the first applicant had worked directly for the commanders in chief of his Directorate and had accompanied them on field missions. It was therefore highly implausible that he would have had no knowledge whatsoever of the human rights violations for which the KhAD/WAD was responsible. The Deputy Minister held that it should be concluded from the first applicant’s functions and work effected for the KhAD/WAD that he had been specifically implicated in the human rights violations committed by the KhAD/WAD. 18. The Deputy Minister underlined that the application of Article 1F of the 1951 Refugee Convention did not require proof of personal commission by the first applicant of the alleged crimes; it sufficed that serious reasons existed to consider that the first applicant had, or should have had, knowledge of those crimes and that he bore responsibility for them, which responsibility he had voluntarily assumed. Accordingly, Article 1F of the 1951 Refugee Convention was held against the first applicant, and as a consequence his application for a residence permit for asylum purposes was denied. 19. The Deputy Minister also revoked the first applicant’s residence permit, which he had obtained by the Deputy Minister’s decision of 12 September 1996. It was held in this regard that the first applicant had not given a correct and full insight into his past activities, which, had he done so, would have stood in the way of issuing him the residence permit he had been granted. 20. The Deputy Minister further requested the Public Prosecutor’s Office (Openbaar Ministerie), by letter of 28 February 2001, to examine the possibilities of prosecuting the first applicant in the Netherlands for the crimes imputed to him on the basis of Article 1F of the 1951 Refugee Convention. The Deputy Minister sent another letter to the same effect on 12 February 2003. No further information about the follow-up to these letters has been submitted. 21. On 27 March 2001, the first applicant submitted an objection (bezwaar) to this decision. On 20 December 2002, the first applicant was heard on his objection before an official board of enquiry (ambtelijke commissie). On 12 February 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) rejected the objection. The Minister upheld the Deputy Minister’s previous decision and proceeded, in addition thereto, to an analysis of the first applicant’s individual responsibility under the 1951 Refugee Convention on the basis of the prescribed and so-called “knowing and personal participation test”. 22. As regards the “knowing” element, the Minister found, relying on the aforementioned official report of the Ministry of Foreign Affairs, that the first applicant had known or should have known about the criminal character of the KhAD/WAD. Basing himself on the Aliens Act Implementation Guidelines (Vreemdelingencirculaire), the Minister held that, according to a letter of the Deputy Minister of Justice of 3 April 2000, knowing participation was in principle to be assumed in cases of persons who had worked for certain categories of organisations, to which the KhAD/WAD belonged. Having regard to the official report of 29 February 2000 (see paragraph 17 above) and other international materials, the Minister considered that the systematic and large-scale commission of human rights violations by KhAD/WAD under the PDPA’s rule was a fact of common knowledge and that therefore the first applicant could not have been ignorant of those acts. The first applicant’s argument that, given his low rank, he had had no knowledge of and could not be held responsible for human rights violations attributed to the KhAD/WAD, was thus not accepted by the Minister, who emphasised that the first applicant had declared that everyone had feared the regime and that he had successfully found an administrative post during his mandatory military service. The Minister found that, by admitting to the ubiquitous fear of the regime, the first applicant had admitted to having known of atrocities committed by that regime. As regards the first applicant’s personal participation in human rights violations attributed to KhAD, the Minister found that he had failed to establish that he had not committed the alleged crimes himself or that his conduct, by act or omission, had prevented those crimes from being committed. The Minister held, therefore, that the first applicant had personally participated in the crimes imputed to him. 23. Although the Minister considered that it could not be ruled out that the first applicant would run a risk of treatment contrary to Article 3 of the Convention if he were expelled to Afghanistan, it was nevertheless held that he was under an obligation to leave the Netherlands. 24. The Minister lastly found that the first applicant was not eligible for a residence permit under the three-year policy (this was a policy entitling asylum-seekers to a residence permit if their asylum requests had not been finally determined within three years, provided that there were no contraindications such as, for instance, a criminal record) as Article 1F of the 1951 Refugee Convention had been held against him, which constituted a contraindication. 25. The first applicant’s objection to the refusal to grant a residence permit under the three-year policy was rejected by the Minister on 17 April 2003. 26. Meanwhile, the second applicant had joined the first applicant in the Netherlands. She was granted a residence permit for the purpose of residing with her husband on 30 March 2000, thus at a time when the first applicant still held his provisional residence permit. 27. On 16 March 2001 the Deputy Minister of Justice also revoked the second applicant’s residence permit, as it was linked to the first applicant’s residence permit, which had been revoked. The second applicant submitted an objection to this decision. The Minister of Immigration and Integration rejected the second applicant’s objection on 12 February 2003. Meanwhile, on 8 November 2002, the second applicant had given birth to the third applicant. 28. Both the first and second applicants appealed to the Regional Court (rechtbank) of The Hague against the decisions taken against them, namely, as regards the first applicant, the Minister’s decisions of 12 February and 17 April 2003 and, as regards the second applicant, the Minister’s separate decision of 12 February 2003. 29. The Regional Court joined both applicants’ appeals and, in its judgment of 26 May 2005, agreed with the Minister’s decision and underlying reasoning to hold Article 1F of the 1951 Refugee Convention against the first applicant and the consequential decisions to revoke the residence permits held by the first and second applicants. However, as regards Article 3 of the Convention and with reference to case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State, it held that the Minister should, wherever possible, avoid creating a situation in which an asylum seeker was refused a residence permit but could not be expelled to his or 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 all decisions appealed against as regards both the first and second applicants, and remitted the case to the Minister in order for her to take a fresh decision. 30. On 12 October 2005, in accordance with the court’s judgment and after the first applicant, in view of the changed situation in Afghanistan, had been heard once more before an official board of enquiry on 24 August 2005, the Minister took a fresh decision on the objections submitted by the first and second applicants. She maintained her decisions that Article 1F should be held against the first applicant and that both applicants were accordingly ineligible for a residence permit. 31. As regards Article 3 of the Convention, the Minister noted that, according to an official report on Afghanistan issued by the Netherlands Ministry of Foreign Affairs in July 2005, certain categories of former officials – who were identified with human rights abuses committed during the communist regime, including KhAD officials – continued to be at risk in Afghanistan, not only from current power holders but more so from the population (families of victims) and the mujahideen, unless they enjoyed protection by virtue of good contacts with influential Islamic and political parties and/or tribes. To determine the level of risk, the official report enumerated a set of factors which would need to be balanced in each individual case: the extent to which the person in question was likely to be identified with communist ideology, his or her rank in the former regime, and the existence of any ties which family members might have with the former communist regime. The Minister noted that mere membership of the PDPA did not suffice to establish a real risk of being subjected to treatment in breach of Article 3 of the Convention. 32. The Minister went on to hold that the first applicant had not attracted the particular attention of any groups or individuals in the period prior to the coming to power of the Taliban. The Minister underlined in this regard that, after the fall of the PDPA regime, the first applicant had easily obtained a job in the local police headquarters for the mujahideen governor of Herat, Ismail Khan, who was currently the Minister for Energy in Afghanistan. 33. As regards the first applicant’s fear of the Taliban, the Minister held that the general situation in Afghanistan had improved since 2004 and that any Taliban insurgents were concentrated mostly in areas outside Herat. As to the first applicant’s fear of execution of the death sentence pronounced against him by the Taliban, the Minister held, basing herself on the most recent official report of the Netherlands Ministry of Foreign Affairs, that the population register, which had already been inaccurate, had not improved during Taliban rule due to illiteracy or a lack of interest in maintaining it. Furthermore, many courts of law had been destroyed during armed conflict. It was, therefore, not likely that the present authorities would be aware of the judgment against the first applicant. Moreover, judgments delivered under the Taliban rule were not executed without prior verification by a court of law of their compliance with current Afghan law. In this light the Minister did not attach much credence to the first applicant’s submissions that his mother had not been allowed to collect her possessions in Afghanistan due to her son’s conviction by the Taliban court. In addition, the Minister considered that it was unlikely that the first applicant would again be sentenced to death by Afghanistan’s present courts, in view of the fact that the conviction had been based on an alleged conspiracy against the Taliban. The first applicant’s submission that his being branded an infidel in the judgment could still have value before today’s Afghan courts was dismissed by the Minister, who found that, under the Taliban regime, the mere denunciation of the Taliban government in itself already constituted infidel status. 34. The Minister further noted, basing herself on a person-specific official report (individueel ambtsbericht) issued by the Ministry of Foreign Affairs on the first applicant on 19 September 2005, that in 1999 he had obtained an Afghan passport through Afghanistan’s diplomatic representation in the United Kingdom. Since the United Kingdom had not recognised the Taliban as Afghanistan’s lawful government, the Afghan embassy in the United Kingdom still represented the Government of President Burhanuddin Rabbani, who had been president from 1992 to 1996, thus until the capitulation of Kabul to the Taliban. The Minister took note of the fact that Mr Rabbani’s political party, the Jamiat-e-Islami, was currently well represented in the present Afghan Government. As the first applicant had successfully applied for a passport from an embassy represented by that party, the Minister held that he could not have come to Jamiat-e-Islami’s negative attention. Moreover, the passport had been issued more than three years after the death sentence had been handed down. In addition, as it did not appear that the first applicant had converted to another religion or had in other ways offended Islam, the Minister did not find it likely that he would be deemed an infidel again in today’s Afghanistan. 35. As regards the first applicant’s identification in present-day Afghanistan with communist ideology, the Minister’s finding that this did not pose him any problems during the mujahideen rule over the country led to the conclusion that he was unlikely to encounter such problems in the future. Furthermore, the first applicant had not made any mention, in the course of the interviews held with him, of any ties that members of his family may have had to the communist regime, nor of any problems he expected to encounter upon return as a result of any such ties. 36. The Minister therefore concluded that the first applicant had not demonstrated that he would be exposed to a real of being subjected to treatment contrary to Article 3 of the Convention if returned to Afghanistan. 37. The appeal by the first and second applicants was rejected on 18 August 2006 by the Regional Court of The Hague sitting in Arnhem. It concurred with the Minister on all points. No further appeal lay against this decision. 38. On 11 June 2008, after the first and second applicants’ separation and divorce, the second and third applicants submitted a fresh asylum request, which was granted on 10 March 2009, based on the position that the second applicant, as a single woman, and her child would find themselves in on returning to Afghanistan.
| 0 |
test
|
001-167240
|
ENG
|
SVN
|
ADMISSIBILITY
| 2,016 |
ŠUBINSKI v. SLOVENIA
| 4 |
Inadmissible
|
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
|
The applicant, Mr Goran Šubinski, is a Slovenian and Croatian national who was born in 1971 and is currently serving a prison sentence in Dob pri Mirni. He was represented before the Court by Mr Ž. Klun, a lawyer practising in Ljubljana. 1 2. On 14 April 2003 the applicant was arrested and remanded in custody on suspicion of having committed a criminal offence. The investigating judge of the Murska Sobota District Court ordered him to be placed in pre-trial detention in the remand section of Murska Sobota Prison, where he remained until a final decision was delivered in his case on 17 March 2005. 3. On 12 March 2005 the applicant attempted to escape from detention. In the early hours of the morning, he caused a flood in his cell by damaging the pipe under the sink. Two prison officers came to turn the water off, with one of them setting about repairing the leak and the other standing at the cell door. The applicant sprayed them both with pepper spray, stabbed one of them with a piece of wire from a coat hanger and attempted to push past them and get out of the cell. However, the prison officers managed to restrain him and prevented him from escaping. The prison officer who was stabbed sustained minor injuries. 4. On 14 March 2005 the Murska Sobota Prison administration informed the Murska Sobota District Court about the applicant’s attempted escape. 5. On 15 March 2005 the president of the pre-trial panel of the Murska Sobota District Court found the applicant guilty of making an item intended to be used as a weapon in an attack and of having physically attacked a prison officer. The applicant had thereby committed disciplinary breaches referred to in the first and second points of the second paragraph of section 213.c of the Criminal Procedure Act (see paragraph 22 below). 6. The president of the pre-trial panel punished the applicant by prohibiting his visits and correspondence for a period of two months. 7. On 17 March 2010 the Murska Sobota District Court found the applicant guilty of attempted escape and of an attempt on the life of the prison officer who was stabbed with the wire. He was convicted of attempted escape and attempted murder and sentenced to nine and a half years’ imprisonment. 8. At the trial, the applicant objected that the institution of the criminal proceedings had violated the principle of ne bis in idem. However, the court held that the disciplinary sanction that had been imposed on him had not excluded prosecution under the rules of criminal procedure. According to the district Court, the principle of ne bis in idem would only be violated if the provisions concerning a disciplinary breach entirely coincided with the elements of a criminal offence, which was, however, not the case in the applicant’s situation. Namely, the elements of the disciplinary breaches that the applicant had been found to have committed were not entirely equivalent to the elements of the criminal offences of attempted murder and attempted escape which were examined in the criminal proceedings. 9. The applicant appealed against the judgment, arguing, inter alia, that the criminal trial had amounted to a violation of the ne bis in idem principle. 10. On 9 December 2010 the Maribor Higher Court granted the applicant’s appeal in so far as it related to the nature and legal classification of the offences he had committed and remitted the case to the district court for reconsideration, instructing the lower court to establish the facts more thoroughly. However, the higher court dismissed the applicant’s complaint of double jeopardy, confirming the view of the lower court that the sanction imposed under the rules of disciplinary procedure did not exclude the prosecution of the applicant on criminal charges. The applicant had not been convicted of a criminal offence in the disciplinary proceedings, but merely of two breaches of disciplinary rules. That meant, therefore, that the matter brought before the criminal court had not yet been resolved. 11. In the course of the retrial, the applicant asked for a different panel of the Murska Sobota District Court to consider his case because the panel that had delivered the first judgment had already taken a position on his guilt. 12. On 26 January 2011 a newspaper published an article saying that the applicant would be tried before the same panel as in the previous set of first-instance proceedings because the president of the Murska Sobota District Court had dismissed the applicant’s application for a different one. 13. On 27 January 2011 the president of the Murska Sobota District Court dismissed the applicant’s application for the retrial to be held before a different panel with the reasoning that there existed no statutory grounds for disqualifying the judges who had participated in the first set of proceedings. The fact that they had already pronounced themselves on the issues concerned did not in itself imply that their impartiality was compromised and that the retrial would not be conducted fairly. The president noted that the Maribor Higher Court had quashed the first-instance judgment owing to a failure to fully establish the facts concerning the applicant’s intent to murder the prison officer he had stabbed in the back, which required additional evidence to clarify the matter. Accordingly, a new evaluation of fresh evidence was to be made in the case. In the president’s opinion, there were no indications that such an evaluation could not be made in a fair and impartial manner by the judges who were already acquainted with the case. 14. On 14 February 2011 the applicant’s counsel requested an explanation from the president of the Murska Sobota District Court of how it had been possible, in the absence of any press conference, for the newspaper to obtain information about the dismissal of the applicant’s application before a formal decision had been issued. 15. On 11 March 2011 the president of the Murska Sobota District Court replied to the applicant’s counsel that decisions on parties’ procedural motions were taken by him personally, while the drafts were prepared by the district court’s legal advisers on his instructions. The president further stated that he had interviewed the staff working on the applicant’s case, but had not obtained any relevant information. He had also contacted the journalist who had written the article in question, who had explained that it had been based on his experience and expectations. 16. On 18 May 2011 the Murska Sobota District Court delivered a new judgment finding the applicant guilty of attempted escape and of stabbing the prison officer in the back with a coat hanger wire in order to facilitate his escape, causing him minor injuries. The applicant was convicted of attempted escape under Article 294 in conjunction with Article 22 of the Criminal Code and of causing minor bodily harm under Article 133 of the Code. He was sentenced to two years and five months’ imprisonment. 17. The applicant again appealed against the judgment, arguing that the ne bis in idem principle had been violated by the institution of criminal proceedings against him. He also alleged that he had only committed one criminal offence, namely attempted escape under Article 294 of the Criminal Code. In the applicant’s opinion, the infliction of minor bodily harm had been a lesser offence incorporated into the definition of “force”, constituting one of the elements of the criminal offence of escaping from custody (see paragraph 23 below). In that connection, the applicant relied on the Commentary to the Criminal Code, stating that if an individual escaping from custody used force which resulted in grievous bodily harm or murder, the offence of escape from custody was merged into either of the more serious offences. 18. On 22 May 2012 the Maribor Higher Court granted the applicant’s appeal in part, reducing his sentence to one year and two months’ imprisonment. However, the applicant’s complaint of double jeopardy was dismissed. Moreover, as regards the applicant’s view that the injuries he had inflicted on the prison officer should be incorporated into the criminal offence of escape from custody, the higher court took the view that only such force as did not reach the threshold of minor bodily harm could be incorporated into the criminal offence of escape from custody. The higher court added that the merging of offences was only applied when the offence of escape from custody was absorbed by the more serious offences of bodily harm. 19. The applicant lodged a request for the protection of legality (an extraordinary legal remedy) with the Supreme Court, reiterating, inter alia, the complaints of double jeopardy and that minor bodily harm should be incorporated into the offence of escape from custody. 20. On 8 November 2012 the Supreme Court dismissed the applicant’s request for the protection of legality, confirming the view of the lower courts that a final decision delivered in disciplinary proceedings did not preclude bringing criminal charges against him. The disciplinary sanction could not be equated with a criminal sentence and, moreover, section 213.c of the Criminal Procedure Act did not exclude prosecution for acts defined as disciplinary breaches. Further, as regards the alleged requirement to incorporate minor bodily harm into the description of the criminal offence of escape from custody, the Supreme Court reiterated the view of the Maribor Higher Court that the facts at issue had constituted two separate criminal offences because the use of force at the threshold of minor bodily harm was not absorbed by the offence of escape from custody. The applicant lodged a constitutional complaint with the Constitutional Court. 21. On 28 March 2013 the Constitutional Court found the applicant’s constitutional complaint inadmissible. 22. Disciplinary matters regarding pre-trial detainees are regulated by section 213.c of the Criminal Procedure Act, which provides as follows: “(1) Detainees may be disciplined for disciplinary breaches. The investigating judge or the president of the [pre-trial] panel may impose a disciplinary sanction. (2) Disciplinary breaches are: – physical attacks on other detainees, prison officers or other official persons; – the production, acceptance or introduction into the facility of items intended for an attack or escape; – introduction into the facility and production of alcoholic beverages and narcotics and their distribution, – violations of the regulations on safety at work, fire safety, explosions and other natural disasters, – repeated violations of the internal rules of the facility, – causing serious material damage intentionally or through serious negligence, – insults and undignified behaviour. (3) For disciplinary breaches, a prohibition of or restrictions on visits and correspondence may be imposed. Restrictions on or the prohibition of visits shall not apply to visits by defence counsel, doctors, the human rights ombudsman and diplomatic and consular representatives of the country of which the detainee is a citizen. (4) Complaints may be lodged with the panel (sixth paragraph of section 25) against the decision on punishments imposed under the first paragraph of this section within twenty-four hours of receipt thereof. The appeal shall not stay the execution of the decision.” 23. The relevant provisions of the Criminal Code concerning attempted criminal acts and the offences of minor bodily harm and escape from custody provide as follows: “(1) Anybody who intentionally initiated a criminal offence but did not complete it shall be punished for an attempted criminal act, provided that such an attempt involved a criminal offence for which a sentence of three years’ imprisonment or a heavier sentence may be imposed under statute; attempts to commit any other criminal offence shall be punishable only when so expressly provided for by statute. (2) A perpetrator who attempted to commit a criminal offence shall be punished within the limits prescribed for such an offence or the sentence shall be reduced, as the case may be.” “(1) Whoever inflicts bodily harm on another person resulting in the temporary weakness or impairment of an organ or part of his body, his temporary inability to work, the impairment of his appearance or temporary damage to his health shall be punished by a fine or by imprisonment for not more than one year. (2) If the injury under the preceding paragraph has been inflicted by means of a weapon, dangerous tool or any other instrument capable of causing serious bodily harm or grave damage to health the perpetrator shall be sentenced to imprisonment for not more than three years. ...” “Whoever, by force or threat of imminent attack on life or limb, escapes from a penal institution or detention centre shall be sentenced to imprisonment for not more than three years.”
| 0 |
test
|
001-146671
|
ENG
|
UKR
|
CHAMBER
| 2,014 |
CASE OF VENIAMIN TYMOSHENKO AND OTHERS v. UKRAINE
| 3 |
Preliminary objection dismissed (Article 34 - Victim);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
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Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
|
6. At the material time the applicants were employed by the CJSC “AeroSvit Airlines” (“AeroSvit”) as aircraft cabin crew. 7. As confirmed, in particular, by the minutes of the trade union’s constituent assembly of 2 July 2003, all the applicants were members of the company’s trade union. Mr Tymoshenko was its chairman. 8. On 16 February 2011 the National Mediation and Reconciliation Service (“the NMRS”) registered a collective labour dispute between the employees and the management of AeroSvit. The employees’ demands concerned, in particular, the following issues: repairs to the aircraft electronic catering and air-conditioning equipment; enhancing the safety of on-flight technical processes; salary payments to be made no later than three days before a period of leave; full and timely salary payments twice per month; a 3% pay rise and recalculation of salaries for 2009 and 2010; salary payment on the basis of the exchange rate of the US dollar and the Ukrainian hryvnia as established by the National Bank of Ukraine, with salaries to be recalculated from 2008; recalculation of long-service bonuses; ensuring transportation of aircraft cabin crew to and from the airport; establishing a USD 50 per diem allowance for all foreign flights; uniform cleaning and ironing to be at the employer’s expense; allocation of at least 0.3% of the salary budget for cultural and sporting events; awarding employees a bonus of 3.23% from the 2008 profits; and inflation adjustment of salaries if payment was delayed, with effect from December 2008. 9. On 16 March and 12 April 2011 the NMRS deregistered some of the employees’ demands, noting that they had been resolved, with reference to decisions of the reconciliation commissions of 28 February, 10 and 30 March 2011. 10. On 27 May 2011 the NMRS Labour Arbitration Court delivered its decision on the employees’ remaining demands, following a hearing in which representatives of both parties participated. It found most of the demands to be legitimate and directed the employer to comply with them. 11. In the absence of any compliance measures, AeroSvit cabin crew, including the applicants, decided to embark on industrial action. 12. On 9 September 2011 the general meeting of AeroSvit employees, seeking resolution of the labour dispute, announced a strike of 150 aircraft cabin crew members. The strike was due to start on 28 September 2011 and continue until the employees’ demands were fully met. The announcement specified that all foreign flights which began prior to the beginning of the strike would be completed. The meeting appointed a strike committee of six persons (including all of the applicants except Mr Pushnyak, who, however, attended the meeting and voted in favour of the strike). The committee was vested with the following powers: to conduct negotiations on behalf of the employees with the company’s management and State authorities; to draw attention to the strike in the mass media; to receive information from the company’s management on compliance with the employees’ requirements; to initiate and participate in a reconciliation commission; to organise and conduct meetings and pickets in support of the demands put forward; to sign agreements with the owner or an authorised representative on resolution of the labour dispute; and to consult the NMRS. 13. By 12 September 2011 the strike committee had notified the following authorities about the decision to hold a strike: the employer, the NMRS, the Infrastructure Ministry, the State Aviation Administration, the Social Policy Ministry, the State Labour Inspection, the Parliamentary Ombudsman, as well as a number of other institutions and organisations. 14. On 19 September 2011 the management of AeroSvit lodged a claim with the Darnytskyy District Court of Kyiv (“the Darnytskyy Court”) against the flight attendants’ trade union, seeking to have the strike declared unlawful. 15. On 26 September 2011 the Darnytskyy Court held the first hearing on the case. Another hearing was scheduled for the morning of 28 September 2011. 16. The planned hearing did not take place for reasons unknown to the applicants. They later discovered that the judge had been on sick leave. 17. On 28 September 2011 the management of AeroSvit Airlines brought another claim, this time before the Boryspil City Court (“the Boryspil Court”) and against the strike committee, seeking to have the strike declared unlawful. 18. On 29 September 2011 the Boryspil Court, in written proceedings, issued an injunction prohibiting the strike committee from holding the strike pending adjudication of the employer’s claim. 19. On the same day AeroSvit’s management handed over a copy of the injunction to the trade union’s representatives. 20. On 30 September 2011 the company’s management withdrew its earlier claim from the Darnytskyy Court. 21. On 4 October 2011 the trade union challenged the Boryspil Court’s injunction of 29 September 2011 before the Kyiv Regional Court of Appeal (“the Court of Appeal”). It submitted, in particular, that the strike committee could not be a respondent in proceedings, since it was neither an individual nor a legal entity. Nor was it empowered to act in courts on behalf of the employees who had decided to go on strike. 22. On 5 October 2011 the Court of Appeal dismissed the aforementioned appeal. 23. On 6 October 2011 the Boryspil Court found that the strike would be unlawful and banned it. The court relied on section 18 of the Transport Act, which prohibited strikes at transport enterprises if they affected passenger carriage. It noted that AeroSvit was an important passenger carrier operating over eighty international routes to thirty-three counties. Furthermore, given that one of the major tasks of the aircraft cabin crew was to ensure the safety of passengers, the court considered applicable section 24 of the Resolution of Labour Disputes Act, which prohibited strikes if they were likely to endanger human life or health. It also made a general reference to Article 44 of the Constitution. 24. The trade union appealed. It reiterated the arguments of its earlier appeal of 4 October 2011 concerning the standing of the strike committee. It also argued that the first-instance court had wrongly applied the Transport Act, when it should instead have applied the Resolution of Labour Disputes Act. 25. On 22 November and 19 December 2011 respectively the Kyiv Regional Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters upheld the judgment of 6 October 2011. 26. On 20 January 2012 the Specialised Court’s final ruling was served on the strike committee.
| 1 |
test
|
001-160312
|
ENG
|
TUR
|
COMMITTEE
| 2,016 |
CASE OF KAN v. TURKEY
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
|
Jon Fridrik Kjølbro;Georges Ravarani;Ksenija Turković
|
4. The applicant was born in 1974 and lives in Bolu. At the material time he was a military official. 5. On 18 February 2011 and 24 February 2011 the applicant’s superiors imposed on him an administrative restriction for 8 days and room confinement for 5 days as disciplinary penalties. The penalties were enforced between 4 and 9 April 2011 (5 days), 11 and 14 April 2011 (3 days), 29 April and 4 May 2011 (5 days).
| 1 |
test
|
001-179216
|
ENG
|
MNE
|
CHAMBER
| 2,017 |
CASE OF ALKOVIĆ v. MONTENEGRO
| 3 |
Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
|
6. The applicant was born in 1960. He currently lives in Belgium, but at the material time lived in Podgorica, Montenegro. 7. The applicant is a Roma and a Muslim. On an unspecified date in 2006 the applicant and his family moved into an apartment in a building constructed for socially disadvantaged families. According to the applicant, because of constant attacks in which his car and the apartment were damaged, the perpetrators of which were never found, he installed a camera outside his apartment. 8. On 26 May 2009 the applicant’s next-door neighbour, Y, was watching a kickboxing match between a Montenegrin and a Bosnian contestant on television. The applicant overheard the next-door conversation as the doors of both his and Y’s (adjacent) terraces were open. When the Bosnian kickboxer appeared with his coaches, all of whom were Muslim, Y allegedly said that he would slaughter one of them, and X, another neighbour, made a disparaging reference to the Bosnian kickboxer’s Turkish descent. According to the applicant, X left Y’s apartment at a certain point and went to his car, from which he took a gun. Y said “turn it to the left”, which was the direction of the applicant’s terrace. This was followed by nine to ten gunshots, and Y’s calling out insulting references to the applicant’s “Turkish mother”. X, Y and Y’s family picked up the spent cartridges from the ground afterwards. 9. On 9 September 2009 three neighbours, V (Y’s wife), S and B, were talking on the next-door terrace. As he was on his terrace, the applicant overheard the conversation. V said that she was fighting “cockroaches, frogs, nits and lice, and all sorts of other things”, which had been brought by “those dirty gipsies” (“od ovija gabeljčina”). V continued by saying that B and S “[could] use a hammer and a pruning knife (kosijer), and [she] would use an axe”. S replied that “her [people] carried swords”. V said that the axe could serve just as well. S answered “no, no, he is a Muslim, I have a sword”. B said “all is fine, whatever is more readily available” (“valja što god prije stigne”). V said loudly “An axe, an axe, a sledgehammer, like the one used on pigs”. 10. On 15 September 2009 Y was having an argument with M, another neighbour, when X joined and said, among other things, that if he “saw red”, he would “kill both you and your brother here like a dog” (“e ću te ubit ka psa i tebe i brata ođe”), apparently pointing at the applicant’s apartment, adding “dirty gypsy” (“cigane glibavi”) and “trash” (“ovo smeće”). This was witnessed by M’s brother, D. It is unclear from the casefile if the applicant was present during the argument or if he learned about it in some other manner. 11. On 22 September 2009, the day of Ramadan Bayram, a religious holiday celebrated by the applicant and his family, a large cross was drawn on the applicant’s apartment door, and a large message was written on the wall next to it saying “move out or you’ll bitterly regret it” (“seli se, usko će ti bit”). The applicant called the police, who came and took photographs of the cross and the message. The same day the applicant lodged a criminal complaint with the police against the families of X, Y, S and B, and one more family living in the building. 12. Between 19 and 22 October 2009 the police interviewed X, Y, V, B, M, D, and three other neighbours. 13. X, Y, V, and B denied the applicant’s allegations. X and Y also denied that they had watched the match together, and Y submitted that everything he had said had been addressed to the Bosnian kickboxer. Both X and Y confirmed that they had heard the shots but said they did not know who had fired them. Y and his children had indeed picked up the spent cartridges from the ground, not in order to hide anything, but because the children found the spent cartridges interesting to play with. Neither X nor Y knew who was responsible for the incident of 22 September 2009, but they suspected the applicant himself. 14. V submitted that the discussion of 9 September 2009 had referred to another person sought by the police at the time in relation to various attacks, and they had been discussing how they would defend themselves in the event of an attack. B denied that she had been in V’s apartment on that occasion. 15. M confirmed that during the argument with Y, X had come and said that if he “saw red” he would “kill them, as well as this gypsy” (“napraviću dženaze i vama, a i ovom ciganinu”), pointing in the direction of the applicant’s flat. M had assumed that he had meant the applicant. D confirmed M’s statement. 16. The other two neighbours were not aware of any conflicts amongst the neighbours, or that anybody ill-treated or insulted the applicant on the basis of his national origin. They had no idea who could be responsible for the incident of 22 September 2009. The third neighbour, N.L., confirmed the applicant’s submissions in relation to another incident (see paragraph 30 (b) below). 17. On 26 October 2009 the case file was transmitted to the State prosecutor’s office (Osnovno državno tužilaštvo) in order to assess whether there were any elements of the criminal offence of jeopardising someone’s security (ugrožavanje sigurnosti). 18. On 18 November 2009 the applicant lodged a criminal complaint with the higher State prosecutor’s office (Više državno tužilaštvo) in Podgorica in relation to the above events. He filed the complaint against X, Y, V, S and B for incitement to ethnic, racial and religious hatred, discontent and intolerance (izazivanje nacionalne, rasne i vjerske mržnje, razdora i netrpeljivosti, hereinafter “hate crime”) in connection with discrimination, racial and otherwise (see paragraphs 38-39 below). He also enclosed relevant video material. 19. On 24 November 2009 the higher State prosecutor’s office rejected the complaint on the grounds that there were no elements of any hate crime or other criminal offence within its competence. The applicant was notified that he could take over the prosecution as a subsidiary prosecutor and that the case file had already been forwarded to the State prosecution service on 26 October 2009 (see paragraph 17 above). 20. On 25 November 2009 the State prosecution service issued an official report (službena zabilješka) finding that the impugned words of 26 May, as well as those of 9 September 2009, which referred to the use of swords and axes, had not been addressed to either the applicant or anybody close to him, and that the incident of 15 September 2009 could not be considered a threat. It was concluded that none of those three events had involved an element of jeopardising someone’s security, or any other criminal offence subject to public prosecution. The incident of 22 September 2009, however, could be considered as jeopardising security. On 27 November 2009 the State prosecution service asked the police to undertake measures in order to find the perpetrator. At the same time the police were informed that the applicant’s criminal complaint in this regard would be kept until the perpetrator was found, or until 22 September 2012, when the prosecution of that criminal offence would become time-barred. On 31 December 2009 the State prosecutor informed the applicant of this, as well as of the fact that he could file a criminal complaint against a specific person with appropriate evidence (uz valjane dokaze). 21. On 14 December 2009 the applicant filed an application for an investigation (zahtjev za sprovođenje istrage) with the High Court (Viši sud) in Podgorica. He enclosed the relevant videos, and proposed that the court hear a number of neighbours, including those he suspected. 22. On 17 March 2010 the High Court dismissed that application for lack of evidence. In particular, the submitted video material was considered to be inadmissible, having been obtained without a prior court order, and the court observed that the suspected neighbours had denied that what they had said related to the applicant. It was further held that the applicant had not submitted any evidence in relation to the incident of 22 September 2009, nor had he called the police at the time to come to the scene and “collect the necessary material for further analysis” in order to verify his suspicions. 23. On 26 March 2010 the applicant appealed against that decision. He submitted, in particular, that on 22 September 2009 he had actually called the police, who had only taken photographs of the scene. The fact that they had failed to do what they should have done was in no way his fault, as it was not up to him to tell the police what to do, but only to lodge a criminal complaint, which he had done. 24. On 31 May 2010 the Court of Appeal dismissed his appeal for lack of evidence, in substance endorsing the reasoning of the High Court. In doing so, the court held that the applicant’s objections as to the gathering of evidence by the police “could not be the subject of [that] court’s assessment”. 25. On 19 July 2010 the applicant lodged a constitutional appeal. He maintained, inter alia, that because of the failure of the domestic authorities to protect him and his family, they had had to move out of the apartment (see paragraph 35 below). He relied on the right to private life, the right to an effective domestic remedy, and the prohibition of discrimination. 26. On 25 March 2014 the Constitutional Court dismissed the applicant’s constitutional appeal. It considered that it should be examined under Articles 6 and 14 of the Convention and corresponding Articles of the Montenegrin Constitution, and found there had been no violation of any of them. 27. On 7 April 2016, as regards the incident of 22 September 2009, the police informed the State prosecutor’s office that “[they] had acted on [the applicant’s] criminal complaint and undertaken measures in accordance with their authority, having dedicated a significant amount of time [to the complaint]. While carrying out those official actions [they] had not found material evidence which would undoubtedly indicate the perpetrator of this criminal offence”. 28. The Government submitted information from the applicant’s criminal record reflecting convictions for minor offences in 1981, 1990 and 2002. For each of these offences he had received a suspended sentence. 29. On 20 December 2007 the applicant was celebrating Bayram. X and Y claimed before the domestic bodies that the applicant had celebrated inappropriately by playing loud music from very early in the morning, shooting in the air and calling Turks and Wahhabi (vehabije) to jihad. He had apparently also tried to hit X with a flagpole (koplje od zastave). The applicant submitted that X and W (the husband of X’s niece) had been insulting him and his family, while X had also spat on him, shouted obscenities and thrown stones at him, causing him minor physical injuries. On 30 September 2008 the applicant was found guilty in misdemeanour proceedings of disturbing public order and peace (narušavanje javnog reda i mira) by shooting several shots in the air from his starting pistol on 20 December 2007. He was sentenced to a ten-day period of imprisonment and the pistol was confiscated. The decision was upheld by a secondinstance body on 23 December 2008. In relation to the same incident, on 29 July 2008 X and W were charged with violent behaviour against the applicant. In the course of the proceedings, a medical expert witness submitted that the applicant had a contusion (nagnječenje) on the left part of the back of his head, which would have been classified as a minor physical injury at the time it had been inflicted. The medical expert submitted that the injury had been caused by a blunt object, possibly a “larger stone”, and that it could not have been caused by sand or “stones the size of beans”. On 24 May 2011, after the case had been remitted, the Court of First Instance acquitted X and W, considering that it had not been proved that they had committed the offence. 30. The applicant reported the following events to the police, but to no avail: (a) on 6 October 2008 an unknown person had thrown a brick and broken one of the windows of his apartment; (b) on 11 September 2009 S and her husband, Z, had tried to hit the applicant’s parked car with their own car; this was confirmed by another neighbour, N.L., who witnessed this event and was interviewed by the police in October 2009 (see paragraph 16 above); (c) on 16 October 2009 S had asked Y aloud if he was going to “slaughter” somebody, and he had answered that he was, both of them looking at the applicant; S had said that he would “make [his] car dirty with that man”; (d) on 19 December 2009 an unknown person had fired several shots in front of the applicant’s apartment, below the children’s bedroom; the applicant gave the police eight bullet shells that he had found on the ground; (e) on 1 January 2010, shortly after midnight, X had thrown firecrackers at the applicant’s car and broken its windscreen; he had also thrown a glass bottle at the applicant and a metal bar at his son, swearing profusely and threatening to slaughter them all; this had been followed by gunshots. 31. On 21 October, 23 October and 30 October 2009 X, V and M.Ć. respectively lodged criminal complaints against the applicant for insulting and provoking them, and for playing loud music and calling Turks and Wahhabi to jihad. On 25 December 2009 those complaints were rejected by the State prosecutor. 32. On 24 April 2010 the Court of First Instance (Osnovni sud) in Podgorica found the applicant guilty of recording Y without authorisation and eavesdropping (prisluškivanje) on him, and sentenced him to 40 days’ imprisonment, suspended for a period of one year. That judgment was upheld by the High Court on 15 October 2010. On 26 December 2012 the Constitutional Court dismissed a constitutional appeal by the applicant in this regard. 33. On 7 May 2010 the applicant was fined 800 euros (EUR) in minor offence proceedings (prekršajni postupak) for threatening (izazivanje osjećaja ugroženosti) V, a decision which was upheld on 7 July 2010. 34. On 26 May 2010 the applicant lodged a criminal complaint against X with the State prosecution service, alleging that in August and September 2009 he had threatened to “cut [the applicant’s] gypsy head off and impale it on a pike” (nabiti na kolac). On 27 July 2010 the deputy State prosecutor rejected the criminal complaint. On 12 August 2010 the applicant filed a private criminal action (optužni predlog) against X, who was acquitted by the Court of First Instance on 7 June 2011. The court found that X had indeed said the impugned words in front of a witness, and that the words could have made the applicant feel frightened and insecure, but the court could not accept “that [the applicant] had taken those words seriously, especially since the witness, who was the only one who had heard the words, had not taken them seriously, which was why he had informed the applicant about them only two months later”. That decision was upheld by the High Court on 7 March 2012. 35. On 6 July 2010 X threatened the applicant’s daughter by saying that he would kill and slaughter them all, with his hands stretched towards her neck. The girl apparently fainted and was admitted to hospital unconscious. The same day the applicant and his family moved out of their apartment. They were allegedly on a hunger strike for the next twenty-four days, seeking help from various State institutions.
| 1 |
test
|
001-156243
|
ENG
|
BEL
|
CHAMBER
| 2,015 |
CASE OF V.M. AND OTHERS v. BELGIUM
| 3 |
Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)
|
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens
|
6. The applicants, Mr V.M. and Mrs G.S.M., and four of their children were born in 1981, 1977, 2001, 2004, 2007 and 2011 respectively and live in Serbia. Their eldest daughter, who was also an applicant, was born in 2001 and subsequently died on 18 December 2011 after the application had been lodged. 7. The applicants are of Roma origin and were born in Serbia, where they spent the greater part of their lives. They explained that they decided to leave their country for Kosovo because of the discrimination and illtreatment they had suffered on account of their origin in every sphere: access to the employment market, medical care, schooling difficulties and so forth. 8. The eldest daughter of the first two applicants had been physically and mentally disabled since birth and had suffered from epilepsy. 9. After failing to obtain a more secure situation for themselves in Kosovo, in March 2010 the applicants travelled to France, where they lodged an application for asylum. Their application was rejected by a final decision on 4 June 2010. 10. The applicants stated that in the meantime they had returned to Kosovo, and then to Serbia, in May 2010 owing to the precariousness of their situation in France and their inability to provide for their essential needs. 11. In March 2011, as their situation had not changed, the applicants decided to go to Belgium, where they lodged an asylum application on 1 April 2011. 12. During their interview with the “Dublin” department of the Aliens Office on 4 April 2011 the applicants gave an account of their movements to date and expressed their fears in the event of a return to Serbia. The first applicant stated that he had chosen to seek asylum in Belgium because he had been told that he could obtain better treatment for his disabled daughter there. He said that he was suffering from psychological problems. The second applicant said that Belgium had been the choice of the smuggler. When asked about her health, she replied that she was six months’ pregnant. She also mentioned their eldest daughter’s health problems. 13. The applicants maintained that they had explained the reasons why they refused to return to France, where they had been living in extremely precarious conditions. They submitted that they had not been asked to provide any evidence of having left the territory of the Member States of the European Union (“EU”) or regarding the family members’ state of health. 14. On 12 April 2011 the Belgian authorities sent France requests to take the applicants back on the grounds that the latter had been unable to prove that they had left the territory of the Member States of the EU for Serbia since their stay in France. 15. On 22 April 2011, relying on Article 16(3) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a thirdcountry national (“the Dublin II Regulation”), France refused to take charge of the applicants on the grounds that the couple were considered to have disappeared since May 2010 because they had not collected the notice of final refusal of their asylum application dated 4 June 2010 and this corroborated their statements to the Aliens Office according to which they had left the Schengen Area in 2010 and re-entered it in March 2011, thus leaving for a period of more than three months. 16. On 2 May 2011 the Belgian authorities asked the French authorities to reconsider their position given that there was no conclusive evidence that the family had left the territory of the Member States for more than three months since their stay in France and the applicants were clearly aware of the rejection of their asylum application in France. 17. On 6 May 2011 France accepted the request to take the family back pursuant to Article 16(1)(e) of the Dublin II Regulation. 18. On 17 May 2011 the Aliens Office issued decisions refusing the applicants leave to remain and ordering them to leave the country for France on the grounds that under Article 16(1)(e) of the Dublin II Regulation Belgium was not responsible for examining the asylum application and that France had agreed to take charge of the family. The decisions indicated among other things that the family, who were originally from Kosovo, “had not furnished evidence of their stay” in Kosovo after staying in France nor any certificates regarding any medical treatment or care in respect of the pregnancy, or concerning the child or the father. Considering that France was a country which respected human rights, had democratic institutions, had ratified the Convention and the Geneva Convention on the Status of Refugees, and was bound to implement the directives of the European Union on asylum and that if a return were to raise a problem under Article 3 of the Convention, the family could always lodge an application with the Court for interim measures, the Aliens Office considered that the Belgian authorities did not have to use the sovereignty clause provided for in Article 3(2) of the Dublin II Regulation. 19. Accordingly, the applicants were ordered to leave the country within seven days and to report to the French authorities at the border crossing. On the same day the applicants were issued with laissez-passer. 20. On 19 May 2011 the applicants, through their legal representative, contacted the Aliens Office for the purposes of providing it with evidence that they had left the territory of the European Union for more than three months (gynaecologist’s certificates, the second applicant’s health card and proof of enrolment at school of one of their children). 21. On 25 May 2011 execution of the orders to leave the country were extended until 25 September 2011 on account of the fact that the second applicant was soon due to give birth. 22. On 16 June 2011 the applicants lodged an application with the Aliens Appeals Board for the decisions refusing them residence permits and ordering them to leave the country to be set aside and for a stay of execution. They argued that the decisions, with the reasons given therein, had not provided them with the examination required by Article 13 taken together with Article 3 of the Convention (M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 336, ECHR 2011) of their fears regarding a return to Serbia and of their health problems. Firstly, the reasoning was erroneous and incomplete (error as to their nationality, identifying them as Kosovars instead of Serbs, failure to mention their return to Serbia and their Roma origin). Secondly, they could not be blamed for having failed to provide, during their Dublin interview, documents certifying their health problems and their movements to date or for not having substantiated their fears regarding a transfer to France. Like all Dublin asylum-seekers at that time, when they had attended those interviews they had not been assisted by a lawyer or informed of the documents that they should bring and no document had been requested of them. As they had expressed their fears, the Belgian authorities should have asked the appropriate questions and requested the relevant documents in order to ensure that their return did not infringe their fundamental rights. The applicants also argued that France should not have been determined as the State responsible for examining their asylum applications. Under Article 16(3) of the Dublin II Regulation, the obligations regarding the determination of the State responsible ceased where the third-country national had left the territory of the Member States for at least three months. That was precisely the position the applicants had been in on account of their return to Serbia from May 2010 to March 2011 as certified by the documents subsequently sent to the Aliens Office (see paragraph 20 above). Lastly, they submitted that the Belgian authorities should have used the sovereignty clause or the humanitarian clause both on account of their special vulnerability and of the notoriously difficult situation of the Roma minority in Serbia and of the conditions for the reception of asylum-seekers in France. 23. The hearing before the Aliens Appeals Board took place on 26 August 2011. 24. On 23 September 2011 the applicants unsuccessfully sought a further extension of the order to leave the country pending the outcome of the proceedings before the Aliens Appeals Board. 25. On 27 September 2011 the applicants lodged an application with the Court for interim measures suspending their transfer to France pending the outcome of the proceedings before the Aliens Appeals Board. 26. On 28 September 2011 the Court refused to indicate an interim measure. 27. In a judgment of 29 November 2011 the Aliens Appeals Board ruled on the application to have the decisions refusing residence permits and ordering the applicants to leave the country set aside and for a stay of execution. 28. The Aliens Appeals Board dismissed the ground of appeal regarding the conditions of reception in France and based on the risk alleged by the applicants of being exposed to treatment contrary to Article 3 of the Convention. It found as follows: “... the Board cannot but observe that the applicants have failed to show that they encountered difficulties in their dealings with the French authorities regarding access to health care for their child or their conditions of reception as asylum-seekers. They have not adduced so much as a shred of evidence regarding the circumstances of the ill-treatment they have allegedly suffered and have merely asserted in their application, without substantiating this with the slightest evidence that could corroborate the facts, “that they found themselves in an extremely precarious situation at the time of lodging their application for asylum and that their only refuge was a night hostel that they had to leave the next morning”. Moreover, although their daughter’s disability had been specified in the “Dublin form”, the parties have not made any allegation whatsoever before the Aliens Appeals Board of encountering particular difficulties in the reception of asylum-seekers as organised by the relevant French authorities.” 29. The Aliens Appeals Board also criticised the applicants for failing to produce in full the NGO reports that they had cited in support of their application, which had prevented it from checking whether the extracts produced did actually concern France. 30. The Aliens Appeals Board set the decisions aside, however, on the ground that the Aliens Office had not established the legal basis on which it considered that France was the State responsible for examining the applicants’ asylum application. 31. On 23 December 2011 the Belgian State lodged an appeal on points of law with the Conseil d’État against the Aliens Appeals Board’s judgment. It disputed the Aliens Appeals Board’s analysis of the applicable legal basis. 32. In an order of 12 January 2012 the Conseil d’État declared the appeal admissible. In a judgment of 28 February 2013 it rejected it for lack of current interest on the grounds that the operative provisions of the Aliens Appeals Board’s judgment were no longer a source of complaint for the applicants because they had returned to Serbia and had left the territory of the Member States for more than three months with the result that Belgium was relieved of any obligation in the process of determining which Member State was responsible for their asylum application. 33. In the meantime, on 22 September 2011, the applicants had lodged an application for leave to remain on medical grounds under section 9ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”) on behalf of their eldest daughter. They referred to the extreme precariousness of their position and the discrimination they had suffered as Roms in Serbia and Kosovo. Citing several international reports in support of their submissions, they argued that for that reason they had no guarantee that they would be able to obtain the necessary treatment for their daughter’s health condition. They sought temporary leave to remain pending the outcome of the asylum proceedings they had instituted in Belgium. 34. On 30 September 2011 the Aliens Office declared their application inadmissible on the grounds that the medical certificate of 26 June 2011 (see paragraph 38 below), produced in support of their application to have their residence status regularised, certified the existence of a medical problem and stipulated the treatment considered necessary but, contrary to the requirements of section 9ter § 3, 3o of the Aliens Act, did not specify the degree of seriousness of the condition. 35. The applicants indicated in their observations in reply that they had learnt of the existence of that decision during the proceedings before the Court. 36. On 1 April 2011 the Federal agency for the reception of asylum-seekers (“Fedasil”) assigned the applicants a reception facility as their mandatory place of registration, namely, Morlanwez asylum-seekers’ reception centre. 37. The social worker from the centre took down the following account by the applicants of the conditions of their reception in France: “The family decided to leave France because they had no means of subsistence. They were living in a night shelter which they had to leave in the day. They and the children were out on the streets from 7 a.m. They had to use a pushchair as a wheelchair for S., who is disabled. They had no information of any kind apart from the status of asylum-seeker which had been given to them on their arrival. No doctor, no social worker, no lawyer, no interpreter. They had absolutely no means of communication. They had no idea what they should do or what to expect. S. was not receiving any medical treatment of any kind. When her health deteriorated and she had to be taken to hospital, it was the mother’s sister who drove her to the emergency ward at the hospital and acted as interpreter. Once at the hospital the little girl had [epileptic] fits and her hair fell out. That was what decided the family to return to Serbia”. 38. The eldest daughter was examined on 26 June 2011 by a neuropsychiatrist at Jolimont-Lobbes Hospital and a medical certificate was drawn up on that day certifying the child’s disabilities. 39. In that certificate, which was sent to the Aliens Office on 1 July 2011, the doctor noted that the child had “cerebral palsy with epilepsy”, suffered from “severe axial and peripheral hypotonia”, that she could not sit up unassisted and soiled her underwear, that she could not talk and appeared not to understand others. He also noted that the child was taking medicines and that she required physiotherapy and appropriate equipment (orthopaedic braces, seat-brace). Those medical findings were confirmed by a neurological examination carried out on 1 July 2011. 40. The eldest daughter was admitted to hospital on 7 and 8 July 2011 for her epileptic fits and a neurological report drawn up. 41. After the second applicant gave birth on 26 July 2011 the family were assigned a new reception centre on 5 August 2011 in an open centre suitable for families, in Saint-Trond in the province of Limbourg. 42. On 26 September 2011, when the order extending execution of the order to leave the country expired, and as they could no longer benefit from material assistance for refugees, the applicants were removed from the Saint-Trond reception centre. 43. The applicants travelled to Brussels, where voluntary associations indicated a public square in the municipality of Schaerbeek, in the centre of the Brussels-Capital administrative district, where other homeless Roma families were also staying. They stayed there from 27 September to 5 October 2011. 44. On 29 September 2011, through their legal representative, the applicants asked the French-speaking community’s General Delegate to the Rights of the Child to intervene urgently with the national authorities responsible for the reception of asylum-seekers. 45. On the same day the General Delegate sent a letter to the Director-General of Fedasil requesting that accommodation be found urgently. 46. A signed statement by the General Delegate dated 2 October 2011 indicated that he also contacted the municipality of Schaerbeek in an attempt to find urgent accommodation for the family. According to the General Delegate, the municipal authorities stated that they did not have power to make a decision and that it was for the federal authorities to decide, and Fedasil declared that it did not have power on account of the decision taken by the Aliens Office regarding France’s responsibility for processing the asylum request (see paragraph 18 above). Fedasil also stated that the application to the Aliens Appeals Board (see paragraph 22 above) was not of suspensive effect, which was why the reception centre had applied the rules terminating the right to material assistance. 47. On 5 October 2011, following the intervention of the General Delegate, the Secretary of State’s office for Asylum and Migration, Social Integration and the Fight against Poverty instructed Fedasil to designate a reception centre as a matter of urgency. 48. After spending two days at the transit centre of the WoluweSaintPierre municipality, also in the Brussels-Capital administrative district, on 7 October 2011 the applicants were assigned a new reception centre as a mandatory place of registration: the Bovigny reception centre for asylum-seekers in the province of Luxembourg approximately 160 km from Brussels. 49. The Government maintained that the applicants had failed to register at the centre. The applicants, for their part, stated that they had gone there by train and a special bus but had been sent back to Brussels to Fedasil’s Dispatching Department on the grounds that their “annex 26quater [order to leave the country] was invalid.” 50. When they got back to Brussels on 7 October 2011 the applicants got off the train at the Brussels Gare du Nord, where they remained without any means of subsistence and with no accommodation despite the very cold weather for nearly three more weeks until their return to Serbia was organised via a charitable organisation as part of the Fedasil return programme. The applicants left Belgium for Serbia on 25 October 2011. 51. In the meantime, on 12 October 2011, the applicants’ mandatory place of residence had been changed to code 207 “no-show” (see paragraph 81 below) and on 25 November 2011 the applicants’ names were deleted from the waiting register. 52. After their return to Serbia their eldest daughter’s health deteriorated, forcing the applicants to leave the room they had rented on account of the insalubrious conditions. They went to stay with a relative in Novi-Sad and then to the suburbs in Belgrade. 53. The applicants’ eldest daughter was admitted to hospital on 4 December 2011 suffering from a lung infection. She died on 18 December 2011. 54. In a letter to their lawyer of 21 November 2012 the applicants stated that they had been attacked by Serbs on a number of occasions: among other incidents, some men had driven by in a car and broken the windows of their home by throwing stones, and had uttered threats, complaining of their links with the “Belgians” and ordering them to leave Serbia. The first applicant had attempted to defend himself and been beaten up twice by his attackers.
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001-182731
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RUS
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CHAMBER
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CASE OF STOMAKHIN v. RUSSIA
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Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
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Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
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5. The applicant was born in 1974 and lives in Vsesvyatskaya. 6. At the material time the applicant was a journalist at a Lithuanian weekly publication. 7. He was also a civil activist. As was later established by the domestic courts, since approximately the summer of 1998 the applicant had identified himself as a member of an informal liberal democratic movement, Revolyutsionnoye Kontaktnoye Obyedineniye (“the Revolutionary Contact Union” – hereinafter “the RKO”). Also, in the period from 2000 until 2004 the applicant was the founder, owner, publisher and editor-in-chief of a monthly newsletter entitled Radikalnaya Politika (“Radical Politics”). He determined the contents of the newsletter and published his own articles in it, as well as articles by people with similar views and excerpts from official and non-official sources of information and the mass media. He, himself, prepared each issue of the newsletter at his home address by typing it up on his personal computer, and then had it printed out and reproduced in multiple copies. The exact number of copies of each issue is unknown. The applicant then distributed the newsletter in person or through other unidentified individuals by selling it or giving it out for free at various places in Moscow. The articles touched, to a great extent, on the events in the Chechen Republic. 8. An article headlined “From the interview given by M. Udugov to the Kavkaz Center press agency” (“Из интервью М. Удугова агенству Кавказ Центр”) mentioned the large-scale hostage-taking at the Dubrovka Theatre in Moscow in October 2002 referring to it as “the action of Movsar Barayev’s heroic Chechen rebels in Moscow” (“акция героических чеченских повстанцев Мовсара Бараева в Москве”). It stated, in particular: “Russia has clearly demonstrated that it is at war and permanently in danger of being hit by retaliatory blows, because its rulers have perpetrated a despicable attack on a sovereign State and are killing innocent civilians there. Even the western community is compelled to admit that Putin’s Russia is waging a war aimed at the physical extermination of Chechens as an ethnic group.” 9. An article entitled “Insanity [defence] of Budanov [is] a guarantee of victory for Basayev” (“Невменяемость Буданова – залог победы Басаевa”) commented on the case of a high-ranking Russian officer who was standing trial on charges of torture and murder for the strangulation of an 18-year-old Chechen woman and, in particular, on the judgment of the first-instance court by which the defendant had been found not guilty by reason of temporary insanity. The article, of which the applicant was one of the authors, stated, in particular: “... The whole of Chechnya is filled now with the same Budanovs – maniacs, bloodthirsty sadists, murderers and degenerates in epaulettes. Russia’s whole occupying army consists of those Budanovs.” 10. It also stated that: “... The fact that a [someone who posed a] danger [to] society, an insane maniac was in command of a regiment ... sets a new task before the revolutionary-democratic forces of Russia. From now on we should require immediate compulsory psychiatric examination of all commanders of the military and naval forces, service personnel of the Ministry of the Interior, the border guard, the police and the FSB, starting from a captain and finishing with the Commander-in-Chief – V.V.Putin.” 11. It also appealed: “Let dozens of Chechen snipers take up their positions in the hills and the city ruins and hundreds and thousands of aggressors perish from their holy bullets! No mercy! Death to the Russian invaders!” 12. An article headlined “Accomplices to the murderers of the Chechen people” (“О соучастниках убийства чеченского народа”), authored by a third person, commented on the hostage-taking at the Dubrovka Theatre in Moscow in October 2002 and contained the following paragraph: “I, as a national of the Chechen Republic of Ichkeriya (CRI), who is daily suffering from the Russian State Terror, can understand the reasons which pushed Chechen patriots to this extraordinary act. It had been brought about by the continuing attacks by Russia on the Chechen State and [the Chechen] people. There are no documents condemning the mass murder of nationals of the CRI, to say nothing of Russia’s aggression against the Chechen State ... Chechen patriots, reduced to a state of despair by Russia’s Terror, were compelled to commit this guerrilla act in Moscow, the capital of Russia. In so doing they pursued their sole goal, namely to alert the international community to the total genocide of the Chechen people being cynically committed by the Russian invaders”. 13. The same article mentioned the “national liberation struggle of the Chechen people against the colonial expansion of Russia”. 14. In an article headlined “The Chechen resistance is alive! Maskhadov has visited Dzhokhar and Argun” expressions such as “President Maskhadov”, “President of the CRI”, “Commander-In-Chief of the CRI Maskhadov”, “the capital of the CRI, Dzhokhar” were used. 15. In an article headlined “In memoriam, Salman Raduyev” (“Памяти Салмана Радуева”) the applicant wrote: “Chechen heroes are leaving ... Dudayev, Atteriyev, Khattab and today – Raduyev. As if they would be devoured by a scary black noisome abyss. And the name of this abyss is Russia.” 16. In the same article the applicant stated: “... Salman Raduyev fought against Russia to his last breath, without making compromises with the murderers of his people. His life was an example of how one should fight against Russia. His death has become an example, amongst a million of such examples, of the immeasurable scoundrelism and perfidy of Russia, the pathological falsity and criminality of Russia as a State, as a civilisation, as a subject of history. ... Salman Raduyev is the brightest page [in the history] of the heroic Chechen Resistance movement. He was a hero of an entire generation, not only in Chechnya, but also in Russia. His life and death are a guarantee that damned imperial Russia will be destroyed and the Chechens and all other peoples oppressed by it will finally obtain freedom. We will avenge you, Salman!” 17. In an article entitled “A new joke by Vova” (“Новая шутка Вовы”) the applicant stated: “Lawful convictions issued by the Sharia court of the CRI against national traitors are being executed rigorously.” 18. In the same issue of the newsletter the applicant reproduced information from the website regions.ru regarding a police operation by a unit of the regional Department of the Interior aimed at setting free Uzbek nationals who had been held in slavery by Russian nationals. The applicant headlined that article with the words “Russians have slaves and dare to squawk something about Chechens” (“Русские держат рабов и еще смеют что-то вякать в адрес чеченцев”). 19. In the same issue the applicant published an article headlined “Orthodox [believers] went completely nuts” (“Православные совсем охренели”) in which information had been given about some unidentified “Orthodox theologians” who, in a booklet called “Foundations of the Orthodox Faith” had allegedly claimed that “Jesus Christ [had been] crucified not by Jews but by Chechens”. 20. In an article headlined “‘Chechen syndrome’ inside out” (“Чеченский синдром навыворот”), the applicant wrote: “... Most importantly, we realised with our hearts and skin that Freedom is, indeed, the most precious thing that a man has, the most precious treasure, the only thing worth dying for. And if [an individual is] lucky[, he or she will] take with [him or her]self to the other world at least some enemies, as selfless Chechen women do when they put on their ‘shaheed belts’. The life of a human is in any event brief and fragile and is only worth living if you are free. Otherwise it is better to die at once. As these Chechen women die.” 21. He went on as follows: “... In supporting Chechnya at war, demonstrating our solidarity with Basayev, openly supporting Movsar Barayev in Moscow on the days of the ‘Nord-Ost’ [theatre siege], we crossed a line, a certain border, past which all connections to our past and the environment and people among which we had been born and grown up and lived broke down; we had trustingly considered ourselves to be part of them, until we read on a foreign, enemy website, and saw with our own eyes, all the awful details of the atrocities committed by [our] people in a tiny neighbouring mountain country. Hence, the Rubicon has been crossed, the choice has been made and there is no room to back off – we no longer have any other family than all peoples oppressed by ‘our’ Empire, than partisans fighting to be freed from its yoke, than famous warlords like Basayev and political parties which claim monetary compensation [from Russia] for their occupation and return of the territories Russia has annexed ...” 22. In the same article the applicant stated: “... It is the bloody cannibalistic atrocity of this State towards a tiny and helpless mountain people that first brought this thought into our conscience: Russia must be destroyed forever, a State doing similar things to an entire nation should not exist at all!” 23. An article headlined “Chechnya shielded the Caucasus” (“Чечня заслонила собою Кавказ”), authored by a third person, stated: “... Maskhadov, Basayev, Khattab and other heroes of the Chechen resistance courageously and firmly got in the way of Russia’s aggression and, in fact, saved not only the independence of Chechnya but also its very existence, as well as the existence of other States in the Caucasus ...” 24. In an article entitled “No comments” the applicant stated: “... Putin’s cheap propaganda can jabber as long as it wishes that Maskhadov is a bandit and that he is responsible for the ‘Nord-Ost’ [theatre siege] and the recent explosions in Tushino. Anyone who shows at least some interest in contemporary Chechnya knows that it is Maskhadov who is the legitimate President of Chechnya. And until he is re-elected in accordance with the constitution of the CRI, and not the Russian constitution, any other ‘presidents of Chechnya’ are out of the question. Lawful elections of the president of the CRI under the constitution of the CRI of 1992 will only be possible when the CRI army, headed by Commander-in-Chief Maskhadov, defeats occupying Russia’s illegal armed groups of the Ministry of Defence, the Ministry of the Interior and the Federal Security Service, and chucks them out of the territory of independent Ichkeriya ...” 25. In an article headlined “Retribution-2” (“Возмездие-2”) the applicant stated: “... Retribution for genocide will take place sooner or later. If we live up to it, we will be its witnesses and it would be good to become its punishing sword. Until then we are only capable of organising lamentably small candlelight vigils to commemorate all those killed and tortured in Chechnya, Ukraine, Lithuania and Poland – from the White (Baltic) to the Black Seas – by our State which has become frenzied because of blood. It is impossible to live with this heavy burden in the soul, as the terrible knowledge of Russia’s history requires retribution from all those who remain conscious. It is possible that the hands which hold a commemoration candle today will hold a gun tomorrow – it is hard to believe that but Lord help us to live in the happy time when this happens. For the time being we don’t have any other weapons, except for the alarm bell of our words. ... We remember and grieve for all those killed and tortured by ‘our’ Empire, hated by us. However, a better gift to all Chechens being exterminated will be not [to have] yet another meeting with candles to commemorate their genocide, but each blow struck – even though they are still weak, for now – against the criminal State which is killing them and depriving us of our freedom, mutilating our souls, striving to turn us into butchers and binding us with blood. ‘Less words and more action’ – this is the slogan of slogans of the day! Particularly given that there is much to be done for the radical anti-imperial opposition in the country!” 26. The article also read: “... let Russia spit blood for yesterday’s and today’s genocide of the Chechen people – it serves it right, it deserved it. Let our commemoration candles at the meetings of 23 February turn into flaming torches, in whose purgatorial flames this rotten block, lying in the way of humankind, will burn!” 27. In the same article the applicant wrote: “... As to the writing of inscriptions on the walls of buildings, fences and bus stops, one cannot overestimate the importance of those acts. From today on and until 14 [March 2004] we have to strike persistently at one point: slaves, become free for at least a moment, do not participate in fake ‘elections’! We need not campaign among the limited circle of revolutionaries, human-rights activists, extremists, and members of radical and marginal social groups – they already know everything. Each direct and open appeal to ... the people other than politicised consumers of ... TV cud [тележвачки] is an open and powerful blow to the regime and will hasten its end ...” 28. In the same article the applicant also issued the following call: “... We have to accumulate, hate and keep record of their crimes – the endless list of all those ‘sweep operations’, ‘identity checks’, ‘counter-terrorist operations’, gagging laws, unlawful searches and politically motivated criminal prosecutions. It would also be good to make lists of all those who carried out a particular ‘sweep operation’ in a particular village, who instituted criminal proceedings, on whose information and on which date. It is known from the historical perspective that those people are most of all afraid of personal responsibility, which they would not be able to shift on to their commanders who had given illegal orders. One day executioners in uniforms and narks without uniforms in Moscow, as well as in Chechnya, will be held accountable to us for everything ...” 29. An article headlined “Kremlin looters” (“Кремлевские мародеры”), authored by a third person, criticised the actions of the Russian Army in the Chechen Republic and, in particular, accused them of a large-scale extrajudicial executions of civilians during a “sweep” operation in a Chechen village in 1995. It also stated: “In Chechnya the Russian Army stopped existing as a military force of the State, having, once and for all, turned itself into a frenzied gang of looters and murderers; a herd intoxicated with drugs.” 30. In his “editorial note” to the “Declaration of the Committee ‘2008: a free choice’” the applicant stated: “We, [the RKO] and Radikalnaya Politika, are united with the Committee and prepared to cooperate with them. Obviously, we are much more radical than them. We consider that we should not wait until 2008 and be worried about the Constitution but call on the people to overthrow and liquidate Putin’s regime as soon as possible. We also don’t consider it possible to preserve the contemporary Russian Federation as an integral State. However, we are for a common ground with all our allies, even those who are much more moderate.” 31. On the front page the following statement was published on behalf of the “editorial team”: “Zelimkhan Yandarbiyev died a hero and he will remain [a hero] in the memory of humankind, historians and grateful future generations. He fought the bloody Rusnya as long as he could”. 32. In an article headlined “The price to be paid for genocide” (“Расплата за геноцид”) the applicant wrote: “The explosion in the Moscow metro is justified, natural and lawful ... Chechens have a moral right to blow up everything they want in Russia, after what Russia and Russians have done to them; no objections regarding humanism or love for humankind can be accepted.” 33. In the same article the applicant stated: “It has been ten years since the Russian Federation and its people [began] a totally destructive genocidal war against the Chechen people, who before the war numbered only one million people”. 34. In an article headlined “Will Russia be allowed to participate in the Summer Olympics in Athens?” (“Пустят ли Россию на летнюю олимпиаду в Афинах?”) the applicant wrote: “Russia’s bloody attack on the CRI led to, among millions of other similar bloody consequences, Russia’s security forces’ killing of the ex-President of the CRI, Zelimkhan Yandarbiyev, who had helped his people to repel this attack.” 35. In eight issues of the Radikalnaya Politika newsletter, in a column entitled “The Good News” (“Благие вести”), the applicant published information which he had copied from various news agencies’ websites, such as Interfax, or websites like strana.ru and KMNews.ru. The information mostly concerned events such as deaths of federal servicemen or law-enforcement officers in the Chechen Republic; violent attacks and assaults on public officials or police officers in various regions of Russia; and so forth. 36. On 23 February 2004 the applicant took part at an unauthorised meeting, where he displayed banners with slogans condemning the current political regime, such as: “Zakayev is not a terrorist, unlike Putin and Co.” (Закаев не террорист, в отличие от Путина и К), “Europe! Do not betray the Chechen resistance!” (Европа! Не предай Чеченское сопротивление!), “Russian invaders – get out of Chechnya” (Русские оккупанты – вон из Чечни!), “When will the Chechen people be freed and rehabilitated?” (Когда будет освобожден и реабилитирован чеченский народ?) and also a flag with the words “Radical Party”. 37. On 10 March 2004, while participating in a meeting at Pushkin Square in Moscow, the applicant, personally and with the participation of an unidentified person, disseminated issues nos. 2 (40) and 3 (41) of the Radikalnaya Politika newsletter and informed people interested in it about the forthcoming issues, how to subscribe and other ways to financially support the newsletter, of which he was the editor-in-chief. 38. On 18 December 2003 criminal proceedings were instituted against the applicant on suspicion that the views expressed in the Radikalnaya Politika newsletter amounted to appeals to extremist activities and incitement to racial, national, social and other hatred. 39. A psychological-linguistic expert examination of the texts published by the applicant was carried out. In a report of 13 April 2004 the expert stated, in particular, that the impugned texts contained negative emotional assessments of Russia’s servicemen; of people of Russian ethnicity; and of Orthodox believers. The report further mentioned that, by criticising Russia’s actions in the Chechen Republic, the texts gave negative assessments of Russia, as a State; of the existing political regime; of Russia’s army as a part of the machinery of the State. The report also pointed out numerous expressly negative words and expressions used by the applicants when describing Russia. It also mentioned that the impugned texts positively assessed and justified the actions and activities of a number of Chechen separatist leaders and fighters; terrorist attacks, including explosions, within the territory of Russia. 40. On 26 April 2004 the applicant was formally charged with the above-mentioned offences and on an unspecified date the case was transferred to the Butyrskiy District Court of Moscow (“the District Court”) for trial. 41. At the trial, the applicant pleaded not guilty. He confirmed that he had been the editor-in-chief and publisher of the Radikalnaya Politika newsletter but argued that he had printed the newsletter only for himself and had not distributed it. He further argued that he had merely expressed his opinion regarding various political events in Russia, and, in particular, his civic position regarding the ongoing armed conflict in the Chechen Republic. In his words, he had never called for extremist activities or violent overthrow of the existing political regime in Russia; he had only called for a change of the leadership in the country. 42. The District Court called and examined a number of witnesses, who submitted that they had bought the applicant’s newsletter or seen him distribute it for free in public. It also examined the expert who had drawn up the report of 13 April 2004. The expert confirmed his conclusions made in the report. A number of witnesses on the applicant’s behalf were also called and examined. 43. The trial court further examined other pieces of evidence, including the expert report of 13 April 2004; written complaints from eight private individuals in which they had stated that the applicant’s articles had aimed at inciting hatred and had contained insulting language in respect of Russians, Orthodox believers and law-enforcement officers; reports of seizure of issues of the applicant’s newsletter; reports of a search of the applicant’s flat and seizure of his computer; a report on the applicant’s forensic psychiatric examination, which confirmed that he was fully able to understand the meaning of his actions and to control them. 44. The District Court examined the applicant’s arguments and those raised by his defence counsel and dismissed them as untenable on the facts of the case, with reference to the witness statements and other pieces of evidence. 45. In a judgment of 20 November 2006 the District Court found the applicant guilty of “having publicly appealed to extremist activities through the mass media” (Article 280 § 2 of the Russian Criminal Code) and of having committed “actions aimed at inciting hatred and enmity as well as at humiliating the dignity of an individual or group of individuals on the grounds of ethnicity, origin, attitude towards religion and membership of a social group, through the mass media” (Article 282 § 1 of the Russian Criminal Code). 46. The trial court 6-7 above, and referred to the texts mentioned in the expert report of 13 April 2004 (see paragraph 39 above). It considered that the impugned texts had had a clear extremist leaning and incited actions prohibited by the Suppression of Extremism Act (see paragraph 69 below). In particular, in those texts the applicant had called for extremist acts, such as a forcible overthrow of the constitutional order and the President of Russia; had called for a breach of the territorial integrity of Russia; had justified and glorified terrorist acts; had called for violence against the Russian people and abased their dignity; and had incited religious discord by arguing that the Orthodox faith had been inferior and by insulting its followers. In those texts the applicant had used insulting language in respect of Russia as a State, the political regime in the country, and servicemen of Russia’s armed and security forces. 47. More specifically, the District Court observed that in various issues of his newsletter the applicant had represented the conflict in the Chechen Republic as a war between two States – Chechnya and Russia; had approved of terrorist attacks carried out in Russia, and of the actions of criminals and terrorists aimed at the extermination of the Russian people as a nation. In this respect, the District Court referred to the applicant’s relevant texts in issue no. 1 (27) (see paragraph 16 above) and in issue no. 9 (35) (see paragraphs 21 and 23 above), stating that in those texts, while “mentioning a number of persons implicated in terrorist and extremist activities”, the applicant had used words and expressions aimed at creating positive public opinion about those persons and their criminal acts. 48. The District Court also pointed out that “the texts of the applicant’s articles contain[ed] positive assessment of the bombings in Russia perpetrated by Chechen terrorists as well as the acts of Chechen snipers from illegal armed groups who kill[ed] Russia’s servicemen in Chechnya”. In this respect, it quoted an extract from issue no. 1 (27) (see paragraph 11 above) and extracts from issue no. 3 (41) (see paragraphs 31-32 above). 49. The trial court went on to note that the applicant had qualified Russia’s actions in the Chechen Republic as aggression and had considered the Russian Army to be an occupying force. Accordingly, he “[had] negatively assessed Russia’s actions and those of Russia’s armed forces; similarly negatively [the applicant had] assessed Russia as a State, the Russian Army as a part of the machinery of the State and Russia’s servicemen as a social group”. The District Court continued to state that, on the other hand, the applicant “[had] represented the events in the Chechen Republic as a war waged by Russia against the Chechen people (the Chechen ethnic group) and as genocide against the Chechen people”. The court corroborated these findings with reference to relevant texts published in issue no. 1 (27) (see paragraphs 8 and 12 above) and in issue no. 3 (41) (see paragraphs 33 and 34 above). 50. The District Court also observed that the applicant had justified and positively assessed the acts of Chechen rebel fighters, and that he had regarded the Chechen Republic as an independent State with its own President (A. Maskhadov), capital (Dzhokhar), constitution, armed forces and Commander-in-Chief, courts (Sharia courts) and legislation. In particular, in issue no. 1 (27), the applicant had interpreted the events in the Chechen Republic as “a national liberation struggle of the Chechen people against the colonial expansion of Russia” (see paragraph 13 above), referred to “lawful convictions of the Sharia court of the CRI” (see paragraph 17 above), and mentioned “President Maskhadov”, “President of the CRI”, “Commander-In-Chief of the CRI Maskhadov”, “the capital of the CRI, Dzhokhar” (see paragraph 14 above). Also, in issue no. 3 (41) the applicant published a “decree by President Maskhadov” and in the article “No comments” he praised “President Maskhadov” as “the legitimate President of Chechnya” (see paragraph 24 above). 51. The District Court further referred to the texts in eight issues of the applicant’s newsletter published in the column entitled “Good news” (see paragraph 35 above). It pointed out that the applicant had represented bad events in a positive way, that is to say as actions approved by the authors and by the applicant himself and as an example to be followed. The court pointed out that another example to be followed, according to the applicant, had been actions of Chechen women putting on “shaheed belts”; in the latter respect, the court quoted a relevant extract from the article “‘Chechen syndrome’ inside out” (see paragraph 20 above). 52. The District Court went on to observe that “in all issues of his newsletter ... [the applicant had] wilfully made use of insulting characteristics, negative emotional assessments and attitudes towards ethnic, racial, national, religious and social groups”. In particular, in respect of Russia as a State he had employed such negative emotional references as metaphors “scary noisome abyss”, “bloody cannibalistic atrocity”, “rotten block”; humiliating characteristics “immeasurable scoundrelism, perfidy, pathological falsity” and negative attitudes aimed at destruction (the metaphor “to spit blood”), which, according to the trial court, was a clear indication of an attitude aimed at inciting bloodshed. The court corroborated these findings with reference to relevant extracts from issue no. 1 (27) (see paragraph 15 above), issue no. 9 (35) (see paragraph 22 above) and issue no. 2 (40) (see paragraph 26 above). 53. The District Court also considered that in the article headlined “Insanity of Budanov, a guarantee of victory for Basayev”, “the applicant [had] insult[ed ...] servicemen of the Russian Army and law-enforcement officers by launching an appeal to act criminally against them”. In particular, the court stated that “in that article [the applicant gave] an emotional and negative description of the servicemen of the Russian Army as a social group” (see paragraph 9 above) and “[made] an appeal for actions against [army] servicemen ..., such as requiring an immediate compulsory psychiatric examination of its commanders” (see paragraph 10 above). In support of its relevant findings, the District Court also relied on an extract published in issue 2 (40) (see paragraph 29 above). 54. It went on to state that “by publishing and disseminating the Radikalnaya Politika newsletter [the applicant had] wilfully acted with a view to stirring up enmity and conflict, including armed conflict, on national, racial and religious grounds between citizens living in the European and Asian parts of the country and people living in the Caucasus”. In this respect, the trial court referred to the applicant’s “editorial note” published in issue no. 2 (40) (see paragraph 30 above), observing that in that publication the applicant had “demonstrated a negative attitude towards the existing political system and Russia as a State”. The trial court pointed out that “the stance taken by [the applicant] concerning the liquidation of the existing State regime (“Putin’s regime”) presuppose[ed] not only actions in conformity with the constitution but also the possibility of deviating from it (“to overthrow the regime, without really caring about the Constitution”)”. 55. The court further noted that in the article “Retribution-2” the applicant had referred to “the following acts aimed against the State and the existing political regime in Russia: organisation of meetings concerning events in the Chechen Republic, participation in those meetings, writing inscriptions on the walls of buildings, fences and bus stops” with the contents reflected in the relevant extracts of that article (see paragraph 25 above). The court also stated that “the applicant [had] also suggested carrying out other unlawful acts against the State and the political regime in the texts of his newsletters but [had] failed to specify which”. 56. The District Court then observed that in various issues of his newsletter the applicant had “intentionally appealed for records to be kept of such acts as ‘sweep operations’, ‘identity checks’, ‘counter-terrorist operations’, ‘unlawful searches and politically motivated criminal prosecutions’, which he [had] qualified as ‘crimes’ and the persons who [had] carried them out as ‘executioners in uniforms’ and ‘narks without uniforms’”. The court referred, in particular, to the applicant’s appeal made in the relevant extract from the article “Retribution-2” (see paragraph 28 above). 57. The trial court went on to note that in the article “Orthodox [believers] went completely nuts” (see paragraph 19 above) the applicant had made use of a heading carrying a negative and emotional assessment of the followers of the Orthodox denomination (“went nuts”). However, in the court’s words, “the content of the article [did] not correspond to its title, because it concern[ed] an isolated case (a statement that “Jesus Christ was crucified not by Jews but by Chechens”, contained in a booklet called “Foundations of the Orthodox Faith”); this isolated case [was] generalised from and represented as a typical situation of Orthodox believers by virtue of using the impugned heading”. In the same vein, the District Court pointed out that in issue no. 1 (27) the applicant had reproduced information concerning certain Uzbek nationals held in slavery by certain Russian citizens (see paragraph 18 above). The court noted that the applicant had entitled that article “Russians have slaves and dare squawk something about Chechens” and had represented an isolated fact to the readers as typical and characteristic of all Russians, whereby he had “made a negative and emotional assessment (‘to squawk’) in respect of Russian citizens as a nation”. 58. Moreover, in issues nos. 1 (27) and 9 (35) the applicant had argued that “Orthodox people [православный народ] had been inferior by using insulting characteristics and negative emotional assessments of believers, discriminatory expressions in respect of the Orthodox denomination as a religion and stating that this religion, practised by Russians, should be abolished, thereby abasing the national dignity of the people practising [it]”. According to the trial court, statements regarding the inferiority of the Orthodox faith had been made by the applicant in an attempt to stir up interethnic and racial conflicts in society so as to cause indignation in society and eventually to call for a change of the existing political regime. The court did not specify which particular articles in the above-mentioned issues contained those characteristics and assessments. 59. Lastly, the court referred to the fact that “at an unauthorised meeting on 23 February 2004 the applicant [had] called on individuals to support his movement by openly displaying banners with slogans condemning the regime” (see paragraph 36 above) and during the meeting of 10 March 2004, “to continue to commit crimes aimed at incitement to hatred and enmity among the population, abasement of dignity of an individual or group of individuals on the grounds of gender, nationality, language, origin or religious beliefs and membership of a social group, the applicant, personally and with a participation of an unidetified person, had distributed issues nos. 2 (40) and 3 (41) of the Radikalnaya Politika newsletter and had informed the persons interested in it about the forthcoming issues, how to subscribe and other ways to financially support the newsletter, of which he had been the editor-in-chief”. In the trial court’s view the applicant thus had called for extremist activities to be supported by way of their financing on a charitable basis. 60. The District Court rejected the applicant’s argument that in the relevant articles he had made no appeals to extremist activities, and, in particular, that he had not called for the overthrow of the constitutional order nor stirred up inter-ethnic discord; and that he supported the constitutional order, the Russian Constitution and the Chechen people’s right to self-determination and had merely availed himself of the right to freedom of expression. The trial court noted, with reference to the expert report of 13 April 2004, that the language used by the applicant in the impugned texts enabled the court to conclude that the applicant’s actions had constituted criminal offences and that he had clearly abused his right to freedom of expression secured by the Russian Constitution. 61. The District Court furthermore dismissed the applicant’s argument that he had been the author of only some of the articles held against him whereas the others had been written by other individuals. The court observed in this connection that the applicant had been the editor-in-chief of the newsletter and, in this capacity, had had the power to shape its editorial direction and he had been responsible for its content. 62. As regards the punishment to be imposed on the applicant, the District Court had regard to the state of his health and the fact that he had no criminal record, had positive references and had a dependant mother. At the same time it stressed the “high social danger” posed by the applicant’s offences and his personality and sentenced him to five years’ imprisonment. The court also prohibited the applicant from practising journalism for three years to run concurrently. 63. The applicant appealed, referring, among other things, to Article 10 of the Convention and stating that as the editor-in-chief of the impugned newsletter he had expressed in it his personal views concerning political events in Russia and his attitude, as a citizen of that country, to the war in the Chechen Republic. He had not made any appeals for extremist activities and had not declared the superiority of any one religion over another. Nor had he called for the overthrow of the constitutional order, but he had expressed the view that the Government should be changed. The applicant further pointed out that the number of copies of the newsletter in question had been so miniscule that the statements published therein had presented no public danger. He also argued that the measure of punishment imposed on him was excessively severe, given, in particular, the fact that he had no criminal record and had positive references from the place where he lived. 64. On 23 May 2007 the Moscow City Court upheld the applicant’s conviction on appeal. It stated, in particular, that the applicant’s newsletter had been a mass medium despite the low number of copies produced. It also considered that . 65. The applicant was released on 21 March 2011 after he had served the prison sentence in full. In his submission, numerous requests by him for release on parole had been refused.
| 1 |
test
|
001-177344
|
ENG
|
LVA
|
CHAMBER
| 2,017 |
CASE OF KALĒJA v. LATVIA
| 3 |
Preliminary objection joined to merits and dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-3-a - Ratione materiae);Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - 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 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1961 and lives in Rīga. 6. She worked as an accountant in a building management company (namu pārvalde) from 1989. From the beginning of 1997 she also fulfilled the duties of a cashier and she was fully responsible for any shortfall in the material assets (materiālās vērtības) entrusted to her. 7. On 9 December 1997 the applicant’s colleagues reported to the police that illicit cash withdrawals from the company’s cash registers had been made. Allegedly, the withdrawals had been made by the applicant and her colleague, B.E., by means of annulling the records of cash transactions and then taking the money received in respect of those transactions from the cash register. 8. Internal and external audits were carried out and it was discovered that certain data in the company’s cash registers had been manipulated. Specific amounts of cash and dates were noted in the audits, as well as the customer numbers in respect of which this manipulation had been executed. It was later established that the data had been manipulated in order to conceal illicit cash withdrawals. Further internal and external audits were carried out in 1999 and 2001. 9. On 15 January 1998 the applicant gave a written explanation (paskaidrojums) to a police inspector. The applicant testified that she had annulled three cash transactions and made three cash withdrawals in the amount of 1,228 Latvian lati (LVL – approximately 1,747 euros (EUR)). She had done so at the request of the deputy head of the company and had handed the cash over to him. As concerns the remainder of the missing cash, she stated that she had not taken it. Nor had she annulled any other cash transactions. 10. On 16 January 1998 the police inspector issued a decision to institute criminal proceedings (lēmums par krimināllietas ierosināšanu) in respect of “the misappropriation of funds in the amount of LVL 7,559 [approximately EUR 10,756] carried out by the applicant and B.E. by annulling records of cash transactions”. The applicant was not informed of this decision at that time. Instead, she was issued a summons to talks (pārrunas) and she was interviewed on 16 January 1998. A witness statement record (liecinieka nopratināšanas protokols) was drawn up. The applicant was informed of the rights and obligations of witnesses, as stipulated by Article 53 of the Criminal Procedure Code (Kriminālprocesa kodekss, see paragraph 24 below); she was also informed that if she refused to testify or gave false testimony she would incur criminal liability. The applicant repeated that she had annulled only three cash transactions and had made only three cash withdrawals. She had handed the cash over to the deputy head. 11. According to the applicant she appeared at the police station on 16 January 1998, accompanied by a lawyer whom she had authorised to represent her. Her request to be represented by the lawyer was refused – she was told that her status was that of a witness and that witnesses were not entitled to legal assistance. The Government contested the applicant’s submission, as there was no mention of this in the witness statement record; the Government stated that the applicant had signed the record and had made no remarks. 12. In the following years the applicant was interviewed as a witness five more times: on 21 January and 14 December 1999, 13 February 2002, and 6 January and 11 November 2004. Her rights and obligations as a witness – as well as the fact that she would render herself criminally liable if she refused to testify or gave false testimony – were explained to her (reference was made to Article 53 of the Criminal Procedure Code, see paragraph 24 below); no mention of any right to legal assistance was made. She reiterated that she had annulled only three cash transactions and had made only three cash withdrawals. She had handed the cash over to the deputy head of the company. She furthermore added that she had already repaid to the company approximately LVL 1,228 (approximately EUR 1,747). 13. A confrontation (konfrontācija) was also held between the applicant and B.E. on 27 January 1999 and with the deputy head of the company on 28 January 1999, who were also considered witnesses. Another confrontation between the applicant and the chief accountant was scheduled to take place on 24 May and 20 June 2002, but neither of them attended. 14. In 2000, 2001 and 2002 the police considered the case material to be sufficient for bringing charges against the applicant and referred the case to the prosecutor’s office. However, several prosecutors identified various shortcomings in the investigation and transferred the case back to the police for additional investigation. 15. The identified shortcomings included the following aspects. First, the criminal case material was found to be insufficient to establish guilt and therefore no charges could be brought. Serious breaches of the Criminal Procedure Code and other regulations were found. The criminal case material had contained uncertified copies of documents, missing pages of explanations and incomplete procedural records. In addition, the audits had not been carried out in accordance with law. Another audit had to be commissioned and more witnesses had to be questioned. Second, there had been discrepancies in the total amount of missing cash and it was impossible to establish that a crime had been committed or to bring charges against anyone. The audit had to be carried out by a certified auditor. A conclusion was made that the pre-trial investigation had been deficient, chaotic and had been carried out aimlessly. Moreover, the role of the chief accountant and the deputy head of the company in the cash withdrawals had not been properly investigated. 16. The police carried out further investigative measures – they commissioned another audit, collected further evidence, and questioned more witnesses (including the head, the deputy head, and the chief accountant of the company, as well as some of its customers). 17. On 20 January 2005 the police referred the case to the prosecutor’s office for the fourth time. This time the case material was deemed sufficient for charges to be brought and, on 27 January 2005, the applicant was officially charged with nineteen episodes of misappropriation of funds. She thus became an accused person (apsūdzētā persona) in the criminal proceedings against her and was informed of her right to have a lawyer. A preventive measure – a prohibition on her changing her place of residence, which she had to acknowledge by giving her signature (paraksts par dzīves vietas nemainīšanu) – was imposed on her. On 26 May 2005 the charges were slightly amended in respect of the total amount of misappropriated funds. 18. On 27 January, 3 February, 26 May and 5 September 2005 the applicant was questioned as an accused person. On two occasions (on 27 January and on 26 May 2005) the applicant stated that a lawyer’s presence was not necessary. On another occasion (on 3 February 2005) she stated that she would continue giving testimony without the presence of a lawyer. No remarks were made regarding the absence of a lawyer during the questioning of 5 September 2005. The applicant was given access to the criminal case file in order that she could acquaint herself with its contents. She subsequently requested that further investigative measures be taken. Some requests for further investigative measures were granted and some were refused. 19. On 5 September 2005 the final bill of indictment was served on the applicant (uzrādīta galīgā apsūdzība) in the presence of a lawyer. The total amount of misappropriated funds was again slightly amended. On 21 October 2005 other preventive measures – a prohibition on leaving the country and the obligation to reside at a particular place of residence (uzturēšanās noteiktā dzīvesvietā) – were imposed on the applicant. On the same date the prosecutor’s office forwarded the case file to the Riga Regional Court (Rīgas apgabaltiesa). 20. On 23 October 2006 the first hearing was held. On 20 November 2006 the Riga Regional Court convicted the applicant of nineteen episodes of misappropriation of property that had been entrusted to her. The applicant did not admit her guilt. She agreed that she had annulled three cash transactions and made three cash withdrawals in the amount of LVL 1,228 (approximately EUR 1,747), but stated that she had done so at the request of the chief accountant and the deputy head of the company with a view to paying out salaries. As concerns other cash transactions, she had not annulled those. The court, relying on witness testimony and other case material (the results of three audits, the electronic cash register records, the relevant bills and receipts, the respective employment agreements etc.), convicted the applicant. The court did not rely on the applicant’s statements made during the pre-trial investigation. 21. The applicant was given a three-year suspended prison sentence, with three years’ probation (a more lenient sentence than the minimum provided by law). In setting the sentence the court took into account her state of health, the fact that she had partly compensated the company for the damage in question, and the fact that she had committed the crime nine years previously and that since then she had not committed any other crimes. The applicant lodged an appeal on 2 December 2006. 22. The first appellate hearing was scheduled for 15 August 2007. On 17 August 2007 the Criminal Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) quashed the applicant’s conviction for lack of evidence in respect of five episodes of misappropriation of property. The applicant’s sentence was reduced to a two-year suspended prison sentence, with one year’s probation. In setting the sentence the court took into account the significantly lower number of episodes for which the applicant had been convicted, the fact that a particularly long period of time had elapsed since the commission of the crime, and the fact that there was no indication that she had committed any other crimes since then. The applicant lodged an appeal on points of law on 18 October 2007. 23. On 29 November 2007 the Senate of the Supreme Court (Augstākās tiesas Senāts) dismissed the applicant’s appeal on points of law. The Senate indicated that the former Criminal Procedure Code (which had been in force in January 2005, when the charges had been brought against the applicant) had not excluded that a person could have the procedural status of a witness while a pre-trial investigation was in progress and could only be officially charged once there was sufficient evidence concerning that person’s guilt.
| 1 |
test
|
001-145794
|
ENG
|
ALB
|
ADMISSIBILITY
| 2,014 |
BEÇAJ v. ALBANIA
| 4 |
Inadmissible
|
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
1. The applicant, Ms Selvi Beçaj, is an Albanian national, who was born in 1983 and lives in Tirana. She was initially represented by Ms E. Meli and, subsequently, by Ms E. Kokona, lawyers practising in Tirana. 2. The Albanian Government (“the Government”) were represented by their then Agent, Ms L. Mandia and, subsequently, by Ms A. Hicka of the State Advocate’s Office. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 10 February 2010 the applicant was appointed, pursuant to a service contract (kontratë shërbimi), as first secretary at the Permanent Mission of Albania to the Organisation for Security and Cooperation in Europe in Vienna, Austria (“the Permanent Mission”). 4. On 5 December 2011 the applicant went on maternity leave. She gave birth to a child on 9 January 2012. 5. On 24 January 2012 the Minister of Foreign Affairs (“the Minister”) decided to terminate the applicant’s employment as from 24 February 2012. 6. On 24 February 2012 the Minister appointed the applicant to work as a specialist at the Ministry of Foreign Affairs (“the Ministry”) in Tirana. The applicant declined the offer. 7. On 22 March 2012 it was confirmed that the applicant had been divested of her diplomatic status and the benefits that derived from the exercise of her job as first secretary. 8. On 23 February 2012 the applicant challenged the Minister’s decision of 24 January 2012 before the Tirana District Court (“the District Court”). 9. On 4 May 2012 the District Court partially accepted the applicant’s civil action. It found that the termination of her employment while she was on maternity leave was in breach of Articles 105/a and 107 § 1 of the Labour Code. It therefore annulled the Minister’s decision of 24 January 2012 and ordered the applicant’s reinstatement. The District Court further held that the reasons advanced by the applicant’s employer for the termination of her employment, such as the commission of traffic offences in Austria, did not prevail over the legal guarantees afforded to women during the post-natal leave period. The District Court decided that its decision should be provisionally enforced in accordance with Article 317 of the Code of Civil Procedure (“CCP”). Having regard to the applicant’s situation and the position she occupied, the District Court ordered that, in addition to her reinstatement, the applicant’s accreditation should be renewed and her benefits restored, including the grant of a residence permit, provision of accommodation, payment of salary and provision of medical examinations which had started in the applicant’s place of residence on account of her employment (paditësja vlerësohet se duhet të kthehet në një detyrë, e cila për nga rëndësia dhe specifikat e saj, implikon procedura të caktuara që lidhen me akreditimin dhe ripërfitimin e benefiteve (leja e qendrimit, përfitimi i pagës, ekzaminimet mjekësore të nisura në vendin e qendrimit për shkak të punës)). The Ministry appealed. 10. On 22 November 2012 the Tirana Court of Appeal upheld the lower court’s decision. 11. On 17 December 2012 the Ministry appealed to the Supreme Court. The proceedings are currently pending before that court. 12. On 22 June 2012 the District Court issued a writ of execution in respect of its decision of 4 May 2012 in accordance with Articles 510 and 511 of the CCP. 13. On 9 July 2012 the bailiff unsuccessfully requested the Ministry to comply voluntarily with the District Court’s decision, as upheld by the Court of Appeal. 14. On 27 July 2012, having regard to the Ministry’s failure to comply with the District Court’s decision voluntarily, the bailiff decided to proceed with the mandatory enforcement thereof. 15. On 12 December 2012, having regard to the Ministry’s failure to enforce the decision, the bailiff warned the Ministry that it would be fined in accordance with Article 606 of the CCP. 16. The Government submitted that on 19 December 2012, at the applicant’s request, the bailiff decided to terminate the enforcement proceedings (pushimin e ekzekutimit me kërkesë të kreditorit). It transpired from the bailiff’s decision that the applicant had decided to transfer the file to another bailiff’s office for supervision and enforcement (për ta transferuar te një përmbarues tjetër). 17. The Government further submitted that pursuant to the Minister’s order no. 222 of 13 May 2013 the applicant had been appointed as first secretary, a position equivalent to the one she used to hold, at the Consulate General of Albania in Istanbul, Turkey (“the Consulate General”). The Ministry’s letter to the Consulate General of 14 May 2013, as submitted by the applicant, stated that “the Ministry undertakes to pay Ms Beçaj only her monthly salary (Ministria...merr përsipër vetëm shpenzimet e pagës mujore)”. 18. On 1 August 2013 the State Advocate’s Office sent a letter to the Ministry, the relevant extracts of which read as follows: “Having regard to the circumstances in which the applicant, Ms Beçaj, has lodged an application with the European Court of Human Rights about the delayed enforcement of the District Court’s decision of 4 May 2012, as upheld by the Court of Appeal’s decision of 22 November 2012, and the recent development whereby the applicant has already taken up employment as first secretary at the Consulate General of the Republic of Albania in Istanbul, we request the Ministry of Foreign Affairs to contact Mr Beçaj and ask her to withdraw the application [lodged] with the European Court of Human Rights, in so far as the State complied with its obligation to enforce the court decision by way of order no. 222 of 13 May 2013, notwithstanding the applicant’s withdrawal from the enforcement proceedings (kërkojmë nga ana e Ministrisë së Punëve të Jashtme të bëjë të mundur kontaktimin me Znj. Beçaj dhe kërkimin prej saj të heqjes dorë prej aplikimit në Gjykatën Evropiane të të Drejtave të Njeriut, për sa kohë detyrimet e shtetit ndaj ekzekutimit të vendimit gjyqësor të sipërpërmendur janë plotësuar nëpërmjet urdhrit nr. 222 datë 13.05.2013, pavarësisht prej heqjes dorë prej saj nga ekzekutimi i këtij të fundit).” 19. On 6 August 2013 the Ministry sent a letter to the Consulate General, the relevant extracts of which read as follows: “In their request for the protection of the State’s interests, the State Advocate’s Office request the Ministry, having regard to Ms Beçaj’s appointment as first secretary at the Consulate General, [to ask her] to withdraw the application she has lodged with the European Court of Human Rights (Avokatura e Shtetit në kërkesën e saj për mbrojtjen e të drejtave të shtetit shqiptar kërkon nga MPJ që duke u nisur nga kushtet kur Znj. Beçaj është emëruar si Sekretare e Parë në Konsullatën e Përgjithshme të RSH-së në Stamboll të heq dorë nga e drejta e ankimit pranë GJEDNJ-së).” 20. On 20 December 2013, as part of her observations, the applicant submitted a statement, which she had signed on 27 August 2013, withdrawing her application from the Court. The statement reads as follows: “Further to the State Advocate’s Office’s letter ... about my position concerning the application lodged by me, Silvi Beçaj, before the European Court of Human Rights, I inform [you] that I withdraw from pursuing this application before that court (referuar shkresës së Avokaturës së Shtetit...mbi qendrimin tim personal mbi çështjen e ngritur prej meje, Silvi Beçaj, në Gjykatën e të Drejtave të NJeriut, Strasbourg, informoj se jap dorëheqjen për vazhdimin e kësaj çështje pranë kësaj gjykate).” 21. She maintained that the statement was made as a result of pressure exerted by the Government. 22. Article 104 § 1 provides that the duration of maternity leave is thirtyfive days in respect of pre-natal leave and forty-two days in respect of post-natal leave. Article 105 § 2 states that when the period of post-natal leave is over, a woman may decide whether she wishes to return to work or benefit from social insurance entitlements. Under Article 105/a, in the event that a woman’s employer terminates her employment during her pregnancy or following her return to work after the birth of a child, the employer must prove that the reason for the termination was not the woman’s pregnancy or the birth of the child. Under Article 107 § 1 the termination of employment is void if it takes place during the period in which the woman is entitled to social insurance payments subsequent to the birth of a child. 23. Under Article 317 a court decision may be provisionally enforced if it concerns payment of damages owing to unjust dismissal from work. Its provisional enforcement may also be ordered, if, owing to the delay in enforcement, the plaintiff may suffer significant damage which cannot be remedied or if the enforcement would become impossible or would be made exceedingly difficult. 24. Article 510 provides that a court decision which orders provisional enforcement thereof constitutes an execution title. Under Article 511 the execution title is enforceable at the creditor’s request.
| 0 |
test
|
001-157696
|
ENG
|
RUS
|
COMMITTEE
| 2,015 |
CASE OF KURUSHIN v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos
|
4. The applicant was born in 1967 and is detained in Smolensk. 5. Between 25 July and 1 August 2005 the applicant was held in the IZ76/1 remand prison in Yaroslavl in connection with the criminal proceedings against him. According to the applicant, his cell measuring six square metres was equipped with four sleeping places and accommodated up to seven inmates. The applicant was allowed to take a one-hour daily walk in a recreation yard measuring eight square metres. According to the floor plans provided by the Government, the applicant’s cell measured 7.88 square metres and contained two sleeping places. 6. After his conviction had become final, the applicant served his sentence in the IK-5 facility, a correctional colony located in the Smolensk Region. Between 9 and 20 January 2007 the applicant was held in disciplinary cell no. 4. He submitted that this cell measured twelve square metres and offered six sleeping places while actually accommodating up to thirteen inmates. During his detention in this cell, the applicant was taken, together with twenty-five other inmates, for a one-hour daily walk to an outside recreation area which measured twenty square metres. According to the documents provided by the Government, disciplinary cell no. 4 measured 15.4 square metres, contained eight sleeping places but accommodated only six inmates. The outside yard provided 4.8 square metres for each inmate.
| 1 |
test
|
001-163103
|
ENG
|
ROU
|
CHAMBER
| 2,016 |
CASE OF I.C. v. ROMANIA
| 3 |
Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;Egidijus Kūris;Iulia Motoc;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1992 and lives in Cotiglet, Romania. At the time of the events complained of, she was aged fourteen years and four months. 6. On 13 January 2007 the applicant was attending a funeral wake in her village. At around 8 p.m. she went with two girlfriends, P.A. (ten years old) and Z.F.D. (fourteen years old) to fetch some drinking water at a neighbour’s house. On their way, three boys, M.I.C. (fifteen years old), M.S. (fifteen years old) and M.C.S. (sixteen years old), approached the girls. M.I.C. pulled the applicant’s arm behind her back, grabbed her head and told her to go with him. The boys took her into the garden of a nearby deserted building, where a man, M.C. (twenty-two years old), was waiting. 7. The three boys left and M.C. pushed the applicant to the ground, partially undressed her and had sexual intercourse with her. In the meantime, another man, A.C.L. (twenty-six years old), arrived at the scene and tried to have sex with the applicant, but was physiologically incapable. A third man, V.F. (thirty years old) was also there. He had also intended to have sexual intercourse with the applicant but finally decided to help her get up, clean and dress herself, and accompanied her back to the house where the funeral wake was being held. Twenty minutes later the applicant’s father came looking for her and she told him that she had been raped. He immediately alerted the police. 8. The applicant underwent a forensic examination by a doctor on 14 January 2007. According to the subsequent forensic medical report, there were no signs of traumatic lesions on the applicant’s body and no sperm could be found either. The forensic doctor found signs of pathology which could have resulted from sexual intercourse. Lastly, the doctor mentioned that the applicant was in a state of anxiety and fear, and he recommended psychological counselling and possibly a neuropsychiatric examination. 9. On 15 February 2007 the applicant was admitted to the Oradea Psychiatric Hospital. The hospital observation sheet stated that the applicant had sought treatment because she had been raped. She was diagnosed with stress-related anxiety, irritability, a sleep disorder, slight intellectual disability (an IQ of 68) and lice infestation. She was prescribed treatment with anxiolytics and anti-depressives, and was discharged from hospital in a slightly improved condition on 20 February 2007. 10. On 5 March 2007 an additional forensic medical report was issued at the request of the applicant’s father. It stated that the applicant presented a psychological disorder caused by a physical and psychological trauma to which she had been exposed on 13 January 2007. The doctor held that, according to the documents presented by the Oradea Psychiatric Hospital, the applicant’s condition had required fourteen days of medical care. No signs of pregnancy had been detected. 11. On 24 April 2007 the applicant was readmitted to the Oradea Psychiatric Hospital. According to the hospital observation sheet, her state of health was slightly improving but she had started to have headaches. She was discharged from hospital the following day, having been told to continue the initial treatment and to return for further tests at the end of May. 12. In July 2007 the applicant was again hospitalised in the Oradea Psychiatric Hospital for fourteen days with symptoms including frontal headaches, depression, tearfulness and feelings of social isolation. She was diagnosed with an emotional disorder, a sleep disorder and anaemia, among other conditions. She received treatment with neurotropic drugs, anxiolytics and vitamins. The doctors prescribed further treatment with neurotropic drugs and anxiolytics until a follow-up examination scheduled for September. 13. On 14 January 2007 the applicant, accompanied by her father, lodged a formal complaint with the police. On the same day she made a written statement about the events of the previous day, accusing the three adult men involved in the incident of rape. She also mentioned that, all the way to the deserted house, M.I.C. and M.S. had held her by her arms and neck, not allowing her to leave, and had threatened to beat her if she screamed for help. The police accompanied the applicant and her father to the scene of the incident and took photographs. No objects or other evidence were found. 14. Later the same day, written statements were given to the police by M.C. and M.I.C. M.C. stated that he had not forced the applicant in any way and he had not been aware that she was under fifteen. He alleged that he had seen the applicant during the wake and had invited her to go with him to the deserted house, which she had done voluntarily. After he had had consensual sex with the applicant, he had left her in the company of M.C.S. and had returned to the wake. M.I.C. denied any involvement in the events, stating that he had not left the house where the wake had been held. 15. On 15 January 2007 A.C.L., V.F. and M.C.S. gave statements to the police. 16. A.C.L. stated that on the evening of 13 January 2007 he had been passing by the deserted house when he had heard noises coming from the garden. He decided to go inside to see what was happening. There he met V.F., who told him that M.C. was there with a girl. He saw M.C. on top of the applicant, having sex. After he had finished, M.C. called him to do the same thing. He tried, but was physiologically incapable of having sex so he stood up and put his clothes back on. He left together with M.C., who was waiting for him nearby. 17. M.C.S. stated that he had seen how M.I.C. had grabbed and twisted the applicant’s arm and had left with her from the wake. He had followed them together with M.S., but received a phone call and continued on a separate road. 18. In his statement, V.F. claimed that he had been at the wake when the applicant’s brothers had asked him to help them look for their sister. He left alone and went to the deserted house where he found the applicant with M.C. A.C.L. was also there. At that moment his phone rang so he did not pay attention to the three people. When he finished on the phone he heard the applicant calling him and went to her. She was alone, lying on the ground, undressed from the waist down. He asked her what had happened but she did not say anything. When she asked him to come closer, he started kissing her and wanted to have sex with her, but felt uneasy about it, so he helped her get dressed and clean up the mud on her coat, and accompanied her back to the wake. 19. On 17 January 2007 the applicant’s two girlfriends made statements to the police. They mentioned that M.I.C., M.S. and M.C.S. had approached the applicant, twisted her arm to her back and taken her with them. When she returned to the wake, the applicant did not tell them where she had been. P.A. also stated that she had heard the applicant shouting at the three boys to leave her alone. Z.F. had also seen the three boys surround the applicant and take her with them. 20. The applicant gave another detailed account of the facts in a statement drafted on 18 January 2007. She repeated that the three boys had forced her to go with them without saying where they were taking her, so she had not known what was going on. Once they arrived at the deserted house, there was M.C. who threatened to beat her if she would not accept to have sex with him. She further clarified that M.C.S. had kept her there by force until M.C. had raped her a second time. Then A.C.L. and V.F. came around and tried to rape her but failed and it was V.F. who had finally helped her leave the scene of the incident. Lastly, she mentioned that she had never had sex before the incident of 13 January and that M.C., A.C.L. and V.F. had known her and had been aware of her age. 21. M.S. stated to the police on 22 January 2007 that he had heard M.C. asking M.I.C. to take the applicant to the deserted house without telling her why. When the girls came out of the house where the wake was being held, he saw M.I.C. going after them and grabbing the applicant’s head, twisting her arm to her back and taking her in the direction of the deserted house. He denied having touched or spoken to the applicant. He had just walked behind her and continued on his way past the deserted house. M.C.S. gave the same account of the facts. 22. M.I.C. was questioned again on 22 January 2007, when he reconsidered his initial statement and told the police that M.C. had asked him, M.S. and M.C.S. to “grab” the applicant and take her to the deserted house. He then admitted having grabbed her by the arms, but claimed that afterwards she had walked along with him voluntarily. 23. On 6 February 2007 the police took another round of statements from those involved in the events, who reiterated their previous statements. In addition, all the men questioned stated that they knew for a fact that the applicant had had sex before with other men and that they had been unaware of her age at the time. 24. On 2 March 2007 the case was transmitted to the prosecutor’s office attached to the Bihor County Court in order for it to pursue the investigation into the crime of sexual intercourse with a minor. 25. On 26 April 2007 the applicant gave a statement before the prosecutor and requested that M.C., A.C.L., M.I.C., M.C.S. and M.S. be investigated for rape and complicity to rape. 26. M.C. and A.C.L. also gave brief statements before the prosecutor. M.C. claimed on this occasion that the applicant was the one who had sent word through M.I.C. that she wished to meet with him. A.C.L. stated that he knew the applicant had already had sex before and she had poor school results. 27. On 23 May 2007 the prosecutor indicted M.C. for the crime of sexual intercourse with a minor and A.C.L. for attempt to commit the same crime. The prosecutor based the decision on the following facts: the two men declared that they had not forced the applicant in any way; the forensic medical certificate attested to no signs of violence on the applicant’s body; and after returning to the wake she had not told her girlfriends what had happened to her. In view of those elements it was considered that the applicant had consented to have sex with M.C. and A.C.L. The witnesses, M.I.C., M.C.S. and M.S., did not know about M.C.’s intentions and therefore it was considered that they had no criminal responsibility in the case. The criminal proceedings were discontinued with respect to V.F. because he had not had sexual intercourse with the applicant. 28. The Beiuş District Court scheduled a first hearing in the case on 15 June 2007. The applicant stressed before the court that M.C. had twice had sexual intercourse with her without her consent. In support of her allegations, she submitted copies of the medical reports referred to in paragraphs 8-11 above. She also claimed civil damages for the suffering caused by the actions of the two defendants. 29. M.C. testified before the court that, once he had arrived at the funeral wake, M.I.C. had told him that the applicant was waiting for him at the deserted house. When he reached the meeting point, the applicant started kissing him and asked him to go with her to the back of the garden, away from the road. They then lay down on his coat and the applicant started undressing herself. They had sexual intercourse once, which was consensual. He did it because V.F. had told him once that he had had sex with the applicant in the past. Lastly, M.C. mentioned that he had done this before with other girls at other funeral wakes. 30. A.C.L. reiterated the statements he had given during the investigation. He concluded his testimony before the court with the remark: “... I was asked by someone in the village whether it was true what happened and whether I was not ashamed of what I had done, but I replied that it was not safe to leave girls alone on the streets.” 31. On 31 August and 28 September 2007 the court heard statements from the applicant’s two girlfriends, as well as from M.I.C. and M.C.S. In her testimony Z.F. claimed that the applicant had been scared when she had returned to the wake. She also mentioned that the applicant was a wellbehaved girl who did not go out with boys or go to bars. M.C.S. stated that he had heard the applicant asking M.I.C. to let go of her hand, but the latter had refused. 32. In his testimony M.I.C. also stated as follows: “The next morning we went to the police to give statements and afterwards I asked M.C. what had really happened. He then told me that he had raped her [the applicant]. He did not seem too happy about his actions. We have played this game before at another wake: you must take the girl to a secluded place where she must be kissed by the boy she chooses. When the defendant [M.C.] told me he had raped the victim, he also mentioned that he had kissed her.” 33. On 12 October 2007 the Beiuş District Court convicted M.C. of sexual intercourse with a minor and gave him a suspended sentence of one year and four months. A.C.L. was convicted of attempted sexual intercourse with a minor and given a suspended sentence of one year. 34. In reaching its decision the court firstly observed that the forensic medical report indicated that no signs of violence had been detected on the victim’s body. The court further established the course of the events on the evening of 13 January 2007 as described by M.I.C., M.C.S. and M.S. It cited the parts of the statements given by the applicant’s two girlfriends in which they had mentioned that the applicant had not cried for help. Lastly, the court concluded that the two defendants ought to have known that the injured party was under the age of fifteen. The court did not address the applicant’s statement, the medical reports attesting to her medical condition or her requests for the incident to be examined as rape. It rejected her claim for civil damages, considering that the medical conditions described in the forensic reports had no connection with the incident at issue. In addition, it had come to light from witness statements that the applicant had had sex before the impugned incident. 35. All parties to the trial, including the applicant represented by her lawyer, appealed against the decision of the Beiuş District Court. In her reasons for appeal the applicant claimed that the sexual abuse committed against her could only be classified as rape. She asked the court to extend the examination of the case to M.I.C., M.C.S. and M.S., whom she considered accomplices to rape. Lastly, the applicant considered that the medical reports submitted clearly attested to the suffering she had endured and therefore the court had erred in rejecting her claim for damages. 36. On 27 February 2008 the Bihor County Court decided to increase the sentences imposed on the two defendants to three years’ imprisonment for M.C. and eighteen months’ imprisonment for A.C.L. The decision of the Beiuş District Court concerning the classification of the crime and the suspension of the execution of the sentences was upheld. The County Court also decided to award the applicant 2,000 Romanian lei (RON) (approximately 600 euros (EUR)) in respect of non-pecuniary damage. In reply to the applicant’s reasons for appeal, the court reasoned: “It must be mentioned that the victim tried to convince the court that, in fact, she had not agreed to have sexual intercourse with the two defendants and that she had been the victim of a rape, but these allegations had not been proved in any way. Hence, the witnesses Z.F. and P.A. ... stated that ... the injured party had not cried for help ... and had not told them what had happened. ... It must also be noted that from the forensic medical report ... it does not appear that the injured party was the victim of a rape, since she displayed no signs of posttraumatic injury on her body.” 37. An appeal on points of law (recurs) lodged by the applicant against that judgment was rejected as ill-founded on 8 May 2008 by the Oradea Court of Appeal. The court declared briefly that by corroborating the victim’s statement with the forensic medical report of 14 January 2007, the existence of a crime of rape had been excluded in the case.
| 1 |
test
|
001-177410
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF FEDORENKO AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil 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)
|
Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law.
| 1 |
test
|
001-156541
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,015 |
OSMAYEV v. UKRAINE
| 4 |
Inadmissible
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
|
1. The applicant, Mr Adam Aslanbekovich Osmayev, is a Russian national, who was born in 1981. Until his release on 18 November 2014 he had been detained in Odessa. He was represented before the Court by Ms Y.V. Zaikina, a lawyer practising in Kyiv. 2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms N. Sevostianova. 3. The Russian Government exercised their right of third-party intervention in accordance with Article 36 § 1 of the Convention and were represented by the Representative of the Russian Federation at the European Court of Human Rights, Mr G. Matyushkin. Their submissions concerned the applicant’s complaint that he would be exposed to risk of ill-treatment in case of extradition to the Russian Federation. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 8 May 2007 the Federal Security Service of the Russian Federation (“the FSB”) instituted criminal proceedings against the applicant and several other ethnic Chechens on suspicion of membership of a terrorist organisation and planning an assassination attempt on Ramzan Kadyrov, the president of the Chechen Republic, in the course of his visit to Moscow. 6. On an unspecified date the applicant left Russia and entered Ukraine in the winter of 2008. 7. On 24 March 2008 the FSB placed the applicant on the international wanted list. 8. On 2 April 2009 the Moscow City Court convicted some of the applicant’s co-defendants of various crimes, including planning an assassination attempt on Mr Kadyrov. 9. On 28 February 2012, following the applicant’s arrest in Ukraine (see paragraph 29 below), the General Prosecutor’s Office of the Russian Federation requested that its Ukrainian counterpart extradite the applicant to Russia on several charges including participation in an illegal armed group and planning an assassination attempt on a public figure. The request contained assurances that the applicant’s defence rights would be respected, that he would not be subjected to treatment contrary to Article 3 of the Convention, and would not be sentenced to the death penalty. 10. Following the applicant’s arrest in Ukraine, the Russian human rights organisation “Union of Solidarity with Political Prisoners” issued a statement recalling that it had previously declared the applicant to be a person persecuted for political reasons because it believed that the criminal case against him for the planning of an assassination attempt on Ramzan Kadyrov was fabricated and politically motivated. 11. On 6 March 2012 the FSB instituted criminal proceedings against the applicant on suspicion of planning an assassination attempt on the Prime Minister of Russia. 12. On 20 March 2012 the General Prosecutor’s Office of the Russian Federation sent its Ukrainian counterpart another request for the applicant’s extradition on charges of planning an assassination attempt on a public figure and several related charges in connection with the criminal proceedings instituted against the applicant on 6 March 2012. The request contained assurances identical to those in the request of 28 February 2012. 13. On 26 April 2012 Ms Nadia Banchik, an American member of Amnesty International, wrote to the President of Ukraine urging him to prevent the applicant’s extradition to Russia in view of the risk of ill-treatment and an unfair trial. Relying in particular on examples from the reports of Amnesty International, she described the alleged serious ill-treatment suffered by a number of Chechens at the hands of Russian law enforcement authorities and Ramzan Kadyrov’s forces. 14. On 11 July 2012 the General Prosecutor’s Office of Ukraine (“the GPO”) decided to extradite the applicant to Russia. 15. On 23 July 2012 the applicant appealed against the extradition decision. He noted, in particular, that if extradited he would be deprived of the right to be tried in Ukraine and compensation for the damage caused to Ukrainian victims of his crimes in Ukraine would be hindered, and that he was being persecuted by Russian authorities for political reasons. He also noted that proceedings concerning his asylum request in Ukraine were pending (see paragraph 22 below) and that he faced the risk of ill-treatment contrary to Article 3 of the Convention, unfair trial and the death penalty in Russia. He referred to Nadia Banchik’s letter and the statement of the Union of Solidarity with Political Prisoners (see paragraphs 10 and 13 above). 16. On 30 July 2012 the applicant sent a declaration renouncing his Russian citizenship to the Federal Migration Service of the Russian Federation. 17. On 3 August 2012 the Odessa Malynovskyy District Court (“the Malynovskyy Court”) examined the applicant’s appeal in the presence of the applicant and his lawyer and upheld the decision. It found, in particular, that in the light of the assurances provided by the Russian authorities and the nature of the accusations against him, the applicant’s allegations concerning the risk of the death penalty, ill-treatment and politically motivated prosecution were unsubstantiated. The court also held that the publications about the occurrence of torture in Russia in general did not prove that the applicant personally would be ill-treated. The court stated that the decision of 8 June 2012 to dismiss the applicant’s request for asylum (see paragraph 24 below) proved that the applicant was not a permanent resident of Ukraine, which would prevent his extradition under domestic law. The court took no decision concerning the applicant’s detention pending extradition. 18. The applicant appealed against the decision of the District Court, referring to essentially the same arguments as before and also stating that he had renounced his Russian citizenship, alleging that he had been ill-treated by the police following his arrest in Ukraine, and that he was suffering from partial amnesia and was unsure of his identity. 19. On 14 August 2012 the Odessa Regional Court of Appeal (“the Court of Appeal”) examined the applicant’s appeal against the decision to extradite him and upheld the extradition. The court referred to the assurances provided by the Russian authorities. 20. On 15 August 2014 the General Prosecutor’s Office of Ukraine revoked its decision of 11 July 2012 and rejected the Russian authorities’ requests for the applicant’s extradition on the ground that if extradited, he would face a risk that his rights guaranteed by Articles 3, 6 and 14 of the Convention would not be secured. 21. In early 2015 a number of media outlets reported that the applicant was serving as leader of a battalion fighting on the side of Ukrainian Government forces in the eastern regions of Ukraine. 22. On 24 April 2012 the applicant lodged an application for political asylum with the State Migration Service of Ukraine (“the Migration Service”), maintaining that he had never been involved in any terrorist activities and that his criminal prosecution in the Russian Federation was political repression in disguise. In particular, he was a member of a prominent family which used to have considerable influence in Chechnya before Ramzan Kadyrov came to power; his father used to chair an oil company in Chechnya and his uncle used to be the Speaker of the Chechen Parliament. Following Ramzan Kadyrov’s rise to power, the family had been driven out of Chechnya. The applicant had publicly shared his dissatisfaction with the policies of Ramzan Kadyrov and the Russian authorities in respect of Chechnya. His political views, in particular his support for a free and independent Chechnya, and his being a personal enemy of Ramzan Kadyrov, were the real reasons for his persecution by the Russian authorities. He stated that numerous instances of torture and killings by Russian law-enforcement bodies and Ramzan Kadyrov’s armed groups indicated that he would be tortured and killed if he were extradited to Russia. 23. In a report prepared following the examination of the applicant’s asylum application, a head of section of the Odessa Regional Department of Refugee Affairs of the Migration Service recommended that the application be refused. He found that the applicant’s submissions concerning threats allegedly made against him in Russia in connection with negative statements about Ramzan Kadyrov were not credible since he had been an ordinary citizen and had not been a member of any political group and that the applicant had been misleading the Ukrainian authorities in order to delay his extradition to Russia. There were also indications of his being involved in terrorist activity, in particular because: he had shown interest in literature associated with the Wahhabi version of Islam; his life partner Ms A.O. had also displayed Wahhabi tendencies; he had acknowledged that he had had links with persons prosecuted for terrorist activities. The report also referred to an internet publication of Rosbalt, a Russian news agency, according to which the applicant’s three co-suspects had been convicted in 2009 for planning an assassination attempt on Ramzan Kadyrov. The report went on to note that there were no indications that the convicted co-suspects had been ill-treated. The report further stated that the Russian authorities had provided assurances that the applicant’s rights would be guaranteed. 24. On 8 June 2012 the Odessa Regional Department of Refugee Affairs refused to initiate asylum proceedings in respect of the applicant, having found that his application was manifestly inadmissible. The Department noted, in particular, that owing to the applicant’s arrival in Ukraine in 2008, the 2012 application lodged after his arrest was time-barred and that in any event his allegations of being a victim of political repression were ill-founded. 25. On 23 July 2012 the applicant challenged the decision of 8 June 2012 before the Odessa District Administrative Court. He argued that he had not missed the five-day time-limit for challenging the decision because the decision had been sent to his place of detention in Ukraine, without an explanation as to the procedure for challenging it. The applicant’s lawyer had only met him on 19 July 2012, and then translated the decision for the applicant and explained the procedure for challenging it. 26. On 7 August 2012 the Odessa District Administrative Court dismissed the applicant’s complaint without considering it on the merits. It held that the applicant had missed the five-day time-limit for challenging the decision of 8 June 2012 since the decision had been served on him on 5 July 2012 and he had had sufficient knowledge of Ukrainian to understand it. On 4 September 2012 the Odessa Administrative Court of Appeal upheld this decision. 27. On 4 January 2012 a private flat in Odessa, Ukraine, caught fire as a result of an explosion. On entering the flat, the firefighters discovered I.P., a Kazakh national, seriously burned, and the dead body of R.M., a Russian national. The police found traces of explosives in the flat and arrested I.P. 28. On 16 January 2012 the Odessa police instituted criminal proceedings against the applicant, I.P. and R.M. (deceased) on suspicion of having intentionally caused property damage and of illegal handling of explosives. On the same day the Odessa Prymorskyy District Court (“the Prymorskyy Court”) authorised the applicant’s arrest. 29. On 4 February 2012 the applicant was arrested in Odessa. During the arrest a passport in the name of S. Dolakov with the applicant’s photograph in it was seized. 30. On 7 February 2012 the Prymorskyy Court ordered that the applicant be placed in pre-trial detention for two months pending a criminal investigation against him for intentional property damage and illegal handling of explosives. 31. On 12 March 2012 the Security Service of Ukraine (“the SBU”) charged the applicant and I.P. with membership of a terrorist group, planning of terrorist acts, illegally handling explosives and intentionally causing property damage. 32. On 3 April 2012 the Prymorskyy Court extended the applicant’s pre-trial detention until 4 June 2012. 33. On 3 May 2012 the Court of Appeal extended the applicant’s detention pending criminal investigation until 4 August 2012. 34. On 18 July 2012 the SBU additionally charged the applicant with having crossed the Ukrainian border using a false identity document, while charges against him were amended from intentionally causing property damage to negligently causing property damage. 35. On 31 July 2012 the Court of Appeal extended the applicant’s detention until 4 October 2012. 36. On 25 August 2012 the applicant’s co-accused, I.P., was extradited to Russia. 37. On 28 September 2012 the Court of Appeal extended the applicant’s detention until 4 November 2012. 38. According to the Government, on 26 October 2012 the Higher Civil and Criminal Court extended the applicant’s detention until 4 February 2013. 39. On 1 November 2012 the investigation was completed and the applicant was given time to study the case file. 40. On 18 November 2014 the Prymorskyy Court convicted the applicant of illegally handling explosives, negligently causing property damage, and forgery. It sentenced him to two years, nine months and fourteen days’ imprisonment. As the length of time spent in pre-trial detention was deducted from this sentence, the applicant was released immediately. 41. Effective from 17 June 2010, a new Chapter 37 governing extradition procedures was added to the Code. 42. The relevant provisions of Chapter 37 of the Code read as follows: “... The General Prosecutor’s Office shall be the central authority concerning extradition of the accused (suspect) where the proceedings [in the foreign State] are at the stage of pre-trial investigations. ...” “The extradition inquiry concerning circumstances capable of preventing the person’s extradition shall be carried out by the central authority or, upon its instructions (request), by the regional prosecutor’s office. ...” “... Extradition arrest shall be applied until a decision on the extradition of the person concerned and his actual surrender (extradition), but shall not last more than eighteen months. Within this period, and not less than once every two months, the judge at the place of the person’s detention shall check, upon the prosecutor’s request, if there are grounds for further detention of the person or for his or her release. ...” “A person’s extradition to a foreign State shall be refused if: ... 5) the person’s extradition is incompatible with Ukraine’s undertakings under its international treaties; 6) there are other circumstances envisaged by an international treaty to which Ukraine is a party. ...” “Having examined the materials of the extradition inquiry, the central authority shall take a decision to extradite the person or to refuse [his or her] extradition to the foreign State. The decision shall be taken by the head of the central authority or his or her deputy. ... If a decision to extradite the person is taken, that person shall be given a copy of the decision. If the decision has not been challenged before a court within seven days, actual transfer of the person to the competent authorities of the foreign State shall be organised.” “A decision to extradite may be appealed against by the person concerned, his or her defence counsel or legal representative to a local court at the place of the person’s detention. ... The appeal shall be examined in a single-judge formation within ten days of the date of its receipt by the court. The hearing shall be held in the presence of the prosecutor, the person concerned, his or her defence counsel or legal representative, if the latter participates in the proceedings. When examining the appeal, the judge shall not consider the question of guilt and shall not review the lawfulness of procedural decisions taken by the competent authorities of the foreign State in the proceedings against the person whose extradition is requested. Following the examination, the judge shall take a reasoned decision: 1) rejecting the appeal; 2) allowing the appeal and quashing the decision to extradite. After the judge’s decision quashing the decision to extradite takes effect, the person concerned shall be immediately released from detention. An appeal against the judge’s decision may be lodged with a court of appeal by the prosecutor who participated in the hearing before the court of first instance or by the person concerned, his or her defence counsel or legal representative, within seven days of the date of delivery of the impugned decision. The lodging of an appeal against the judge’s decision is of suspensive effect.” 43. The relevant provisions of the Code of Criminal Procedure with respect to detention pending investigation and trial can be found in the Court’s judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010). 44. Under section 5 of the Act, a person seeking to be recognised as a refugee or a person in need of complementary protection in view of a threat to his or her life, security or freedom in the country of origin may lodge an application for asylum with the Migration Service in Ukraine. The application must be lodged within five days of crossing the border, if the person entered Ukraine lawfully, or “without delay” in the case of unlawful entry. 45. Section 8 lays down the procedure for preliminary consideration of applications for asylum, which must be completed within fifteen days. In particular, the Migration Service holds interviews with the applicants, considers the information contained in the applications and relevant documents, and takes a decision on the admissibility of the applications. In taking this decision, it must decide whether “documents for the consideration of the question of granting refugee status or the status of a person in need of complementary protection are to be prepared”. The Migration Service refuses to prepare such documents in respect of applications which are manifestly ill-founded (do not concern the circumstances calling for protection), constitute an abuse of the right of application (the applicant submits false identity information), or are submitted by persons whose previous applications were rejected as unsubstantiated and where the circumstances have not changed. Within three working days written notice of the refusal, indicating the reasons on which it is based and the procedure of appeal, is given to the applicants or their official representatives. An appeal may be lodged with the courts within five days of the notification. 46. The relevant provisions of the Resolution read as follows: “For the purposes of the uniform application of the legislation governing extradition to other States and the protection of fundamental human rights and freedoms, the Plenary Supreme Court resolves that: ... 2. Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated solely by the law of the requested State; the courts are not empowered to decide on this issue. ...”
| 0 |
test
|
001-179826
|
ENG
|
ROU
|
CHAMBER
| 2,018 |
CASE OF VASILE VICTOR STANCIU v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
|
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
|
5. The applicant was born in 1957 and lives in Bucharest. 6. On 11 December 2011 one of the applicant’s neighbours called the police to complain about the fact that the applicant had stored personal items in the common space of their apartment building. 7. At 6 p.m. on 11 December 2011 two police officers arrived at the applicant’s door and asked for his identification papers without giving their names or informing him of the purpose of their visit. The applicant asked them what the purpose of their request was but they did not answer. For that reason, the applicant refused to present his papers, telling the police officers to come “some other time” (altădată). 8. The police officers immobilised the applicant, threw him to the ground and then handcuffed him. Noting the escalation of events, the applicant’s partner, G.C., searched for his identification papers and handed them all to the police officers: identity card, pension benefits slip and a certificate that he had been a fighter in the 1989 Revolution. 9. The police officers took the papers without looking at them and took the applicant to police station no. 19 to be identified. 10. At the police station the applicant was struck with fists, feet and truncheons. The pain was so intense that the applicant soiled himself. During the beating, the applicant’s mobile phone and still camera were destroyed and his clothes were torn. 11. When the beating ended, the police officers checked the applicant’s papers and then left him alone for fifteen minutes in a room. When they returned they informed him that they were leaving on a mission. After being again left alone, the applicant managed to find the officer on duty at the police headquarters (ofiţerul de serviciu) to ask permission to use the toilet. The police officer sent him home to clean himself up. 12. The applicant went home and then returned to the police section to recover his identity papers. 13. On 16 December 2011 the applicant was examined by a forensic doctor at Mina Minovici National Forensic Institute (“the Forensic Institute”). The doctor drafted a medical report dated 16 December 2011; a copy of the report was given to the applicant on 4 January 2012. It noted that the applicant had borne traces of violence on his wrists, arms and legs as a consequence of having been hit with a hard object; that he had complained of chest pains; and that the injuries could have dated from 12 December 2011 and had needed four to five days of medical care. 14. Two weeks after the incident, the applicant received by mail an offence report (proces verbal de contravenţie) drafted by the police officers on 23 December 2011 in his absence, whereby he was fined 100 Romanian lei (RON) for “refusal to present data necessary for his identification”. 15. On 11 December 2011 two police officers were directed by the officer on duty at police station no. 19 to settle a conflict between the applicant and a neighbour. Upon arrival, the police officers asked the applicant to present his identity papers, but he became violent and refused to comply. When the applicant tried to return to his apartment the police officers handcuffed him and transported him to the police station. After his identity had been established, the applicant left the police station. 16. The applicant lodged a criminal complaint against the two police officers, accusing them of unlawful deprivation of liberty, unlawful investigation and torture, and seeking compensation. The complaint was registered with police station no. 19 on 13 January 2012. On 7 August 2012 the file was sent for investigation to the internal investigations department of the Bucharest General Police Headquarters, and police officers from that department were delegated to conduct all relevant investigations. 17. These investigators heard evidence from the two police officers, from the officer on duty on the day of the events and from the neighbour’s husband (see below). 18. On 11 September 2012 the investigating police officers heard evidence from the neighbour’s husband, who declared that when the applicant, “known as a mentally ill person”, had refused, in inappropriate and disrespectful language, to present his identification papers and had attempted to return to his apartment, the police officers had immobilised him on the ground and handcuffed him, without ill-treating him in the process. 19. The officer on duty declared on 3 October 2012 that he had not spoken at all to the applicant on the night in question and had only seen him when the police officers had brought him in to establish his identity; those same officers had subsequently advised him to leave the police station – the officer on duty stated that he had seen the applicant again when he was leaving the building. He added that as he had been very busy in his office he had seen the applicant only for a couple of seconds, and had thus not been in a position to see whether the applicant had been injured. 20. Lastly, the two police officers gave their statements on respectively 4 and 5 October 2012. One of the officers declared that at the time of the events in question, the applicant had been under the influence of alcohol, because he had smelled of alcohol and had displayed a defiant attitude towards the police officers. Both officers mentioned in very similar terms that when asked to present his identification papers, the applicant had tried to evade the measure (“se sustrage măsurii legitimării”) and had attempted to re-enter his apartment by using physical force; for this reason, they had proceeded to handcuff him and had taken him to the police station. Both officers denied having inflicted any harm on the applicant, claiming that they had acted proportionately in view of the applicant’s opposition to their request. 21. G.C., the applicant’s partner, was never heard by the investigators. 22. On 12 November 2011 the prosecutor’s office attached to the Bucharest County Court decided not to prosecute. On the basis of the evidence in the file, attesting, inter alia, to the fact that the applicant was known as a person who engaged in violent behaviour and who was frequently under the influence of alcohol, the prosecutor decided that the injuries suffered by the applicant had been superficial and that the use of force had been proportionate and necessary in order to immobilise him and take him to the police station, as provided for by Articles 26 § 1 (2) and Article 31 § 1 a) and b) of Law no. 218/2002 on the Organisation and Functioning of the Romanian Police (see paragraph 26 below). 23. The applicant lodged an objection. The prosecutor’s decision was upheld on 22 March 2013 by the head of the above-mentioned prosecutor’s office, who considered that the police intervention had been rendered necessary by the applicant’s violent behaviour and had not been excessive, as demonstrated by the fact that the injuries suffered had been insignificant. 24. The applicant lodged a complaint with the Bucharest County Court against the two decisions. He mainly argued that the investigation had been superficial, and that the conclusions of the investigation had been based exclusively on the statements given by the two police officers who had behaved aggressively towards him, while his partner, for instance, had never been heard. He contested the prosecutor’s opinion that the injuries incurred had been superficial. He referred to the Court’s relevant case-law, which required a plausible explanation for any traces of violence sustained while a person had been under police supervision. He also contested the proportionality of the police reaction, pointing out that he had merely refused orally to show his identification and that the police officers could not claim or prove that they had sustained any traces of violence during that intervention. 25. On 11 June 2013 the County Court dismissed the complaint and consequently upheld the prosecutors’ decisions. The court considered that the police intervention had been lawful. It further held that the applicant’s minor lesions had been caused when he had fallen at the moment of his being immobilised by the police, which had been necessary because of the applicant’s verbal and physical resistance. The court considered that the applicant had not been kept unlawfully in the police station but had been released as soon as his identity had been established, and that the consequences of the police intervention had not been serious enough to constitute the crime of torture, as alleged by the applicant. The decision was final, no further appeal being possible.
| 1 |
test
|
001-173099
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF ISAYEV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 6+P1-1-1 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) (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;Luis López Guerra
|
4. All the applicants were party to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became binding and enforceable but were subsequently quashed by the supervisory review courts on the ground of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix).
| 1 |
test
|
001-175496
|
ENG
|
ARM
|
COMMITTEE
| 2,017 |
CASE OF BADALYAN v. ARMENIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)
|
Aleš Pejchal;Armen Harutyunyan
|
4. The applicant was born in 1976 and lives in Metsamor. 5. On 23 July 2011 the applicant was arrested on suspicion of threatening to use violence against the investigator in charge of the criminal case against his ex-wife. 6. On 25 July 2011 the applicant was charged with the same crime. 7. On the same date the investigator filed a motion with the Armavir Regional Court seeking to have the applicant detained for a period of two months. 8. On the same date the Regional Court examined and granted the investigator’s application, ordering the applicant’s detention for a period of two months, namely until 23 September 2011. It found that the motion was substantiated, since the applicant partially admitted his guilt and the case materials provided sufficient grounds for believing that he might abscond and obstruct the investigation, having regard to the nature and degree of dangerousness of the offence in question. 9. On an unspecified date the applicant lodged an appeal seeking to cancel the detention order and claiming that the investigating authority had not obtained any materials or evidence to substantiate the reasons for which it had sought to detain him and that they failed to take into account the applicant’s personality. 10. On 11 August 2011 the Court of Appeal dismissed the appeal, finding that the applicant’s detention was based on a reasonable suspicion, and found the grounds invoked by the Regional Court in justification of detention to be sufficient. It also noted that less severe measures were insufficient to safeguard the applicant’s proper conduct. 11. On 19 August 2011 the applicant lodged a cassation appeal against the decision of 11 August 2011 of the Court of Appeal. 12. On 9 September 2011 the investigation into the applicant’s case was concluded and the case was transferred to the Regional Court for trial. 13. On 13 September 2011 the applicant’s criminal case was set down for trial. By the same decision the trial court decided that the applicant’s detention on remand was “to remain unchanged”. 14. On 17 September 2011 the Cassation Court returned the applicant’s cassation appeal as it was unsubstantiated and did not met the formal requirements imposed by law. 15. On an unspecified date the applicant filed a motion with the Regional Court seeking to be released. He argued, inter alia, that there were not sufficient reasons to keep him in detention. 16. On 13 December 2011 the Regional Court examined and dismissed this motion. The Regional Court found that the applicant’s detention was ordered by its decision of 13 September 2011. It also noted that the existing materials of the case were sufficient to conclude that the applicant’s detention was justified. 17. On 19 December 2011 the applicant lodged an appeal against this decision. 18. On 28 December 2011 the Criminal Court of Appeal left the appeal unexamined. The Criminal Court of Appeal found that there was no possibility under domestic law to appeal against the decision of the District Court “to leave the applicant’s detention unchanged”. 19. The applicant lodged an appeal against this decision. 20. On 20 March 2012 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit. 21. On 11 May 2012 the applicant filed a new motion with the Regional Court seeking to be released. He argued, inter alia, that the collection of evidence against him had been finalised and that there were not sufficient reasons to keep him under detention. 22. On 4 June 2012 the Regional Court dismissed the applicant’s motion having regard to the dangerousness and nature of the alleged offence and the fact that the applicant might abscond and obstruct the investigation. 23. On 14 June 2012 the applicant lodged an appeal against this decision. 24. On 19 June 2012 the Criminal Court of Appeal left the applicant’s appeal unexamined on the same grounds as indicated in its decision of 28 December 2011. 25. The applicant lodged an appeal against this decision. 26. On 17 August 2012 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit. 27. On 6 August 2012 the Regional Court found the applicant guilty as charged, imposing a sentence of one and a half years’ imprisonment.
| 1 |
test
|
001-157281
|
ENG
|
RUS
|
COMMITTEE
| 2,015 |
CASE OF SERGEYEV v. RUSSIA
| 4 |
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
|
Erik Møse;Julia Laffranque;Khanlar Hajiyev
|
4. The applicant was born in 1969 and lives in Moscow. 5. On 13 August 2008 the Taganskiy District Court of Moscow found the applicant guilty of corruption and sentenced him to three years’ imprisonment. 6. The applicant appealed. On 13 October 2008 the Moscow City Court modified the judgment on appeal. It characterised the offence as an abuse of power and reduced the sentence to one and a half years’ imprisonment. A prosecutor was present during the hearing and made oral submissions. The applicant also attended the hearing, but was not represented. As it happened, on the same day his lawyer had asked the City Court to examine the case in his absence. 7. Between 21 November 2007 and 3 November 2008 the applicant was held in remand prison IZ-77/2 in Moscow. The prison was overcrowded.
| 1 |
test
|
001-150584
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,014 |
KRÁĽ v. SLOVAKIA
| 4 |
Inadmissible
|
Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
|
1. The applicant, Mr Miroslav Kráľ, is a Slovak national, who was born in 1976, habitually resides in Ružomberok, and is currently detained in the Leopoldov prison. He was represented before the Court by Mr J. Čierny, a lawyer practising in Martin. 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 25 October 1999 the applicant and five others were charged with aggravated robbery on the basis of the suspicion that, on 5 September 1999, as an organised group, they had forcibly entered private forest grounds, inflicted injuries to a guard to which he later succumbed, appropriated two tractors and attempted to appropriate a third, and fled the crime scene once it had proved impossible to load the first two tractors onto a lorry. 4. On 28 January 2000 the applicant and the others were indicted to stand trial on the above charges in the Žilina Regional Court (Krajský súd). At the same time, a warrant was issued for the applicant’s arrest, which was followed by another similar warrant on 27 March 2000. 5. At an unspecified time, the Regional Court was sent a letter dated 19 December 2000 which was purportedly written and signed by the applicant, in which the author described what may be surmised to be the applicant’s version of events. The charges against the applicant were denied ‒ their factual basis, in particular, being disputed ‒ and it was alleged that the applicant had gone into hiding out of fear for his life. In his submission to the Court, the applicant has denied the authenticity of this document. 6. On 5 March 2001 the decision was taken that the applicant, who was still missing, should be tried in his absence (konanie proti ušlému). 7. Between 21 March 2001 and 4 March 2002 the Regional Court held ten hearings at which it took and assessed complex written, oral and expert evidence, including a pre-trial deposition by one of the applicant’s coaccused (A.) incriminating the applicant. The applicant’s court-appointed lawyer inspected the case file on her own initiative and attended all but the first of these hearings. 8. Following the hearing of 4 March 2002, on the same day the Regional Court found the applicant and his coaccused guilty. The pre-trial deposition of A. was instrumental in establishing the guilt of the applicant and he was sentenced for thirteen and a half years’ imprisonment. 9. All parties appealed (odvolanie) to the Supreme Court (Najvyšší súd). In the applicant’s case, his lawyer appealed on his behalf, arguing inter alia that the first-instance court had failed to take any notice of the applicant’s letter of 19 December 2000, that A. was not a credible witness, that two of the remaining co-accused had merely presumed that the applicant had been present at the crime scene, and that the other two had not seen him there. The applicant’s lawyer also filed observations in reply to the appeal by the prosecution, in which she addressed the evidentiary situation and submitted that they had misconstrued it to the applicant’s disadvantage. 10. The Supreme Court heard the appeals on 26 September 2002, in the presence of the applicant’s lawyer. Following the hearing, on the same day, it corrected certain technical errors in the first-instance judgment and reduced the applicant’s sentence to twelve and a half years on the grounds that, combined with a previous sentence, the penalty imposed by the Regional Court was in excess of that permitted by statute. 11. On 21 January 2003 the Regional Court issued a warrant against the applicant for the enforcement of his sentence and ordered that he be taken to prison. 12. On 7 July 2004 the applicant was arrested in the Czech Republic and on 9 July 2004 was remanded by the Prague City Court (Městský soud) pending extradition to Slovakia in connection with the above proceedings and conviction. 13. On 5 January 2006 the Minister of Justice of the Czech Republic allowed the applicant’s extradition but at the same time suspended its implementation pending the outcome of unrelated criminal proceedings against him in the Czech Republic and, potentially, the service of his sentence imposed in those proceedings. 14. Later in 2006 the Czech courts found the applicant guilty and sentenced to ten years’ imprisonment, following which a new decision was taken to suspend his extradition to Slovakia pending service of this sentence. 15. According to the applicant, between 3 April 2005 and 14 May 2007 ‒ while still detained in the Czech Republic ‒ he had asked the Czech prison authorities four times to provide him with Slovak criminal legislation, but to no avail. In support of this allegation, he submitted four original handwritten requests. These indicate neither any addressee nor anything to show that they were actually submitted and duly received. 16. On 25 April 2005 the applicant requested that he be served with a copy of the firstinstance judgment. So he was, on 24 May 2005, albeit with no instructions (poučenie) regarding any possible remedies available to him in the specific circumstances of his case. 17. On 30 May 2005 the applicant made a submission to the Žilina Regional Court formulated as an appeal, only to have it dismissed by the Supreme Court of Slovakia on 22 June 2005 as out of time. In that respect, the Supreme Court observed that the applicant had been convicted in his absence, that the conviction had become final and binding and that, under the Code of Criminal Procedure applicable at that time (Law no. 141/1961 Coll., as amended - “the 1961 CCP”), persons convicted in their absence by a final and binding judgment had no right of appeal. At the same time, the Supreme Court noted that the applicant was at liberty to assert his rights by way of an application for a complaint in the interest of the law (sťažnosť pre porušenie zákona) to be lodged on his behalf by the Prosecutor General or the Minister of Justice and by a request for reopening of proceedings (obnova konania). 18. According to the applicant, a written version of the Supreme Court’s decision of 22 June 2005 was not served on him until 5 October 2011. However, according to a postal delivery confirmation slip submitted by the Government, which bears the applicant’s signature, that decision was served on and received by him on 25 July 2005. 19. On 19 June 2006 the applicant made a request for reopening of proceedings under the Code of Criminal Procedure applicable at that time (Law no. 301/2005 Coll., as amended ‒ “the 2005 CCP”) (see paragraph 35 below), which he and his lawyer amended on 11 July 2006 and 3 May 2010, respectively. They submitted that the applicant had only learned about the events underlying the charges from television reports; that he had not been present at the crime scene; that at the request of one of his associates he had only acted as a lookout nearby; that at the time of the impugned events he had not known the remaining four co-accused; that they had implicated him to serve their own interests; and that he had left Slovakia in fear for his life after he had learned that two of his co-accused had been planning to “take out” a witness. In addition, the applicant submitted that at no stage of the proceedings had he been heard, and that although legal representation was mandatory, he had had none at the pre-trial stage of the proceedings, which was in violation of his right to a fair trial under Article 6 of the Convention. Moreover, he argued that the sentence had been disproportionate to his actual involvement, and that the submissions of A. made at pre-trial stage should be reexamined before a court. In terms of new evidence, the applicant identified a fresh witness and asked that he undergo polygraph testing, and he requested a face-to-face confrontation (konfrontácia) with the other co-accused. 20. The request was dismissed by the Regional Court in a public session (verejné zasadnutie) held on 19 May 2010 and, following the applicant’s interlocutory appeal (sťažnosť), by the Supreme Court on 1 February 2011. Both courts noted that the applicant was serving a ten-year sentence in the Czech Republic, which was why he could not be present in person. Under the applicable statutory rules, a reopening of proceedings would be warranted only if there was new evidence that could bring about a different outcome. Although the applicant’s testimony would constitute evidence which was new, in view of the evidential situation as a whole, no other outcome could be expected. The courts also concluded that, since the witness identified by the applicant had refused to give evidence at the original trial, his testimony did not constitute new evidence, nor would there be any new evidence as a result of the face-to-face confrontation. Moreover, results of polygraph testing were not recognised as evidence under the 2005 CCP. Lastly, it was not new to the court that the applicant had lacked legal representation at the pre-trial stage. However, any objection in this respect should have ‒ but had not ‒ been raised by his State-appointed lawyer at the trial stage and on appeal. There were therefore no grounds for reopening the proceedings. 21. Meanwhile, the applicant’s conviction and sentencing by the Czech courts had been recognised in Slovakia with a view to having the applicant serve the remainder of his sentence there. 22. The applicant’s extradition was implemented and he was actually transferred to Slovakia on 19 November 2010. 23. The Slovakian courts then commuted the ten-year sentence imposed on the applicant in the Czech Republic to two years and ten months because, in combination with the twelve and a half year sentence previously imposed in Slovakia, the overall penalty was in excess of that permitted by statute. 24. The applicant is now serving the reduced sentence in Slovakia. 25. On 20 March 2011 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). At the same time, he requested that a legal-aid lawyer be appointed to represent him. As for the substance, the applicant relied on Article 6 of the Convention and challenged the dismissal of his request for reopening of proceedings (see paragraphs 19 and 20 above) arguing that he had never been heard, that he had not had legal representation at the pre-trial stage of the proceedings ‒ despite such representation being mandatory ‒ and that the principle of equality of arms had been disregarded. 26. On 15 April 2011 the Constitutional Court declared the complaint inadmissible, essentially relying on its doctrine that the application of a statute in judicial proceedings in a manner consistent with the applicable procedural rules cannot amount to a violation of fundamental rights and freedoms. The complaint was thus manifestly ill-founded and there was no purpose in examining the applicant’s legal-aid request. 27. On an unspecified date the applicant also requested protection of his rights by means of an appeal on points of law (dovolanie) to be lodged on his behalf by the Minister of Justice. In a letter of 6 October 2011 the Ministry informed him that his case was not amenable to the temporal application of the rules of the 2005 CCP on appeals on points of law and that, therefore, no such appeal was available. 28. The applicant also requested leave to appeal against the judgment of 4 March 2002 outside the time-limit. His request was dismissed by the Supreme Court as unfounded on 20 October 2011. 29. Article 127 reads: “1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint to be justified, it shall deliver a decision stating that the person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the [person’s] rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the [person’s] fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint, the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated. 4. The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court’s decision.” 30. The implementation of the above provision of Article 127 of the Constitution is set out in more detail in sections 49 to 56 of the Constitutional Court Act (Law no. 38/1993 Coll., as amended). Pursuant to its section 53(3): “A constitutional complaint shall be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period shall commence when the complainant could have become aware of them.” 31. The relevant provisions of the 1961 CCP are summarised in Šupák v. Slovakia ((dec.), no. 4973/03, 23 February 2010). 32. The 2005 CCP entered into force on 1 January 2006 and wholly replaced the 1961 CCP. 33. Under Article 62 § 1 submissions are always to be interpreted according to their content even if they have been given a misleading or erroneous heading. A similar provision existed under the 1961 CCP (Article 59 § 1). 34. The rules concerning proceedings against absent defendants are contained in Section (Oddiel) 5 of Chapter 7 (Hlava) in Part 3 (Časť). Under these rules, convicted fugitives have the right to request, within a period of six months from the date on which they learned of their prosecution or conviction, but in any event within the applicable period of limitation, that their case be re-examined (opätovné prejednanie) by a court in their presence (Article 362 § 1). If these conditions are met, the previous decision must be quashed and the case re-examined on the basis of the original bill of indictment (Article 362 § 2). 35. Requests for reopening of proceedings are governed by the provisions of Section 3 of Chapter 8 in Part 3. In particular, an order to reopen proceedings concluded with the force of final and binding judgment may be issued if there emerge facts or evidence not known to the court in the original trial which ‒ either in themselves or in conjunction with facts and evidence known to the court at the original trial ‒ may result in a different decision as to the accused’s guilt or render the punishment imposed manifestly disproportionate to the gravity of the offence or the circumstances of the offender (Article 394 § 1). 36. In a decision of 7 November 2000 in appeal no. 6To 46/2000, the Supreme Court held that if a criminal trial against an absent defendant ended with a final and binding judgment, the guilty party had no right to have the judgment served on him or her and that, if he or she challenged that judgment by way of an appeal, the appeal was to be rejected as out of time. 37. In a judgment of 3 December 2002 in case no. III. ÚS 133/02, the Constitutional Court found that a criminal court had breached Article 6 §§ 1 and 3 (b) and (c) of the Convention in that it had tried and convicted the complainant in absentia without having properly established whether or not he could be considered a fugitive. The Constitutional Court quashed the conviction, remitted the case to the criminal court for re-examination, ordered the complainant’s immediate release, and awarded him compensation. As regards the statutory two-month period for introducing a complaint, the Constitutional Court held specifically that this period may only commence once the contested decision has been properly served on the complainant and that, as long as this is not the case, the period may not commence (see decision of 23 October 2002 published in the Collection of Judgments and Decisions of the Constitutional Court under no. 163/2002 and also the admissibility decisions of 16 September and 15 October 2003 in unrelated cases nos. III. ÚS 201/03 and III. ÚS 229/03). 38. In the context of complaints about judicial proceedings, the Constitutional Court has ‒ when determining compliance with the twomonth time-limit under section 53(3) of the Constitutional Court Act ‒ consistently considered irrelevant the dismissal of complainants’ requests for an extraordinary appeal to be filed on their behalf. It has instead held the date of the final effect of the contested judicial decisions to be relevant in that context (see, for example, decision of 28 February 2006 in the case no. IV. ÚS 42/06, with further references). A similar approach is taken with respect to terminated proceedings in relation to which a request for reopening which has been dismissed (see decision of 21 February 2008 in the case no. II. ÚS 84/08).
| 0 |
test
|
001-168643
|
ENG
|
NOR
|
ADMISSIBILITY
| 2,016 |
J.M.N. AND C.H. v. NORWAY
| 4 |
Inadmissible
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
1. The first applicant, Mr J.M.N., is a Swedish national born in 1973. The second applicant, Ms C.H., is a Norwegian national born in 1976. The applicants live in Moelv. They were represented before the Court by Mr A. Westeng, a lawyer practising in Oslo. 3. The applicants have a son, X, born in August 2013. In 2006, the second applicant had a son, Y, with another man. The second applicant suffers from paranoid schizophrenia, a chronic mental illness requiring medication. X had a difficult birth with birth asphyxia and possible withdrawal symptoms from the second applicant’s medication, which she had taken during pregnancy. Six days after X was born, Ringsaker Child Care Protection Services (barneverntjenesten) decided to take him into public care on an emergency basis because of the second applicant’s poor mental health and the first applicant’s inability to understand that this could be hazardous for X. 4. The applicants’ appeal was rejected on 5 September 2013 by Oppland and Hedmark County Social Affairs Board (fylkesnemnda for barnevern og sosiale saker, henceforth “the Board”). The applicants were at the same time granted contact rights for two hours once per week with X. The applicants did not appeal against the Board’s decision. 5. On 10 October 2013 the Child Care Protection Services requested the Board to take X and Y into permanent public care, place them in foster homes and regulate the contact rights with the applicants. The applicants opposed the measures. 6. On 4 March 2014, the Board decided to take X and Y into permanent public care and place them in foster homes. Y was placed with his maternal grandmother, with whom he had already lived since he was a baby. X was placed in another foster home. The applicants were granted contact rights with X for two hours, three times per year, with a foster parent present if needed. The second applicant was granted more substantial contact rights with Y, including overnight visits. An oral hearing was held for two days and 12 witnesses were heard. Moreover, the Board took into consideration a report issued by an expert, psychologist M.H., who had observed the applicants during several visits with X. The report concluded that the applicants failed to provide X with personal contact and security and that there were flaws in the emotional and child development care. 7. The applicants appealed against the permanent public care order and the decision on contact rights only regarding X. 8. On 24 June 2014, the Board’s decision was confirmed by Hedmarken City Court (tingrett), after a two-day oral hearing where 12 witnesses and the expert M.H. were heard. The court was composed of one judge and two expert lay judges. The court found that the applicants were able adequately to take care of X’s basic daily needs. However, as a vulnerable child, X had a special need for contact and emotional interaction. Regarding the second applicant, the court took into consideration the report by M.H. where it was noted, inter alia, that she was strongly affected by negative psychosis symptoms such as passivity and social withdrawal. She was emotionally numb, with heavily reduced function levels. As to the first applicant, M.H. had found that he was not able to compensate for the first applicant’s deficiencies. Although he could take care of X’s material needs, he was unable to fulfil X’s need for contact and interaction. In view of this, the court concluded that the public care of X could not be terminated. 9. One of the expert lay judges dissented and expressed the view that the first applicant was able to compensate for the second applicant’s deficiencies, at least if support measures were put in place by the authorities. 10. On 10 April 2015, Eidsivating High Court (lagmannsrett) unanimously rejected the applicants’ appeal against the lower court’s judgment concerning the permanent public care order. The appellate court consisted of three judges and two expert lay judges. Although the applicants did not appeal against the judgment in so far as it concerned the contact rights, the appellate court considered the matter on its own initiative. An oral hearing was held for three days. The parties and 14 witnesses were heard. With regard to X, he was considered by the appellate court to be a healthy and normal child but, due to his infant trauma, still vulnerable. Moreover, it noted that the second applicant had a chronic mental illness. The court relied on the same expert, M.H., as the City Court. M.H. had observed visits between the applicants and X on several occasions and had issued a new report, dated 23 February 2015, where, inter alia, the following was noted: “[The second applicant] has, during the visits I have observed, occasionally been more active with [X] than during the visits I observed in 2013. But her demeanour during the visits is, as during earlier visits, with some exception, characterised by her subdued (avdempet), detached (følelseflat) and quiet (stille) behaviour. There are long pauses where it is completely silent in the room.” As to the first applicant, the report by M.H. noted, inter alia, the following: “[He] was very passive during both visits. He followed [X] around the room while [X] explored the various games, and sat down on the floor when [X] did. However, he sat down behind [X] so that there was no face-to-face contact between them ... He smiled at [X] but did not take the initiative to interact or answer or develop the various initiatives X took for interaction during play. The visits were characterised by [the first applicant] quietly observing X’s play and the [second applicant’s] and [X’s] play. When [the second applicant] during the last part of the visits became more passive, [the first applicant] did not take over, but remained passive and quiet.” The report concluded that neither parent was able to meet X’s need for contact and interaction. Even though the first applicant was considered to possess more parental ability, he was still not found able to compensate for the second applicant’s lack of such ability, in particular as he lacked in his ability for sensitive care (sensitiv omsorg). It was furthermore concluded by M.H. that neither parent saw, understood or responded to X’s signals. The first applicant still lacked an understanding of the second applicant’s mental illness and how it affected her capacity to care for the child. 11. The appellate court found that the expert M.H.’s observations were confirmed by the court’s own observations during the oral hearing. It further considered that support measures would not be sufficient because of the applicants’ lack of interest in such measures and lack of understanding of their deficiencies. Moreover, X had settled well in his foster home and developed positively. Thus, it was in X’s best interest that the permanent public care order be granted. 12. The applicants appealed to the Supreme Court (Høyesterett), submitting that the permanent public care order should not be granted. They did not complain about the contact rights. 13. On 23 June 2015, the Supreme Court refused leave to appeal. 14. According to Section 4-8(2) of the 1992 Child Welfare Act (lov om barneverntjenester), a newborn child may be taken into public care if it is highly probable that a move to the parents would lead to such a situation or risk to the child as mentioned in Section 4-12. 15. Section 4-12(a), of the Act stipulates that a child may be taken into public care if there are serious deficiencies in the daily care of the child or in relation to the personal contact and security the child needs, depending on his or her age and development. 16. According to Section 4-21(2) of the Act, the parties may request the County Social Affairs Board to terminate the public care as long as at least 12 months have passed since the Board or the courts last considered the matter. 17. Contact rights between a child in public care and his or her parents are regulated in Section 4-19 of the Act which stipulates that the extent of the contact rights is decided by the County Social Affairs Board. The private parties can demand that the matter be reconsidered by the Board as long as at least 12 months have passed since the Board or the courts last considered it (Section 4-19(5)). 18. Article 3 of the Convention on the Rights of the Child, in so far as relevant, reads as follows: “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. “
| 0 |
test
|
001-163913
|
ENG
|
UKR
|
CHAMBER
| 2,016 |
CASE OF LOVYGINY v. UKRAINE
| 3 |
Remainder inadmissible;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);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Sergiy Goncharenko;Síofra O’Leary
|
5. The applicants were born in 1938 and 1939 respectively and live in the city of Kherson, Ukraine. 6. On 14 January 2000 a police training exercise was conducted in accordance with an operational plan entitled “Sirena” (оперативний план «Сирена») (hereinafter “Operation Sirena”). During the exercise the applicants’ son, a police officer at the material time, played the role of a criminal for the purposes of the exercise and was accidentally shot dead by another police officer. 7. Operation Sirena for the Kherson Region was approved in 1999 by the police, civil and military authorities of that region on the basis of order No. 230 (classified) of 24 April 1998 of the Ministry of the Interior (see paragraph 66 below). The plan set out the steps to be taken and the procedure to be followed in the event of a search for and the arrest of armed or other dangerous criminals, including those who had escaped from detention. 8. A senior traffic police inspector, L., following instruction no. 20/10-33 of 9 January 2000 issued by the Kherson Regional Department of the Ministry of the Interior (Управління Міністерства внутрішніх справ в Херсонській області) (“the Kherson Regional Department”) and pursuant to an order from a senior traffic police officer, Kos., drafted a training exercise for traffic police officers in the city of Kherson and the village of Antonivka in the context of Operation Sirena. 9. The one-page training scenario stipulated that the training was to take place on 14 January 2000 between 10 a.m. and 5 p.m. At 10 a.m. a police office on duty was to circulate information that armed criminals had hijacked a car and that Operation Sirena had been launched. The scenario stipulated that, in addition to the police officer who would drive the car, there should also be in the car a second police officer, O., who would observe the actions of police patrol officers. The hijacked car would be followed by a second car containing a police officer, Ts., who would film the exercise. The scenario was approved on 13 January 2000 by a deputy head of the Kherson Regional Department, S. 10. Senior traffic police officer Kos., who on 14 January 2000 was the acting head of the Traffic Police Department, later stated in the course of the criminal investigation that traffic police officers had been given prior notice of the training exercise on the day that it was held. 11. At 10.30 a.m. on 14 January 2000 a senior traffic police officer, So., briefed traffic police officers O., Ts., Ku., Sh. and the applicants’ son about the training. At 10.50 a.m. L. instructed a traffic police officer on duty to give the police unit on duty («чергова частина») prior notice of the training exercise and to issue a “lookout alert”. 12. At 10.56 a.m. a police officer on duty, P., was informed by a traffic police unit that two unknown armed criminals had hijacked a car and were moving in the direction of Tavriyskyy, a Kherson residential neighbourhood. He communicated this information to the patrol cars, to the city’s district police stations and to the head of the Kherson Regional Department. Two or three minutes later P. received additional information that the above-mentioned alert was part of a training exercise being conducted under Operation Sirena. According to the findings of the subsequent internal police investigation (see paragraph 19 below), P. forwarded that additional information to the head of the Kherson Regional Department, who instructed P. to pass it on to the city’s district police stations. It was established by the police internal investigation that P. failed to do so. 13. Having been informed of the alleged hijacking, Os., the First Deputy of the Dniprovskyy district police office, issued appropriate instructions to four police officers and placed them at various posts. In particular, police officer K. was placed, together with a traffic police officer, Ko., in the vicinity of the Antonovskyy Bridge over the River Dnipro. 14. The car containing the “criminals” (played by the applicants’ son and police officer Ku.) passed the aforementioned post without being stopped. According to Ko., his radio transmitter had not been working properly and he had left his post in order to inform the traffic police office in charge that the hijacked car had passed their post. Later Ko. testified that he had given K. prior notice of the training exercise. After Ko. had left, police officer Ts., who was in the second car and was filming the exercise, switched off his camera (see paragraph 26 below). 15. Traffic police officer O., who was an observer in the “hijacked” car, instructed the applicants’ son, who was driving, to drive by the post again. This time, police officer K. stopped the car, released his gun’s safety catch, and ordered the applicants’ son and police officer Ku. to get out of the car. While searching the applicants’ son, K. pulled the trigger since the applicants’ son had allegedly made a sudden movement. The applicants’ son was fatally wounded and died on the way to hospital. 16. The applicants submitted a copy of the video recording of the training exercise. However, the part containing the shooting incident involving the applicants’ son was missing. The original video recording has been lost (see paragraph 46 below). 17. On 15 January 2000 the Kherson Regional Board of the Ministry of the Interior adopted a decision by which it was concluded that the “extraordinary event” («надзвичайна подія») of 14 January 2000 had taken place because of low professional standards on the part of the police; K.’s failure to assess properly the “extraordinary circumstances” («екстремальні умови»), ignorance of the steps to be taken when arresting a suspect and failure to properly handle his weapon; and the irresponsible attitude of senior police officers towards the organisation of the training exercise. It was decided, inter alia, to dismiss K., O., P., Os. and A. 18. On 16 January 2000 the head of the Kherson Regional Department, I., approved the findings of an internal investigation conducted following the death of the applicants’ son. 19. The conclusion of that investigation provides, in so far as relevant, as follows: “The inspection established that: In accordance with instruction no. 20/10-33 of 9 January 2000 issued by the Kherson Regional Department of the Ministry of Interior ..., L. ... drafted a training scenario for traffic police personnel ... When doing so he did not take into consideration the provisions of Operation Sirena ... [It] is pointless and not efficient to conduct training only for the traffic police officers of Kherson and Antonivka. The procedure for the conduct of the training was not comprehensively set out; [failures included]: - the failure to stipulate an itinerary for the car containing the “criminals”; - the failure to provide for the necessary number of observers ... In their turn, the senior officers of the Kherson Regional Traffic Police ... acted in a perfunctory and irresponsible manner ..., did not properly study the scenario and did not correct its shortcomings... Moreover, no training instructor was appointed and the heads of services and subdivisions involved in the training were not informed of the details of the scenario. The deputy head of the Department ..., S. – approved the above-mentioned scenario on 13 January 2000 without correcting its shortcomings... So., a lieutenant-colonel, ... briefed those police officers who were due to participate in the training but failed to notify the head of the Department of the time of the training and did not personally supervise the progress of the training ... P. ... was briefed by the traffic police unit on duty that two unknown armed criminals had hijacked a car and were moving in the direction of Tavriyskyy [a residential neighbourhood of Kherson]. Two or three minutes later he was informed that this information was part of a training scenario being conducted under Operation Sirena. P. informed the head of the Department about it and was instructed to inform the Kherson district police stations accordingly. P., acting incompetently and ignoring those instructions, ... failed to inform the officers on duty at the district police stations about the ongoing training but only circulated descriptions of the criminals. ... G., the head of the police unit on duty at the Department, ... was informed by P. about the training exercise being held by the traffic police; G. ordered P. to follow prior practice but ... failed to supervise him. ... The senior officers of the Dniprovskyy District Police Department, Os. and A. ... negligently and lackadaisically implemented Operation Sirena ... ... instead of two police officers, who were to have been provided with transport and communication devices under Operation Sirena, ... only one police officer, K., was placed at the post, together with a traffic police officer, Ko. The latter states that he [gave] K. [prior notice of] the training ... At the same time K. and Ko. failed to properly regulate the traffic and to block the road ... Police officer O. ... failed to assess the situation in a timely manner, exhibited negligence and carelessness and, despite the fact that K. had released his gun’s safety catch, in blatant breach of order no. 230 of the Ministry of the Interior, failed to stop the progression of events which led to a police officer’s death. That extraordinary event became possible because of: - irresponsibility, insufficient professional standards, and incompetence in the conception and drafting of the training scenario ... on the part of police officer L.; - the formalistic and irresponsible approach to the planning and organising of the practical training ..., lack of cooperation with the regional police, and low level of supervision of subordinates on the part of the regional traffic police management (police officers Kos. and So.); - the negligence of official duties, formalistic approach to the organisation of the training (and the lack of supervision of its conduct), ... and failure to introduce comprehensive measures aimed at the prevention of extraordinary events on the part of police officer S.; - the low level of professionalism, irresponsible attitude to official duties, and disregard of instructions issued by the head of the Department on the part of the assistant to the head of the unit on duty (police officer P.); - the indifference and lack of supervision of the professional activities of his subordinates on the part of police officer G.; ... - the irresponsibility, negligent and indifferent attitude towards the performance of tasks assigned during the training and failure to take precautions in respect of the personal security of the police officers on duty on the part of police officer O.; - the low level of professional training and inability to act [appropriately] in extraordinary circumstances ... on the part of police officer K.” 20. As a result, it was concluded that police officers K., O., P., Os. and A. should be dismissed and that the dismissal of police officer S. should be initiated before the Ministry of the Interior. It was further proposed to discipline a number of the other police officers involved. The investigation concluded that the senior police officers involved had failed to properly train their personnel to act in emergency circumstances. 21. On 17 January 2000 the Ministry of the Interior issued an order which noted that even though safety and the prevention of death and injury in respect of police officers were priorities in police activities, there had been a number of serious shortcomings in the organisation and conduct of the training exercise, which had led to the incident in question. It was noted, inter alia, that since the beginning of his service with the Dniprovskyy District Police Office in November 1999 K. had not attended the relevant theoretical instruction classes. The Ministry also concluded that the police officers involved had failed to properly organise the training. 22. It was further noted that by order No. 17 of 16 January 2000, issued by I., the head of the Kherson Regional Department, Os., A., P., O., and K. had been dismissed and other police officers disciplined. For the most part, that decision was approved by the Ministry of the Interior. However, it was decided not to dismiss but rather to demote Os. and A. and to reprimand I. 23. On 14 January 2000 the Dniprovskyy District Prosecutor’s Office of Kherson (“the District Prosecutor’s Office”) instituted criminal proceedings in respect of the incident. On the same day it was decided to assign the case to three investigating officers and to conduct a forensic medical examination of the body of the applicants’ son. In particular, the expert was asked to determine what injuries were on the corpse. 24. On 15 January 2000 a forensic medical expert concluded that the applicants’ son had a gunshot wound to the chest and scratches on the left side of the face, possibly sustained when he fell down. 25. In the course of the investigation K. pleaded guilty. His testimonies regarding the events of 14 January 2000 coincided with the facts as described in paragraphs 13-15 above. 26. The testimony of different police officers involved in the organisation and conduct of the training exercise included, inter alia, the following: - P. testified that the “orders in force” had not required that information about the training be circulated; - the head of the police unit on duty at the Kherson Regional Department (начальник чергової частини штабу Управління МВС), G., testified that he had instructed P. to “comply with the Sirena plan, in accordance with the existing instructions”. G. also submitted that the police unit on duty had only received the training scenario on 15 January 2000 that is the day after the training exercise. It had been impossible to involve only the traffic police in the training since Operation Sirena had required joint action, involving both the police and the traffic police; - S., a deputy head of the Kherson Regional Department, testified that there had been no legal instruments governing the conduct of police training under Operation Sirena. S. stated that the police officer who had ordered the implementation of the training had been supposed to instruct police officers on duty as to what information should be given to the district police stations. S. stated that the training scenario had been discussed with Kos., who had told S. that the scenario had been approved by the head of the Kherson Regional Department; - police officer O. testified that the district police stations must have been aware of the training exercise. This information should have been circulated, together with a “lookout alert”; - police officer A. testified that nobody in the Dniprovskyy District Police Office had been aware of the training exercise; - police officer Ku. testified that he and the applicants’ son had been “aware that the police officers [would] have guns with live rounds”; - traffic police officer Ko. testified that he had told K. about the training; - police officer Ts. testified that he had stopped filming after traffic police officer Ko. had left (see paragraph 14 above), since he had “not known that the car would make a second attempt to pass this post”. 27. During a confrontation held between K. and traffic police office Ko., the latter insisted that he had informed K. about the training. 28. In the course of the investigation a number of other investigating measures were conducted, including a forensic ballistics examination and a reconstruction of events. 29. On 13 July 2000 the Dniprovskyy District Court (“the Dniprovskyy Court”), in the absence of the applicants, terminated the criminal proceedings against K. under the Amnesty Act, since he was the father of a minor and should thus not be liable to serve a punishment. It was noted that this decision was not subject to appeal. 30. On 3 April 2009 the Dniprovskyy Court rejected as unsubstantiated an application lodged by the second applicant on March 2009 for the renewal of the time-limit in respect of an appeal against the decision of 13 July 2000. On 19 May 2009 the Kherson Regional Court of Appeal upheld this decision. The court noted that although the second applicant had been absent from the court hearing on 13 July 2000, she had been aware of that decision since at least 2004 and had received a copy of it on 23 January 2008 at the latest. 31. In June 2000 the District Prosecutor’s Office refused to institute criminal proceedings against other police officers involved in the organisation and conduct of the training exercise. In particular, on 7 and 8 June 2000 the District Prosecutor’s Office refused to institute criminal proceedings against L., O., Kos., So., S., A., Ost. and G. in the absence of any evidence of a crime, given that there had been no causal link between their actions and the death of the applicants’ son. 32. On 27 and 28 June 2000, citing the same reasons, the District Prosecutor’s Office refused to institute criminal proceedings against P. and O. On 18 August 2000 those decisions were quashed by the Kherson Regional Prosecutor’s Office and the case was remitted for additional investigation. 33. On 1 September 2000 the District Prosecutor’s Office instituted criminal proceedings in respect of the alleged negligence on the part of the Kherson Regional Department police officers involved in the organisation and conduct of the training exercise. 34. On 30 October 2000 the District Prosecutor’s Office terminated the proceedings. It noted that, according to a Kherson Regional Department senior police officer, the legal instruments of the Ministry of the Interior had not stipulated that police officers should have been informed about the training. Such training was to be conducted under realistic conditions. It was further noted that no obligation to inform colleagues about the training exercise had been part of the duties of any police officer on duty. 35. On 28 November 2000 the Kherson Regional Prosecutor’s Office quashed that decision and remitted the case for additional investigation. It noted that the investigation had not been thorough and that the decision taken had been unsubstantiated. In particular, it had not been established whether there had been a causal link between the shortcomings on the part of the police officers and the death of the applicants’ son. It had also not been established which legal instruments regulated police training exercises. 36. By a letter of 29 December 2000 the Kherson Regional Department informed the District Prosecutor’s Office that, under (classified) order No. 230 of the Ministry of the Interior (see paragraph 66 below), the relevant skills were “to be mastered during training [conducted] under realistic conditions”. At the same time the relevant legal instruments did not specify any procedure for the conduct of training exercises. 37. On the same day the District Prosecutor’s Office terminated the criminal proceedings. 38. On 12 February 2001 the Kherson Regional Prosecutor’s Office quashed that decision, citing the failure to fully comply with the decision of 28 November 2000. The recommenced proceedings were again terminated on 29 March 2001. It was noted in the latter decision that the constituent elements of a crime (“negligence”) under Article 167 of the Criminal Code included failure to perform properly or at all certain duties. However, in the absence of any regulations governing procedure for the conduct of training exercises under Operation Sirena, the duties of the police officers involved in such training had not been defined. Moreover, there had been no causal link between the actions of the Kherson Regional Department police officers and the death of the applicants’ son, since the latter had died following K.’s mishandling of firearms. It was concluded that there was no indication of any crime in the actions of the police officers. 39. On 1 April 2004 the General Prosecutor’s Office quashed the decision of 29 March 2001. It was noted that the decision to terminate the criminal proceedings had been “premature and unlawful”. In particular, during the investigation it had not been clarified whether there had been a possibility to equip the police officers with blank cartridges and why O. had not intervened to prevent K. firing his gun after seeing that its safety catch had been released. 40. On 25 April 2004 the District Prosecutor’s Office again terminated the proceedings. When questioned again, O. stated that he had not known that K.’s gun had been loaded. Moreover, K. should have been aware that a training exercise was in progress. The tragic incident had happened within seconds, so O. had not had the possibility of preventing it. P. testified that, “under the Department’s instructions regarding the ‘Sirena’ training plan”, it had not been his responsibility to circulate the information that the announcement about the car hijacking was part of a training exercise. As to whether blank cartridges could have been used for the training exercise, the head of the Kherson Regional Department staff, D., testified that the regional police senior officers had decided to use live rounds for the training. The investigation concluded that the applicants’ son had died as a result of the mishandling of firearms on the part of K. 41. On 21 September 2004 the Kherson Regional Prosecutor’s Office quashed this decision and remitted the case for additional investigation. It was noted that a number of investigative actions had yet to be undertaken and a number of issues had yet to be clarified. In particular, the plans for the training exercise and Operation Sirena had to be seized and it had to be clarified who had briefed K. and why K. had been alone at his post. It was also noted that order No. 230 was not classified and should therefore be added to the case materials. 42. In January 2005 the applicants’ relatives testified that at the funeral of the applicants’ son they had noted that make-up had been applied to the applicants’ son’s face to cover a hole in his head. An ambulance doctor testified that he had not examined the body in detail since it had been evident that the applicants’ son had died after being shot. 43. On 20 January 2005 the investigating authorities decided to exhume the body. 44. On 24 March 2005 a forensic medical examination of the body of the applicants’ son was ordered because the applicants insisted that their son had not been accidentally shot but rather killed by either being hit on the head with a gun or shot in the head because he had possessed information regarding unlawful activity on the part of other police officers. They stated that the body had had a large haematoma on the head and there had been a crack in the skull. 45. After the forensic medical examination of the body of the applicants’ son, a forensic expert concluded that the crack in the skull of the applicants’ son had appeared during the initial forensic medical examination. 46. On 25 January 2006 the Deputy Prosecutor of the Kherson Regional Prosecutor’s Office upheld the conclusions of an internal investigation into the loss of the original video recording of the training exercise. It was proposed to discipline the investigating officer, I., who, between April 2004 and April 2005, had lost the video. 47. On 10 February 2006 it was again decided to terminate the criminal proceedings in the absence of any evidence of a crime. A deputy head of the Kherson Regional Department, T., submitted that the police officers had not been informed about the training exercise since, under (classified) order No. 230 of the Ministry of the Interior, police training should be conducted under conditions as realistic as possible. There were no legal instruments of the Ministry of the Interior stipulating the procedure for the conduct of training exercises and there was no obligation to inform police officers when any such training was being conducted. Consequently, the scope of duties of those involved in the training conducted under Operation Sirena had not been defined. 48. On 8 September 2006 the Suvorovskyy District Court (“the Suvorovskyy Court”) quashed this decision and remitted the case for additional investigation, since the prosecutor’s office had failed to take into account the fact that some police officers had been disciplined. The court also observed that “all necessary and possible investigative actions had not been undertaken”. 49. On 14 November 2006 the Kherson Regional Court of Appeal quashed the decision of 8 September 2006 and upheld the decision of 10 February 2006. The court concluded that the Suvorovskyy District Court had, in particular, failed to specify which facts had not been examined by an investigating officer. 50. The second applicant appealed against the decision of 14 November and that many aspects of the case remained unclear (whether there had been an obligation to inform the police officers about the training, what did the “near-reality” conditions mean etc.), therefore, the first instance court decision had been well-grounded and should not had been quashed. On 31 January 2008 the Supreme Court of Ukraine dismissed the second applicant’s appeal. It found that the applicant’s arguments about unlawfulness and lack of reasoning of the second instance court decision had been unsubstantiated. In particular, the court of appeal correctly concluded that the investigation had been comprehensive while the first instance court had failed to give reasons for the need for additional investigation. 51. On 16 October 2000 a lump-sum insurance payment in the amount of 18,270 Ukrainian hryvnias (UAH) (at the material time around 3,894.68 euros (EUR)) was paid jointly to the applicants and to their son’s widow and daughter pursuant to section 23 of the Police Act (see Lovygina v. Ukraine (dec.), no. 16074/03, 22 September 2009). 52. According to the Government, between 2002 and 2013 a total of UAH 21,320 (around EUR 2,558) was paid to the applicants in financial aid and the first applicant was furnished with a washing machine, construction materials for a house renovation and a table for a computer. 53. The applicants instituted proceedings against the Kherson Regional Department claiming compensation for damage inflicted by their son’s death. On 13 October 2000 the Suvorovskyy District Court awarded them UAH 23,600 (around EUR 5,000) as compensation for non-pecuniary damage. This decision was quashed and the case remitted for fresh consideration. 54. On 26 September 2001 the same court awarded the applicants UAH 20,000 (around EUR 4,000). On 15 January 2002 the Kherson Regional Court of Appeal upheld that decision. However, on 21 October 2002 the Supreme Court of Ukraine quashed it and dismissed the applicants’ claim, finding that, after having accepted a full insurance payment, the applicants no longer had a valid compensation claim. The parties did not submit copies of the applicants’ claim and the domestic courts’ decisions. 55. In March 2006 the applicants instituted proceedings against the prosecutor’s offices at various levels. The applicants complained that the investigation into their son’s death had been ineffective and claimed compensation for non-pecuniary damage. 56. On 8 September 2006 the Suvorovskyy District Court, examining the case under administrative procedure, found for the applicants. The court found that the investigation had lasted for six years and that on four occasions the Kherson Regional Prosecutor’s Office had quashed the decisions of the District Prosecutor’s Office terminating those proceedings. The court concluded that the case had been investigated improperly, with numerous breaches of the law, and awarded the applicants compensation. 57. On 23 January 2007 the Kherson Regional Court of Appeal quashed that decision and remitted the case for fresh consideration by the first-instance court. 58. After declining several times to consider the applicants’ case because of their failure to comply with procedural requirements, on 6 February 2008 the Komsomolskyy District Court (“the Komsomolskyy Court”) decided to terminate the proceedings, ruling that the applicants’ claim for damages should have been lodged under a civil procedure. On 24 December 2008 the Odessa Administrative Court of Appeal upheld this decision. The applicants appealed in cassation. 59. On 10 March 2011 the Higher Administrative Court upheld the above decisions and held that the applicants should have complained to a higher prosecutor about the allegedly unlawful actions of the lower prosecutor. 60. In April 2009 the applicants lodged a claim under civil procedure with the Komsomolskyy Court against the Kherson Prosecutor’s Office, claiming compensation for damage resulting from an ineffective investigation. On 22 April 2009 the court dismissed that claim on the ground that the applicants should have lodged their claim under administrative procedure. On 20 July 2009 the Kherson Regional Court of Appeal upheld that ruling. The applicants did not appeal against those rulings. 61. In February 2009 the second applicant instituted administrative proceedings in the Kherson Regional Administrative Court against the Ministry of the Interior and the Kherson Regional Department, complaining that their conduct relating to the organisation of the police training of 14 January 2000 had been unlawful. It is not clear whether she claimed any compensation in this respect. 62. On 26 June 2009 the Kherson Regional Administrative Court found against the second applicant. The court noted that the death of the second applicant’s son had been investigated several times; K. had been found guilty but amnestied, criminal proceedings against other police officers had been terminated in the absence of evidence of any crime, and police officers S. and I. had been disciplined. Moreover, the second applicant’s son had died in 2000, but the second applicant had only lodged her claim against the Ministry and the Kherson Regional Department in 2009. 63. On 4 January 2010 the Odessa Administrative Court of Appeal dismissed an appeal lodged by the second applicant, ruling that it had been lodged out of time. On 16 November 2010 the Higher Administrative Court of Ukraine upheld that ruling. 64. On 1 April 2003 the applicants lodged an application before this Court complaining that termination of the proceedings against K. had been in breach of the State’s positive obligation under Article 2 of the Convention to conduct an effective independent investigation into their son’s death. They also invoked Article 6 § 1 of the Convention complaining about the outcome of the proceedings in respect of their claim for compensation (see paragraph 54 above). 65. On 18 October 2005 the Court by a Committee decision declared their complaints inadmissible (application no. 15439/03).
| 1 |
test
|
001-174547
|
ENG
|
DNK
|
ADMISSIBILITY
| 2,017 |
HAMESEVIC v. DENMARK
| 4 |
Inadmissible
|
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström
|
1. The applicant, Mr Kemal Hamesevic, is a citizen of Bosnia and Herzegovina and was born in 1971. It appears that he currently lives in Bosnia and Herzegovina. He was represented before the Court by Mr Gunnar Homann, a lawyer practising in Copenhagen. 2 3. The applicant entered Denmark in 1994, when he was 23 years old. He was granted asylum the following year. 4. In the meantime, on 15 August 1994 he had married a woman originating from Bosnia and Herzegovina, with whom he has three children, born respectively in 1995, 1996 and 1998. The children are Danish nationals. 5. The spouses divorced in 2007. 6. On 23 February 2007 the applicant was convicted of assault and sentenced to 40 days’ imprisonment, suspended. 7. On 8 August 2012 the applicant and his girlfriend, A, a Danish national originating from Bosnia and Herzegovina, were arrested and charged with smuggling loaded weapons from Bosnia and Herzegovina into Denmark, in the spring and summer of 2012. 8. On 12 March 2013, a City Court (retten i Kolding) convicted the applicant, A, and two co-accused under Article 192 a of the Penal Code of smuggling loaded weapons from Bosnia and Herzegovina to Denmark for the purpose of resale (four AK 47 machine guns and two pistols), and attempt to do so (ten pistols), as well as offences under the Weapons Act (notably possession of ammunition). The applicant was found to be the instigator and was therefore sentenced to two years and six months’ imprisonment. A was sentenced to one year in prison. 9. In addition, the applicant was expelled from Denmark with a life-long ban on returning. Before the City Court the Aliens Board (Udlændingestyrelsen) gave a statement about the applicant’s situation, inter alia, that the applicant’s father lived in Bosnia and Herzegovina and that his mother had died eleven years before. The applicant’s children would not be covered by the applicant’s expulsion. The applicant had worked in Denmark, but for the two previous years he had received social welfare benefits and taken medication against depression. During the two previous years, he had been on vacation in Bosnia and Herzegovina around five times and he was in the process of buying a house in the town of Sanski Most. He did not want to move to Bosnia and Herzegovina, however, since he only had his father there, and his children were in Denmark. The City Court stated: “The applicant has had a legal stay in Denmark for more than nine years [referring to the wording in section 22 of the Aliens Act]. Since he is convicted of violation of Article 192 a of the Penal Code, the legal authority for expulsion is set out in section 22, no. 8 of the Aliens Act. It transpires from section 26, subsection 2, of that Act that an alien shall be expelled under sections 22-24 and section 25, unless such would be in breach of Denmark’s international obligations. Having made an overall assessment of the information contained in the statement by the Aliens Board, including notably the connection to his home country, and the age of the applicant’s children in Denmark combined with the sentence and nature of the crime, the City Court does not find that expulsion would be in breach of Denmark’s international obligations. Accordingly, the claim to expel the applicant is granted by the City Court. By virtue of section 32, subsection 2, no. 5, the expulsion is permanent due to the length of the sentence”. 10. The applicant appealed against the judgment to the High Court of Western Denmark (Vestre Landsret) before which he explained, among other things, that his children, who lived with their mother, had visited him in prison twice a week. Before his imprisonment, he had seen them almost every day. The applicant and A had lived together for a couple of years and had married on 31 May 2013. Moreover, the applicant had acknowledged paternity of a child, E, born to A on 26 September 2007, at a time when she was living with R, the father of A’s other children, Danish citizens born in 1992, 1995, 1999, and 2001. The applicant owned a piece of land in Serbia, but he could not build on it. He had inherited it from his mother. He and A had to give up their plan to buy a house in Bosnia and Herzegovina since, due to his arrest, they could not pay for it. His father was 74 years old. 11. A explained that she and the applicant had been a couple for six years and had long intended to marry. It had been a difficult period when both she and the applicant had been in pre-trial detention and she could not see her daughter, E. The latter now lived with a foster family and visited A every second weekend. If the applicant were to be expelled, she and the children would have nobody to lean on in Denmark. She was from Bosnia and Herzegovina, but no longer had any family there, and she could not see how she and the children would be able to move to Bosnia and Herzegovina with the applicant. 12. By a judgment of 13 August 2013, the High Court increased the applicant’s sentence to three years’ imprisonment and upheld the expulsion order. It adhered to the reasons set out by the City Court and added that the fact that the applicant, after the City Court’s judgment, had married A, and that the paternity case concerning five-year-old E had been reopened, could not lead to a finding that the applicant’s expulsion would be in breach of Denmark’s international obligations. 13. Leave to appeal to the Supreme Court (Højesteret) was refused on 27 December 2013. 14. In the meantime, on 12 July 2013 a City Court had reopened the paternity case concerning E, who until then had had R registered as her father. On 17 October 2013, the same City Court confirmed that the applicant was E’s father. 15. On 6 March 2014, before having served his sentence, the applicant requested that the expulsion order be revoked under section 50, subsection 1, of the Aliens Act due to material changes in his circumstances, notably because it had been established that he was E’s father. 16. The case was submitted to the City Court (retten i Svendborg), before which the applicant explained that A and the children would not follow him as they would not be able to cope in Bosnia and Herzegovina. 17. A explained, among other things, that she lived in an apartment with the three youngest children, including E. At the relevant time the children were 15, 13 and 7 years old. The two eldest had moved away from home. Her children spoke Danish and Bosnian. She did not have a job. If the applicant were to be expelled, she would have to stay in Denmark, because the children could not live by themselves, and she could not envisage taking E to Bosnia, as E would not be able to understand that she would no longer attend school in Denmark. A’s parents lived in the United States of America. She only had the applicant, and her children in Denmark, and she needed a man to support them. Her children with R had contact with him and visited him as they liked. They had stayed with him when she was in pre-trial detention. 18. A statement of 4 September 2014 by the Aliens Board was submitted before the City Court setting out, inter alia, that the applicant was able to speak and write in Danish. He had received frequent visits in prison from his sister, brother-in-law, children and stepchildren. The applicant’s father had died and the applicant no longer had any close family in Bosnia. He had been offered a job as a driver, to begin when he had served his sentence. 19. On 18 November 2014 the City Court refused to revoke the expulsion order, finding that no material changes had occurred in the applicant’s circumstances. 20. On appeal to the High Court, the applicant and A were heard anew. The latter now stated that her children did not speak much Bosnian. She could not follow the applicant to Bosnia. They had nothing in Bosnia. It would be very difficult for them to settle there. 21. On 20 January 2015, having made an overall assessment, which notably took into account on the one hand the applicant’s connection to Denmark and on the other hand, the seriousness of the crime committed and the sentence imposed, the High Court confirmed the decision to refuse to revoke the expulsion order. In the High Court’s view, the expulsion order would not be disproportionate or in violation of Article 8 of the Convention. The High Court gave weight to the fact that both the applicant and A were from Bosnia and Herzegovina, and accordingly spoke Bosnian. Moreover, A had stated that her three youngest children, who lived with her, spoke Danish and Bosnian. Therefore, the High Court found it established that it would be possible for them to continue family life with the applicant in Bosnia. Finally it noted that the applicant’s children with his ex-wife, who were aged 16, 18 and 19, lived with their mother. 22. Leave to appeal to the Supreme Court was refused on 13 April 2015. 23. Finally, the Aliens Board, by a decision of 4 March 2015, upheld on appeal by the Refugee Appeals Board (Flygtningenævnet) on 26 May 2015, found that there were no impediments to deporting the applicant to Bosnia and Herzegovina. 24. The applicant was deported shortly thereafter. 25. The relevant provisions of the Aliens Act (udlændingeloven) relating to expulsion were recently set out in detail in Salem v. Denmark, no. 77036/11, §§ 49-52, 1 December 2016.
| 0 |
test
|
001-166963
|
ENG
|
DEU
|
CHAMBER
| 2,016 |
CASE OF W.P. v. GERMANY
| 4 |
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty)
|
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
|
5. The applicant was born in 1944. At the time of lodging his application, he was detained in a Centre for persons in preventive detention in Hamburg-Fuhlsbüttel Prison. He now lives in Pinneberg. 6. On 28 March 1994 the Lübeck Regional Court convicted the applicant of rape and sexual assault. It sentenced him to eight years’ imprisonment and ordered his preventive detention under Article 66 § 1 of the Criminal Code (see paragraph 23 below). The court found that in August 1986 the applicant, having acted with full criminal responsibility, had raped an eighteen-year-old woman whom he had lured into a forest. It noted that between 6 October 1970 and 28 May 1991 the applicant had been convicted of five counts of rape of young women, committed only a couple of months after his release from prison. Therefore, and having consulted a medical expert, the court found that the applicant had a propensity to commit serious sexual offences and was dangerous to the public. 7. On 10 January 2002 the applicant, who had fully served his prison sentence, was placed for the first time in preventive detention, initially in Lübeck Prison. He had thus served ten years in preventive detention by 9 January 2012. 8. On 2 October 2012 the Lübeck Regional Court, having heard the applicant in person as well as his lawyer, by whom he was represented throughout the proceedings, ordered the applicant’s preventive detention to continue. 9. The Regional Court considered that the requirements set up by Article 67d of the Criminal Code, read in the light of the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraph 23 below), in order for retrospectively-extended preventive detention to continue, were met. It found that the applicant suffered from a mental disorder, for the purposes of section 1 (1) of the Therapy Detention Act (see paragraph 23 below). He had a personality and conduct disorder as described by the relevant tool for the classification of diseases, the International Statistical Classification of Diseases and Related Health Problems in its current version (ICD-10). The Regional Court endorsed the findings which psychiatric expert B. had made in his report dated 4 June 2010 on the possibility of granting relaxation of the conditions of the applicant’s detention (Vollzugslockerungen) after having examined the applicant in person. The expert had found that the applicant suffered from a profound and serious personality disorder with narcissistic elements and a lack of self-esteem. His disorder was characterised by denying and idealising conduct, total denial of his own aggression and minimisation of his criminal acts. 10. Furthermore, in the Regional Court’s view, there was still a high risk that the applicant, owing to the said specific circumstances relating to his person and his conduct, would commit the most serious sexual offences if released. It had repeatedly been confirmed, in particular, by expert B. and by the Hamburg-Eppendorf University hospital, that the applicant needed comprehensive therapy for sexual offenders in a social therapeutic institution. However, the applicant, who had not completed therapy, had confirmed at the hearing that he refused transfer to the prison’s social therapeutic department. Furthermore, the applicant had already raped six women and had repeatedly reoffended shortly after his release. 11. On 24 October 2012 the applicant lodged an appeal against the Regional Court’s decision with the Schleswig-Holstein Court of Appeal. He argued that his continued preventive detention beyond the former tenyear time-limit breached the Basic Law, as interpreted by the Federal Constitutional Court, and the Convention. He complained, in particular, that the Regional Court had failed to obtain a new report by a different expert and had relied on the report of expert B. dating back two-and-a-half years, on relaxation of the conditions of the applicant’s detention, which had not addressed the issues relevant to his continued detention. 12. On 21 November 2012 the Schleswig-Holstein Court of Appeal dismissed the applicant’s appeal. As regards the finding that the applicant suffered from a mental disorder for the purposes of section 1 (1) of the Therapy Detention Act, the Court of Appeal stressed that the decision to extend the applicant’s preventive detention had not only been based on the written report submitted by expert B. in 2010. The expert had been heard in person by the Regional Court in different proceedings (concerning the applicant’s transfer to a psychiatric hospital, see paragraph 19 below) on 6 June 2012 and had updated and confirmed his previous findings. His assessment had further been shared by the Hamburg-Eppendorf University hospital in its statement dated 27 March 2012 on the therapeutic progress made by the applicant. The hospital, having regard to the voluminous casefile, had confirmed expert B.’s conclusion that the applicant, who had refused any therapeutic treatment for years, suffered from a profound personality disorder as defined by the ICD-10, namely a narcissistic personality disorder with emotionally unstable and sadistic elements. 13. The Court of Appeal, having regard to the applicant’s previous offences and the fact that therapy to date had not yielded success, further agreed that there was still a high risk that the applicant would commit the most serious sexual offences if released. As had been confirmed by the applicant in the hearing before the Regional Court, his personal and therapeutic situation had not changed since the Court of Appeal’s last decision of 18 November 2011 in which, in periodic review proceedings, it had ordered the extension of the applicant’s preventive detention. 14. On 17 December 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that the extension of his preventive detention beyond the former statutory ten-year time-limit had violated his right to liberty and the protection of legitimate expectations in a State governed by the rule of law. 15. The applicant claimed that the restrictive criteria set up by the Federal Constitutional Court in its judgment of 4 May 2011 for a continuation of his retrospectively extended preventive detention had not been met. In particular, the order for the continuation of his preventive detention had been based on an old expert report on relaxation of the conditions of his detention, which had not addressed the criteria set up by the Federal Constitutional Court. In these circumstances, the courts had not had at their disposal a sufficient basis for concluding that he had a mental disorder for the purposes of the Therapy Detention Act. In any event, he did not suffer from a mental illness as required by Article 5 § 1 (e) of the Convention. 16. On 20 March 2013 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2886/12). 17. From 10 January 2002 until 22 May 2013 the preventive detention order against the applicant was executed in Lübeck Prison, where the applicant was detained together with persons serving their prison sentence. For as long as the applicant’s detention was executed at that prison during the time covered by the proceedings at issue, the applicant, having refused repeated offers of treatment, in particular transfer to the socialtherapeutic institution of Lübeck Prison, apparently did not undergo any therapy for sexual offenders. His occasional conversations with the prison psychologists had been discontinued in May 2012. 18. On 22 May 2013 the applicant was transferred to the newly-set-up Centre for persons in preventive detention in Hamburg-Fuhlsbüttel Prison. That Centre was built in order to comply with the constitutional requirement, as defined by the Federal Constitutional Court in its judgment of 4 May 2011, to differentiate between preventive detention and imprisonment. Soon after his transfer to that Centre the applicant started comprehensive therapy, including one-to-one and group therapy sessions. He was granted leave without escort from March 2014 onwards. 19. Prior to the proceedings at issue, on 14 June 2012 the Lübeck Regional Court dismissed the prosecution’s request to transfer the applicant to a psychiatric hospital for the further execution of his preventive detention under Article 67a § 2 of the Criminal Code (see paragraph 23 below). Having heard psychiatric expert B., the Regional Court found that the applicant’s reintegration into society could not better be supported in a psychiatric hospital. It was necessary for the applicant to undergo therapy for sex offenders in a social-therapeutic department in prison or possibly with an external social therapist. Transferring the applicant, who was not willing to undergo therapy, to a psychiatric hospital against his will would not yield any success. 20. On 24 October 2013, in new review proceedings, the Hamburg Regional Court ordered the applicant’s preventive detention to continue. It had regard to the report dated 28 August 2013, submitted by psychiatric expert L., on the applicant’s mental condition and the danger he represented. Having examined the applicant in person, L. had considered that the applicant was an accentuated personality, possibly with sadistic personality traits, and lacked self-esteem. He found, however, that the applicant could not be diagnosed with a mental disorder as defined in the ICD-10; in particular, he showed no signs of sexual sadism. There was a medium risk that the applicant would again commit serious sexual offences if released. 21. On 29 August 2014 the Hamburg Regional Court, having regard to an additional report drawn up by expert L., declared the applicant’s preventive detention terminated and ordered his release on 1 October 2014. It found that the applicant neither suffered from a mental disorder nor was there a high likelihood that he would commit the most serious crimes of violence or sexual offences if released.
| 0 |
test
|
001-177299
|
ENG
|
CZE
|
GRANDCHAMBER
| 2,017 |
CASE OF REGNER v. THE CZECH REPUBLIC
| 1 |
Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-3-a - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms)
|
Alena Poláčková;Aleš Pejchal;András Sajó;André Potocki;Dean Spielmann;Egidijus Kūris;Erik Møse;Eva Brems;Ganna Yudkivska;Giovanni Bonello;Guido Raimondi;Helena Jäderblom;Khanlar Hajiyev;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Robert Spano;Georges Ravarani;Pere Pastor Vilanova
|
9. The applicant was born in 1962 and lives in Prague. 10. On the basis of a contract signed on 2 November 2004 and governed by the provisions of the Labour Code, the applicant became an employee of the Ministry of Defence. 11. On 27 December 2004, the Ministry’s authorised representative requested the National Security Authority (Národní bezpečnostní úřad – “the Authority”) to issue the applicant with security clearance (osvědčení) giving him access to State classified information in the “secret” category (tajné) in accordance with the duties to be carried out by him. 12. On 1 January 2005 the applicant took up his duties as director of the Department of administration of the Ministry’s property (Sekce správy majetku Ministerstva obrany). 13. On 19 July 2005 the Authority issued the applicant with security clearance, valid until 18 July 2010, confirming that he had access to State classified information in the “secret” category. 14. During the year 2006 the applicant was appointed deputy to the first Vice-Minister of Defence (zástupce Prvního náměstka ministra obrany), while continuing to carry out his duties as director of the Department of administration of the Ministry’s property. 15. On 7 October 2005 the Authority received confidential information from the intelligence service, classified “restricted” (vyhrazené) and dated 5 October 2005. It started an investigation in order to verify the information received. In the course of that investigation the intelligence service provided the Authority with other information, dated 21 March 2006, classified “restricted” and annexed to the security file (bezpečnostní spis) under number 77. On the basis of that information the Authority revoked the security clearance on 5 September 2006. There were two unrelated reasons for that decision: firstly, the applicant had failed to indicate, as he should have done when applying for security clearance, that he held directorships in a number of companies and accounts in foreign banks; and secondly, the applicant was considered to pose a national security risk, within the meaning of section 14(3)(d) of Law no. 412/2005. With regard to that risk, the decision did not however indicate which confidential information it was based on, as this was classified “restricted” and could not therefore legally be disclosed to the applicant. The decision indicated that the facts established in respect of his conduct, as documented in the information received by the Authority on 7 October 2005, cast doubt on his suitability for security clearance and his ability not to be influenced and to keep sensitive information secret, and thus indicated that he was no longer trustworthy. 16. On an administrative appeal (rozklad) by the applicant, the director of the Authority, after obtaining an opinion from the appeals board, confirmed on 18 December 2006 the Authority’s decision of 5 September 2006, but on partly different grounds. He dismissed as unfounded the complaint that the applicant had failed to disclose certain information prior to being issued with security clearance. However, he agreed with the Authority’s conclusions regarding the existence of a security risk, which had transpired from the investigation carried out by the Authority and from the classified documents. 17. In the meantime, on 4 October 2006, the applicant had asked to be discharged, for health reasons, from his duties as deputy to the first Vice-Minister of Defence, and from those of director of the Department of administration of the Ministry’s property. He was removed from office on the same day under Article 65 § 2 of the Labour Code (see paragraph 26 below). On 20 October 2006 he signed an agreement, under Article 43 of the Labour Code, terminating his contract by mutual consent with effect from 31 January 2007. 18. On 19 January 2007 the applicant lodged an application with the Prague Municipal Court (městský soud) for judicial review of the decision revoking his security clearance. He and his lawyer were permitted to consult the file, but the parts classified as confidential were excluded. However, the documents containing information about the existence of a risk, including the confidential documents, had been sent by the Authority to the court, which had access to them. At the public hearing the applicant was given the opportunity to make his submissions and to state what he thought were the reasons for revoking his security clearance. He stated that he believed the information in question had been provided by a military intelligence service which had sought to take revenge on him for his refusal to accept a proposal to co-operate in a manner exceeding his statutory obligations. 19. In a judgment of 1 September 2009 the court dismissed the application for judicial review. It observed that in a procedure revoking security clearance the relevant authority could only disclose reasons for revoking clearance that were based on non-classified documents and that as regards grounds based on classified documents it had to confine itself to referring to the relevant documents and their level of confidentiality. It found that the approach taken by the Authority, which had not disclosed to the applicant the contents of the information on the basis of which the security clearance had been revoked, had not been illegal as disclosure of such information was prohibited by law. It added that the applicant’s rights had been sufficiently respected because the court had power to obtain knowledge of the classified information and assess whether it justified the decision taken by the Authority. 20. In a judgment of 15 July 2010 the Supreme Administrative Court (Nejvyšší správní soud) dismissed an appeal on points of law (kasační stížnost) lodged by the applicant as unfounded. It considered that the classified documents in question had shown beyond any doubt that the applicant did not satisfy the statutory conditions to be entrusted with secret information. It observed that the risk in his regard concerned his conduct, which affected his credibility and his ability to keep information secret. The Supreme Administrative Court added that disclosure of the classified information could have entailed the disclosure of the intelligence service’s working methods, the revelation of its information sources or the risk of influencing possible witnesses. It explained that there was a statutory prohibition on indicating where exactly the security risk lay and on specifying the considerations underlying the conclusion that such a risk existed, the reasons and considerations underlying the Authority’s decision being based exclusively on classified information. Accordingly, the reasons for the decision had to be limited to a reference to the documents on which it was based and the level of confidentiality of the information used. It went on to observe that, owing to the special nature of proceedings where classified information was concerned, not all the applicant’s procedural rights could be guaranteed but that the non-disclosure of the exact reasons underlying the decision to revoke security clearance was counterbalanced by the guarantee that the administrative courts had unlimited access to the classified documents. The Supreme Administrative Court pointed out that the report on the result of the investigations carried out by the intelligence service, included in the file under no. 77, contained specific, comprehensive and detailed information concerning the conduct and lifestyle of the applicant on the basis of which the court was satisfied in the present case as to its relevance for determining whether the applicant posed a national security risk. It observed, further, that the information did not in any way concern the applicant’s refusal to co-operate with the military intelligence service. 21. On 25 October 2010 the applicant lodged a complaint with the Constitutional Court (Ústavní soud), complaining of the unfairness of the proceedings. In a judgment of 18 November 2010 the court dismissed his complaint as manifestly ill-founded. Referring to its earlier case-law on the subject, it observed that given the special nature and the importance of decisions adopted in respect of classified information where national security interests were manifest, it was not always possible to apply all the guarantees relating to fairness of proceedings. It considered that in the present case the courts’ conduct had been duly justified and the reasoning in their decisions comprehensible and in conformity with the Constitution; that they had not departed from procedural standards and constitutional rules to an inordinate degree; and that the Constitutional Court was not therefore required to intervene in their decision-making procedure. 22. On 16 March 2011 the prosecution service lodged a bill of indictment against the applicant and 51 other persons on charges of influencing the award of public contracts at the Ministry of Defence from 2005 to 2007. The applicant was indicted for participation in organised crime (účast na zločinném spolčení); aiding and abetting abuse of public power (pomoc k trestnému činu zneužívání pravomoci veřejného činitele); complicity in illegally influencing public tendering and public procurement procedures (pomoc k trestnému činu pletich při veřejné soutěži a veřejné dražbě); and aiding and abetting breaches of binding rules governing economic relations (pomoc k trestnému činu porušování závazných pravidel hospodářského styku). In a judgment of 25 March 2014 the České Budějovice Regional Court (krajský soud) found the applicant guilty and sentenced him, inter alia, to three years’ imprisonment. In a judgment of 27 May 2016 the Prague High Court (Vrchní soud) upheld the first-instance judgment convicting the applicant, but suspended execution of his prison sentence for a two-year probationary period. That judgment became final.
| 0 |
test
|
001-145746
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF MAMADALIYEV v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan)
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
|
6. The applicant was born in 1989 and lives in Grozny. 7. The applicant is an ethnic Uzbek. He was born and lived in JalalAbad in the south of Kyrgyzstan. In 2004 he and his family moved to Dagestan and, three years later, to Grozny where the applicant worked at a telephone repair service. In October 2011 the applicant went to Jalal-Abad to attend his sister’s wedding. On 7 November 2011 he was carrying several passengers of Kyrgyz ethnic origin in his car. Afterwards one of them, a Mr M., was found dead. 8. On 10 November 2011 the applicant returned to Grozny. 9. On 9 November 2011 the Jalal-Abad regional police department brought criminal proceedings against the applicant and four other individuals on suspicion of having murdered Mr M. On 12 November 2011 the applicant was charged in absentia and on 15 November 2011 the JalalAbad Town Court ordered his remand in custody, allegedly in the absence of his lawyer. On 3 February 2012 the applicant was placed on the international wanted list. 10. According to the applicant and as confirmed by a lawyer of a local human rights organisation (see paragraph 22 below), several Kyrgyz lawenforcement officers had demanded 6,000 United States dollars from his mother in return for dropping the criminal charges against him. Apparently she did not comply with their demand. 11. On 26 June 2012 the Suzakskiy District Court of the Jalal-Abad Region convicted Mr U. of Mr M.’s murder and six more individuals of misprision and disorderly conduct. The applicant is mentioned in the judgment as the driver of the car transporting the defendants and the victim on the night of the murder. It does not follow from the judgment that the applicant had been involved in Mr M.’s murder, which had apparently been committed by Mr U. alone. 12. On 27 July 2012 the Jalal-Abad Regional Court of Kyrgyzstan altered the judgment of the trial court by reducing the term of Mr U.’s imprisonment from nineteen to twelve years. 13. On 23 April 2012 the applicant was arrested in Grozny. 14. On 24 April 2012 the prosecutor of the Leninskiy District of Grozny issued an order for the applicant to be remanded in custody for a period of two months. 15. On 18 June 2012 the Leninskiy District Court of Grozny extended the applicant’s detention until 24 October 2012. The applicant neither objected at the hearing nor appealed against that decision. 16. On 19 October 2012 the District Court extended the applicant’s detention until 24 January 2013, reasoning that extradition proceedings were pending and that the applicant might abscond. 17. On 22 October 2012 the applicant appealed against that decision to the Supreme Court of the Republic of Chechnya. He argued that the court had failed to duly reason the risk of his absconding, that the period of his detention was excessive, and that the court had not considered less stringent preventive measures, in breach of paragraph 16 of Directive Decision no. 22 adopted by the Plenary Session of the Russian Supreme Court on 14 June 2012. 18. By a final decision of 22 November 2012 the Supreme Court of the Republic of Chechnya rejected the appeal and upheld the lower court’s ruling. 19. On 24 January 2013 the District Court extended the applicant’s period of detention until 24 April 2013. On 11 March 2013 the Supreme Court of the Republic of Chechnya dismissed an appeal lodged by the applicant and upheld that decision. 20. On 19 April 2013 the Deputy Prosecutor of the Republic of Chechnya noted the interim measure indicated by the Court and ordered the applicant’s release on condition that he did not leave his place of residence without permission and behaved properly (подписка о невыезде и надлежащем поведении). 21. On 21 May 2012 the Deputy Prosecutor General of Kyrgyzstan lodged an extradition request with the Deputy Prosecutor General of the Russian Federation seeking to extradite the applicant to Kyrgyzstan for prosecution on charges of murder (see paragraph 9 above). The request stated, inter alia, that the applicant would not be extradited to any other State without the Russian Prosecutor General’s consent, that he would be prosecuted only for the offence which was the subject of the extradition request and which was not of a political nature, that in the event of conviction the applicant would be free to leave the territory of Kyrgyzstan after serving his sentence, and that he would not be subjected to any form of discrimination on any ground, including his nationality. The request also stated that the applicant would not be subjected to torture, inhuman or degrading treatment or punishment prohibited by the United Nations Convention against Torture. 22. On an unspecified date, at the request of the applicant’s mother, a lawyer from a Kyrgyz human-rights NGO, Mr Mamatislamov, wrote a letter to the head of the extradition department of the Prosecutor General’s Office of the Russian Federation. In the letter Mr Mamatislamov argued that the applicant’s criminal prosecution was arbitrary. He confirmed that police officers had demanded money from the applicant’s mother in exchange for dropping the criminal charges against the applicant. He stated that the Kyrgyz authorities had been showing the applicant’s photo to victims of the events of June 2010 to make them remember him with a view to charging him with the killings of ethnic Kyrgyz after his extradition. He also gave details of several criminal cases initiated against ethnic Uzbeks who had allegedly been tortured and/or killed by the Kyrgyz police. In support of his statements Mr Mamatislamov referred to the opinion of the UN Special Rapporteur on Torture who had concluded after his visit to Kyrgyzstan that many ethnic Uzbeks had been arbitrarily convicted in Kyrgyzstan in recent years. 23. On 6 June 2012 the Prosecutor General’s Office of the Russian Federation made enquiries with the Russian Ministry of Foreign Affairs on the issue of the applicant’s extradition to Kyrgyzstan. On 21 June 2012 the Ministry of Foreign Affairs replied as follows: “... the Ministry of Foreign Affairs has no information which prevents the extradition of the Kyrgyz national U.M. Mamadaliyev to the law-enforcement authorities of the Kyrgyz Republic. U.M. Mamadaliyev is of Uzbek ethnic origin, he does not belong to the titular ethnic group in Kyrgyzstan, which makes it possible for the Kyrgyz authorities to hear his case in an arbitrary manner.” 24. On 20 September 2012 the Deputy Prosecutor General of the Russian Federation granted the request for the applicant’s extradition. 25. On 11 October 2012 the applicant lodged a court appeal against the extradition decision. He pointed out that by the judgment of the Suzakskiy District Court of the Jalal-Abad Region of 26 June 2012, Mr U. had been found guilty of the murder of Mr M. with which the applicant had been charged. It followed from that judgment that nobody had been charged with complicity in that murder. The applicant further noted that the lawenforcement officers had attempted to extort money from his mother in exchange for dropping the criminal charges against him. He argued that the accusation of murder against him was baseless as he had not committed that crime. Besides, as a member of the ethnic Uzbek community, which was being persecuted and discriminated against, he would, if extradited, be subjected to torture or degrading treatment. The applicant’s lawyer gave several examples of such illtreatment suffered by ethnic Uzbeks in Kyrgyzstan. 26. On 12 November 2012 the Supreme Court of the Republic of Chechnya rejected the applicant’s appeal. In its decision the Supreme Court relied, inter alia, on the following: (a) the assurances by the Kyrgyz Republic Prosecutor General’s Office, in particular that the applicant would not be subjected to torture and other forms of ill-treatment – the court stated that it had no reasons to doubt that they would be observed; (b) the Russian authorities’ rejection of the applicant’s request for refugee status; and (c) the fact that the extradition request had not been made for the purpose of prosecuting or punishing the applicant on account of his race, religion, nationality or political opinion. 27. On 17 November 2012 the applicant appealed against that decision to the Supreme Court of the Russian Federation. In addition to the arguments put forward before the Supreme Court of the Republic of Chechnya, his lawyer referred to information on the widespread practice of ill-treatment of detainees in Kyrgyzstan, as confirmed by the UN High Commissioner on Human Rights, the UN Special Rapporteur on Torture, Human Rights Watch and Amnesty International. 28. On 23 January 2013 by a final decision the Supreme Court of the Russian Federation rejected the applicant’s appeal against the decision of the Supreme Court of the Republic of Chechnya of 12 November 2012. It endorsed the lower court’s reasoning without commenting on the applicant’s reference to the international sources regarding the risk of illtreatment. 29. On 25 June 2012 the applicant submitted a request for refugee status before the Federal Migration Service of the Russian Federation (“the FMS”). On 2 August 2012 his application was rejected as ill-founded. In its decision the Department of the FMS in the Republic of Chechnya pointed out that the applicant had submitted his request after the beginning of the extradition proceedings. They also mentioned that such requests often served the purpose of revoking decisions to extradite. 30. The applicant appealed against that decision before the Leninskiy District Court of Grozny. In his appeal he referred to information on the widespread practice of ill-treatment of Uzbek detainees in Kyrgyzstan, as confirmed by the UN High Commissioner on Human Rights, the UN Special Rapporteur on Torture, Human Rights Watch and Amnesty International. 31. On 22 November 2012 the District Court dismissed the appeal and upheld the FMS’s decision. The court did not address the applicant’s arguments concerning the risk of ill-treatment and found that the reason for the applicant’s request for refugee status was his fear of criminal prosecution. It held that there was therefore no legal basis for granting the request. 32. On 20 December 2012 the applicant lodged an appeal against that decision before the Supreme Court of the Republic of Chechnya. He pointed out, inter alia, that the District Court had ignored his reference to information on the practice of ill-treatment confirmed by international human-rights organisations. 33. On 5 March 2013 the Supreme Court of the Republic of Chechnya dismissed the applicant’s appeal. It did not analyse his arguments concerning the risk of ill-treatment in Kyrgyzstan. 34. On an unspecified date the applicant requested the Department of the FMS in the Republic of Chechnya to grant him temporary asylum in Russia. On 15 August 2013 that request was granted and the applicant was provided with temporary asylum until 15 August 2014.
| 1 |
test
|
001-168145
|
ENG
|
HRV
|
ADMISSIBILITY
| 2,016 |
ŠTIMAC AND KUZMIN-ŠTIMAC v. CROATIA
| 4 |
Inadmissible
|
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
|
1. The applicants, Mr Darko Štimac and Ms Daniela Kuzmin-Štimac, are Croatian nationals who were born in 1957 and 1958 respectively and live in Opatija. They were represented before the Court by the second applicant, who is a lawyer practising in Opatija. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants’ flat is located in a house which they shared with a certain D.D., until his death in April 2014, and his partner M.D., who occupied a flat on the ground floor of the house. Another flat on the ground floor of the house is owned by company B. Title to the applicants’ flat is registered in the name of their son, I.Š., who lived in it with them. 5. Over a number of years the applicants submitted complaints to various domestic authorities about the problems which they were having with their neighbour D.D. and his family. This resulted in various proceedings before the competent domestic authorities, in particular criminal proceedings instituted in the late 1980s, as well as civil proceedings for the removal from the house of an outdoor lighting device and an awning, which terminated in the applicants’ favour. 6. On 1 December 2008 the Opatija Municipal Court (Općinski sud u Opatiji) convicted D.D. of the offence of carrying out illegal construction work between 4 and 11 June 2007, and sentenced him to four months’ imprisonment suspended for two years. This judgment became final on 17 April 2009. 7. On 21 July 2010 the Opatija Municipal Court convicted D.D. of the offence of making threats to the first applicant on 28 July 2008, and fined him the sum of 1,693 Croatian kunas (HRK) (approximately EUR 230). On appeal, the Rijeka County Court (Županijski sud u Rijeci) upheld the judgment on 23 March 2011 but amended the sentence to four months’ imprisonment suspended for three years. 8. On 28 February 2011 the Rijeka Municipal Court (Općinski sud u Rijeci) convicted D.D. and his partner M.D. of the offence of making threats to the first applicant on 14 April 2008 and to the applicants’ son on 27 May 2008. D.D. was fined HRK 1,739 (approximately EUR 230) and M.D. was fined HRK 1,434.78 (approximately EUR 190). On appeal, the Rijeka County Court upheld the judgment on 9 May 2012 but amended M.D.’s sentence, suspending it for one year. 9. On 26 July 2012 the Rijeka Municipal Court convicted D.D. of the offence of carrying out illegal construction work between 3 September and the beginning of October 2010, and fined him HRK 1,207 (approximately EUR 160). This judgment became final on 10 August 2012. 10. In September 2008 the applicants’ son, I.Š., instituted a civil action in the Opatija Municipal Court against D.D., asking the court to order D.D. to remove an awning from the balcony. He was represented in the proceedings by the second applicant. 11. On 3 October 2008 the Opatija Municipal Court instructed I.Š. to modify his civil action by indicating the value of the claim. The order was made public on the court’s notice-board on the grounds that the second applicant had failed to collect the item from her mailbox at the court. It was thereby deemed to have been properly served. 12. On 17 February 2009 the Opatija Municipal Court found that I.Š. had not complied with the order and therefore discontinued the proceedings, since in the circumstances it was presumed that the civil action had been withdrawn. The court’s decision was likewise served by means of a public announcement on the court’s notice board due to the second applicant’s failure to collect the item from her mailbox. 13. In April 2010 I.Š. requested that the Opatija Municipal Court hold a hearing but was informed that the proceedings had been discontinued. 14. On 8 July 2010 I.Š. asked the Opatija Municipal Court to reinstate the proceedings on the grounds that he had not been properly served with that court’s decisions. 15. On 4 October 2010 the Opatija Municipal Court dismissed I.Š.’s request as unfounded on the grounds that the second applicant, as his legal representative, had a mailbox at the court and was obliged to collect all her mail every eight days. As she had failed to do that, the mail had been posted on the court’s notice-board and upon the expiry of eight days it had been deemed to have been duly served. I.Š. did not appeal against this decision and it became final on 26 November 2011. 16. In the period between 2000 and 2010 the applicants lodged several complaints with the Ministry responsible for construction and spatial planning matters (hereinafter: the Ministry of Construction) regarding D.D.’s construction of an exterior staircase on the house, renovation work carried out in his flat, and his installation of an awning. 17. These complaints led to several inspections by the competent construction inspectors and orders prohibiting D.D. from carrying out further illegal construction work. 18. In October 2012 the applicants filed a complaint with the Ministry of Culture (Ministarstvo kulture), arguing that there was a serious threat to the stability of their house, which was located in the historic city centre of Opatija. 19. The Ministry of Culture replied on 26 October 2012, stating that D.D.’s construction work could be considered to constitute serious damage to the building which would need to be repaired. 20. In January 2013 the applicants filed a complaint with the Primorsko-Goranska County Administration (Primorsko-goranska županija; hereinafter: the “County Administration”) arguing that the structural stability of their house was endangered. 21. In the meantime, on 3 May 2013 the Ministry of Culture dismissed a request from D.D. to legalise the construction work carried out on the house on the grounds that it had not been executed in compliance with the relevant standards and principles of conservation. 22. On 18 September 2013 the Ministry of Culture urged the Ministry of Construction to implement the measures necessary in the applicants’ case on the basis of their assertion that the structural stability had been seriously disturbed and that there was a real and imminent risk to their lives and property. 23. On 16 January 2014 a construction inspector invited the applicants and the Ministry of Culture to submit evidence showing that the structural stability had been disturbed. 24. The applicants complied with that order and on 31 January 2014 submitted an expert report drafted by Z.K. attesting that the structural stability of the building had been disturbed and that there was a risk that, in the event of an earthquake, it could collapse. 25. On 5 February 2014 the construction inspector expressed his doubts about Z.K.’s findings. He considered that the report needed to be clarified as it was incomplete and methodologically flawed. The inspector also expressed his doubts as to Z.K.’s qualifications. 26. On an unspecified date, the applicants provided the Ministry of Construction with a letter from the Rijeka County Court attesting that the expert who had drafted the report was an officially appointed court expert. 27. On 2 December 2014 the chief construction inspector carried out an on-site inspection of the applicants’ house ‒ accompanied by a Ministry of Construction expert in the structural analysis of buildings ‒ to examine the issues raised in the expert report submitted by the applicants. The applicants and all other interested parties to the proceedings were invited to attend the on-site inspection. The inspectors found that there was a small crack in the house and that it had not been properly maintained. However, there was no sign of any damage to the building indicating that any aspect of its structural stability was endangered. 28. The applicants challenged these findings before the Ministry of Construction. On 18 December 2014 the chief construction inspector replied, explaining that ‒ although there were issues regarding the construction work carried out by D.D. insofar as the house was located in the historic centre of Opatija ‒ there were no indications that the structural stability of the house was in any way endangered. 29. There were numerous police interventions in connection with the applicants’ disputes with their neighbours. Those interventions concerned matters such as the parking of a car, the walking of a dog and arguments over the management of various installations in the house. 30. In July 2012 the applicants complained to the Ministry of the Interior (Ministarstvo unutarnjih poslova) about the manner in which the Opatija police had dealt with their complaints. They received a reply from the Chief of the Primorsko-Goranska police department (Policijska uprava Primorsko-goranska) stating that they had so far registered twelve police interventions in connection with disputes between the applicants and their neighbours and that the Opatija Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Opatiji) had lodged four indictments against D.D. with the competent criminal courts. However, there was nothing indicating irregular or improper conduct on the part of the police in handling the applicants’ case. 31. The applicants again complained to the Ministry of the Interior and on 24 October 2012 they received a reply from the internal control department endorsing the police department’s findings. 32. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows: “The home is inviolable ... ” “Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.” “The right of ownership shall be guaranteed ... ” 33. The relevant provisions of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/96, 68/98, 137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09 and 143/12) read: “(1) If a third party unlawfully disturbs the owner, without depriving him of his possessions, the owner may request the court to issue an injunction. (2) In order to exercise the right referred to in paragraph 1 of this section in courts or in proceedings before another competent authority, the owner shall prove his ownership and that there has been nuisance by the third party; and if the third party claims to have the right to carry out the impugned activity, he or she shall bear the burden of proof thereof. (3) If damage is sustained as the result of nuisance referred to in paragraph 1 of this section, the owner shall be entitled to claim compensation in accordance with the general rules governing compensation for damage ... ” 34. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008, 125/2011 and 78/2015), reads as follows: “(1) All natural persons or legal entities are entitled to protection of their rights of personality [prava osobnosti] under the conditions provided by law. (2) Rights of personality within the meaning of this Act are the right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc. (3) A legal entity shall have all the above-mentioned rights of personality – apart from those related to the biological character of a natural person – and, in particular, the right to a reputation and good name, honour, name or company name, business secrecy, entrepreneurial freedom, etc.” “Damage may result from ... an infringement of rights of personality (non-pecuniary damage).” “(1) Any person may request that another person eliminate a major source of danger for him or her or for another person, as well as refrain from activities causing disturbance or a risk of damage if such disturbance or damage cannot be prevented by applying the appropriate measures. (2) The court shall order, at the request of an interested party, the taking of appropriate action to prevent the occurrence of damage or disturbance, or to eliminate a source of danger, at the expense of the possessor of such a source of danger, if the latter fails to do so himself or herself. (3) If damage results from the performance of an act of public interest for which approval has been obtained from the competent authority, only compensation for damage exceeding the usual limits may be requested (excessive damage). (4) In that event, however, the taking of socially justified measures may be requested in order to prevent the occurrence of damage or to reduce damage.” “Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences.”
| 0 |
test
|
001-145787
|
ENG
|
EST
|
CHAMBER
| 2,014 |
CASE OF JAEGER v. ESTONIA
| 4 |
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
|
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicant was born in 1987. He is currently serving a prison sentence. 6. On 10 October 2010 the applicant, who was serving his sentence in Tartu Prison, took a walk together with other detainees. When he entered the accommodation block, two prison guards searched him in the stairwell of the building. According to the applicant he was requested to lower his trousers and underpants twice and lift his sexual organ. A guard felt his underpants to find out whether any tobacco products had been hidden therein. According to the applicant he was in the sight of other detainees, since the door to the stairwell where the search was carried out had a transparent window. Another door leading from the stairwell to a corridor of the accommodation block also had a transparent window and detainees or female prison officers could have seen him through it or entered the stairwell at any time. 7. The applicant claimed from the prison administration 25,000 kroons (EEK) (corresponding to approximately 1,600 euros (EUR)) for the non-pecuniary damages he had allegedly sustained. He named three of the detainees who had been behind him when he had entered the building and had been searched. 8. The prison administration rejected the applicant’s claim. Relying on the statements of one of the prison guards involved, the administration found that the search had been conducted in private and not in the sight of other detainees. According to the prison guard’s written statements, the detainees had entered the stairwell one by one. One guard had searched their jackets and the other one had searched the detainees. In the event that they suspected a detainee, they had closed the door in order to create a private space and the detainee in question had been requested to lower his trousers. Only the detainee to be searched and two guards had been in the stairwell. 9. The applicant lodged a complaint with the Tartu Administrative Court. He reiterated his claim, named three detainees who had seen his search and included written statements from two of them. 10. By a judgment of 21 September 2011 the Administrative Court rejected the applicant’s claim. It found reliable the statements of the prison guard, according to whom the applicant’s privacy had been respected. 11. The applicant appealed to the Tartu Court of Appeal. At the Court of Appeal hearing he submitted that the windows of the doors to the stairwell had measured 1 m by 30 cm and that some days after his complaint to the Administrative Court they had been covered by metal sheets to prevent other detainees from seeing the searches. 12. By a judgment of 16 March 2012 the Tartu Court of Appeal dismissed the applicant’s appeal. It established that the search had lasted for a few minutes at most and noted that the applicant had not been sure whether any other detainees had been in the stairwell. He had been unable to explain from where exactly the detainees named by him had seen his search. The Court of Appeal concluded that his privacy had not been violated. It further found that in order to effectively manage a large number of detainees, the prison also had to have the possibility of carrying out a body search of a detainee, when necessary, in a location other than a private room designated for that purpose. In order to conduct such a search it was sufficient that the authorities had a suspicion that a detainee re-entering the building after a walk had hidden cigarettes – which were prohibited in prison – in his underwear. 13. By a judgment of 17 October 2012 the Supreme Court dismissed the applicant’s appeal. It upheld the Court of Appeal’s finding that the applicant’s privacy had not been infringed and his dignity had not been diminished. One of the three judges delivered a separate opinion. He considered that it was not decisive whether the third persons had in fact seen the detainee’s body search. It could not be presumed that a person who was being searched was able to establish at the same time whether the search had been seen, what exactly had been seen and by whom. When a body search was carried out in a situation and location where it was not guaranteed that third persons would not see the person’s nudity, the person concerned was bound to feel that his privacy had not been respected and that other persons might have seen the procedure being performed. Such a situation damaged the person’s dignity and could cause feelings of insecurity, anguish and degradation. 14. According to information provided by the Government, the applicant had three reprimands on record at the time of the search in question, including for unauthorised possession of a cigarette. From the date of the events at issue until mid-2013, twenty further disciplinary punishments had been imposed on him, primarily for violations related to the possession of unauthorised items, mainly cigarettes.
| 1 |
test
|
001-142407
|
ENG
|
ROU
|
CHAMBER
| 2,014 |
CASE OF REMUS TUDOR v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos
|
5. The applicant was born in 1966. 6. In 1990 the applicant was convicted of manslaughter and sentenced to life imprisonment. He was held in a number of different detention centres. No information is available in respect of his places of detention before 8 April 2009. From the latter date until 10 November 2011 he was detained in Jilava Prison. On the latter date he was transferred to Giurgiu Prison. 7. The applicant and the Government disagreed as to most aspects of the conditions of detention in Jilava Prison. 8. The applicant alleged that he had occupied overcrowded cells, without providing details about the surface area and the number of cellmates. 9. He also complained of unsatisfactory sanitary conditions. The cells did not have any furniture in which to keep personal objects and food, therefore the prisoners were forced to keep them under their beds where there were hundreds of insects. 10. The temperature in the cells was very low in winter. 11. The applicant claimed that for three months, from April until July 2009, they had not had hot water. The prisoners were confronted with the same situation in the summer of 2010 when they had to live without hot water from 28 June until 5 August 2010. 12. He also contended that even though he was a non-smoker, he had had to share the cell with smokers. He further claimed that in his cell there were prisoners who frequently consumed drugs and that the smoke from the cigarettes combined with the smoke released from the drugs made the air in the cell unbreathable. 13. The Government supplied the following details concerning the cells in which the applicant has been detained in Jilava Prison: - Between 8 April and 24 May 2009 the applicant was detained in cell no. 513, measuring 45.30 sq. m. The cell was occupied by between fourteen and seventeen inmates. - Between 25 May and 28 December 2009 the applicant was detained in cell no. 405, measuring 13.28 sq. m, which he shared with five or six other inmates. - Between 29 December 2009 and 11 February 2010 the applicant was detained in cell no. 309, measuring 34.78 sq. m. The cell was occupied by up to thirteen inmates. - Between 12 February and 1 August 2010 the applicant was detained in cell no. 414, measuring 44 sq. m. The cell was occupied by between thirteen and eighteen inmates. - Between 2 August and 16 September 2010 the applicant was detained in cell no. 413, measuring 12.83 sq. m, which he shared with two or three other inmates. - Between 17 September 2010 and 4 September 2011 the applicant was detained in cell no. 207, measuring 34.78 sq. m, which he shared with fourteen or fifteen other inmates. - Between 5 September and 10 November 2011 the applicant was detained in cell no. 305, measuring 32.76 sq. m, which he shared with nine or eleven inmates. 14. The applicant was detained in smoking cells and he had not asked to be transferred to a non-smoking cell. 15. As regards cleanliness and hygiene, the Government submitted that every year the prison authorities signed contracts for rodent and pest control with companies specialising in this work. Disinfection of the cells was carried out at least once every three months. Moreover, the quality of the drinking water was tested regularly by the prison authorities, with the aid of a specialised laboratory. Furthermore, the food was fresh and of good quality.
| 1 |
test
|
001-158136
|
ENG
|
RUS
|
COMMITTEE
| 2,015 |
CASE OF MISHURA AND GAYEVA v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Elisabeth Steiner;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
5. The first applicant was born in 1945 and lives in Barcelona. 6. On 25 April 2005 the Justice of the Peace of the 3rd Court Circuit of the Kirovskiy District of Astrakhan dismissed the applicant’s action against the Astrakhan Regional Military Commissariat in which he sought the increase of monthly pension and military-related benefits. 7. On 29 June 2005 the Kirovskiy District Court of Astrakhan quashed the judgment on appeal and granted the first applicant’s action in part, awarding him a lump sum of 49,215 Russian roubles. The judgment became final. 8. On 28 February 2006 the Presidium of the Astrakhan Regional Court, by way of supervisory-review proceedings, quashed the judgment of 29 June 2005 on the ground of incorrect application of substantive law by the Kirovskiy District Court and upheld the judgment of 25 April 2005. 9. The second applicant was born in 1939 and lived in Ozersk, Russia. She was the widow of Mr Lev Gayev who died of cancer in 1985. 10. On 1 June 2005 the Tsentralnyy District Court of Chelyabinsk acknowledged that Mr Gayev had been exposed to radioactive emissions following a nuclear accident at the Mayak power plant in 1957. 11. In August 2006 the applicant sued the Ozersk Social Security Office for the monthly compensation in connection with the loss of the breadwinner. 12. On 17 October 2006 the Ozersk Town Court of the Chelyabinsk Region rejected her claim on the ground that she failed to show that she had been financially dependent on her husband on the day of his death. 13. On 4 December 2006 the Chelyabinsk Regional Court quashed this judgment and partly granted the applicant’s claim. It held that the Ozersk Social Security Office should pay the applicant monthly compensation to be determined in accordance with law. 14. On 25 July 2007 the Presidium of the Chelyabinsk Regional Court, by way of supervisory review, quashed the appeal judgment of 4 December 2006 and remitted the matter to the appeal court, noting that the lower instance court did not duly examined evidence and made wrong application of the substantive law. 15. The judgment of 4 December 2006 was executed between 1 March 2007 and 1 August 2007. 16. On 27 August 2007 the Chelyabinsk Regional Court held a new appeal hearing and rejected the second applicant’s claim.
| 1 |
test
|
001-145987
|
ENG
|
LVA
|
ADMISSIBILITY
| 2,014 |
JEGOROVS v. LATVIA
| 4 |
Inadmissible
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
1. The applicant, Mr Jevgēņijs Jegorovs, is a “permanently resident noncitizen” of the Republic of Latvia, who was born in 1981 and is currently serving a prison sentence in Olaine. He was represented before the Court by Ms A. Kalēja, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent at the time, Ms I. Reine, and subsequently by Ms K. Līce. 3. The relevant facts of the case, as submitted by the parties, may be summarised as follows. 4. On 11 September 2003 the applicant was admitted to hospital with severe head injuries. Information provided by the Health Inspectorate (Veselības Inspekcija) on 7 May 2010 stated that he “had undergone an urgent operation – skull trephination”. 5. The hospital records stated that on 21 September 2003 the applicant “had fled” from the hospital. According to information provided by the Health Inspectorate on 7 May 2010, he had left the hospital “without completing the treatment, which [included] possible plastic surgery on his skull, and without receiving further recommendations for treatment ...”. It appears that after having left the hospital the applicant did not request medical assistance. 6. On 2 March 2004 a doctor visited the applicant at home in connection with cramps. The applicant refused to go to a hospital. 7. According to the applicant, he started to have epileptic seizures eight months after the surgery in 2003. He learnt from a conversation with a doctor who had operated on him that he would need to pay for the plastic surgery and he could not afford it. On 27 April 2009 the applicant informed the Court that he had enquired with the State authorities whether he could donate one of his kidneys in exchange for payment, in order to have the plastic surgery. 8. On 2 September 2005 the applicant was detained in Central Prison. 9. On 25 January 2007 the applicant was transferred from Central Prison to Daugavpils Prison. 10. On 1 November 2008 Daugavpils Prison was merged with Grīva Prison. The newly established prison was renamed Daugavgrīva Prison. 11. The applicant was held in the Daugavpils wing of Daugavgrīva Prison. 12. The applicant submitted that he had been placed in the following prison cells: - cell no. 203, between February 2007 and 22 April 2008; - cell no. 205, between 22 April and 8 May 2008; - cell no. 401, between 8 and 9 May 2008 (investigation cell); - cell no. 107, between 9 and 10 May 2008 (quarantine cell); - cell no. 205, between 10 and 14 May 2008; - cell no. 212, between 14 and 19 May 2008; - cell no. 217, between 19 May 2008 and an unspecified date. 13. On 12 November 2010 the applicant was transferred to Olaine Prison to serve the remainder of his sentence. 14. On 6 or 7 September 2005 the applicant underwent a medical examination in Central Prison. The diagnosis read as follows: “Consequences following a head trauma with skull trephination in 2003. Symptomatic epilepsy (?) Post-traumatic encephalopathy. Alcohol and heroine dependency since 2001.” 15. According to information from the Health Inspectorate dated 25 February 2008 (see paragraph 63 below), on 7 September 2005 the applicant had stated that he was having seizures in which he lost consciousness. A prison psychiatrist then recommended that a warden (uzraugs) be assigned to the applicant and that he be supervised by medical staff. 16. On 26 October 2005 the following entry was made in the applicant’s medical file: “Condition after a paroxysmal seizure with loss of consciousness (stāvoklis pēc paroksizmālas samaņas zuduma lēkmes)”. It was noted that half an hour earlier the applicant had had a seizure with loss of consciousness and cramps, but without biting of the tongue. 17. In that connection, the applicant was prescribed anti-epileptic medication. He was hospitalised from 11 to 28 November 2005 for monitoring and treatment, and received preventive treatment (Finlepsin). No seizures were observed. 18. On 29 January 2007 the applicant requested that the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) refer him to a hospital for treatment. On 12 February 2007 the MADEKKI responded that the request was outside its competence and advised the applicant to consult the prison medical staff. 19. In 2007 the applicant requested a disability assessment, which he had not had prior to his detention. 20. In October 2007 the applicant underwent a full medical examination, including a pulmonary X-ray. 21. On 18 October 2007 an electro-encephalogram revealed “slightly increased epileptiform activity (nedaudz izteikta epileptiforma aktivitāte)”. The applicant was administered medication for the treatment of epilepsy and for the improvement of the brain function, and tranquilisers. 22. On 4 December 2007 the applicant was certified category 3 disabled (moderate disability) due to the consequences of the head injuries in 2003 and post-traumatic encephalopathy. 23. In 2007 the applicant had twenty-eight out-patient medical examinations, fifteen of which related to headaches. In 2008 he had five out-patient examinations, four of which concerned headaches. 24. The applicant did not have a pulmonary X-ray examination in 2008. 25. On 11 May 2009 the applicant underwent a pulmonary X-ray examination. 26. On 21 May 2009 the applicant was taken to the prison hospital in Olaine with suspected tuberculosis. 27. At the hospital the following diagnosis was made: “Infiltrative tuberculosis pneumonia [of] the left lung ... Consequences following a serious head trauma with skull trephination in 2003. Symptomatic epilepsy. Prolonged depressive reaction. Alcohol and heroine dependency. Factors contributing to illness – smoking as of age eleven [and] use of alcohol and drugs.” 28. A neurologist at the prison hospital in Olaine concluded that the applicant had not had an epileptic seizure for a considerable period of time and epileptiform activity had not been observed. Therefore, the applicant was prescribed an anti-epileptic drug (Finlepsin) for six months. The doctor noted that in six months’ time the applicant should undergo an electrocardiogram and a decision would be made about stopping the anticonvulsant medication. 29. The applicant remained in hospital until 1 December 2009. 30. On 3 December 2009 the applicant was transported back to Daugavgrīva Prison. 31. In 2009 the applicant had ten out-patient medical examinations, three of which concerned headaches. 32. The information from the Health Inspectorate dated 7 May 2010 stated that the applicant did not appear to have had any epileptic seizures while in detention, but that he had received “throughout his detention antiepileptic medication (Finlepsin, carbamazepine) ... in order to prevent possible epileptic seizures ...”. It was also noted that while in detention he had periodically refused to take the medication, which fact had been attested by entries in his medical file. 33. With respect to tuberculosis, information from the Ministry of Justice dated 10 May 2010 stated that in 2009 the applicant had been provided with full treatment. He had been cured and discharged in a satisfactory state of health. 34. According to the applicant, he experienced epileptic seizures and required plastic surgery on his skull. 35. In response to the Government’s additional observations, the applicant submitted the decision establishing his disability for the period from 8 January 2013 to 7 January 2018. That decision stated that the applicant had functional limitations related to traumatic epileptic seizures. It was based on an expert report of 8 January 2013. The applicant did not furnish a similar report indicating that he had experienced epileptic seizures while in Daugavgrīva Prison up until 2010 (see paragraph 13 above). 36. On 11 May 2008 the applicant complained to the Prisons Administration and the prosecution about the conditions in Daugavpils Prison. He described the conditions of detention and specified the state of affairs in cell no. 205. The description he gave appeared to be broadly the same as the one he submitted before the Court (see paragraph 79 below). He indicated, inter alia, that the conditions were in breach of Article 3 of the Convention and requested that his complaint be considered in substance. 37. The prosecution forwarded the submission to the Prisons Administration. 38. In connection with the applicant’s complaints, on 9 June 2008 Daugavpils Prison informed the Prisons Administration that the applicant had been held in cell no. 205, which complied with article 77 of the Sentence Enforcement Code but was in need of “cosmetic repair”. 39. The Prisons Administration’s response no. 1/12-J/2198/2261 dated 12 June 2008 stated that in the course of its inquiry it had been established that cell no. 205 in Daugavpils Prison, in which “[the applicant] had stayed, [did] not, indeed, comply with the ... statutory requirements and cosmetic repair of the cell [was needed] ...”. 40. The letter also stated that following the applicant’s submission of 3 June 2008 to the Prisons Administration, the matters raised by him had been explained to him and that he had no claims against Daugavpils Prison. The Prisons Administration thus deemed that it had examined the applicant’s complaints of 11 May 2008. 41. According to the applicant, he withdrew his complaints under pressure from the Daugavpils Prison administration. 42. It appears that in July and August 2009 the applicant wrote to the Health Inspectorate, the prosecution and the Prisons Administration in connection with his having contracted tuberculosis. 43. The applicant claimed that, whereas he was supposed to have been X-rayed every twelve months, he had not been X-rayed at all in 2008 and had had to wait nineteen months, until May 2009, for an X-ray. Referring to document no. 1/12-J/2198/2261 (see paragraph 39 above), he pointed out that the prison governor had agreed that the cells were damp and had told him that there were no funds for repair work. He requested that a comment be made on the fact that he had fallen ill with tuberculosis. The relevant documents would then be attached to his complaint and sent to the Court. 44. In its reply of 19 August 2009 the Health Inspectorate indicated that the applicant had been suspected of having contracted tuberculosis on 21 May 2009, after the annual pulmonary X-ray, as required by paragraph 5 of Cabinet of Ministers Regulation no. 199 (2007). The applicant had then been referred to the prison hospital. 45. The Inspectorate stressed that the applicant had had no clinical indications of tuberculosis requiring an unplanned X-ray examination. 46. The Inspectorate also stated that it had sent to the Prisons Administration the part of the applicant’s request concerning unsatisfactory living conditions in Daugavgrīva Prison. 47. The Inspectorate did not indicate in its letter that the responses given could be appealed against. 48. In August 2009 the Prisons Administration received the applicant’s three complaints. One of them had been forwarded by the Health Inspectorate and another by the prosecution. 49. On 10 and 27 August 2009 the Prisons Administration gave the applicant identical responses to all three complaints, to the effect that they had not been made in the State language. The Prisons Administration referred to section 10(2) of the State Language Law (Valsts valodas likums) and indicated as follows: “Documents may be submitted in a foreign language in exceptional situations, where immediate action by the State operational services or other competent institutions is required in order to protect a person’s rights and property interests, which may be violated as a result of unforeseen, exceptional circumstances or an offence committed or planned.” The Prisons Administration found that the circumstances set out in the applicant’s complaints did not amount to exceptional circumstances in which a document in another language could be considered. It refused, therefore, to consider the applicant’s complaints. 50. The Prisons Administration indicated that each of the three refusals could be appealed against to the Ministry of Justice. 51. On 14 September 2009 the applicant informed the Court that as of February 2009 he had been complaining to the prison medical unit of weight loss. Therefore he had difficulty understanding the Health Inspectorate’s response of 19 August 2009 (see paragraphs 44 and 45 above). 52. On 9 June 2007 the MADEKKI received a request from the applicant to expedite the surgery recommended on his skull because he had been suffering from headaches and epileptic seizures. 53. Between June and September 2007 the MADEKKI carried out an inquiry. 54. On 20 September 2007 the MADEKKI declared that it had found no violations in the applicant’s treatment in Daugavpils Prison. It stated that no one had seen the applicant’s epileptic seizures and that no related injuries had been observed. The applicant had not submitted any documents on the recommended surgery and his medical file contained no entries about it. 55. The MADEKKI decided to terminate the administrative violation proceedings. 56. That decision was subject to appeal to the head of the MADEKKI. 57. On 24 October 2007 the MADEKKI received a request from the applicant concerning the refusal to carry out a head tomography free of charge at the prison hospital. 58. Between October and November 2007 the Health Inspectorate (former MADEKKI) carried out an inquiry. 59. On 28 November 2007 the Health Inspectorate found no violations in the applicant’s treatment between 4 September and 15 November 2007. It noted that he had complained of headaches and dizziness, and had claimed to have had epileptic seizures, which no one had ever seen. Furthermore, on 6 September 2007 he had refused to take his medication. 60. It decided to terminate the administrative violation proceedings. 61. That decision was subject to appeal to the head of the Health Inspectorate. 62. On 5 February 2008 the Health Inspectorate received a complaint from the applicant that the head of the Daugavpils Prison medical unit had not provided in the notes on the applicant’s health (veselības izziņas) the dates of his epileptic seizures. 63. On 25 February 2008 the Health Inspectorate responded that it had never been recorded in the applicant’s medical file that he had been observed in a state of unconsciousness, suffering from cramps or the consequences of seizures – a bitten tongue or signs of injuries, or in a state of confusion. Seizures with loss of consciousness had been recorded on 2 March 2004, when a doctor had visited the applicant at home, and on 7 September 2005, when the applicant had been examined in Central Prison. However, those entries had been based on information given by the applicant himself. The Inspectorate further provided information as outlined above (see paragraphs 15-17 above). 64. On 12 March and 1 April 2008 the Health Inspectorate received requests from the applicant that plastic surgery be carried out on his skull because during epileptic seizures he could sustain a brain injury and die. 65. Between March and May 2008 the Health Inspectorate carried out an inquiry. 66. On 8 May 2008 the Health Inspectorate established that the applicant had regularly been administered Finlepsin and had received treatment with respect to his complaints of dizziness. The Inspectorate concluded that the applicant was continuing to claim that he was having epileptic seizures which no one had ever observed. The Inspectorate found no violations in the applicant’s treatment in Daugavpils Prison. 67. It decided to terminate the administrative violation proceedings. 68. That decision was subject to appeal to the head of the Health Inspectorate. 69. Following the Court’s inquiry, on 27 April 2009 the applicant stated that he had appealed against the Health Inspectorate’s decision of 8 May 2008. The appeal had been sent from the prison on 14 May 2008, but it had not been received by the Health Inspectorate. 70. In his application to the Court the applicant stated that he could have applied to the administrative courts, but that submissions needed to be made in the State language, which he barely knew. No translation service was provided for detainees, and in any case he could not have afforded such a service. 71. Article 77 of the Sentence Enforcement Code (Sodu izpildes kodekss) reads as follows: “Convicted persons ... shall be ensured living conditions that are in conformity with epidemiological safety and hygiene standards. The standard living space in dormitorytype prison premises for one convicted person may be no less than 2.5 square metres for men ... but in single-occupancy cells – no less than 9 square metres. Convicted persons shall be allotted an individual sleeping place (guļamvieta) and shall be provided with bedding items (gultas piederumi). Convicted persons shall be provided with underwear (veļa) corresponding to the season. ... Convicted persons shall receive nutrition that ensures the normal functioning of the body. Nutritional norms may vary in view of the nature of work performed by a convicted person. ...” 72. Paragraph 17 of Cabinet of Ministers Regulation no. 423 (2006), effective from 3 June 2006, provides that penal institutions must ensure that hygiene standards of convicted persons are complied with. Under paragraph 19 of the Regulation, a convicted person must take a sauna or a shower, and change underwear and bed linen, at least once a week. 73. The Cabinet of Ministers Regulation no. 199 (2007), effective between 28 March 2007 and 23 January 2014, governed the medical care of convicts in penal institutions. Its relevant provisions were cited in the case of Fedosejevs v. Latvia ((dec.), no. 37546/06, § 34, 19 November 2013). Furthermore, under paragraph 5 of the Regulation a preventive examination of a convicted person had to be carried out once a year. The types of preventive examination were determined every year by the head of the Prisons Administration. 74. The functions under the domestic law of the MADEKKI and its successor, the Health Inspectorate, have been set out in the case of Antonovs v. Latvia ((dec.), no. 19437/05, §§ 63 et seq., 11 February 2014). The Cabinet of Ministers Regulation no. 76 (2008), in force as of 9 February 2008, stipulates the functions of the Health Inspectorate. Its relevant provisions read as follows: “11. Decisions and action of a public authority (faktiskā rīcība) of the [Health] Inspectorate’s officials may be appealed against ... to the head of the Inspectorate. A decision of the head of the Inspectorate may be appealed against to a court. 12. Decisions and action of a public authority ... of the head of the [Health] Inspectorate ... may be appealed against to the Ministry of Health. A decision of the Ministry of Health may be appealed against to a court.” 75. Paragraph 14 of Cabinet of Ministers Regulation no. 827 (2005), effective from 5 November 2005, reads as follows: “Administrative acts (administratīvie akti) issued by the head of the [Prisons] Administration and his or her action of a public authority may be disputed by applying to the Ministry of Justice. A decision of the Ministry of Justice may be appealed against to a court.” 76. The Administrative Procedure Law (Administratīvā procesa likums) took effect on 1 February 2004. It provides, among other things, for the right to challenge administrative acts and actions of public authorities before the administrative courts (see D.F. v. Latvia, no. 11160/07, § 40, 29 October 2013, and Melnītis v. Latvia, no. 30779/05, § 24, 28 February 2012). 77. Section 10 of the State Language Law, which was passed on 9 December 1999 and entered into force on 1 September 2000, reads as follows: “(1) All institutions, organisations and establishments (companies) shall ensure acceptance and examination of documents drawn up in the State language. (2) State and local government institutions, courts and institutions belonging to the judicial system, and State or local government establishments (companies) shall accept ... and examine only documents in the State language, except in cases as prescribed in subsection (3) ... The provisions of this section do not apply to submissions of persons to the police and medical institutions, rescue services and other institutions in cases of urgent calls for medical assistance, the commission of crimes or other violations of the law, or calls for emergency assistance in cases of fire, accident or other emergencies. (3) Documents ... in a foreign language shall be accepted if attached thereto is a translation into the State language, certified in accordance with the procedures prescribed by the Cabinet of Ministers, or notarised. Documents issued on the territory of Latvia by the day this Law comes into force do not require translation into the State language. ...”
| 0 |
test
|
001-145258
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,014 |
SEREBRYANSKYY v. UKRAINE
| 4 |
Inadmissible
|
Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
|
1. The applicant, Mr Ivan Mykolayovych Serebryanskyy, is a Ukrainian national, who was born in 1926 and lives in Pervomaysk. He had been granted legal aid and is represented by Mr V. Galkin, a lawyer practising in Toshkivka, Ukraine. 2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Ms Nataly Sevostianova, of the Ministry of Justice of Ukraine. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is entitled to a lump sum payment in accordance with section 12 of the War Veterans Status and Social Protection Guarantees Act (Закон України «Про статус ветеранів війни, гарантії їх соціального захисту»), payable to him every year by 5 May (the “Victory Day payment”). In 2004 the applicant received 120 Ukrainian hryvnias (UAH), UAH 250 in 2005, UAH 250 in 2006, UAH 280 in 2007 and UAH 310 in 2008. 5. In March 2008 the applicant instituted proceedings in court, stating that the above-mentioned lump sums should have been equal to five times the minimum pension and claiming the unpaid difference for 2004-08. 6. On 4 August 2008 the Pervomaysky Town Court awarded the applicant UAH 3,870 in unpaid lump sums for 2007-08 in the light of the Constitutional Court decision of 9 July 2007 (see the “Domestic law” part below). The court held that the applicant was entitled to these payments, and the dispute was limited only to their amounts. From 9 July 2007 the applicant was entitled to a payment in the amount of five times the minimum pension. The court noted that the decision of the Constitutional Court had been adopted after the payments were due to be made, but that the Constitutional Court could not adopt a decision which would not be enforced. 7. On 30 October 2008 the Donetsk Administrative Court of Appeal upheld that decision. 8. On 24 June 2010 the Higher Administrative Court of Ukraine quashed those decisions and rejected the applicant’s claims. It held that the Constitutional Court decisions did not have retrospective effect. It further rejected the applicant’s claims related to 2004-06, because the applicant had missed the one-year time-limit for lodging his claim. 9. Section 2 of the War Veterans Status and Social Protection Guarantees Act provides that legal acts which reduce the rights and privileges of war veterans laid down by the Act are null and void. 10. In accordance with section 12 of the War Veterans Status and Social Protection Guarantees Act war veterans shall receive each year by 5 May a lump sum in the amount of five times the minimum pension. In accordance with section 17(1) of this Act those who did not receive the payment before 5 May can still request payment by 30 September of the same year. 11. The State Budget Acts of 2006 and 2007 suspended the above-mentioned provision for 2006 and 2007 respectively. They also set a different level of payment. On 9 July 2007 the Constitutional Court of Ukraine found the amendments in respect of 2007 to be unconstitutional (see Kolesnik and Others v. Ukraine (dec.), nos. 57116/10, 74847/10 and 10642/11, § 46, 26 June 2014). It appears that no similar complaint was lodged in 2006. 12. The State Budget Act 2008 amended section 12 of the War Veterans Status and Social Protection Guarantees Act to provide that the amount of the lump sum should be determined by the Cabinet of Ministers. Decision no. 183 of the Cabinet of Ministers of 12 March 2008 set the amount of this payment at UAH 310. On 22 May 2008 the changes introduced by the State Budget Act 2008 were found to be unconstitutional by the Constitutional Court of Ukraine. 13. The minimum pension for 2007-08 was set at UAH 410.06 and UAH 481 respectively. 14. Lastly, the Code of Administrative Justice in force as of 1 September 2005 set a one-year time-limit for lodging claims under the administrative justice procedure. 15. On 1 May 2009 the Higher Administrative Court of Ukraine issued a general analysis of the administrative courts’ practice in cases related to the social protection of children of war, war veterans and victims of the Nazi persecutions. The Higher Administrative Court of Ukraine noted that: “An analysis of the courts’ practice shows that disputes are mainly caused by shortcomings in the legislative regulation of social protection; in particular, since legal acts of equal force exist on the matter, it is difficult to establish which provision has higher legal force and should thus be applied in the dispute in question. The main legal acts in question include the Constitution of Ukraine, the Children of War Social Protection Act, the War Veterans Status and Social Protection Guarantees Act [...]. The State Budget Acts for 2006-2008 introduced changes to those legal acts, suspending some provisions and reducing some payments. On 9 July 2007 and 22 May 2008 some changes introduced by the State Budget Acts were found to be unconstitutional by the Constitutional Court of Ukraine.” 16. The Higher Administrative Court of Ukraine further noted that the national courts had not always correctly decided which legal act should be applied. In respect of the lump sum payment under section 12 of the War Veterans Status and Social Protection Guarantees Act it noted that in 2006 the provisions of the State Budget Act 2006 were to be applied, since this Act was adopted later than the War Veterans Status and Social Protection Guarantees Act. 17. As for the 2007-2008 payments, the Higher Administrative Court of Ukraine noted that the relevant provisions of the State Budget Acts of 2007-2008 had been found to be unconstitutional. However, since the Constitutional Court decisions could not be applied retrospectively, the relevant persons had “the right to receive the 5 May lump sum payment in the amount set by the War Veterans Status and Social Protection Guarantees Act only after the dates of adoption of the relevant decisions of the Constitutional Court”. In particular, only those who did not receive the relevant payment before 5 May could receive it before 30 September under section 17(1) of the War Veterans Status and Social Protection Guarantees Act. 18. In a letter of 14 August 2009 sent to the heads of the administrative courts of appeal the Higher Administrative Court of Ukraine reiterated its position.
| 0 |
test
|
001-148669
|
ENG
|
GBR
|
CHAMBER
| 2,014 |
CASE OF McDONNELL v. THE UNITED KINGDOM
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
6. The applicant was born in 1939 and lives in County Antrim. 7. On 6 January 1996 the applicant’s son, Mr James McDonnell, was remanded in custody to Crumlin Road Prison in Belfast. Since that prison had to close, all prisoners were to be transferred on 30 March 1996 to HMP Maghaberry. 8. On the morning of 30 March and prior to his transfer, Mr McDonnell was informed that his father had died suddenly during the night. Upon hearing the news, the applicant asked to be moved to a single cell. At 10.50 a.m. he was transferred to HMP Maghaberry. His cell was not ready on arrival so he waited in the recreation area. When a prisoner officer informed him that he would share a cell, Mr McDonnell said that he would wreck it. A principal officer was informed. 9. At 12.15 p.m. Mr McDonnell was informed his cell was ready and he said that he would hit the first prisoner who came into it. The principal officer was informed. 10. At 2.10 p.m. another prisoner, with two prison officers, arrived to share the cell. Mr McDonnell said that he wanted to be left alone. He left the cell and announced that he was going to the Punishment and Segregation Unit (“PSU”). There was then a scuffle between several prison officers and Mr McDonnell, which resulted in his being wrestled to the ground and physically restrained. He was brought to a standing position and, while still restrained, was taken to the PSU at approximately 2.20 p.m. A body search was carried out at the PSU with his consent. He was also examined by a medical officer, who noted that he had suffered bruising and grazing and was experiencing discomfort in his chest. The medical officer left at approximately 2.30 p.m. Statements later taken from prison officers and prisoners diverged as regards, inter alia, the circumstances of the incident, the level of restraint used and whether Mr McDonnell had been beaten. 11. At 3.45 p.m. on the same day Mr McDonnell was found unconscious in his cell in the PSU having suffered a heart attack. A number of unsuccessful attempts were made to resuscitate him. He was declared dead at 4.15 p.m. 12. On 30 March 1996 the first autopsy was conducted by Professor Crane, the State Pathologist for Northern Ireland. Professor Crane noted that Mr McDonnell had suffered a fracture to the hyoid bone in the neck, consistent with being grasped by a hand, and that it appeared that Mr McDonnell had suffered a heart attack some 12-24 hours prior to his death. He found that: “[the earlier heart attack] ... could ... have precipitated a fatal upset in the heart rhythm at any time ... [T]he possibility that the stress of the incident shortly before his death played some part in the fatal outcome cannot be completely excluded.” 13. Professor Crane’s report was sent to the Coroner in April 1997. 14. A further autopsy was carried out on 2 April 1996 by Professor Vanezis. Professor Vanezis reported that Mr McDonnell’s thyroid cartilage was also fractured and that there was bruising to the area. He could not exclude that stress suffered while being restrained had contributed to the cause of death. 15. An initial copy of the report was provided to the Coroner in March 1997. A copy was sent by the Coroner to Professor Crane for consideration in April 1997. Having considered Professor Crane’s autopsy, Professor Vanezis produced, on 26 June 1997, a supplemental report confirming his own previous findings. 16. The Northern Ireland Civil Liberties Council requested a report from Dr Kirschner of the International Forensic Programme, Chicago. Dr Kirschner considered the reports of Professors Crane and Vanezis as well as other material including statements from prisoners in the deceased’s cell block. Dr Kischner’s report of 7 September 1997 concluded: “[I]t is my opinion within a reasonable degree of medical and scientific certainty that the injuries that James McDonnell suffered approximately one hour prior to his death were a direct and proximate cause of his death. It is furthermore my opinion that the cause of death should be recorded as: Myocardial Ischaemia due to Multiple Blunt Trauma Injuries and Near-Asphyxiation.” 17. He was of the view that Mr McDonnell’s death should be classed as a homicide. 18. A copy of Dr Kirschner’s report was provided to the Coroner, together with a final copy of the report of Dr Vanezis, on 17 May 1999. In view of its controversial nature, the Coroner sent Dr Kirschner’s report to Professor Crane and to the police for their consideration. The police referred the matter to the Director of Public Prosecutions (“DPP”) and the DPP requested a further report from Professor Crane. The latter recommended that a second opinion on Mr McDonnell’s cardiology history be requested from Professor Knight. The Coroner requested a report from Professor Knight in June 1999. 19. Professor Knight reviewed the above three reports as well as primary autopsy data. On 30 June 1999 he completed his report in which he agreed with the reports of Professor Crane and Vanezis. Professor Knight concluded that the immediate cause of death was a fatal heart attack, but he considered that the emotional and physical effects of the prior restraint could have been a contributory or precipitating factor. He considered the report of Dr Kirschner to be flawed in both fact and opinion. 20. A copy of Professor Knight’s report was provided to the Coroner in July 1999 and sent immediately to the police, the DPP, Professor Crane and the applicant’s solicitors. 21. Meanwhile, an investigation into Mr McDonnell’s death was commenced by the Royal Ulster Constabulary (“RUC”). Twenty-one statements were taken from prisoners in March and May 1996. Eighteen prison officers were interviewed and statements were taken from eight of them in March 1996. Following the first autopsy, the eight officers were again interviewed under caution about, inter alia, the injuries noted on the deceased’s body. 22. On January 1997 a file was presented to the DPP. On 16 May 1997 the DPP gave a “no prosecution” direction. 23. The DPP reviewed his decision in 1999 on receipt of the report of Professor Knight (see paragraphs 18 and 20 above), but on 4 August 1999 gave a further “no prosecution” direction. 24. Following an inquiry from the applicant’s solicitor in May 2002, the DPP informed her by letter of 5 August 2002 of his decisions of 1997 and 1999. 25. On 8 November 2000 the applicant issued civil proceedings against the Prison Service of Northern Ireland. It appears that the writ has never been served. 26. The Police Service Northern Ireland (“PSNI”) replaced the RUC in 2001. In 2004 the Serious Crime Review Team reviewed the original investigation and concluded that extensive research into the case had not uncovered any new evidential material or investigative opportunities. 27. In 2001 the applicant made a complaint to the Police Ombudsman about the investigation into her son’s death. In February 2002 investigators from the Ombudsman’s office met with Professor Vanezis to discuss certain prisoners’ statements. On 2 May 2003 Professor Vanezis provided a further report to the Ombudsman confirming his view that Mr McDonnell had died from a heart attack but that stress relating to the restraint had contributed to his death. 28. The subsequent conclusions of the Ombudsman were as follows: “The Police Ombudsman has reviewed all the police documentation relating to the investigation into James McDonnell’s death. This includes the subsequent reviews undertaken by PSNI. The investigation into the death of James McDonnell was thorough and complete. The family of Mr McDonnell were not kept up-to-date with the investigation. This was not uncommon in 1996. However, with the advent of the emphasis on Family Liaison in any investigation into a sudden death, it is hoped that different standards would be applied today. Whilst the investigation was thorough and the DPP directed no prosecution against any of the prison officers involved in the restraint of James McDonnell prior to his death, some of the injuries suffered by James McDonnell have never been satisfactorily explained. This is particularly true of the injuries to Mr McDonnell’s throat. The police investigation was not able to properly deduce which of the prison guards, if any, may have inflicted the injuries, primarily the fracture of the hyoid bone. It is hoped that the inquest will allow the family of Mr McDonnell the opportunity to seek the answers to the questions that they have had since 1996.” 29. Meanwhile, following the decision of the DPP in 1997 not to bring any criminal prosecutions (see paragraph 22 above), the inquest was listed for a hearing on 2 February 1998. By letter dated 7 January 1998 the applicant’s solicitor sought an adjournment to await the outcome of pending judicial review proceedings concerning entitlement of family members of a deceased to legal aid at inquests (Sharon Lavery v. Secretary of State and Legal Aid Department). The Coroner adjourned the inquest until May 1999. 30. In October 1998 the Coroner wrote to the Court Service to inform them that inquests, including the inquest into the death of the applicant’s son, were delayed by reason of the pending judicial review proceedings. 31. On 16 March 1999 the High Court handed down its judgment in Sharon Lavery ([1999] NIQB; p. 6 and p. 1905), finding that there was no entitlement to legal aid at inquests. 32. As noted above (see paragraph 18), in May 1999 the Coroner was provided with a copy of the report of Dr Kirschner. He adjourned the inquest to obtain another report from Professor Knight, which was completed in June 1999 (see paragraph 20 above). In July, the inquest was re-scheduled for November 1999. 33. In the meantime, in September 1999, the Crown Solicitor’s Office advised that it would apply to maintain the anonymity of the prison officer witnesses. The hearing date of November 1999 was vacated because of that application but also to facilitate the attendance of Dr Kirschner. 34. In 2000 the inquest was further adjourned to allow the applicant to seek disclosure on the basis of a new Home Office Circular (issued in April 1999). The applicant also indicated to the Coroner that she intended to issue a judicial review challenge in relation to the pre-inquest disclosure by the PSNI. In August 2000 the applicant informed the Coroner that she no longer intended to issue judicial review proceedings and wished a hearing date to be set. 35. In December 2000 the applicant informed the Coroner that her expert, Dr Kirschner, would not be available until March 2001. The inquest was accordingly listed to commence on 5 March 2001. 36. In February 2001, with the applicant’s acquiescence, the inquest was again adjourned pending this Court’s judgment in Hugh Jordan v. the United Kingdom (no. 24746/94, ECHR 2001III (extracts)). Judgment in the case was delivered on 4 May 2001. 37. Following delivery of the judgment, no inquests were listed from September 2001 to February 2002 pending the amendment of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (“the 1963 Rules”). 38. Between January 2002 and March 2007 inquests which gave rise to Article 2 issues were adjourned pending judicial review actions concerning the scope of the inquest (Regina v. Secretary of State for the Home Department ex parte Amin ([2003] UKHL 51; and R (Middleton) ν. West Somerset Coroner ([2004] 2 A.C. 182)) and the application of Article 2 to deaths which pre-dated the Human Rights Act 2000 (In re McKerr ([2004] UKHL 12; and Jordan v. Lord Chancellor and Another and McCaughey v. Chief Constable of the Police Service Northern Ireland [2007] UKHL 14). 39. The latter judgments, delivered by the House of Lords on 11 March 2004 and 28 March 2007 respectively, confirmed that Article 2 did not apply to cases where the deaths in question pre-dated the Act. 40. In August 2007 the Coroner wrote to the applicant informing her that nineteen inquests had been adjourned pending the outcome of proceedings before the House of Lords and were now ready to proceed. 41. A preliminary hearing took place on 2 April 2008. On that date, an inquest hearing date was fixed for October 2008. The Coroner subsequently sought copies of the interviews and statements of prison officers taken by the police and of the statements taken from certain prisoners. He gave directions on any anonymity claims that might be made on behalf of any of the witnesses. 42. On 16 May 2008 the Crown Solicitor’s Office confirmed that it acted for eight prison officers who were seeking anonymity and screening. A further preliminary hearing was listed for 10 October 2008 to address the matter. 43. On 10 October 2008 the Coroner was informed that individual threat assessments would have to be conducted in respect of each officer seeking anonymity and screening and no timescale for the completion of this process was available. 44. A preliminary hearing took place on 6 November 2008 at which the Coroner issued a ruling on applications for anonymity and directed that any applications for anonymity be filed and served by 1 December 2008. The inquest was provisionally listed to commence on 3 February 2009. 45. In December 2008 the Coroner was advised that it would take up to three months for the threat assessments to be completed. It was therefore necessary to postpone the February 2009 inquest start date. The applicant’s solicitor was notified by letter dated 15 December 2008. 46. In May 2009 the Coroner received the threat assessments in respect of the prison officers seeking anonymity. He was, at that time, involved in another complex inquest. 47. In October 2009 the applicant instructed new legal representation. The Coroner sought confirmation from the newly-appointed solicitors that legal funding was in place. The solicitors responded that they were in discussions concerning legal funding and would provide an update in due course. 48. On 24 February 2010 the applicant’s new solicitors made detailed status enquiries of the Coroner’s Office and emphasised that to date the applicant had received no disclosure. On 22 March 2010 the Coroner replied that he had received some documents from the PSNI. On the same date, he again wrote to the PSNI requesting that full disclosure with any proposed redactions be provided for his consideration by 14 May 2010. New risk assessments for the prison officers seeking anonymity were also requested. 49. No disclosure was made by the deadline set. Reminders were issued on 10 June, 26 June, 21 July and 12 August 2010. 50. The updated risk assessments were received by the Coroner on 21 July 2010. 51. A preliminary hearing was listed on 8 September 2010 in order for the Chief Constable of the PSNI to explain the delay in providing disclosure. The hearing was rescheduled for 8 October 2010 owing to the unavailability of counsel. 52. At the hearing on 8 October 2010, the anonymity of prison officer witnesses and PSNI disclosure were debated. The Coroner ordered the PSNI to make disclosure by 19 November 2010 and scheduled a hearing for 3 December 2010. Disclosure was not made as ordered and that hearing date was vacated. 53. On 23 March 2011 disclosure was received by the applicants from the PSNI. All prison officer details were removed from the statements and no initials were retained, so that it was impossible to understand which officer was referred to at any given point in the statements. The applicant requested initials (“ciphers”). The Coroner requested the PSNI to provide the disclosure again, with ciphers. By letter dated 28 April 2011 the Coroner confirmed to the applicant that the statements would be provided with ciphers and allowed twenty-one days from receipt of those statements with ciphers for the applicant to make submissions on anonymity and screening. 54. On 18 May 2011, and in light of this Court’s judgment in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009, the Supreme Court overruled the judgments of the House of Lords concerning the applicability of Article 2 to pre-Human Rights Act deaths (see paragraphs 38-39 above) and accepted that such inquests should be compliant with Article 2 (McCaughey and Another, Re Application for Judicial Review [2011] UKSC 20). 55. Following reminders by the applicant to the Coroner in April, July, August and September 2011, on 6 September 2011 the statements with ciphers were provided to the applicant. 56. The applicant subsequently instructed a forensic pathologist, Dr Carey, to address the disputed issue of causation. Dr Carey requested access to primary data concerning the autopsy (post-mortem photographs, histology slides and the pathologist contemporary notes) and in April 2011 the applicant requested the Coroner to provide the material. The Coroner wrote to Professor Crane on 28 April 2011 asking that he make the material available to Dr Carey. In July 2011 Professor Crane replied querying the authority for the disclosure of his notes. By letter dated 1 September 2011 to the Coroner, the applicant contested Professor Crane’s refusal to provide access. Professor Crane subsequently agreed to provide the histological slides, and they were furnished in October 2011. In November 2011 the Coroner received Professor Crane’s notes and copies were provided to the applicant. 57. The Coroner received a copy of Dr Carey’s report in late November 2011. A preliminary hearing was listed on 10 January 2012. 58. At the hearing in January 2012, a revised timetable for the anonymity applications was put in place and the inquest was listed to commence on 26 November 2012, the first available date taking into account the Coroner’s existing commitments and the need for a suitable courtroom bearing in mind the estimated length of the inquest and its circumstances. A provisional witness list and timetable were circulated in February 2012. 59. In May 2012 Professor Crane provided his response to the report of Dr Carey. Additional comments from cardiac pathologist Dr Sheppard were circulated to the other legal representatives. The applicant sought disclosure of all correspondence between Professor Crane and Dr Sheppard. 60. An issue arose in May 2012 in respect of the threat assessments for the prison officers. After protracted correspondence, the issue was resolved by July 2012 and the threat assessment process commenced. By October 2012 some of the assessments remained outstanding. The Coroner decided that the inquest could not proceed in November 2012 and adjourned it until February 2013. 61. In December 2012 the applicant sought further disclosure of any other incidents which resulted in harm to a prisoner in which the prison officer witnesses had been involved, as well as details of any disciplinary proceedings against them. 62. The four pathology experts were not available in February 2013 and the Coroner was also unavailable as a result of illness. The Senior Coroner took over the case and listed the inquest to commence on 17 April 2013. 63. The correspondence between Professor Crane and Dr Sheppard was disclosed in March 2013. 64. The inquest commenced before the Senior Coroner on 17 April 2013. At the start of the inquest, the Coroner made a decision to grant anonymity to the prisoner officer witnesses. 65. The inquest ended on 16 May 2013. The narrative of the jury’s verdict explained: “The Northern Ireland Prison Service has explained the majority of the injuries sustained by Mr McDonnell. However, it has not explained the injuries to Mr McDonnell’s neck and lumbar region. The Northern Ireland Prison Service failed to carry out best practice in regard to bereavement of a prisoner.” 66. The jury’s answers to the specific questions posed can be summarised as follows: (i) Mr McDonnell was subject to a control and restraint procedure and a relocation procedure on 30 March 1996 as a result of his violent behaviour. (ii) The use of the procedure was necessary but it was not carried out correctly. (iii) The use of the procedure was not carried out only in so far as necessary. (iv) The neck injuries recorded in Mr McDonnell’s post mortem appeared to have been sustained during the initial restraint when he was grabbed by the neck. (v) The factors contributing to Mr McDonnell suffering a fatal heart attack were: the initial restraint; neck compression; the control and restraint procedure as carried out in this instance; underlying heart conditions; and emotional stress. (vi) The Northern Ireland Prison Service has not explained how he sustained the injuries found in the post mortem. (vii) There were defects in the procedures used that caused or contributed to the death of Mr McDonnell. There were: excessive force; prison officers not being trained in the application of aspects of Prison Guidelines, such as discretion on releasing control and restraint, and failures in the duty of care towards prisoners. 67. At the conclusion of the case the Senior Coroner referred the case to the DPP pursuant to section 35(3) of the Justice (Northern Ireland) Act 2002. The DPP was notified by letter dated 30 May 2013. 68. A decision by the DPP on whether to commence any criminal prosecutions is awaited. 69. The applicant commenced judicial review proceedings regarding the anonymity order made in respect of the prison officer witnesses at the inquest. She contended that this aspect of the inquest failed to comply with Article 2 of the Convention because it denied the inquest the requisite degree of transparency and accountability since the identities of those concerned were withheld from the next of kin and their conduct was not subject to public scrutiny. She did not seek the quashing of the jury’s verdict. 70. The judicial review hearing took place on 24 and 25 February and a decision was issued on 15 May 2014. The court rejected the applicant’s challenge. According to the latest information available to the Court, the applicant was considering whether to lodge an appeal against the decision.
| 1 |
test
|
001-183555
|
ENG
|
MKD
|
CHAMBER
| 2,018 |
CASE OF EUROMAK METAL DOO v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 3 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
|
5. The applicant company was set up in 1998 as a limited liability company. Its founders and sole shareholders were Ms Zhaneta Pavlovska and Mr Rasko Pavlovski. It traded in scrap metal and for that purpose it purchased waste aluminium, copper, iron and other metals, processed them and then offered the product for sale. 6. The applicant was registered for the purposes of the Value Added Tax Act (the “VAT Act”) and declared VAT on all invoices issued. VAT was also declared on all incoming invoices. This made it possible for the applicant company periodically to request VAT deductions from the State, which it did (in accordance with the rules of the “tax credit” system). 7. Until the subsequent events, the applicant company had been submitting regular tax returns to the tax authorities, notifying the State of its VAT calculations, payments and deductions. The State had processed the tax returns without indicating any wrongdoing or additional amounts due on the part of the applicant company. 8. On 22 September 2009 the Internal Revenues Office, regional directorate – Skopje (Управа за јавни приходи, Регионална дирекција Скопје – “the IRO”) issued an order to audit the applicant company for the purposes of VAT. The audit took place over several days during the months of October and November 2009 and took into account the period between 1 January 2005 and 30 June 2009. 9. On 6 November 2009 a tax assessment was compiled by the IRO. It was established that the applicant company’s suppliers were registered for the purposes of VAT but some of them had not declared or paid VAT to the State, even though it had clearly been declared in the invoices sent to the applicant company. That finding was based on earlier audits of those companies, which remained without further specification. The audit further established that some of the invoices did not contain the addresses of the suppliers. Lastly, the audit found that all invoices from the suppliers had been paid in full by the applicant company and that VAT had been declared on all invoices from the applicant company. On account of the above issues related to the applicant company’s suppliers, the audit concluded that the applicant company had failed to meet the conditions necessary to benefit from the VAT deductions it had received. 10. Relying on the tax assessment conducted earlier, on 20 November 2009 the IRO issued two decisions in respect of erroneous calculation of VAT, ordering the applicant company to pay an additional 3,827,546.00 Macedonian denars (MKD, around 62,000 euros (EUR)) in VAT. According to the IRO, those were the amounts the applicant company had unlawfully deducted from its tax obligations during the period 2005-07. An appeal lodged against those decisions had no suspensive effect. 11. The applicant company lodged an appeal with the Minister of Finance against the decisions of 9 December 2009. In the appeal it stated that it had met all of its VAT obligations stemming from the suppliers’ invoices and that it could not be held responsible for the suppliers’ mistakes. 12. On 8 February 2010 the Minister of Finance dismissed the appeal, reiterating the same findings and reasoning as in the audit report. 13. On 22 March 2010 the applicant company received a written reprimand from the IRO. The reprimand stipulated the full amount, including interest, to be paid by the applicant company. It amounted to MKD 6,059,124 (around EUR 100,000). 14. On 23 April 2010 the applicant company lodged an administrative action with the Administrative Court (Управен суд). 15. On 29 April 2010 the IRO blocked the applicant company’s bank account pursuant to the payment decisions. 16. By a decision of 28 March 2011 the Administrative Court remitted the case to the Ministry of Finance, having found that the second-instance decision had been issued by an unauthorised person acting in the name of the Minister. 17. On 26 May 2011 the Ministry of Finance again dismissed the appeal of the applicant company, reiterating the findings from the audit. 18. On 22 July 2011 the applicant company lodged another administrative action. 19. On 1 March 2013 the Administrative Court dismissed the action. The relevant part of the judgment reads: “... the cumulative conditions to obtain a deduction ... were not met. Specifically, the income of the applicant company was created by companies which failed to meet their legal obligations in relation to the payment of VAT ... In the deliberations the court took into account the claims by the appellant that it was wrongfully deprived of the right to claim VAT deductions because the errors found in the tax assessment had pertained to other [companies] ... These claims were rejected by the court ... inter alia taking into account that it is in the interests of every taxpayer to know and be aware of those with whom they engage in business.” 20. On 17 September 2013 the applicant company appealed to the Higher Administrative Court (Виш управен суд). 21. In a final judgment of 13 March 2014 the Higher Administrative Court upheld the findings and conclusions of the tax authorities and stated the following: “... [T]he appellant failed to fulfil the cumulative conditions prescribed in sections 33 and 34 of the VAT Act to obtain a VAT deduction specifically because the monetary inflow of the appellant as a taxpayer was done by other taxpayers who failed to meet their obligations to declare or pay tax. ... The court examined the complaint that all of the outstanding issues in the audit reflected errors committed by third parties and that the appellant should not be forced to bear the obligations of third parties ... but dismissed them ... having in mind that every taxpayer has an interest to enter into relations with other subjects.” 22. On 2 February 2017 the applicant company was removed from the register of companies and ceased to exist. According to a document issued by the register of companies, it was removed in accordance with section 552-B of the Companies Act (Закон за трговски друштва), specifically for not having submitted an annual financial statement (завршна сметка) to the authorities for the year 2014. 23. The applicant company’s bank account remained blocked by the IRO until 10 April 2017, when it was closed. Due to lack of funds on the account, the IRO failed to collect any money from the applicant company. 24. On 9 December 2011 the prosecution for organised crime (Основно јавно обвинителство за гонење на организиран криминал и корупција) filed an indictment against several individuals for criminal enterprise, abuse of office and tax evasion. The indictment encompassed the individuals responsible for several, but not all, of the applicant company’s suppliers. It was alleged that the individuals used the supplier companies to issue fake invoices which were not the result of real commercial activity. The supplier companies as legal entities were not directly indicted. The domestic courts found the accused guilty of the offences by a judgment of 29 March 2013, which became final on 9 January 2014.
| 1 |
test
|
001-170642
|
ENG
|
SWE
|
ADMISSIBILITY
| 2,016 |
AHO v. SWEDEN
| 4 |
Inadmissible
|
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
1. The applicant, Mr Abraham Aho, is a Swedish national who was born in 1991 and lives in Södertälje. He was represented before the Court by Mr J. Karlsson, a lawyer practising in Stockholm. 3. On 23 December 2009, a person was murdered at a nightclub in Södertälje, Sweden, by a lone gunman (hereafter “the December 2009 murder”). The applicant, who belonged to a well-known criminal network in Södertälje, was arrested the same day as a suspect. He was held in pre-trial detention until 1 April 2010, with restrictions. Although released from pretrial detention on that date, he remained a suspect. On 14 December 2010 he was once again arrested and subsequently detained, with restrictions, on suspicion for the December 2009 murder as well as inter alia another murder. The prosecution against the applicant and several other defendants was brought on 16 November 2011. 4. With regard to the evidence against the applicant concerning the December 2009 murder, the prosecution, inter alia, relied on information provided by witness A., who was working at the nightclub on the night of the murder. A. told the first policeman to arrive at the crime scene that he wanted to tell another policeman, B., who the perpetrator was. On the same day, A. arrived at the police station. However, as B. was not present, he told policeman C. instead that the applicant was the perpetrator. A. had known the applicant since an early age. A. also made it clear to C. that he would not agree to be questioned formally by the police or be heard as a witness before a court. The reason was that he feared retribution from the criminal network to which the applicant belonged. C. took note of the information and a few days later A. repeated to policeman B. what he had seen on the night of the murder. During the period from 9 September 2011 to 19 April 2013, A. repeated this information to B., C. and a third policeman, D., on ten separate occasions. 5. The trial at Södertälje District Court (tingsrätt) started at the end of 2011 and lasted for approximately six months. On 1 August 2012, the applicant was convicted of the December 2009 murder, aiding and abetting a second murder, abduction and extortion. He was sentenced to 12 years’ imprisonment. Moreover, he was to remain in detention, with restrictions, until the judgment gained legal force. 6. The applicant appealed to Svea Court of Appeal (hovrätt), which found one of the lay judges at the District Court to be biased because he was also a member of a local police commission where, among other things, the criminal case against the applicant had been discussed. For that reason, on 5 October 2012 the Court of Appeal quashed the District Court’s judgment and referred the case back to the lower court for renewed proceedings. The applicant was to remain in detention, with restrictions. 7. The new proceedings started before a new composition of judges of the District Court at the beginning of 2013 and lasted for approximately six months. 8. Policemen B., C. and D. were heard as witnesses during the trial and they concordantly testified that A. had told them that the applicant was the perpetrator. However, despite numerous requests, A. refused to relay the information at a formal police hearing or at the trial. A. nevertheless appeared as a witness at the trial and was questioned by the prosecution and the defence. He denied that he had witnessed the murder. 9. On 29 August 2013, the applicant was once again convicted by the District Court of the December 2009 murder, aiding and abetting a second murder and abduction and extortion. This time, he was also convicted of aiding and abetting a third attempted murder. He was sentenced to 12 years’ imprisonment. Moreover, he was to remain in detention, with restrictions, until the judgment gained legal force. 10. The District Court noted in its judgment that the applicant had claimed that A. blamed him for the murder for reasons of revenge or loyalty. The court, however, found no indication of such motives. A. was deemed credible, and his explanation to the policemen B., C. and D. that he refused to testify because of fear of retribution was seen as convincing. The court also reasoned that the strength of the hearsay evidence was reduced as A. had not provided the information during a trial where cross-examination was possible. A.’s identification of the perpetrator was therefore not seen as evidence decisive enough, taken by itself, to prove the guilt of the applicant. In addition to the identification, however, there was circumstantial evidence. A. had given information about the perpetrator to the victim in the extortion crime of which the applicant was also convicted. Furthermore, the applicant had no alibi and, according to connections to telecommunication masts, he was a few minutes away from the nightclub around the time of the murder. The applicant had called a person who stored guns 15 minutes before the murder, stating that he was in a hurry and wanted to meet outside the applicant’s home. His mobile phone had thereafter been silent for the following 15 hours, which was very unusual for him. A few days earlier, the applicant had requested guns and ammunition, and he was able to handle guns. The District Court concluded that the circumstantial evidence, considered together with A.’s identification of the perpetrator, proved that the applicant was the murderer. 11. Upon appeal, the Court of Appeal held an oral hearing which lasted several months. The applicant’s restrictions were lifted on 27 May 2014 by the court. On 1 September 2014, the court upheld the lower court’s judgment as regards the applicant and he was ordered to remain in detention without restrictions until the judgment gained legal force. 12. The lower court’s evidence evaluation and conclusion were shared by the Court of Appeal, where video recordings of the witness testimony were shown. The appellate court further noted that the applicant’s mother had called his mobile phone at the time when the applicant had claimed he was sleeping in the apartment from which his mother was calling. Moreover, the court noted that the applicant had handed over his cell phones to a friend after the murder but before he was arrested, indicating that he did not want the police to get hold of them. With regard to the case as a whole, the court remarked that several injured persons and witnesses had refused to be questioned by the police or had retracted previous statements given to the police at the trial. According to the court, it was obvious that this was because of loyalty or fear of retribution. Several witnesses were accused of perjury. 13. The applicant appealed against the Court of Appeal’s judgment to the Supreme Court (Högsta domstolen) which, on 25 November 2014, refused leave to appeal. 14. The applicant appealed neither explicitly nor implicitly to the Supreme Court against the Court of Appeal’s decision to keep him in detention until the judgment gained legal force. 15. Chapter 35, section 1, of the Swedish Code of Judicial Procedure (Rättegångsbalken, 1942:740), reads as follows: “After conscientious assessment of everything that has occurred, the court shall determine what has been proved in the case. As to the effect of certain kinds of evidence, the specific provisions thereon shall apply.” 16. This provision reflects the principle of free submission and evaluation of evidence (principen om fri bevisföring och bevisvärdering) which prevails in Swedish procedural law. It means that, as a main rule, there are no restrictions in law on the submission and evaluation of evidence. Thus, anything that may be of value as evidence in a case may, in principle, be presented during the main hearing. However, the circumstances under which evidence has been collected or given will have an influence on the way in which it is evaluated. The “principle of best evidence” (principen om bästa bevismedlet) is applied; consequently, witnesses and injured parties should normally give evidence during a court hearing, rather than the court reading the statements made during the preliminary investigation, to enable the parties to pose questions and scrutinise the statements more closely. 17. Moreover, according to Chapter 35, section 7, of the Code of Judicial Procedure, a court may dismiss evidence, inter alia, if the circumstance that a party wants to prove is without importance in the case, if the evidence is unnecessary or if it clearly would be to no effect.
| 0 |
test
|
001-154021
|
ENG
|
RUS
|
COMMITTEE
| 2,015 |
CASE OF MISYUKEVICH v. RUSSIA
| 4 |
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
|
Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev
|
4. The applicant was born in 1965 and lives in Nizhniy Tagil. 5. On 19 August 2009 the Leninskiy District Court of Yekaterinburg convicted the applicant of massive fraud, an offence punishable with up to ten years’ imprisonment, and sentenced him to five and a half years’ in prison. 6. During the trial the applicant was represented by his counsel. 7. On 3 September 2009 the applicant lodged an appeal. 8. On 23 October 2009 the Sverdlovskiy Regional Court upheld the judgment on appeal. It follows from the appeal judgment that the applicant could follow the appeal hearing by video link from the Yekaterinburg remand prison IZ-66/1. Counsel and prosecutor did not attend the hearing. 9. On 19 August 2009 the applicant was placed in Yekaterinburg remand prison IZ-66/1 and was held there until 27 October 2009. According to the applicant, conditions of detention there were inhuman and degrading because of overcrowding.
| 1 |
test
|
001-147441
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF NOSKO AND NEFEDOV v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicants were both targeted in undercover operations designed to investigate bribe-taking launched by the police under sections 6 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). 6. The facts of each individual criminal case, as submitted by the parties, are summarised below. The factual details of the undercover operations are not in dispute and the applicants admitted that they had received the money in return for promises to render certain services. However, the applicants contested the Government’s position as to the reasons for the undercover operations and the circumstances leading to them. In particular, they contended that they had accepted the money only because the police had incited them to do so, and they would not have done it under any other circumstances. 7. The applicant was born in 1960 and lives in Zarechnyy, in the Penza Region. At the time of her arrest, she was working as a dermatologistvenerologist in the outpatient unit of the municipal hospital in Zarechnyy. 8. According to the Government, the police in Zarechnyy received confidential operational information implicating the applicant in the illegal acceptance of money for issuing and extending false sick-leave certificates. On 19 November 2007 it was decided to conduct an undercover operation targeting the applicant, with the aim of documenting her illegal activity. The police proposed Ms A. to participate in the operation as their agent. 9. According to the applicant, she had not been implicated in any bribetaking prior to the operation and the police had had no grounds to suspect her. On 20 November 2007 her colleague and former fellow classmate from medical school, X, had come to her office while she was seeing patients. He had been accompanied by a young woman, Ms A. He had asked the applicant to provide Ms A. with a sick-leave certificate as she had herpes on her leg. The applicant had examined the woman, confirmed the diagnosis, prescribed treatment and issued the sick-leave certificate. The applicant thought that she had recognised Ms A. as the mother of a girl she had treated on a previous occasion. On 23 November 2007 Ms A. had come to the applicant’s office by herself and the applicant had agreed to extend her sick-leave as her condition had not yet been cured. Ms A. had been given the certificate and had handed 500 roubles (RUB – 11 euros (EUR)) to the applicant. The applicant had taken the money as she thought that Ms A. was offering it as a token of appreciation for having successfully treated her daughter previously. Immediately after Ms A. had left, the police had entered the applicant’s office and asked her and the nurses who were present to show them all the money in their possession. The applicant had taken out her wallet and while the police were searching the office she had remembered about the money that Ms A. had given her. She had become frightened and had moved the money from the pocket of her uniform into her left boot, where the police eventually discovered it. 10. On 26 May 2008 the Zarechenskiy Town Court of the Penza Region examined the applicant’s case. The applicant admitted that she had taken the money because she had thought of it as a gift from a grateful patient. She maintained that the police had incited her to accept the money. In particular, they had sent their agent to her office together with a colleague of hers whom she had known well since their student years in medical school and at whose request she had issued the sick-leave certificate to Ms A. 11. Ms A. testified at the trial that on 19 November 2007 she had agreed to help the police conduct an undercover operation investigating bribetaking. She had telephoned her acquaintance X and told him that she needed a sick-leave certificate to justify her stay at home while she redecorated her flat. X had agreed to help her and she had come to the hospital outpatient unit with him the next day. She had had with her RUB 2,000 (EUR 42) in cash and a recording device given to her earlier by the police. She had given X RUB 500 (EUR 11) for his intermediary services and also RUB 500 (EUR 11) to pay the applicant, who did not examine her at the time but nevertheless issued the sick-leave certificate. On 23 November 2007 she had returned to the applicant’s office. The applicant had not examined her but had extended her sick-leave certificate for RUB 500 (EUR 11) which the applicant had placed in the pocket of her uniform. 12. X testified that Ms A. had repeatedly called him requesting the false sick-leave certificate. He had agreed to help her and had received RUB 500 (EUR 11) from her. He had called several doctors but they had refused to help and he had decided to ask the applicant to issue the certificate. On 20 November 2007 he had come to the applicant’s office and she had handed him the certificate for Ms A. for RUB 500 (EUR 11) without actually examining Ms A. 13. The police officer in charge of the undercover operation also testified at the trial. In particular, he stated that following the receipt of confidential information implicating the applicant in bribe-taking, an undercover operation had been launched to verify and to document the applicant’s unlawful activity. 14. On 26 May 2008 the Zarechenskiy Town Court of the Penza Region granted the prosecutor’s request to drop the charges against the applicant in relation to the episode of 20 November 2007 for lack of evidence. It found the applicant guilty of bribery committed on 23 November 2007 and imposed a suspended sentence of three years in prison with three years’ probation. 15. On 6 August 2008 the Penza Regional Court examined the applicant’s case on appeal and upheld the conviction. The court dismissed the plea of entrapment and held that the police had had good reason to conduct the undercover operation as they were in possession of incriminating information against the applicant which revealed a preexisting intent to commit bribery. 16. The applicant was born in 1951 and lives in Cheboksary, in the Chuvash Republic. At the time of his arrest, he worked as a narcology psychiatrist at a regional narcology centre. 17. The Government submitted that in early 2008 the police had received information which had implicated the applicant and other staff members at the regional narcology centre in the issuance of false forensic medical examination reports in return for monetary consideration. On 17 July 2008 the police decided to conduct an undercover operation in order to expose and document the applicant’s unlawful acts. One of the police officers, Mr Y., was chosen to participate in the undercover operation and to bribe the applicant into altering the results of Mr Y.’s blood test and issuing a false forensic medical report. 18. The applicant contested the Government’s allegations. In particular, he claimed that the incriminating information had been ambiguous and had referred to medical personnel at the local narcology centre in general. It did not specifically identify him as an individual who was taking bribes. Moreover, the police were not in possession of any complaints from persons allegedly aggrieved by his unlawful acts. 19. The applicant further maintained that on 18 July 2008, when he started his shift at the regional narcology centre, traffic police officers had brought Mr Y. to his office for a blood alcohol test. The applicant had conducted preliminary tests that had shown that Mr Y. was under the influence of alcohol. Mr Y. acknowledged that he had drunk some alcohol the day before. Meanwhile, the officer who had accompanied Mr Y. had stepped out of the room and Mr Y. had repeatedly asked the applicant to help him obtain a favourable blood test result as he feared that the alcohol level in his blood would exceed the legal limit and he would have his driving licence revoked. The applicant had categorically refused at first and had sent the applicant to a laboratory for a blood test in the presence of police officers. Mr Y. had then returned to the applicant’s office and resumed his requests for help. He had offered to pay the applicant and had stated that his earnings and ability to support his family depended on his having a driving licence. On 19 July 2008 the applicant had again seen Mr Y. in his office, where he had repeated his requests. The applicant had then agreed to try talking to the laboratory staff and speculated that Mr Y. would need to pay RUB 6,000 (EUR 126) or 7,000 (EUR 147) to the laboratory technician. However, the nurse working in the applicant’s office had commented that at least RUB 10,000 (EUR 210) would be needed, as the laboratory technician would not accept less. Mr Y. had then paid the applicant RUB 10,000. The applicant had used RUB 5,000 (EUR 105) to pay the laboratory technician to alter the results of Mr Y.’s blood test and had paid RUB 1,500 (EUR 32) to the nurse to ensure her confidentiality. On 25 July 2008 the applicant had received a further RUB 4,000 (EUR 84) from Mr Y. and they had agreed on an additional RUB 2,000 (EUR 42) to be paid at a later date. Immediately afterwards, the police had entered the applicant’s office, charged him with abetting bribery and arrested him on the spot. 20. On 29 May 2009 the Moscovskiy District Court of Cheboksary examined the applicant’s case. The applicant testified that he had at first refused to help Mr Y. with his request. He conceded that he had taken the money from Mr Y. but only because Mr Y. had described his difficult personal situation and had strongly urged and incited the applicant to help him. 21. Mr Y. testified that on 18 July 2008 he had consumed 200 grams of vodka in the presence of the police officers who were to participate in the undercover operation. He did not know the name of the applicant at the time. Following some documentary formalities, they all proceeded to the local narcology centre, where the applicant had first established that he tested positive for alcohol. When he and the applicant were alone, he had asked the applicant to tamper with the results of his blood test to prevent him losing his driving licence. The applicant had refused and had sent him off to the laboratory for a blood sample. He had then urged the applicant to help him out once again, had offered him money, and the applicant had at last agreed. On 19 July 2008 he had met the applicant in his office. The applicant had told him that he needed to pay RUB 6,000 (EUR 126) or 7,000 (EUR 147) to the laboratory technician. However, Mr Y. had given RUB 10,000 (EUR 210) to the applicant as the nurse in the applicant’s office had commented that the technician would not take less than that. The applicant had later informed him that the technician would modify the test results accordingly. On 25 July 2008 he had paid RUB 4,000 (EUR 84) to the applicant in addition to the money given earlier and had agreed to pay a further RUB 2,000 (EUR 42) later, at the applicant’s request. 22. The police officer responsible for the undercover operation testified that in early 2008 the police had received information implicating the applicant and other staff members at the regional narcology centre in bribetaking. In July 2008 an undercover operation had been planned and launched with the participation of one of the police officers, Mr Y. In the course of the operation, the applicant had agreed to tamper with the results of a forensic medical test in return for financial remuneration from Mr Y. The undercover operation had been both audio-recorded and videotaped and a body search of the applicant at the end of the operation had revealed that he had marked banknotes on his person. 23. On 29 May 2009 the Moscovskiy District Court of Cheboksary convicted the applicant of abetting bribery and sentenced him to imprisonment for two years and six months and to a three-year ban on federal and municipal employment. The court dismissed the applicant’s plea of entrapment in its entirety as it found that the police had conducted the undercover operation in a lawful manner. The applicant appealed, pleading police incitement to commit the offence of which he was convicted. 24. On 30 July 2009 the Chuvash Regional Court found the applicant’s entrapment claim unsubstantiated and upheld his conviction on appeal.
| 1 |
test
|
001-140957
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,014 |
GÜR v. TURKEY
| 4 |
Inadmissible
|
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić
|
1. The applicant, Mr Mustafa Gür, is a Turkish national who was born in 1979 and is currently serving a prison sentence in Silifke. The Turkish Government (“the Government”) were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 14 October 2004 the applicant, who was being searched for on suspicion of murder, surrendered himself to the gendarmerie. 4. On 15 October 2004 he was taken to the Sütlüce Central Gendarmerie Station for questioning. According to a form explaining arrested persons’ rights and which the applicant signed in acknowledgement, he was advised of the charges against him, as well as of his right to remain silent and to have access to a lawyer, and was asked to make a statement regarding the murder of M.S., a shepherd, by poisoning on 13 October 2004. The applicant stated that he did not wish to benefit from the assistance of a lawyer and then proceeded to give a detailed account of how he had poisoned M.S. He alleged that he had been blackmailed by his creditors into killing M.S. in order to steal his sheep. 5. At 4.25 p.m. on 15 October 2004 the applicant was examined by a doctor, who stated that there were no traces of ill-treatment on his body. In addition, the medical report indicated that the applicant had not complained of any physical ailments or psychological conditions. 6. On the same date he was brought before the Gülnar Public Prosecutor, where he was again advised of his right to remain silent and to request a lawyer. The applicant refused the assistance of a lawyer and repeated the statement he had given at the gendarmerie station. He stated that he had surrendered to the gendarmerie and that he regretted what he had done. 7. Later on the same day the applicant was questioned at the Gülnar Magistrates’ Court. Having refused legal assistance, he confirmed his statements given before the gendarmerie and the public prosecutor. He stated that he was in debt and that to secure payment of his debt his creditors had coerced him into killing the shepherd in order to steal his sheep. Subsequently he had agreed to kill the shepherd, and had bought an agricultural poison. He had also rented a lorry with a driver to transport the sheep. They had gone to the village and he had asked the driver to wait outside the village until he brought the sheep. Then, when he had approached the shepherd, a dog had attacked him. He had thrown a piece of bread laced with poison to the dog and it had calmed down. Subsequently, he had found the shepherd, had a chat with him and offered him a soft drink laced with poison. Right after the shepherd had drunk it, the applicant had gone away, regretting what he had done. At the end of the questioning, the judge ordered the applicant’s pre-trial detention. 8. An expert report dated 20 October 2004 established that the fingerprints found on the lorry’s rear-view mirror matched those of the applicant. 9. On 26 October 2004 the Gülnar Public Prosecutor filed an indictment with the Silifke Assize Court against the applicant and three other people, accusing the applicant of a number of offences including premeditated murder and the other three individuals of murder and/or incitement to murder. 10. During the trial, the assize court heard more than twenty witnesses. 11. A.K.K., the head of the village (muhtar), stated that a villager had noticed a lorry parked outside the village and had brought its driver to the village. The driver had explained that he had brought a person to the village who had told him that he was going to buy 68 sheep from someone. He had been asked to stay until 5.00 p.m. but the person had not come back. A.K.K. had asked gendarmerie officers to come to the village, and when they arrived they had started to search for the sheep with the villagers. The next day the body of the deceased had been found. 12. H.H.K. testified that he had spotted the deceased walking with a man outside the village. However, two hours later he had seen that person a long distance away, herding the sheep himself. 13. M.A., the driver of the lorry, stated that on the day of the incident the applicant had rented his lorry to transport some sheep. On the way to the village the applicant had bought bread and a soft drink. The applicant had asked him to stay outside the village until 5.00 pm. After a while, a dog had passed by which appeared to have been poisoned. The applicant had not come back and he had begun to suspect that there was something wrong. He had gone into the village and had explained the events to the head of the village and gendarmerie officers. 14. A.T. testified that the applicant had rented his car three or four times before the incident. He had been called in by the gendarmerie for questioning. While he had been at the gendarmerie station the applicant and B.D. had arrived at the station. 15. B.D. stated that the applicant had rented his colleague’s (A.T.’s) car three or four times. B.D. had been invited to the gendarmerie station for questioning. Thereafter the applicant had come to rent the car again. B.D. had mentioned the phone call he had received from the gendarmerie to the applicant. Upon B.D.’s suggestion they had gone to the station together. 16. According to the crime scene examination report dated 14 October 2013 drawn up by the gendarmerie, the deceased’s body was found lying face down on the ground. His arms were under his abdomen. There was foam and blood around his mouth, and there was vomit residue around his feet. There were no signs of a firearm wound, open wound or blood on his body. The report further revealed that 68 sheep had been found hidden some distance away. 17. Following a toxicological examination, on 23 February 2005 the Adana Branch of the Forensic Medicine Institute prepared a report finding that there were no traces of toxic substances, alcohol or drugs in the deceased’s blood, urine and internal organs. 18. Lastly, on 3 May 2006 a report was prepared by the Forensic Medicine Institute upon the request of the Pathology Department of the Forensic Medicine Institute. The report revealed that the crime scene and the residue of vomit would lead to the conclusion that the deceased had been poisoned. It further disclosed that traces of toxic substances could not be detected in the deceased’s tissue or fluids due to the time which had elapsed. However, taking into account the fact that there was no medical evidence to show that the deceased had been poisoned, the report was unable to establish the exact cause of death. 19. During the trial, the applicant was represented by a lawyer. In his defence submissions before the Silifke Assize Court, the applicant denied the statements he had made before the gendarmerie, the public prosecutor and the magistrates’ court. He alleged that his statement at the gendarmerie station had been extracted under duress and that he had been forced to sign a statement dictated by the gendarmerie. Moreover, he alleged that the gendarmerie had forced him to repeat the same statement before the public prosecutor and the magistrates’ court and he had done so because he was scared that if he did not comply he would be ill-treated again. In the written defence submissions presented to the trial court, the applicant’s lawyer stated that the applicant had been forced by the authorities to sign self-incriminating statements which included his alleged refusal to be assisted by a lawyer. He maintained that the statements in the case file had no legal validity. 20. On an unspecified date, the public prosecutor submitted his written opinion on the merits of the case to the Silifke Assize Court, in which he recommended the applicant’s acquittal, along with the three other defendants, due to a lack of evidence establishing beyond a reasonable doubt that the applicant had committed the offence with which he was charged. 21. On 30 October 2007 the Silifke Assize Court convicted the applicant of murder and robbery and sentenced him to life imprisonment under Articles 82 § 1 and 149 § 1 of the Criminal Code (Law no. 5237), but acquitted his co-defendants due to a lack of evidence. In convicting the applicant, the assize court principally relied on his statements before the gendarmerie, the public prosecutor and the magistrates’ court, the witness statements of approximately twenty witnesses, identification reports, the scene of incident report and fingerprint evidence. It did not give credence to the defence submissions made by the applicant during the proceedings in which he denied all his previous statements, finding that he had only made them to avoid conviction. The trial court moreover stated that a number of the witness statements were perfectly consistent with the applicant’s initial self-incriminating statements, which suggested their accuracy. As regards his allegations of ill-treatment, the assize court stated that the medical reports issued prior to and following the applicant’s detention at the gendarmerie station indicated no traces of illtreatment on his body. These allegations were, therefore, held to be unfounded. 22. On 8 July 2009 the Court of Cassation upheld the judgment of the Silifke Assize Court with a correction. Noting that the deceased had been a minor at the material time, it changed the sentence to aggravated life imprisonment (a whole life tariff). 23. The relevant domestic law and practice in force at the material time can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).
| 0 |
test
|
001-175661
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF BABYNIN v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Dmitry Dedov;Luis López Guerra
|
4. The applicant was born in 1956 and lives in Staryy Oskol. 5. The applicant took part in the cleaning up operation at the Chernobyl nuclear disaster site. 6. On 5 July 2002 the Staryy Oskol Town Court of the Belgorod Region granted the applicant’s action against the Belgorod Regional Administration and awarded him and his family, comprising two members, a flat in the town of Staryy Oskol and 3,000 Russian roubles (approximately 100 euros) in compensation for non-pecuniary damage. The representative of the Regional Administration did not attend the hearing: in writing he had requested the Town Court to adjudicate the case in his absence. 7. The judgment was not appealed against and became final on 15 July 2002. 8. On 19 August 2002 the Staryy Oskol Town Court issued a writ of execution and enforcement proceedings were instituted. 9. On 9 October 2002 the Belgorod Regional Administration lodged a statement of appeal against the judgment of 5 July 2002. The Administration also asked the Town Court to restore the ten-day time-limit for lodging the appeal. The Administration claimed that it had received a copy of the judgment of 5 July 2002 by fax on 8 October 2002. The Administration asked to stop the enforcement proceedings. 10. The applicant insisted that there had been no reason to restore the time-limit. He noted that a copy of the judgment had been forwarded to the Regional Administration at the end of July 2002. 11. On 14 October 2002 the Staryy Oskol Town Court restored the time-limit for lodging the appeal, accepted the Administration’s statement of appeal and stopped the enforcement proceedings. 12. On 19 November 2002 the Belgorod Regional Court examined the Administration’s appeal, quashed the judgment of 5 July 2002 and remitted the case for a fresh examination to the Town Court. 13. On 20 January 2003 the Staryy Oskol Town Court, in the new examination of the case, accepted the applicant’s action in part. The relevant part of the judgment read as follows: “Order that the Belgorod Regional Administration should provide ... Mr Babynin G.A. and his family with housing premises, which satisfy sanitary and technical requirements, in their turn according to the housing waiting list of families having persons with disabilities and individuals who had taken part in the cleaning operation at the site of the Chernobyl nuclear plant. Dismiss [the claim] for compensation for non-pecuniary damage.” 14. The judgment was not appealed against and became final on 31 January 2003. 15. On 13 February 2003 a writ of execution was issued and enforcement proceedings were instituted. 16. According to the applicant, from 5 to 12 March 2004 a group of five people, including the applicant, began a hunger strike to protest against the poor level of welfare protection provided for the Chernobyl victims. 17. On 16 April 2004 the mayor of Staryy Oskol decided to provide the applicant with a flat measuring 55,05 m². 18. On 21 April 2004 the applicant received from the mayor an occupancy voucher in respect of the flat assigned to him. He found the flat satisfactory.
| 1 |
test
|
001-171098
|
ENG
|
ROU
|
COMMITTEE
| 2,017 |
CASE OF MIHĂILESCU v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque
|
4. The applicant was born in 1971 and is currently serving a prison sentence in Vaslui Prison. 5. In 2012 the applicant was convicted of human trafficking and sentenced to ten years’ imprisonment. 6. He was detained in several detention facilities. However, in the present application he only complained about the conditions of his detention in Iaşi Prison and about the fact that he had not been assigned a personal care assistant in Rahova and Iaşi Prisons between 2 April 2013 and 30 January 2014. 7. The applicant was detained in Iaşi Prison on several occasions, for a period of almost ten months: between 2 and 16 August 2013, 3 September 2013 and 11 March 2014, 14 March and 6 June 2014, as well as from 27 June and 4 July 2014. 8. The applicant alleged that he had been kept in conditions of poor hygiene in overcrowded cells. He had shared a cell of twentynine square metres with seventeen other detainees. Moreover, he submitted that he had shared his cell with smokers despite the fact that he was a nonsmoker. The food had also been of very poor quality. 9. According to the information provided by the National Prison Administration and forwarded to the Court by the Government, the applicant was held in the following cells: - cells E 4.3, E 6.2. and E 6.7., all measuring 33.33 sq. m, containing twentysix beds (that is, 1.2 sq. m per bed), occupied by twenty to twentysix detainees; - cell E 7.5., measuring 17.48 sq. m, containing three beds (that is, 5.8 sq. m per bed), occupied by one to three detainees; - and cell E 8.10, measuring 17.48 sq. m, containing eight beds (that is, 2.1 sq. m per bed) and occupied by four to eight detainees. 10. The Government did not provide any information concerning either the exact number of detainees who had occupied the cells or the time spent by the applicant in each of the above-mentioned cells. 11. The detainees were provided with cleaning materials and personal hygiene products and they were responsible for cleaning the cells. Specialist contractors carried out work to eradicate rodents and insects whenever it was considered necessary. The detainees were entitled to two showers per week. 12. The applicant received a special diet for his medical condition (see paragraph 13 below). 13. On 29 October 2013 a medical commission issued a certificate attesting that the applicant had been classified as a person with a permanent, severe physical disability on account of his visual impairment. The medical commission granted the applicant the right to a personal care assistant. 14. The applicant alleged that no special arrangements had been made for him as a person with severe visual impairment in Iaşi and Rahova Prisons between 2 April 2013 and 30 January 2014. 15. Moreover, he contended that he had not been assigned a personal care assistant and had been permanently subjected to humiliating and degrading remarks from his cellmates, the same people to whom he had to appeal for assistance. As he had had no personal assistant he had not been able to benefit from daily walks and had been dependent on the other inmates to be moved around the prison. 16. He had only received assistance from inmates in the facility in exchange for cigarettes and money. The inmates had refused to help him unless they were paid. The administration had not taken any steps to rectify the situation. 17. The applicant submitted copies of several requests he had lodged with the prison authorities on 21 May, 21 November and 23 December 2013 and on 20 February 2014 respectively, by which he had asked to be assigned a personal assistant. In each of his requests he had indicated the name of the co-detainee he had preferred to be assigned to him. All these requests were dismissed on the ground that the co-detainees indicated by the applicant could not assist him because they had been subject to disciplinary sanctions. 18. The Government submitted that the administration of both prisons had made diligent efforts to comply with the standards imposed by the Court. Moreover, in 2013 the authorities in Iaşi Prison had refurbished cell E 4.3 (see paragraph 9 above) to accommodate the needs of detainees with disabilities, including those of the applicant. 19. The Government contended that the medical certificate on his disability had been issued only on 29 October 2013 (see paragraph 13 above) because the applicant had failed to submit the documents requested by the special commission for disabled persons. They further argued that even before the medical certificate had been issued, the prison authorities had on 9 August 2013 allowed a request lodged by the applicant on 7 August 2013 to be assigned a personal care assistant. They had assigned him an inmate, M.D., who had been sharing the applicant’s cell. He had assisted the applicant until 16 August 2013, when the latter had been admitted to the medical unit of Dej Prison. In the medical unit the applicant had been assisted by a co-detainee with whom he had shared the room. The Government did not provide any information about the co-detainee in question. 20. After the applicant had returned to Iaşi Prison he had lodged a request to be assigned a personal care assistant. On 22 April 2014 the prison authorities had assigned him an inmate, whom the applicant had refused. 21. The applicant lodged several complaints on the basis of Law no. 275/2006 on the execution of sentences with the post-sentencing judge. 22. In 2013 the applicant lodged three complaints concerning an infringement by the administration of the Rahova Prison of his right to have a personal care assistant. He stated that he had not been assigned a person to assist him although he was suffering from a severe visual impairment. 23. The complaints were joined and examined together by the postsentencing judge on 14 June 2013. The judge noted that the prison doctor’s opinion was that the applicant was not entitled to a personal assistant. It further noted that on 9 May 2013 the prison authorities had appointed a commission of specialists, which had examined the applicant. The commission had found that owing to his visual impairment the applicant encountered difficulties in eating, maintaining his hygiene and in alerting prison staff or other co-detainees in case of need. It had therefore recommended a set of steps to be taken, which included closely monitoring the applicant. Subsequently, a detainee, C.F., sharing the applicant’s cell, had been assigned to support him in his daily activities. The post-sentencing judge dismissed the applicant’s complaints on the grounds that the steps taken by the prison authorities had been sufficient. 24. In his application to the Court, the applicant contended that assigning him C.F. had been useless because the latter had refused to provide him with any help. The applicant produced a handwritten statement by C.F., dated 20 June 2013, in which the latter had stated that he had not helped the applicant because the prison authorities had refused to consider his activity as a personal care assistant as work that should be remunerated.
| 1 |
test
|
001-162697
|
ENG
|
TUR
|
GRANDCHAMBER
| 2,016 |
CASE OF İZZETTİN DOĞAN AND OTHERS v. TURKEY
| 1 |
Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 14+9-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9-1 - Freedom of religion;Article 9 - Freedom of thought conscience and religion);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;André Potocki;Dean Spielmann;Guido Raimondi;Helen Keller;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Ledi Bianku;Mark Villiger;Paul Lemmens;Robert Spano;Yonko Grozev
|
9. The applicants, whose names are listed in the Annex to the present judgment, are followers of the Alevi faith. 10. On 22 June 2005 the applicants individually submitted a petition to the Prime Minister, the relevant parts of which read as follows: “1. ... I am a citizen of the Republic of Turkey and adherent of the AleviIslamic (Alevi, Bektashi, Mevlevi-Nusayri) faith. The Alevi faith is a Sufi and rational interpretation and practice of Islam based on the unity of Allah, the Prophecy of Muhammad and the Koran as Allah’s Word ... 2. Freedom of conscience and religion is recognised by Articles 2, 5, 10, 12, 17 and 24 of the Constitution, and by Articles 9 and 14 of the European Convention on Human Rights and Article 2 of the additional Protocol, which take precedence over domestic law by virtue of Article 90 of the Constitution ... The State is required to take the necessary measures to guarantee the effective exercise of the right to freedom of conscience and religion. It must comply with that obligation by ensuring that everyone can effectively exercise those freedoms on an equal footing. In the constitutional order this obligation is regarded as a public service and this concept is enshrined in the Constitution. 3. Under the terms of Article 136 of the Constitution, ‘[t]he Religious Affairs Department [“the RAD”], which is part of the general administration, shall carry out the functions assigned to it under the special law by which it is governed’, in conformity with the principle of secularism, while remaining detached from all political views or ideas and with the aim of promoting national solidarity and union. The RAD was set up with a view to achieving those objectives. Section 1 of the RAD (Creation and Functions) Act ... provides that ‘the RAD, operating under the Prime Minister, is responsible for dealing with matters of Islamic beliefs, worship and moral tenets and administering places of worship’. Under the terms of that Act, the RAD is invested with powers to manage all matters relating to Islam as a religion and is also responsible for administering places of worship. In practice, the RAD confines itself to cases concerning only one theological school of thought [mezhep] pertaining to Islam and disregards all the other faiths, including ours, which is the Alevi faith. Although the State has an obligation under the Constitution and supranational provisions to take all the necessary measures to ensure that the right to freedom of conscience and religion can be freely exercised, the rights of Alevis are disregarded, their places of worship, namely the cemevis, are not recognised as such, numerous obstacles prevent them from being built, no provision is made in the budget for running them, and the exercise of their rights and freedoms is subject to the good will of public officials. To date, all the demands made by the Alevi community with regard to practising their religion have been rejected as a result of the RAD’s biased approach, which is divorced from scientific and historical fact and based on one theological school of thought alone. As has been emphasised by the European Court of Human Rights, ‘the State’s duty of neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs.’ ... In the light of the foregoing, we request that a. services connected with the practice of the Alevi faith constitute a public service, b. Alevi places of worship (cemevis) be granted the status of places of worship, c. Alevi religious leaders be recruited as civil servants, d. special provision be made in the budget for the practice of the Alevi faith, ...” 11. On 19 August 2005 the Prime Minister’s public relations department sent the applicants a letter in reply saying that it was impossible to grant their requests. The relevant parts of the letter read as follows: “1. ... The services provided by the Religious Affairs Department in accordance with the legislation in force are available to everyone and are general and supradenominational. Everyone has a right to benefit from these general religious services on an equal footing. 2. Having regard to [the current legislation] and to the courts’ case-law, it is impossible to grant the status of place of worship to cemevis. 3. Everyone has the right to be recruited as a civil servant, in accordance with the provisions of the relevant legislation. In that regard no group of persons can be granted a privilege on the basis of their faith or beliefs and be recruited according to those criteria. As the functions carried out by the Religious Affairs Department constitute a public service, its staff are recruited on the basis of nationality and objective criteria. 4. It is impossible to make provision in the budget for services that are not provided for in the Constitution or the law.” 12. Following receipt of that letter, 1,919 people, including the applicants, lodged an application with the Ankara Administrative Court (“the Administrative Court”) for judicial review of the decision refusing to grant their requests. The relevant parts of their notice of application are worded as follows: “... It is estimated that there are currently between twenty and twenty-five million followers of the Alevi faith (Alevi, Bektashi, Mevlevi-Nusayri) in our country. Up until the 1950s almost all Alevi citizens lived in rural areas. Subsequently, they started migrating to the towns and began practising their faith there. With regard more particularly to cemevis, before migrating to the towns, Alevis, who led a reclusive lifestyle, practised their religious worship in the largest house in their village ... Mass migration made it impossible to practise religious worship in houses ... Moreover, the cemevis which used to exist in the cities, for example in Istanbul, could no longer meet the growing needs of the community. Today’s cemevis, which were built before the conquest of Istanbul, such as Karacaahmet Sultan Dergahı and Şahkulu Sultan Dergahı, could no longer meet the increasing demands of the Alevi community. ... [C]itizens of the Alevi faith have used their own funds to acquire land on which to build cemevis. However, these places of worship have given rise to numerous instances of arbitrary conduct. Whilst certain municipalities had made provision for the construction of cemevis in their urban development plans, many others rejected applications for planning permission, with the RAD continuing to consider that cemevis could not be regarded as places of worship. That attitude has been adopted not only by the municipalities, but by the administration as a whole. As a result of this arbitrary attitude on the part of the authorities, which is not based on any historical fact, cemevis have not been recognised as places of worship in the Republic of Turkey. Consequently, they are not eligible for any of the advantages linked to that status ... Citizens who have built their cemevis also pay the religious leaders whom they have recruited to officiate in these places of worship. These religious leaders, who follow a Sufi interpretation of Islam, train and teach the faith using their own means. Like all religious leaders, they play a crucial role in the moral and social progress of society. Yet the authorities do not contribute in any way towards their training ... As can be seen from the position briefly described above, the authorities almost completely disregard Alevi citizens; their places of worship – the cemevis – are regarded as cultural centres, with the result that they lack the status of places of worship and the attendant advantages. Likewise, the semah, which is one of the basic rituals of Alevi religious ceremonies, is reduced to a picturesque show. Thus, in determining the manner in which citizens must practise their religion, which places are considered as places of worship and the very nature of the faith itself (a belief or culture), the authorities are manifestly infringing the right to freedom of conscience and religion. Further, the Ministry of Education continues to disregard the Alevi faith and to offer religious education based on one particular Islamic theological doctrine. In doing so, it undermines peaceful co-existence and encourages discrimination from a very young age. In conclusion, no service is provided to citizens of the Alevi, Bektashi or MevleviNusayri faith, which constitutes a serious oversight ... ... According to the Constitution and the relevant legislation, the RAD carries out the functions assigned to it under the special law by which it is governed (a) in conformity with the principle of secularism, (b) while remaining detached from all political views or ideas, and (c) with the aim of promoting national solidarity and union. In that connection, if regard is had to the RAD (Creation and Functions) Act (Law no. 633) it can be concluded that this body was set up not only for the needs of the Muslim religion (the majority religion), but for those of all religions. However, the present application sets out to challenge the practice of the authorities, of which the RAD is an integral part, with regard to the Muslim religion. ... The principle of equality requires that no distinction be made between users regarding either access to public services or the benefit of those services. Where a public service is concerned, equality must be observed in every sphere ... Otherwise, it is a privilege and not a public service ... Under section 1 of Law no. 633, the RAD is responsible for (a) dealing with matters of Islamic beliefs, worship and moral tenets, (b) enlightening society about matters pertaining to religion, and (c) administering places of worship. It should be pointed out in this regard that the legislature did not seek to legislate for one particular branch of Islam or one theological doctrine or movement within Islam, but for the Muslim religion as a whole. Accordingly, the RAD is responsible for providing a public service to all citizens who are followers of Islam. ... We now come to the facts regarding the practices of the RAD ... The RAD employs approximately 113,000 people, administers some 100,000 mosques and masdjids [prayer rooms for religious practice] and has a budget of several billion Turkish liras set aside in the general budget to carry out the functions assigned to it. In carrying out its functions, the RAD, although its powers encompass the Muslim religion as a whole, confines itself to the demands of the Sunni schools of thought, and in particular the Hanafi school, while disregarding all the other movements and branches of Islam. The general budget is funded mainly by revenue from the taxes paid by all citizens. No distinction on grounds of religion or membership of a religious movement is made where tax collection is concerned. On the contrary, this is based on nationality. However, the RAD, which receives billions of Turkish liras from the general budget, offers a public service only to the followers of one particular theological school of thought ... It is entirely normal for a religion to encompass several different theological doctrines, movements, beliefs ...” Referring to the case-law of the European Court of Human Rights, the applicants further contended that, contrary to the position of the RAD describing the Alevi faith as a cultural asset and considering mosques as the only place of Muslim worship, cemevis were places of worship where cems, that is, Alevi religious ceremonies, were conducted. In their submission, it was not for the RAD to decide whether cems were or were not religious ceremonies. Relying on examples taken from speeches by the Head of the RAD, they submitted that it was a matter exclusively for followers of the Alevi faith, and not for a State body, to determine what should be regarded as a religious ceremony. 13. On an unspecified date the Prime Minister’s Legal Department submitted its memorial in reply. It disputed, first of all, the standing of the applicants to act, submitting that they could not lodge an application on behalf of all Alevis. They observed in that connection that, according to some sources, the number of Alevis in Turkey varied from between four to five million and twenty to twenty-five million and that there was no uniform approach regarding either the definition of the faith or the demands of its followers. With regard to the merits, the Legal Department went on to dispute the claimants’ arguments. The relevant passages of its memorial read as follows: “Law no. 677 ... prohibits the bearing of certain religious titles such as sheikh, dedelik [an Alevi religious leader], dervichlik, and so forth, the practices connected with those titles, and the designation of a venue for ceremonies conducted by Sufi orders (tarikat ayini). Failure to comply with these prohibitions is punishable by a term of imprisonment and a fine. Moreover, the same Law orders the closure of tekke and zaviye and their conversion into mosques or masdjids... The Department carries out its functions in accordance with Articles 10, 136 and 174 of the Constitution and Laws nos. 633 and 677. In carrying out its functions, it encompasses all Islamic beliefs, modes of worship and moral tenets and extends to all people on an equal footing. It is accordingly incorrect to claim that the Department, which carries out its functions in a supra-denominational manner, confines itself to the Sunni branch of Islam ... It is impossible to offer a service to banned Sufi orders (tarikat); this would also be contrary to the principle of secularism and national solidarity. Article 3 of the Regulation implementing the Law governing the wearing of certain dress defines places of worship as follows: ‘Places of worship (mabedler) are closed areas created in accordance with the relevant procedure and designed in the case of each religion for the practice of religious worship’ ... Having regard to the foregoing, a place cannot be regarded as a place of worship unless it is associated with a religion. In that regard, churches, synagogues and mosques or masdjids are the places of worship of the Christian, Jewish and Muslim faiths respectively. It is clear that everyone has the right to practise his or her faith in private at his or her own home or elsewhere. Accordingly, there is no prohibition or obstacle preventing Alevi citizens from saying their prayers, the zikir or the semah in cemevis. However, the creation, in addition to mosques and masdjids, of places of worship for the followers of a particular interpretation or movement of Islam is not in conformity with religion. Furthermore, an application for designation of a place of worship, appointment of religious functionaries and allocation of a budget on the basis of belief in an opinion or interpretation of the Muslim religion or adherence to a particular theological doctrine would inevitably create an insoluble problem and chaos within that religion ... Moreover, history has shown that the namaz [five compulsory prayers] are never said collectively in the tekke, dergah and zaviye [Dervish monasteries], but that they are said in the mosques or masdjids that are invariably located alongside such places ... As specified in the notice of application, the Alevi faith (Alevilik) ... is an interpretation and practice of Islam. The Alevi and Bektashi faith is a Sufi interpretation superficially containing elements pertaining to belief in twelve imams and mystical elements (batini). In the past it was practised in dergah in towns. As there were no dergah in the villages, the most appropriate house was chosen. Nowadays, places such as Şahkulu Sultan and Karacaahmet Sultan are the dergah of the Bektashi, that is, tekke ... To recognise cemevis as places of worship would be contrary to Law no. 677 ... Moreover, a development of that kind would lead to the legalisation of other Sufi orders and many of them that are banned (Naqshbandi, Qadiri, Rufai, Cerahi, and so on) would request legal status ... A number of sectarian groups would then be likely to start appearing around a sheikh ...” 14. On 4 July 2007 the Administrative Court dismissed the preliminary objections of the authorities and examined the application on the merits. It dismissed the application on the grounds that the refusal by the respondent authorities was in conformity with the legislation in force. In its reasoning, referring to Articles 2, 90, 136 and 174 of the Constitution and to Laws nos. 633 and 677, and also to the international instruments concerning freedom of religion and the prohibition of discrimination and to the judgment in Hasan and Eylem Zengin v. Turkey (no. 1448/04, 9 October 2007), the Administrative Court observed at the outset that the Alevi faith attained a certain level of cogency, seriousness and cohesion and, as an interpretation of Islam, enjoyed the protection of Article 9 of the Convention. It considered, further, that the object of the application did not relate solely to the State’s negative duty of noninterference but that the applicants were also claiming privileges which, in their view, were granted to the Sunni branch of Islam (allocation of a budget, status of civil servant for Alevi religious leaders, recognition of cemevis as places of worship). It stressed the importance of the principle of neutrality in public services. However, the court found that it had not been established that all Alevis supported the claims submitted by the applicants. Moreover, in the court’s view, the provision of a public service to all interpretations of Islam could hardly be reconciled with the principle of secularism. The Administrative Court also found that the allocation to the RAD of funds from the general budget was not contrary to the law, as it would be unrealistic to link the payment of general taxes to citizens’ convictions or beliefs. In that connection it stressed that the European Court of Human Rights had not judged it contrary to the Convention to allocate a budget to the secular activities of a church (keeping registers of marriages and deaths, and so forth) or to levy a general tax without specifying how it would be used. The relevant parts of the judgment read as follows: “... It is clear from the examination of the file that the Administrative Court is being asked in the present case to set aside the Prime Minister’s refusal of the request made in a petition of 22 June 2005 to have religious services provided to Alevi citizens in the form of a public service; to have the cemevis, where Alevi citizens practise their faith, granted the status of places of worship; to have a sufficient number of competent individuals, recognised as such by Alevis, recruited as civil servants for the purpose of the religious rites required by the Alevi faith; to have funds set aside in the general budget to pay for the services required in that regard; to have provision made in the Finance Act for the funds concerned, while taking the necessary action to that end; and to take all the necessary measures in order to grant the requests set out in the abovementioned petition. Assessing the case in the light of the relevant provisions of domestic law, it can be seen that part of the general budget is allocated to the Religious Affairs Department created under Law no. 633; that the Department does not establish, but rather administers, the mosques ... recognised as ‘places of worship’; that the staff assigned to manage them are religious leaders who are recruited and paid as civil servants to administer religious services in connection with the beliefs, worship and moral tenets of the Muslim religion; and that application of the prohibitions introduced by Law no. 677 is guaranteed by the Constitution. Hence, it is clear from the interpretation of the provisions of Law no. 633 and Article 128 of the Constitution that it is not possible to recognise a place other than a mosque as a ‘place of worship’ ..., to recruit civil servants for the purpose of the religious rites required by the Alevi faith, or even to make provision in the Finance Act for the funding of the services to be provided in that regard. This would be contrary to the statutory provisions governing the civil service and it is therefore not possible, in accordance with the only statutory provisions of domestic law in force, to grant the requests made in that connection without amending the legislation. Nevertheless, under the terms of Article 90 of the Constitution, the issue must also be examined from a legal standpoint in the light of the provisions of the international conventions to which the Republic of Turkey is a Party ... [Reference is made to Article 18 of the United Nations Universal Declaration of Human Rights]. In principle, freedom of religion and belief – which may be defined as adherence to a religion or belief (internally) and the observance, in the place of the individual’s choosing (externally), of the precepts of that religion or belief, alone or in community with others, in so far as this does not disturb public order – is governed by the above-mentioned Articles 10, 14 and 24 of the Constitution of the Republic of Turkey ..., which must be interpreted in a manner consistent with the provisions of the international treaties. Thus, it must be assessed to what extent Laws nos. 633 and 677 which are in force in Turkey, and existing practices as regards freedom of religion and belief, which are at issue in this case, can be said to be consistent with the judgments of the European Court of Human Rights concerning Article 9 in similar cases. ... In the present case it [is generally accepted] that the Alevi faith [enjoys the protection afforded] by Article 9. There can be no doubt in this regard, especially in the light of the practice prevailing in Turkey (see Hasan and Eylem Zengin v. Turkey). Further, while the European Court of Human Rights considers that the existence of a State Church system is not in itself contrary to the Convention, and while it does not require the State to treat the different religions and beliefs in absolutely identical fashion and does not criticise the existence of an official State religion (see Kokkinakis v. Greece), it nevertheless regards compulsory membership of such a church as a violation of the Convention (see Darby v. Sweden). The Administrative Court is of the view that, where criticism of or attacks against a religion or belief attain a level liable to jeopardise the exercise of freedom of religion and belief ..., indifference in this regard on the part of the public authorities engages the responsibility of the State. Furthermore, where those same authorities restrict the freedom to manifest one’s religion or belief in the public sphere, the restriction in question must be examined in the light of the following criteria: whether there was interference and, if so, whether the measure in question was lawful, pursued a legitimate aim and was necessary in a democratic society. There is no provision of the Constitution establishing a State religion. Moreover, in the present case, no specific examples have been provided suggesting that Alevis encounter obstacles in exercising their right to freely manifest their religion or that they are subjected to pressure to adopt a different form of belief. As to the issue of taxpayers contributing to the funding of the religious activities of a church to which they do not belong, the European Court of Human Rights considers it contrary to Article 9 to collect a tax which directly benefits a church to which the taxpayers do not belong. However, it has found there to be no such violation where the tax is used to fund the church’s secular activities (the keeping of registers of marriages and deaths, and so forth) (see Kustannus Oy Vapaa Ajatellija AB and Others v. Finland, no. 20471/92, Commission decision of 15 April 1996, DR 85, p. 29) or where it is levied as a general tax without it being clear how it is to be used. Furthermore, a portion of the revenue collected in general taxation from the citizens of the Republic of Turkey is allocated to the Religious Affairs Department. Accordingly, not only can there be no question of any contradiction or inconsistency with the Court’s judgments, but also, if the applicants’ request had to be granted, persons opposed to armaments, war, nuclear power or technology because of their beliefs could not be taxed individually, as it would be impossible to determine who was liable for the tax and public order could no longer be ensured. As to the argument that the officials recruited by the State to deal with religious matters are not the same individuals as the religious leaders whom other belief communities have themselves chosen, the European Court of Human Rights has held that the State is the ultimate guarantor of the freedom to manifest a religion or belief and that in a situation of this kind the State in a pluralist democracy has a duty, in view of the tensions that are liable to arise, to promote tolerance between the parties and may not subject the different groups to pressure or interfere with their rights and freedoms (see Serif v. Greece, Hasan and Chaush v. Bulgaria, and Kokkinakis v. Greece). As is clear from the provisions of the above-mentioned international treaties and from the judgments of the European Court of Human Rights, the State, fundamentally and ideally, has a negative obligation in the sphere of freedom of religion and belief to refrain as far as possible from hindering those freedoms. In other words, the ideal system is one in which the State is neutral. Accordingly, seeking to achieve equality does not mean eliminating differences but rather preventing privileges from being granted to certain groups. In the present case, however, the applicants are claiming a number of measures of positive discrimination on behalf of the Alevi community by arguing that, although they are Muslims, Alevis interpret and practise Islam in a different way, and are requesting the Religious Affairs Department to grant them the privileges which, they contend, are granted to Sunni Muslims. There is no doubt that Alevism is a serious and coherent set of beliefs, that it is an interpretation of Islam, and that a large section of the population claims adherence to it. However – and bearing in mind also the general principles set forth in the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief – while it is true that there are indeed differences amongst Alevis as regards the forms of belief and practice and the manner in which they define themselves, and while the applicants also recognise this, there is no specific evidence that all Alevis support the claims made in the present case. Accordingly, from the perspective of freedom of belief, this court reiterates that the ideal is a neutral State which undertakes to protect individuals against being forced to participate against their will in the religious activities of a religious group to which they do not belong. In the light of all these considerations, examination of the facts from the standpoint of the constitutional principles of the Republic of Turkey demonstrates that - as regards freedom of religion and belief seen from a normative viewpoint, Articles 10, 14, 15 and 24 of the Constitution were drafted in a manner consistent with the provisions of the relevant international treaties, since no provision of the Constitution of the Republic of Turkey establishes a State religion; - a portion of the revenue in the general budget is allocated to the Religious Affairs Department, which is part of the general administration; - the Religious Affairs Department is generally acknowledged to carry out its administrative functions pertaining to matters of Islamic belief, worship and moral tenets by taking as its basis the shared identity of all Muslims and, in accordance with the Constitution and the principle of secularism, while remaining detached from all political views or ideas and with the aim of promoting national solidarity and union; and - as regards the State practices complained of, the European Court of Human Rights has held in its judgments that these are not contrary to the above-mentioned applicable legislation, which does not overstep the limits of Article 9. Further, if the State were to respond to all expectations and demands by providing the corresponding public service, for instance by recognising places of worship for groups professing forms of belief linked to the various Islamic schools of law (mezheb), the various Sufi orders (tarikat) and the various understandings and interpretations of Islam that have emerged in the course of history, granting the status of civil servants to the religious leaders of those groups, setting aside a portion of the budget for them and placing them under the authority of a public body, there would be a risk not only of engendering debate on the extent to which State action and the discretion exercised by the Religious Affairs Department in its activities in the public sphere satisfy the spiritual needs of the different groups of believers, but also of breaching the principle of State secularism by upsetting the balance to be struck between religious and legislative rule-making, and of exacerbating different forms of belief. This could ultimately lead to restrictions on freedom of religion and belief, and thus to an outcome that runs counter to the very aim which the applicants sought to achieve in lodging their claims, which were based precisely on their difference. In these circumstances, the administrative decision refusing the applicants’ requests ... cannot be said to be in breach of the statutory provisions.” 15. The applicants appealed against the first-instance judgment. They submitted that provision of a public service exclusively to Muslims adhering to Sunni theological doctrines was incompatible with the constitutional principles of secularism and neutrality of public services. They rejected any suggestion that they were requesting the State to grant them positive privileges, arguing that the basis of their claims was the principle of equality. They added that the Turkish State could not be regarded as neutral with regard to religions as it took measures which favoured one religious interpretation to the detriment of others. In the applicants’ view, the courts did not have the right to rule on the legitimacy of a belief or its practices. They furnished expert reports in support of their submissions. 16. In a judgment of 2 February 2010, served on the applicants on 24 March 2010, the Supreme Administrative Court dismissed the appeal and upheld the first-instance judgment as being in conformity with the procedure and laws. 17. Although Turkey is a “secular State” according to Article 2 of the 1982 Constitution, the Muslim faith as practised by the majority of citizens enjoys special status for historical reasons. 18. In Turkey, after the proclamation of the Republic on 29 October 1923, separation of the public and religious spheres was achieved through a series of revolutionary reforms: on 3 March 1924 the caliphate – supreme institution of Muslims – was abolished; on 10 April 1928 the constitutional provision declaring Islam the State religion was repealed; and, lastly, on 5 February 1937 a constitutional amendment was passed according constitutional status to the principle of secularism (see Article 2 of the 1924 Constitution – as amended in 1937 – and Article 2 of the 1961 and 1982 Constitutions). Article 24 of the 1982 Constitution also guarantees the right to freedom of religion and conscience. 19. Following the abolition of the caliphate the Unification of Education Act (Tevhidi Tedrisat) was passed, abolishing the traditional religious educational institutions. In parallel, the Ministry of the Sharia and Religious Foundations (Şeriye ve Evkaf Vekâleti) and all the religious courts were abolished, and the Diyanet İşleri Reisliği (governing body of the Religious Affairs Department), as it was called at the time, was founded by Law no. 429 of 3 March 1924. By virtue of section 1 of that Law, this body, which was responsible for implementing “all the provisions relating to Islamic worship and faith and the administration of religious institutions”, was placed under the authority of the Prime Minister. The Law provided that this body had no powers in terms of religious education, which was transferred to the Ministry of Education. 20. In 1950 the administration of mosques and prayer rooms, which had initially been transferred to the Department of Religious Foundations in 1931, was brought back under the supervision of the governing body of the Religious Affairs Department. 21. The Religious Affairs Department (Creation and Functions) Act (Law no. 633) was enacted on 22 June 1965 and published in the Official Gazette on 2 July 1965 (see paragraph 46 below). 22. Section 36 of the Civil Servants Act (Law no. 657) of 20 July 1965 introduced a category of civil servants dealing with religious matters. That category includes all civil servants who have received religious training and carry out a religious function, namely the muezzin (those who call the faithful to prayer from the top of the minaret), imam-hatip, vaiz (preacher) and mufti (jurisconsult who interprets Muslim laws and Koranic law). 23. In its judgment of 21 October 1971 (E. 1970/53, K. 1971/76), published in the Official Gazette on 15 June 1972, the Constitutional Court held that the creation of a category of civil servants dealing with religious matters was compatible with the constitutional principle of secularism. In its reasoning it considered that secularism meant the separation between temporal power and spiritual power. Neither of those powers could interfere in the affairs of the other. The Constitutional Court found that the existence of a clergy and a religious service in the Catholic religion, and the acceptance by Catholics of the Pope as spiritual leader, had played an important role in that conception of secularism. However, in the Muslim religion there was no clergy and the staff responsible for places of worship had no spiritual power. Accordingly, the Constitutional Court held that, as the two religions were different, their religious functionaries could not have the same status. In that connection it observed that it was only in Christian countries that a separation could be imagined between religious functionaries and the State. In the Constitutional Court’s view, the principle of secularism sought to promote the progress of the Turkish nation and did not allow the creation of religious movements pursuing aims that were incompatible with that purpose. 24. Consequently, and despite the “secular” nature of the Turkish State, the “Islamic religious service” is regarded as a “public service”. In accordance with Article 136 of the Constitution, the RAD – which is in charge of this public service – is part of the general administration and is therefore endowed with public powers, despite not having the status of a publiclaw entity. According to the statistics published by the RAD (http://www.diyanet.gov.tr/tr/kategori/istatistikler/136), in 2013 – the number of civil servants assigned to the department was 121,845; – the number of mosques was 85,412; and – the number of Koranic schools (Kuran kursu) managed by the RAD was 13,021. 25. In Turkey there is no religious tax. Accordingly, since the RAD was created its revenue has always come from the State budget. In that connection, the documents submitted by the parties show that, in 2013, the amount allocated to the RAD was 4,604,649,000 Turkish liras (“TRY”) (approximately 1,960,000,000 euros (EUR) on the basis of the exchange rate at the time). In 2014 the budget came to TRY 5,552,000,000 (approximately EUR 1,933,670,000). For the year 2015 a budget of TRY 5,743,000,000 (approximately EUR 2,036,524,800) was set aside. In their observations the applicants also provided information according to which the budget allocated to the RAD for the period 1996 to 2015 came to a total of TRY 37,275,900,000. The applicants submitted that, on the basis of the relevant exchange rate, that sum corresponded to 16 billion United States dollars (USD). Moreover, according to the data provided by the Government, 95% of the RAD’s budget is allocated to staff expenditure. The Government also pointed out that mosques and district mosques were built on the initiative of volunteer citizens and through their efforts. Lastly, the Government stated that under section 6(3) of Law no. 6446, lighting costs for places of worship were met by the RAD. Thus, in 2014 the sum of TRY 38,529,463 had been set aside in the RAD’s budget to pay the electricity bills of mosques, district mosques, churches and synagogues. No provision was made in the budget for places of Sufi practice such as cemevis, mevlevi houses (mevlevihane) or qadiri houses (kadirihane). 26. The RAD, as the administrative body responsible for matters pertaining to the Muslim religion in Turkey, has a sort of monopoly over these matters. In that connection, religious services pertaining to Islam are considered to fall within the legal framework governing the public service. This special status is explained, according to the Government, by the fact that the Muslim religion does not have an absolute religious authority or religious organisation comparable to the Church in the Christian religion, nor does it have a clergy or other privileged groups. 27. It emerges from the articles furnished by the applicants and written by specialists in administrative law that, although the legal framework governing the public service is based on the principle of neutrality, which is a component of the wider concept of a secular State, the attitude of the RAD towards other branches of the Muslim religion has been the subject of widespread criticism in Turkey. The RAD has responded by stating that, in accordance with the principle of secularism, it performs its tasks not by reference to the preferences or religious traditions of a particular faith or a particular religious group or order, but on the basis, among other things, of sources of the Muslim religion accepted by all Muslims. In its view, these traditions and sources are common to all Muslims and are spiritual rather than temporal. Likewise, the services it provides are general and supradenominational and are made available to everyone on an equal footing. 28. The applicants, however, relying on the articles referred to above, disputed the claim that the RAD’s services were provided to everyone and were general and supra-denominational. They maintained that the RAD provided a religious service based on the SunniHanafi understanding of Islam. 29. With regard to the status of other beliefs and religions, Turkish law does not provide for any specific procedure by which religious communities can obtain special status under public or private law or religious denominations can be recognised and registered. Consequently, religious communities, except those endowed with the status of recognised religious minority under the Treaty of Lausanne (especially the Greek, Armenian and Jewish communities) or other international treaties (especially the Bulgarian Orthodox community), can only operate as foundations or associations. 30. In their observations the applicants submitted that, in addition to the Alevis, numerous other religious groups were in the same unfavourable position, namely members of the Protestant churches, Jehovah’s Witnesses, Yazidis, Syriacs and Chaldeans. 31. The absence of a clear legal framework governing unrecognised religious minorities causes numerous legal, organisational and financial problems. First of all, the religious leaders of these communities have no legal status and there is no appropriate establishment able to train staff involved in the practice of the religion or creed in question. Secondly, their places of worship do not have any legal status and do not enjoy any legal protection. The ability to build places of worship is uncertain and is subject to the good will of the central or local authorities. Arrangements for the upkeep of immovable property with a cultural heritage, which in some cases is literally falling into ruin, are complex. Thirdly, the communities in question cannot officially receive donations from members or State subsidies. Lastly, as they do not have legal personality, these communities do not have access to the courts in their own right but only through foundations, associations or groups of followers. 32. In addition, there are numerous legal obstacles for religious communities trying to operate as a foundation or an association. Whilst many communities have created their own foundations, under Article 101 § 4 of the Civil Code it is illegal to create a foundation “whose aim is to support ... a specific community” (see, for example, Özbek and Others v. Turkey, no. 35570/02, 6 October 2009). Furthermore, although many communities have created their own associations to serve their specific interests, Turkish law does not provide for any special form of religious association open to religious communities. 33. In its opinion on the legal status of religious communities in Turkey and the right of the Orthodox Patriarchate of Istanbul to use the adjective “ecumenical”, adopted by the Venice Commission on 15 March 2010 (CDLAD(2010)005f), the latter made the following observations: “32. The basic problem in Turkish law as regards religious communities is that they cannot register and obtain legal personality as such. There is no clear arrangement in the legal system for this, and no religious community has so far obtained legal personality. Instead they have to operate indirectly through foundations or associations. ... 34. Although the lack of legal personality in principle applies equally to all religious communities in Turkey, there is in practice a clear distinction between Muslims and non-Muslims. For Muslim activities, these are administered through the Presidency of Religious Affairs (the Diyanet), which is formally part of the administration and reports directly to the Prime Minister. The Diyanet has responsibility for regulating the operation of the country’s 75,000 registered mosques and employing local and provincial imams, who are civil servants. For the Muslim communities issues related to representation are therefore handled through the Diyanet. 35. For non-Muslim religious communities, the Diyanet cannot be considered representative. They, therefore, do not legally exist as themselves. Instead, the model provided for under Turkish law is for their members to register foundations or associations, which may (to some extent) support the religious communities. Both these legal structures – foundations and associations – have clear limitations for religious communities, but both have recently been reformed, making them somewhat more usable.” 34. Although this opinion concerns only the legal status of nonMuslim religious communities in Turkey, it provides an overview of the situation of religious communities in general. 35. In reply to a question from the Court the applicants specified that the Alevi faith was a belief with particular features which distinguished it in many respects from the Sunni understanding of Islam. Alevis recognised Muhammad as their Prophet and the Koran as their holy book. They asserted that it was a faith which followed an esoteric interpretation of the Koran and believed in man’s “divine essence”, with no distinction being made between the divine being and human essence. Unlike Sunni Muslims, Alevi men and women practised their faith together in the cemevis. 36. The Government specified that there were no official statistics on the Alevi population in Turkey, as the population censuses did not include any questions concerning religious affiliation. However, referring to the report on Turkey prepared by the USCIRF (United States Commission on International Religious Freedom) (Turkey Chapter – 2014 Annual Report), the applicants submitted that at least 15 to 25% of the total population of Turkey were followers of the Alevi faith, that is, approximately twenty million people. They added that many members of the Alevi community also avoided disclosing their own beliefs. They concluded that the total Alevi population in Turkey was somewhere between twenty-five and thirty million. They also submitted to the Court an extract from the statements made on 1 March 2014 by Mr Özpolat, a Member of Parliament for the CHP (People’s Republican Party), according to which research into the Alevi population showed that - there were 12,521,792 Alevis in Turkey; - whilst Alevis lived nearly everywhere in the country, more specifically there were 4,388 areas in which Alevis were the majority population, including 3,929 villages, 9 districts and 2 cities. - 60% of those people described themselves as “Alevis”, 18% as “Kurdish Alevis”, 10% as “Turkmen Alevis”, 9% as “Muslims” and 3% as “atheists”. 37. The Government stated that there were 1,151 cemevis in Turkey. The applicants submitted that it could be seen from the discussions in Parliament on adoption of the State budget in 2013 that there were 895 cemevis in cities and approximately 3,000 cemevis in villages. 38. Cemevis do not have the status of places of worship under Turkish law as they are not regarded as places designed for religious worship in the strict sense of the term (regarding the status of cemevis in Turkey, see in particular the judgment in Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v. Turkey, no. 32093/10, §§ 29-31 and §§ 44-52, 2 December 2014). In many opinions the RAD has said that it regards the cemevi as a sort of monastery (tekke), that is, not strictly speaking a place of worship but merely a place of assembly where spiritual ceremonies are held. In its view, the Alevi faith is an interpretation of Islam influenced by Sufism and with specific cultural features, and cannot be regarded as a religion in its own right or as a branch (mezhep) of Islam. Consequently, it associates the status of cemevis with that of the legal entity to which they belong. 39. The Government stated that seven Alevi workshops (Alevi çalıştayları) had been organised in Turkey between June 2009 and January 2010, with a view to examining questions relating to the Alevi community in the context of the Alevi initiative (Alevi açılımı). The workshops were attended by more than 300 participants including Alevi spiritual leaders –among them the applicant Mr İzzettin Doǧan, who is a dede (Alevi religious leader) – theologians, public figures sympathetic to the problems of Alevis and State representatives. In that connection, a special meeting was organised in the county of Sivas, which had been the scene of bloodshed on 2 July 1993 when intellectuals and Alevis had been persecuted by rightwing extremists outside any legal framework. 40. During the workshops the issue of the status of the cemevi, affecting the teaching of the Alevi faith and the funding of religious activities, was also discussed. In the final statement adopted at the end of the workshops by Mr F. Çelik, Minister of State, and published on 31 March 2011, the wish was expressed to see the cemevi acquire official status. It was considered that such recognition would allow the Alevi community to take advantage of the many privileges granted to places on which that status was conferred. 41. According to the final report (Alevi Çalıştayları Nihai Raporu hereinafter “the Final report”) adopted following the workshops, the Alevi question had to be addressed on the basis of a conception of secularism that was compatible with the rule of law, and a solution had to be found without creating new forms of segregation. The report, which is over 200 pages long, addresses the various issues affecting Alevis (Alevi sorunu). The Government produced a copy of the report, the relevant parts of which are set out at paragraph 53 below. 42. The Government submitted that after the Alevi workshops, on 30 December 2010, the syllabus of the “compulsory religious education and ethics” classes had been changed in order to respond – to a considerable degree, according to the Government – to the demands of the Alevi religious leaders (see Mansur Yalçın and Others v. Turkey, no. 21163/11, 16 September 2014). On 14 March 2015 work had begun on building the Hacı Bektaşi Veli lower secondary school where, among other subjects, the Alevi faith would be taught. Furthermore, Nevşehir University had been renamed Nevşehir Hacı Bektaşi Veli Üniversitesi. 43. In their observations before the Court the Government submitted that the movements that had emerged in the Muslim world based on Islamic jurisprudence or faith or on the Sufi schools of thought (or Sufi orders) could not be accepted as the only correct forms of Islamic teaching. Consequently, there was no clear distinction between these schools of thought, unlike in the Christian faith. Hence, unlike Christians, the members of a Sufi brotherhood or movement, when asked about their religious identity, would define themselves first and foremost as Muslims without mentioning the fact that they adhered to Sufi beliefs or belonged to a Sufi order. Furthermore, Alevism – whose roots could be traced back thousands of years – could not be considered as a new religious movement. The Government added that, in Muslim societies, there existed a kind of institutional Islam founded on the Koran and on the practices of the Prophet Muhammad. The differences that had emerged subsequently did not relate to Islam itself, as generally understood, but to the way in which religion and religious life as a whole were perceived, and could not therefore be regarded as a schism within Islam. 44. In support of their argument the Government submitted an “academic opinion” (Bilimsel Görüş) signed by six professors of theology and a professor of sociology. According to the opinion, on the basis of the overall classification accepted by religious academics, religious groups comprised three primary structures, namely religions, sects and mystical groups. It went on to state that Sufi thought and practice, including the Alevi faith, represented the third category (mystical groups) within Muslim societies. Alevis adhered to Islam and acknowledged that the Koran was the last holy book and that Muhammad was the last prophet. The opinion further considered that prayer (namaz), fasting (oruç) and pilgrimage (haç) were rituals common to all Muslims irrespective of their adherence to a particular branch or theological doctrine. Alevi sources placed strong emphasis on prayer and on the Ramadan fast, and sociological research had found that, in various regions of the country, there were Alevis who practised these rituals. The opinion added that the Alevi faith should be regarded as a Sufi tradition or order tailored to a social system organised around “family groups” (ocak, a sort of tribal organisation), according to the divine trinity of Haqq, Muhammad and Ali. This meant that there was only one God (Allah), that Muhammad was his prophet and that Ali was his saint. Another central concept to the Alevi community was the term Ahl alBayt, which referred to the family of Muhammad. According to the opinion, the term “Sunnism” referred to “Sunnah” or Ahl al-sunnah, representing the way of life of the prophet Muhammad. The term was generally considered to refer to the theological branches of Islam such as Salafism, Asharism and Maturidism and to the branches of the schools of law, namely Hanafism, Malikism, Shafiism and Hanbalism. According to scholars of Sunnism, in order to be able to draw precise conclusions from the nasses (dogma of Islam comprising rules from the Koran and the Sunnah) and find an answer to controversial questions, it was necessary to take solid verses from the Koran as a basis, to have regard to the undisputed Hadiths (prophetic tradition), to attempt to understand the nasses in their entirety and, in general, to subordinate rationality to revelation, by accepting the apparent meaning of the nasses. The opinion also stated that it was technically incorrect to compare the Alevi faith to Sunnism or the status of cemevis to that of places of worship, in so far as cemevis were merely places where “customs and ceremonies” (adap ve erkan) were practised by followers of the Alevi faith. Consequently, Alevism could only be compared to other Islamic Sufi groups such as Qadiriyya or Naqshbandiyya (Sufi orders).
| 1 |
test
|
001-145212
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF GERASIMOV AND OTHERS v. RUSSIA
| 3 |
Preliminary objection dismissed (Article 34 - Victim);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);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);Pecuniary damage - award;Non-pecuniary damage - award
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Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
|
8. The applicants are all Russian nationals living in various regions of the Russian Federation. They obtained binding judicial decisions ordering the State authorities to provide them with housing or various services in kind, but the enforcement of those judgments was considerably delayed. Some of the judgments remain unenforced to date. The applicants’ individual circumstances are detailed below. 9. The applicant, Mr Mikhail Yefimovich Gerasimov, was born on 30 June 1927 and lived in Vladivostok, Primorskiy Region. 10. On 3 September 2002 the Leninskiy District Court of Vladivostok ordered the town administration to conclude a contract for utilities with the applicant before 1 December 2002, and to repair the basement of the building he lived in in accordance with the sanitary regulations before the cold season. The judgment became final on 14 September 2002. 11. On 14 March and 17 May 2005 a commission composed of several members of the housing maintenance authority and residents inspected the basement and found it up to standard. 12. On the 27 July 2005 the bailiffs closed the enforcement proceedings in respect of the judgment, finding that the basement had been repaired as required. 13. On 19 July 2007 the Leninskiy District Court of Vladivostok clarified the judgment of 3 September 2002 with regard to the utilities to be supplied. The court specified that the applicant’s apartment had to be provided with heating, hot and cold water, wastewater services and a cleaning service for the communal area. The enforcement proceedings were resumed. 14. On an unspecified date, the town administration provided the applicant with a draft contract for the utilities but the applicant refused to sign it without giving a reason. 15. Considering their obligations under the judgment of 3 September 2002 to be fulfilled, the town administration requested that the enforcement proceedings be closed. The bailiffs refused. 16. On 17 October 2007 the Frunzenskiy District Court of Vladivostok dismissed the administration’s complaint against the bailiffs’ refusal to close the enforcement proceedings. 17. On 11 December 2007 the Primorskiy Regional Court granted the administration’s appeal, finding that the latter had taken all possible measures to comply with the judgment of 3 September 2002. 18. The bailiffs accordingly closed the enforcement proceedings on 21 January 2008. 19. The applicant, Mr Andrey Gennadyevich Shmakov, was born on 30 October 1960 and lives in Yakutsk, Republic of Sakha (Yakutiya). 20. On 10 January 2002 the Yakutsk Town Court ordered the town administration to provide the applicant and his family with appropriate housing in Yakutsk, in accordance with the law, in lieu of his house, which had been demolished by the authorities in 2001. The judgment became final on 21 January 2002. 21. As the judgment had still not been enforced, in 2004 the applicant unsuccessfully sought a court order for the seizure of an apartment in a new block which had been built on the plot of land on which his former house had stood. 22. On 7 July 2004 the Yakutsk Town Court specified that the judgment had to be enforced by the mayor’s office of Yakutsk. 23. On 3 March 2010 the Yakutsk Town Court modified the method of enforcement, specifying that the judgment could be enforced by the payment of 1,653,264 Russian roubles (RUB) by the town administration. The applicant did not appeal against that judgment and received the monetary award on 1 July 2010. 24. The applicant, Ms Lyubov Mikaylovna Baranova, was born on 17 April 1960 and lives in Bazarniy Syzgan, Ulyanovsk Region. 25. On 14 April 2009 the Bazarnosyzganskiy District Court of the Ulyanovsk Region ordered the municipal administration to provide heating supply to her flat. On 26 May 2009 the Ulyanovsk Regional Court upheld that judgment on appeal. In a judgment of 16 July 2009 the Inzenskiy District Court of the Ulyanovsk Region specified possible ways of enforcing the judgment of 14 April 2009, namely, by ensuring either a hot water or natural gas supply for heating purposes. 26. On 23 March 2010 an individual gas heating device was installed in the applicant’s flat. 27. On 14 July 2010 the bailiffs closed the enforcement proceedings on the ground that the respondent authority had properly complied with the judgment of 14 April 2009. 28. The applicant, Ms Tatyana Salikhzanovna Kostyleva, was born on 13 September 1960 and lives in Syktyvkar, Republic of Komi. 29. On 2 October 2000 the Syktyvkar Town Court ordered the town administration to renovate the building in which the applicant held a flat under a social tenancy agreement. The judgment became final on 10 November 2000 (“the first judgment”). 30. On 1 December 2000 the bailiffs commenced the enforcement proceedings. The building has at times been included in the town’s plans to renovate municipal housing but the repairs have never been carried out owing to a lack of funds and a shortage of temporary housing facilities where residents could be relocated during the renovation. 31. On 20 July 2009 the Syktyvkar Town Court found that the applicant was still living in unsuitable conditions and ordered the town administration to provide her and her family with comfortable housing of at least 40.8 sq. m. On 5 August 2009 the judgment became final (“the second judgment”) and on 12 August 2009 the bailiffs started the enforcement proceedings. 32. On 10 February 2010 the Syktyvkar Town Court dismissed the authorities’ request for a stay on the enforcement of the second judgment, considering that such a course of action would endanger the applicant’s and her family’s life and health. The bailiffs’ made repeated, albeit unsuccessful attempts to secure the enforcement of the judgment by the town administration, including by warning the head of administration of his criminal liability under Article 315 of the Criminal Code. 33. Neither the first nor the second judgment in the applicant’s favour has been enforced to date. According to the latest information received by the Court, she was still living in the same building. On the evening of 14 May 2012 there was an electrical short circuit in the communal area on the first floor, provoking a smoke emission in the building. 34. Meanwhile, the competent authorities continued the enforcement proceedings. After the communication of the present application to the Russian Government, the bailiffs requested the Syktyvkar Town Court on 23 May 2012 to provide them with a duplicate of the writ of execution in respect of the first judgment, which had been lost shortly after its delivery. On 27 June 2012 the court ordered a duplicate of the writ of execution to be delivered and the bailiffs resumed the enforcement proceedings on 13 September 2012. On that date the bailiff of the Inter-District Division for Special Enforcement Procedures in the Komi Republic (Межрайонный отдел судебных приставов по особым исполнительным производствам Управления Федеральной службы судебных приставов по Республике Коми) decided as follows: “1. To initiate enforcement proceedings no. 10594/12/22/11 [in respect of the Syktyvkar Town Administration]. 2. To set a time-limit of five days for the debtor’s voluntary compliance with the requirements provided for in the writ of execution (section 30(12) of the Federal Law ‘On enforcement proceedings’). 3. To warn the debtor that it will be liable to pay an enforcement fee of RUB 5,000 in the event of non-compliance within the time-limit set and failure to produce evidence that enforcement is impossible on account of extraordinary and unavoidable circumstances. In the event of extraordinary and objectively unavoidable circumstances and other unexpected and insurmountable obstacles making voluntary enforcement impossible, the debtor is requested to inform the bailiff accordingly within the time-limit set for voluntary compliance. 4. To warn the debtor that under section 6 of Federal Law no. 229-FZ of 2 October 2007 on enforcement proceedings the requirements of the bailiff are binding on all State authorities, local authorities, individuals and organisations and must be rigorously complied with throughout the territory of the Russian Federation. 5. To warn the debtor that under section 105(2) of Federal Law no. 229-FZ of 2 October 2007 on enforcement proceedings the bailiff may impose a fine provided for by Article 17.15 of the Code of Administrative Offences on a debtor who does not fulfil, within a new time-limit, the requirements set out in the writ of execution. 6. To warn the debtor that under sections 116 and 117 of Federal Law no. 229-FZ of 2 October 2007 on enforcement proceedings the expenses related to the enforcement proceedings are to be paid back by the debtor to the federal budget, the creditor and anyone else who incurred those expenses. 7. To warn the debtor that State officials may be prosecuted under Article 315 of the Criminal Code of the Russian Federation for non-enforcement of a judicial decision. ... ” 35. On 2 August 2012 the bailiff was informed by the Town Administration that the enforcement of the judgment was impossible owing to a lack of available flats. 36. On 10 October 2012 the bailiff informed the applicant that the enforcement proceedings in respect of the second judgment were still pending along with 309 other similar judgments against the town administration. The bailiff noted that the delay in enforcement could be explained, in particular, by the high number of judgments to be enforced, the lack of available flats and insufficient funding allocated for the building of new flats. The enforcement proceedings referred to by the bailiffs in the applicant’s case included compulsory requests for the allocation of flats, the inclusion of additional funds in the budget, the identification of available housing and the seizure of available flats with a view to their allocation in accordance with the waiting list. The bailiff also informed the applicant that she was no. 39 on the waiting list. 37. On 11 January 2013 the bailiff warned the head of the town administration about criminal liability under Article 315 of the Criminal Code for non-enforcement of a judgment. 38. According to the latest information, the applicant had moved up to no. 27 on the waiting list. 39. The applicant, Mr Yuriy Vasilyevich Starostenkov, was born on 8 June 1954 and lives in Smolensk. A retired police officer, he was assigned to life-long disability category two in 1993 on account of injuries sustained during his service. 40. On 3 July 2008 the Velizhskiy District Court of the Smolensk Region upheld the applicant’s right to be provided with a car for rehabilitation purposes and ordered the Department for Social Development of the Smolensk Region to ensure he was provided with one. This judgment became final on 18 July 2008. 41. On 2 September 2008 the court supplemented the judgment of 3 July 2008, specifying that the applicant’s right to a car might be secured either at the expense of the regional budget or by informing the Federal Health Agency of his needs. However, the judgment was not enforced. 42. After the communication of the present application to the Russian Government, on 19 June 2012 the bailiff imposed a fine of RUB 30,000 on the debtor authority in accordance with Article 17.15 of the Code of Administrative Offences. On 7 August 2012 the bailiff’s decision was quashed by the Leninskiy District Court of Smolensk on the ground that the debtor authority’s act did not amount to an administrative offence. 43. On 2 October 2012 the bailiff warned the head of the debtor authority about criminal liability under Article 315 of the Criminal Code for non-enforcement of a judgment. 44. On 23 November 2012 the Governor of the Smolensk Region issued Order no. 1695-р/адм allocating RUB 354,900 for the purchase of a car for the applicant. According to an estimate issued on 18 October 2012 by the Department for Social Development those funds would cover the purchase of a car (a Lada Kalina 11173 (RUB 298,900)) and special hand control equipment (RUB 56,000). 45. On 24 December 2012 the applicant received a Lada 212140 without any special hand control equipment. On 26 December 2012 the enforcement proceedings were closed. 46. The applicant, Mr Anatoliy Arturovich Zakharchenko, was born on 4 September 1966 and lives in Saint Petersburg. 47. The applicant is a military serviceman. On 30 November 2006 the Pushkin Garrison Military Court ordered the Commandant of military unit no. 3526 to provide, as a matter of priority, the applicant and his family with housing in the geographical area of his military service in accordance with the law in force. The judgment became final on 16 December 2006 but was not enforced. 48. After the communication of the present application to the Russian Government on 14 September 2012, the Housing Commission allocated a flat located in the Saint-Petersburg suburbs to the applicant. On 1 October 2012 the applicant was provided with that flat and on 1 February 2013 concluded a social tenancy contract with the authorities. 49. The applicant, Ms Marina Yevgenyevna Troshina, was born on 14 July 1961 and lives in Moscow. 50. On 13 April 2007 the Ostankinskiy District Court of Moscow ordered the Moscow Regional Office of the Federal Real Estate Cadastral Agency (Управление Федерального агентства кадастра объектов недвижимости по Московской области) to consider a request by the applicant dated 29 December 2005 by which she had requested data from the land register in respect of a plot of land located in the village of Polushkino, Odintsovso District, Moscow Region (cadastral no. 50:20:13:7:2:13). The judgment became final on 4 May 2007 and the enforcement proceedings were brought on an unspecified date. However, the enforcement of the judgment was delayed. 51. On 8 February 2010 the Russian Ministry for Economic Development issued Order no. P/41 for the reorganisation of the defendant authority and its incorporation into the Moscow Regional Directorate of the Federal Registration Agency. The relevant powers were later conferred to the Federal State Agency “Cadastral Chamber” for the Moscow Region (Федеральное государственное учреждение «Кадастровая палата» по Московской области - “the Moscow Region Cadastral Chamber”). 52. On 22 March 2011 the Ostankinskiy District Court granted the applicant’s request for clarification on how the enforcement would be carried out. It specified that the judgment had to be executed by the Moscow Regional Directorate for State Registration, Cadastre and Cartography (Управление Федеральной службы государственной регистрации, кадастра и картографии - “the Directorate”) as successor to the respondent authority under the judgment of 13 April 2007. 53. On 30 September 2011 the same court dismissed the Directorate’s request for appointment of the Moscow Cadastral Chamber as successor to the respondent authority under the judgment of 13 April 2007. 54. On 2 December 2011 the Directorate requested the Moscow Cadastral Chamber to provide the data required by the judgment. On 15 December 2011 the latter informed the Directorate that the register contained no information about the plot of land concerned and recommended that the applicant seek its registration by the competent authority of the Odintsovo district. On 23 December 2011 that information was sent to the applicant. 55. On 26 December 2011 the bailiffs closed the enforcement proceedings. On 20 March 2012 the Meshchanskiy District Court of Moscow dismissed the applicant’s complaint against the bailiffs’ decision, considering that the judgment of 13 April 2007 had been fully enforced. 56. The applicant, Ms Natalya Vasilyevna Ilnitskaya, was born on 1 September 1961 and lives in Shikhany, Saratov Region. She is a former member of the Russian army. 57. On 24 November 2008 the Volsk District Court of the Saratov Region upheld her right to a housing voucher. The judgment became final on 9 December 2008 but was only enforced on 15 February 2011 when a housing voucher issued on 24 February 2010 (no. 672764) was processed with a view to purchasing a flat in Volsk, Saratov Region. 58. The applicant, Mr Aleksey Alekseyevich Grinko, was born on 25 July 1978 and lives in Vatutinki, Moscow Region. He is a military serviceman. 59. On 8 December 2006 the Naro-Fominskiy Garrison Military Court ordered the commandant of military unit no. 72064 to grant the applicant priority housing in accordance with the law in force. The judgment became final on 25 December 2006 but was not enforced. 60. The bailiffs brought the enforcement proceedings on 29 June 2009 but their repeated requests to the respondent authorities did not result in any action being taken. 61. On 22 February 2011 the Naro-Fominskiy Garrison Military Court supplemented the judgment, specifying that it had to be enforced by the Housing Department of the Russian Ministry of Defence (Департамент жилищного обеспечения Министерства обороны Российской Федерации – “the Housing Department”). 62. After the communication of the present application to the Russian Government, on 14 May 2012, the competent bailiff addressed the Minister of Defence with a view to bringing the officials responsible to administrative responsibility. 63. On 23 May 2012 the bailiff of the Inter-District Division for Special Enforcement Procedures in Moscow (Межрайонный отдел судебных приставов по особым исполнительным производствам Управления Федеральной службы судебных приставов по Mocкве) warned the head of the Housing Department that she could face criminal liability under Article 315 of the Criminal Code for non-enforcement of a judgment. On 12 June, 12 July and 24 October 2012 the bailiffs again requested the debtor to comply with the judgment. 64. On 22 June 2012 the bailiffs of the Moscow Special Operational Division (Специализированный отдел оперативного дежурства УФССП России по Москве) appeared in person to summon the head of the Housing Department but the latter was not found at her place of residence. 65. On 28 June 2012 the bailiff handed a warning under Article 315 of the Criminal Code in person to the head of the Housing Department at her place of residence but the latter refused to acknowledge receipt. 66. On 6 July 2012 the Odintsovskiy Garrison Military Court found that the allocation of an apartment to the applicant in Balashikha, Moscow Region, had been unlawful. 67. On 10 December 2012 the bailiff suspended the State registration proceedings in respect of 327 apartments in Moscow in order to compel the respondent authority to comply with the judgment. 68. On 28 January 2013 the bailiff again summoned the head of the Housing Department to appear in person in order to explain the reasons for the prolonged non-enforcement of the judgment. 69. According to the latest information received by the Court, the judgment in the applicant’s favour remained unenforced. 70. The applicant, Ms Svetlana Nikolayevna Antonova, was born on 10 September 1959 and lives in Lyubertsy, Moscow Region. She served in the Border Control Service of the Federal Security Service of the Russian Federation (“the FSB”) and was entitled to housing. 71. On 5 April 2005 the Odintsovo Garrison Military Court ordered the relevant department of the FSB to provide the applicant and her family, as a matter of priority, with housing located in the geographic area of her service in accordance with the law in force. 72. That judgment became final on 22 April 2005 but was only enforced on 16 February 2012 when the applicant concluded a social tenancy agreement with military unit no. 55002 for a flat located in Lyubertsy, Moscow Region. 73. The applicant, Ms Yelena Aleksandrovna Tsvetkova, was born on 12 December 1951 and lives in Kostroma. 74. On 15 December 2008 the Ostrovskiy District Court of the Kostroma Region ordered the local administration to provide the applicant with comfortable social housing in accordance with the sanitary and technical regulations in force and located in Ostrovskoye, Kostroma Region. On 30 December 2008 that judgment became final but its enforcement was delayed. 75. On 1 September 2011 the district court granted the applicant’s application for a change in the method of enforcement and ordered the local administration to pay her RUB 442,368, that is, the market value of the housing to which she was entitled. On 3 October 2011 the judgment was upheld on appeal by the Kostroma Regional Court. The award was paid to the applicant in six instalments between 31 January and 22 March 2012. 76. The six applicants mentioned below applied to the competent Russian courts with claims for compensation for delayed enforcement of the judgments in their favour, relying on Federal Law no. 68-FZ of 30 April 2010, “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” (“the Compensation Act”). 77. The domestic courts consistently found those actions inadmissible. They held that the judgments at issue imposed on the authorities various obligations in kind, while the Compensation Act was only applicable to delayed enforcement of judgments establishing a monetary debt to be recovered from the State budgets. The Supreme Court of the Russian Federation confirmed on appeal that the Compensation Act was only applicable to monetary judicial awards. 78. The domestic courts concerned and the dates of their decisions are detailed below. Ms Kostyleva: Supreme Court of the Komi Republic, 30 July 2010 (upheld on appeal by the Supreme Court of the Russian Federation on 28 September 2010); Mr Zakharchenko: Leningrad Circuit Military Court, 6 October 2010 (upheld on appeal by the Supreme Court on 2 December 2010); Ms Ilnitskaya: Saratov Regional Court, 4 February 2011 (upheld on appeal by the Supreme Court on 12 April 2011); Mr Grinko: Moscow Circuit Military Court, 26 October 2010 (upheld on appeal by the Supreme Court on 25 January 2011); Ms Antonova: Moscow Circuit Military Court, 29 August 2011; Ms Tsvetkova: Kostroma Regional Court, 21 June 2011 (upheld on appeal by the same court on 27 July 2011). 79. On 31 May 2011 the applicant Ms Kostyleva sued the town administration for failure to comply with the judgments in her favour (see paragraphs 29 and 31 above). Relying on Chapter 25 of the Code of Civil Procedure she asked the Syktyvkar Town Court to acknowledge the administration’s failings to be in breach of both the domestic law and the Convention. 80. On 2 June 2011 the court dismissed the complaint without considering the merits. It specified that such a complaint had to be considered in accordance with a special procedure provided for under Article 441 of the Code of Civil Procedure. 81. On 30 June 2011 the Supreme Court of the Komi Republic granted the applicant’s appeal and quashed the judgment. It found that the applicant’s complaint should have been examined by the lower court under Chapter 25 of the Code of Civil Procedure. 82. On 11 September 2011 the Syktyvkar Town Court reconsidered the applicant’s complaint and granted it in part. With reference to the Convention and the Court’s case-law, the Syktyvkar Town Court found the administration’s failings unlawful and held that there had been a violation of Article 6 § 1 of the Convention in the applicant’s case. It noted in particular that the first judgment of 2000 had not been enforced for at least eight and a half years, that is, until the delivery of the second judgment in 2009. At the same time the court rejected the applicant’s request that the administration be ordered to comply with the first judgment by 31 December 2011, considering that the building she lived in was unsuitable for renovation and that the second judgment in the applicant’s favour had already ordered the town administration to provide her with other housing. 83. On 7 November 2011 the Supreme Court of the Komi Republic dismissed the administration’s appeal against the judgment of 11 September 2011. 84. On 13 January 2012 the Syktyvkar Town Court partially granted Ms Kostyleva’s civil action against the town administration and awarded her RUB 150,000 in compensation for non-pecuniary damage resulting from the administration’s failure to comply with the first judgment in her favour for at least eight and a half years, that is, until the delivery of the judgment of 20 July 2009. The court relied in particular on Article 151 of the Civil Code in conjunction with Article 13 of the Convention. 85. On 20 February 2012 the applicant brought an appeal against that judgment. She argued that the monetary award had not adequately compensated for the serious non-pecuniary damage she had sustained and was not comparable to the amounts that the Court would have granted in such circumstances (Zolotareva and Others v. Russia, nos. 14667/05 et al., 12 April 2011). 86. The applicant’s complaint was dismissed and the judgment upheld on appeal and cassation on 19 April 2012 and 17 July 2012 respectively.
| 1 |
test
|
001-150670
|
ENG
|
TUR
|
CHAMBER
| 2,015 |
CASE OF SAYĞI v. TURKEY
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
|
5. The applicant was born in 1966 and lives in Şanlıurfa. 6. The facts of the case as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. On 4 March 2005 the applicant’s mother-in-law, Mrs Aişe Sayğı, submitted a petition to Suruç prosecutor D.K., and informed him that on 3 June 1994 her son Mustafa Sayğı, ‐ the applicant’s husband ‐ had been travelling home on his motorbike when he was stopped and apprehended by soldiers who had set up a temporary base in a public building near Yoğurtçu village. She described the motorbike as “Russian-made, red and with a basket”. She told the prosecutor that nothing had been heard from her son since that date and that the complaint she had made to the authorities some six days after the disappearance had not elucidated any response. She gave the prosecutor the names of two villagers who, she claimed, had witnessed her son being apprehended, and asked the prosecutor to make enquiries in order to find her son. 8. The same day the Suruç prosecutor D.K. questioned Aişe Sayğı in relation to her above-mentioned petition. Mrs Sayğı confirmed the contents of her petition detailed above and added that the family had been informed about the incident some two days afterwards by villagers who had witnessed the incident. Her elder son, Mehmet Sayğı, had then gone to the military base near Yoğurtçu village where he was informed that his younger brother had been transferred to the gendarmerie station in Suruç. When Mehmet Sayğı had gone to the gendarmerie station in Suruç, he was told that his brother’s questioning was continuing and that it would probably continue for another three days. 9. When Mustafa Sayğı was not released, Mehmet Sayğı had gone to the Suruç prosecutor’s office and informed the prosecutor of the detention of his younger brother. When the prosecutor had contacted the military authorities he was told that Mustafa Sayğı had never been detained by the military. The family’s subsequent attempts to find Mustafa Sayğı had not yielded any results. 10. A detailed investigation was carried out by Suruç prosecutor D.K. into the allegations made by Mrs Sayğı. In the course of that investigation the prosecutor questioned the two villagers named by Mrs Sayğı as eyewitnesses and identified and questioned as suspects fourteen soldiers who had been based at the temporary military station at the time of the disappearance. The prosecutor also questioned family members who informed the prosecutor about the steps they had taken to find Mustafa Sayğı. Both the police and the military authorities contacted by the prosecutor denied that Mustafa Sayğı had been detained as alleged. 11. The two eyewitnesses named by Mrs Sayğı told the prosecutor that on 3 June 1994 they had been travelling to their village when they were stopped by soldiers outside the temporary military base near Yoğurtçu village. While the soldiers were checking their identity documents, Mustafa Sayğı had arrived at the scene and had also been stopped by the soldiers. After their identity papers had been checked they had been allowed to leave but Mustafa Sayğı had been detained. They had then informed Mustafa Sayğı’s family about what had happened. 12. The security forces personnel questioned by the prosecutor as suspects confirmed that at the time of the events a disused public building outside Yoğurtçu village had been used as a temporary military base. The soldiers denied, however, that they had detained the applicant’s husband. 13. The gendarmerie headquarters contacted by the prosecutor stated in a letter of 11 May 2005 that they had no information in their possession to show that Mustafa Sayğı had had any links with the PKK. The police headquarters, on the other hand, informed the prosecutor that they had statements indicating that Mustafa Sayğı had been working as a courier for the PKK prior to his disappearance. 14. At the end of his investigation, the Suruç prosecutor D.K. concluded in his decision of 13 July 2006 that Mustafa Sayğı had been unlawfully detained by the military in the temporary military base near Yoğurtçu village. The prosecutor did not attach any weight to the denials of the military personnel who had been on duty at the time of Mustafa Sayğı’s detention and considered that the military personnel’s denials were outweighed by the consistent eyewitness accounts of civilian villagers. Nevertheless, as the end of the prescription period for the offence of false imprisonment had been reached, the prosecutor concluded that he could not indict the military personnel responsible for the unlawful detention of Mustafa Sayğı. The prosecutor also considered that there was insufficient evidence to prove that Mustafa Sayğı had been killed while in the hands of the soldiers. 15. The applicant lodged an objection against the prosecutor’s decision with the Siverek Assize Court and submitted that nothing had been heard from her husband after his unlawful detention. She argued that similar unlawful detentions had peaked in that area in 1994 and that the relatives of those who had disappeared had been too frightened to complain to the authorities on account of their fears of the military. She invited the Assize Court to take into account the possibility that her husband, who had been suspected of having links with the PKK, would in all likelihood be subjected to “torture” by the soldiers. Torture was a criminal offence to which the statute of limitations was not applicable; thus, the decision of the prosecutor to close the investigation on account of the expiry of the statutory time-limit had been wrong. 16. The objection lodged by the applicant was rejected by the Siverek Assize Court on 29 November 2006. 17. On 11 December 2009 a number of soldiers saw Mustafa Sayğı’s elder brother Mehmet Sayğı digging in an area near Yoğurtçu village. Mehmet Sayğı told the soldiers that he had had a dream and that, according to his dream, his brother Mustafa Sayğı was buried in that place. 18. The same day Mehmet Sayğı also informed the Suruç prosecutor M.A., who went to the area and ordered that the site be dug up. During the digging a total of 30 bones, fabrics, a small axe and the remains of a red motorbike were found. The bones and the motorbike parts, together with soil samples, were taken away by gendarme soldiers for forensic examinations. 19. The same day the applicant also talked to prosecutor M.A. and told him about the disappearance of her husband Mustafa Sayğı. She asked the prosecutor to establish whether the bones found during the excavation belonged to her husband, who had disappeared while travelling on his red motorbike. 20. Mustafa Sayğı’s brother Mehmet Sayğı told prosecutor M.A. that he had no doubts whatsoever that the items discovered during the excavation belonged to his brother. He said that he recognised the motorbike and the axe which had been given to Mustafa Sayğı by the family. Mehmet Sayğı also informed the prosecutor about the eyewitnesses who claimed to have seen his brother in the hands of the soldiers. 21. Gendarmerie forensic experts who examined the metal parts found in the area stated in their report that they belonged to a motorbike. The experts were not able, however, to identify the type or make of the motorbike due to corrosion, but considered that the motorbike resembled an “Izh” motorbike (a manufacturer at Izhevsk in Russia). The chassis numbers and letters of the motorbike – in Russian – are reproduced in the report of the experts. 22. The bones were examined at the Forensic Medicine Institute. It was established that the bones were animal bones. 23. According to a report drawn up on 1 February 2010 by the forensic laboratory of the police, the soil on the motorbike parts matched the soil samples taken from the place. However, the soil on the bones did not match the soil samples taken from the place. It was advised in this report that it had to be born in mind when evaluating the report’s conclusions that the forensic examination had not been carried out in order to establish whether the soil samples taken from the bones and the soil samples obtained from the place of digging had come from the same place. Rather, the aim of the forensic examinations had been to establish whether the two soil samples had any physical and chemical similarities. 24. According to a report prepared by the police on 14 January 2010, no prior applications had been made to them about the disappearance of Mustafa Sayğı. According to a similar report prepared by the military, no one had made any enquiries about any disappearance of a person with the name of Mustafa Sayğı and there had been no temporary or permanent military station at Yoğurtçu village at the time of the events. 25. On 7 April 2010 Suruç prosecutor M.A. decided to close his investigation on the basis that the bones were not human bones. He added that the model and make of the motorbike had not been established and that the basket attached to the motorbike had not been recovered. The prosecutor further stated in his decision that there was no evidence to show that Mustafa Sayğı had been arrested by the soldiers or to show that there had been a temporary military base near Yoğurtçu village at the time of the incident. 26. The applicant lodged an objection with the Siverek Assize Court against the prosecutor’s decision and argued that the investigation had been incomplete. She submitted, in particular, that prosecutor M.A. had failed to take account of the conclusion reached by his predecessor in 2006, namely that her husband had been unlawfully detained by soldiers. She also submitted that the bones had been dug up in the presence of a prosecutor and secured by that prosecutor. Thus, having regard to the finding that the soil on the bones did not match the soil samples, the prosecutor should have considered the possibility that the bones might have been switched. 27. In her petition the applicant also referred to the Convention, and requested that the investigation be continued to find those responsible for the disappearance of her husband. She argued that carrying out an effective investigation was necessary in order to avoid “the State being put on trial before the European Court of Human Rights for its failure to protect the right to life of her husband”. 28. The objection was rejected by the Siverek Assize Court on 7 June 2010. No mention was made in the decision about the points raised by the applicant in her objection. The Assize Court’s decision was communicated to the applicant on 21 June 2010.
| 1 |
test
|
001-172360
|
ENG
|
AZE
|
CHAMBER
| 2,017 |
CASE OF MAHARRAMOV v. AZERBAIJAN
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Possessions)
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Síofra O’Leary;Yonko Grozev
|
5. The applicant was born in 1966 and lives in Ganja. 6. The applicant had ownership rights to a shop at 32 Attarlar Street in Ganja. According to the certificate “on the sale of State property to legal entities or individuals” issued on 30 October 2003 by the Ministry of Economic Development’s Department of Management and Privatisation of State Property, the total area of the property was 78.3 sq. m and it had been purchased by the applicant from the State for 1,309,000 old Azerbaijani manats (AZM) (equivalent to 261.8 New Azerbaijani manats (AZN) or approximately 230 euros). 7. According to the property’s “technical passport” issued by the Ministry of Economic Development’s Property Inventory Bureau on 5 September 2003, the shop had originally been constructed in 1972, was located on a plot of land of 84 sq. m, had a total surface area of 78.3 sq. m and was 3.5 m high. The shop had concrete foundations, the external and internal walls were made of metal and wood, while the roof was made of metal and covered with slate tiles. The property was classified as a nonresidential building used for wholesale or retail trade purposes. The document further stated that the plot of land on which the shop was located had been allocated on the basis of relevant documents. No other documents concerning the ownership of the land have been submitted by the parties. 8. The applicant paid land tax for 2004 of AZM 19,400 for the plot underneath the shop. 9. In 2004 the Ganja City Executive Authority (“the GCEA”) decided to renovate and widen Attarlar and Nizami Streets in accordance with the city’s planning scheme because the streets were not wide enough for the pedestrian and car traffic. 10. According to the applicant, in November 2004 GCEA officials asked him verbally to vacate the shop in connection with the above decision. The applicant refused and brought a legal action asking the court to order the GCEA to stop its allegedly unlawful activities. 11. According to the applicant, in December 2004 the GCEA destroyed the shop. According to the Government, the shop, being a transportable metal construction, was lifted away by crane and moved to an unspecified part of the city. 12. On an unspecified date in December 2004 the applicant asked AyselM, a private valuation firm, to assess the shop’s market value. According to Aysel-M’s expert report, dated 13 December 2004, the market value at the time was AZM 588,000,000, or 120,000 US dollars (USD) (there is no copy of the report in the case file). 13. The applicant supplemented his court action against the GCEA with additional claims, asking for compensation of AZM 588,000,000 for the shop, AZM 99,000 for an unspecified “State fee” and AZM 490,000 for Aysel-M’s fee for the report. 14. In its submissions to the court, the GCEA as the respondent stated that a number of “old shops and other retail facilities” on Attarlar and Nizami Streets had been removed owing to the urgent need to widen the streets in order to accommodate the number of pedestrians and cars. The respondent argued that the applicant’s shop had not been destroyed but, being a metal construction, had been removed by crane to another, unspecified location in the city. The applicant had been offered another plot of land in the city to continue operating his shop but he had refused. The applicant had not owned the original plot of land. The respondent argued that the compensation claimed by the applicant was excessive, taking into account the price he had paid the State for it in 2003. 15. Following the respondent’s submissions concerning the alleged excessiveness of the compensation claim, by an interim decision of 15 July 2005 the Khojavand District Court requested a new valuation by a State expert. 16. On an unspecified date the State expert refused to issue an opinion, noting that the shop at 32 Attarlar Street no longer existed and that therefore it was technically impossible to examine it and assess its market value. Accordingly, the interim decision of 15 July 2005 remained unexecuted. 17. On 6 October 2005 the Khojavand District Court dismissed the applicant’s legal action without citing any provisions of the applicable domestic law. In its reasoning the court accepted the GCEA’s explanation that the shop in question had been removed in accordance with townplanning policy. Being a metal construction it had been possible to move it in one piece. It had not been destroyed but simply transported to another location. The court also accepted that the applicant had been offered a new plot of land by the GCEA but had refused it. It further decided to reject the applicant’s compensation claim based on Aysel-M’s report, without providing any reasons. However, the court ordered the GCEA to allocate the applicant a plot of land in Ganja equivalent in size to the shop in question. 18. The applicant appealed, reiterating that his shop had been unlawfully destroyed and asking for compensation. 19. On 23 January 2006 the Court of Appeal dismissed the applicant’s appeal, upholding the first-instance court’s assessment. The appellate judgment contained no references to applicable domestic legal provisions. 20. Following a further appeal by the applicant, on 14 July 2006 the Supreme Court upheld the Court of Appeal’s judgment. 21. No information is available in the case file as to whether a new land plot was allocated to the applicant or as to its location or any other details.
| 1 |
test
|
001-178875
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF ATAKISHIYEVA AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)
|
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 domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties.
| 1 |
test
|
001-151051
|
ENG
|
CZE
|
GRANDCHAMBER
| 2,015 |
CASE OF ROHLENA v. THE CZECH REPUBLIC
| 1 |
No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nullum crimen sine lege;Time when act or ommission was committed)
|
Aleš Pejchal;André Potocki;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Mark Villiger;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano
|
9. The applicant was born in 1966 and lives in Brno. 10. On 29 May 2006 the applicant was formally indicted by the Brno municipal prosecutor for having, at least between 2000 and 8 February 2006, repeatedly physically and mentally abused his wife while he was drunk. He was accused of having subjected her to verbal abuse, hit her on the head with his hand and fist, slapped her, held her by the throat, tried to strangle her, thrown her against the furniture or onto the ground, pushed her down stairs and kicked her. He was further accused of having hit the children, gambled away the household’s money on gaming machines and smashed the crockery. As a result, his wife had sustained haematomas, bruising and a fractured nose and had been obliged to seek medical assistance on that account on 26 June 2000, 18 July 2003 and 8 February 2006, following assaults committed on 24 June 2000, 17 July 2003 and 8 February 2006 respectively. The applicant had allegedly sought to undermine his wife psychologically in order to control her. According to the prosecutor, the applicant had thus committed the “continuing” criminal offence (trvající trestný čin) of abusing a person living under the same roof within the meaning of Article 215a §§ 1 and 2(b) of the Criminal Code, given that his conduct prior to the introduction of that offence on 1 June 2004 had amounted to the offence of violence against an individual or group of individuals under Article 197a of the Criminal Code and assault occasioning bodily harm under Article 221 of the Code. 11. On 18 April 2007 the Brno Municipal Court found the applicant guilty of the offence of abusing a person living under the same roof, committed at least between 2000 and 8 February 2006, as described in the bill of indictment, which also referred to the fact that the abuse had occurred repeatedly. It sentenced him to a suspended term of two and a half years’ imprisonment and placed him on probation for five years. The applicant was also placed under supervision and ordered to undergo treatment for alcohol dependency. The court based its decision on the statements given by the applicant, the victim (his wife) and several witnesses, including the couple’s two children – who reported, among other incidents, ten instances of the applicant verbally insulting his wife, four instances of the applicant grabbing his wife by the arms and strangling her, and verbal and/or physical assaults committed by the applicant on his wife at monthly intervals – and on documentary evidence and expert reports. It also took into account the fact that the applicant had confessed to quarrels and physical violence in his relationship with his wife; he admitted in particular that he had sometimes slapped his wife or hit her with his fist. The court adopted the classification of the offence as abuse of a person living under the same roof within the meaning of Article 215a §§ 1 and 2(b) of the Criminal Code as in force since 1 June 2004, taking the view that this classification also extended to the acts committed by the applicant prior to that date since they had been punishable at the material time and amounted at least to the offence of violence against an individual or group of individuals under Article 197a of the Criminal Code. Lastly, the court considered that, owing to the duration of the conduct in question, the offence committed in the present case presented a relatively high degree of danger which justified a sentence ranging from two to eight years’ imprisonment under paragraph 2 of Article 215a of the Criminal Code. Taking into consideration the extenuating circumstances (in particular the fact that the applicant had confessed and that he had no previous convictions), it imposed a suspended sentence situated at the lower end of the range. 12. On 6 September 2007 the Brno Regional Court dismissed an appeal by the applicant in which he contested the facts as established by the Municipal Court and the unilateral assessment of the evidence. The Regional Court found no defects in the previous proceedings and considered that the classification of the applicant’s conduct was in conformity with the provisions of the Criminal Code. 13. On 21 February 2008 the Supreme Court dismissed as manifestly illfounded an appeal on points of law lodged by the applicant in which he complained that the trial court had applied Article 215a of the Criminal Code even to his conduct prior to 1 June 2004, when the offence of abuse had not yet existed in domestic law. On this point the Supreme Court noted, referring to its ruling Tzn 12/93 of 8 December 1993, that where there was, as in the case at hand, a “continuation of the criminal offence” (pokračování v trestném činu), which was considered to constitute a single act, its classification in criminal law had to be assessed under the law in force at the time of completion of the last occurrence of the offence. That law therefore also applied to the earlier acts, provided that these would have amounted to criminal conduct under the previous law. In the instant case the Supreme Court considered that the applicant’s conduct prior to the amendment of the Criminal Code on 1 June 2004 had amounted at least to an offence punishable under Article 197a or Article 221 § 1 of the Criminal Code. After having examined the file it also concluded that the accused’s actions as described in the operative part of the first-instance court judgment disclosed all the legal elements of the offence of abusing a person living under the same roof within the meaning of Article 215a §§ 1 and 2(b) of the Criminal Code. Concerning the continuation of the offence, the Supreme Court noted that the abuse itself amounted to ill-treatment characterised by a certain duration. For the offence to be regarded as having continued over a long period of time it had to have lasted for some months. As the applicant had perpetrated the offence in question at least from 2000 until 8 February 2006, that is, over a period of several years, his conduct certainly disclosed the material element of continuation of the offence of abuse under Article 215a § 2(b) of the Criminal Code. 14. On 10 June 2008 the Constitutional Court dismissed as manifestly ill-founded a constitutional appeal lodged by the applicant in which he complained that the proceedings had been unfair and that the Criminal Code had been applied retroactively, to his detriment. Referring to the ruling of the Supreme Court and to its relevant case-law, the Constitutional Court held that the decisions given by the courts in the present case had been logical and coherent and had not had any retroactive effect prohibited by the Constitution. 15. As the applicant committed another offence while on probation and did not undergo any treatment for his alcohol dependency, he was required to serve the prison sentence imposed by the judgment of 18 April 2007. He began serving his prison sentence on 3 January 2011. According to the Government, he was granted conditional release on 17 May 2012.
| 0 |
test
|
001-168321
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF POTEKHIN AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. They also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-184653
|
ENG
|
BGR
|
COMMITTEE
| 2,018 |
CASE OF YORDANOVA AND OTHERS v. BULGARIA
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Erik Møse;Síofra O’Leary
|
4. The applicants were born in 1937, 1934 and 1941 respectively. The first and third applicants live in Sofia. 5. The applicants’ fathers owned printing houses in Sofia, which were nationalised by the Communist authorities in 1949 and 1950. After that their assets were taken over by a State-owned printing house. In 1991 the latter was registered as a State-owned company, currently named ‘Obrazovanie i nauka’ EAD. The company is managed by the Minister of Education. Among the tasks of the company is the printing of school textbooks. 6. In 1997 Parliament adopted the Compensation of Owners of Nationalised Real Property Act (hereinafter “the Compensation Act” – see paragraph 23 below). 7. In March 1998 the first and second applicants and their mother applied under the Compensation Act to receive compensation for the nationalised printing house. As to the manner of compensation, they expressed preference to receive shares in ‘Obrazovanie i nauka’ EAD. In a decision of 14 June 1999 the Minister of Education allowed their request, stating that the exact number of shares to be awarded would be determined after a valuation of the assets of the former printing house. 8. Despite that, in another decision dated 3 July 2000 the Minister rejected the request for compensation. That decision was quashed by the Supreme Administrative Court in a final judgment of 24 June 2002, on the ground that it impermissibly modified the previous one, which had become final. 9. After that an expert prepared a valuation of the nationalised property, which was confirmed by the Minister of Education on 5 June 2003. It stated that the first and second applicants and their mother were entitled to compensation for 57,932 Bulgarian levs (BGN, equivalent of 29,630 euros (EUR)), which equalled 579 shares in ‘Obrazovanie i nauka’ EAD, each with a face value of BGN 100 (EUR 51). 10. However, on 26 August 2003 the Minister adopted another decision, stating that the applicants and their mother were to receive compensation bonds instead of shares. He relied in particular on the fact that ‘Obrazovanie i nauka’ EAD had been included in the list under section 11 of the concluding provisions of the Privatisation and Post-Privatisation Control Act 2002 (hereinafter “the Privatisation Act” – see paragraph 24 below). Once again, that decision was quashed by the Supreme Administrative Court, in a final judgment of 18 October 2004, as it impermissibly modified the previous decisions awarding the first and second applicants and their mother compensation in the form of shares, which had become final. The domestic court held in particular that section 11 of the concluding provisions mentioned above could not justify such a modification. 11. In 2006 the first and second applicants and their mother filed with the Minister of Education and other State bodies several complaints, requesting that the compensation procedure be completed. In a letter dated 7 April 2006 the Council of Ministers (Government) informed them that the Ministry of Education was seeking “a lawful solution”, which “would not infringe upon the public interest and would not be in breach of the [Privatisation Act]”. In another letter dated 30 August 2006 the parliamentary Committee on Petitions informed the applicants and their mother that it had urged the Minister of Education to find a solution, pointing out that with the enactment of the Compensation Act Parliament had sought “to restore historical justice”. 12. The first and second applicants’ mother passed away in 2007 and was succeeded by them. 13. In August 1998 the third applicant, her mother and her sister applied under the Compensation Act to receive compensation for the nationalised printing house. They stated that they preferred to receive shares in ‘Obrazovanie i nauka’ EAD. 14. Their request was allowed by the Minister of Education in a decision of 22 December 1998. 15. In 1999, 2001 and 2003 an expert drew up three valuations of the expropriated property. The last of them, stating that the third applicant, her mother and her sister were entitled to compensation for BGN 26,309 (the equivalent of EUR 13,460), equalling 263 shares in ‘Obrazovanie i nauka’ EAD, each with a face value of BGN 100, was confirmed by the Minister of Education on 6 June 2003. 16. Despite the above developments, in another decision dated 26 August 2003 the Minister stated that the third applicant, her mother and her sister were to receive compensation bonds instead of shares. As in the procedure described above concerning the first and second applicants, he relied on the fact that the company had been included in the list under section 11 of the concluding provisions of the Privatisation Act (see paragraph 24 below). That decision was quashed by the Supreme Administrative Court in a final judgment of 31 March 2004, on the ground that it impermissibly modified the previous decisions concerning the compensation to be provided, which had become final. The domestic court again held that section 11 of the concluding provisions mentioned above could not justify such a modification, as it was not applicable to pending compensation proceedings. 17. The third applicant’s mother and sister passed away in 2006 and 2004 respectively, leaving the third applicant her father’s only surviving heir. 18. In 2007 the Ministry of Education requested the Privatisation Agency to authorise the transfer to private parties of shares in ‘Obrazovanie i nauka’ EAD. The authorisation, related to the claims of all applicants, was given on 23 April 2008. 19. The Ministry took no further measures to complete the compensation procedures. 20. In 2011 the third applicant wrote a letter to the executive director of ‘Obrazovanie i nauka’ EAD, urging him to enter into the company register her shareholding and to present to her copies of all decisions taken by the company’s general meeting after 2003. She received no response. 21. In a decision of 5 March 2013 the Council of Ministers authorised the sale by ‘Obrazovanie i nauka’ EAD of real properties owned by the company (such an authorisation was required by law). The applicants applied for the judicial review of that decision, arguing that it affected their rights as shareholders. In a judgment of 27 January 2015 the Supreme Administrative Court dismissed their application, noting that they were not shareholders in the company, since the compensation procedures had not been completed with the actual transfer of shares to them in accordance with the law.
| 1 |
test
|
001-163813
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF SHEYMAN v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
5. The applicants, who are husband and wife, were born in 1932 and 1926, respectively, and live in Bat-Yam, Israel. 6. In 1990s the applicants emigrated from the USSR to Israel and obtained Israeli nationality. Before emigrating, they were receiving old-age pensions from the Soviet authorities. Once the applicants left the USSR, the payments were discontinued in accordance with the USSR pension law in force at the material time. 7. On 4 August 2006 the applicants brought civil proceedings against the competent regional department of the Pension Fund of the Russian Federation (Пенсионный Фонд Российской Федерации) (hereinafter “the Pension Fund”) seeking reinstatement of their right to the pension payments. 8. On 4 December 2006 the Kirovskiy District Court of Astrakhan found in the applicants’ favour and ordered the Pension Fund to set up monthly pension payments backdated to 15 June 1998. 9. On 12 January 2007 the Astrakhan Regional Court upheld the judgment on appeal and it became binding and enforceable. 10. On 10 July 2007 the Pension Fund lodged an application for supervisory review, seeking to have the judgments quashed. The application was addressed to the President of the Supreme Court. 11. On 27 July 2007 a judge of the Supreme Court requested the case file from the District Court and subsequently suspended enforcement of the judgment of 4 December 2006. 12. On 4 December 2007 another judge of the Supreme Court sent the case for supervisory review to the Astrakhan Regional Court. 13. On 22 January 2008 the Astrakhan Regional Court dismissed the supervisory review application and endorsed the judgment of 4 December 2006, as upheld on 12 January 2007. 14. On 8 April 2008 the Pension Fund lodged another application for supervisory review, again addressed to the President of the Supreme Court. 15. On 24 June 2008 a judge of the Supreme Court sent the case for supervisory review by the Civil Chamber of the Supreme Court. 16. On 1 August 2008 the Civil Chamber of Supreme Court quashed the judgment of 4 December 2006, as upheld on 12 January 2007, and rejected the applicants’ claims.
| 1 |
test
|
001-146002
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,014 |
SMIRNOVA v. RUSSIA
| 4 |
Inadmissible
|
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
1. The applicant, Ms Olga Filippovna Smirnova, is a Russian national, who was born in 1947 and lives in the town of Tyumen. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant is a retired person who is in receipt of an old-age pension. She is an active supporter of various local NGOs. 4. On 14 November 2003 the Trade Union Centre of the Tyumen Region («Тюменский областной профсоюзный центр»), the Trade Union of the Elevator Operators of the Town of Tyumen “SOTSPROF” («Тюменский городской профсоюз лифтеров СОЦПРОФ») and the Tyumen Regional Fund for the protection of civil rights “Resonance” («Тюменский региональный общественный фонд по защите гражданских прав «Резонанс») submitted notification of a public demonstration against alleged violations of rights of students and employees of the Commercial and Financial College of the Town of Tyumen (“the College”). It indicated that the demonstration would be carried out in the form of a “picket” to be held at noon on 24 November 2003 outside the college building. The action was to end at 1 p.m. The organisers estimated that about twenty people would take part in this event. They undertook not to hinder the circulation of people and vehicles and not to disturb the peace. 5. On 20 November 2003 the Tyumen town council informed the organisers that their request had been accepted. 6. The picket started at noon as planned. It was attended mostly by oldage pensioners who gathered at the college entrance carrying their placards. The event was supervised by the police, who registered no disturbances of public order. Most of the demonstrators and the police left the location at 12.45 p.m. 7. At around 1 p.m. the applicant and five other persons of the picket entered the college building with a view to handing a petition over to the college administration. 8. This group spontaneously asked an assistant to the head to the college to let them meet the head. The assistant informed the head of this request, who, in response, called the police. 9. Shortly afterwards three police officers arrived at the place of the incident and forced the group into a police van. They were then brought to the Kalininskiy District Department of the Interior of the Town of Tyumen (hereafter referred to as “the District Department”), where they were invited to explain their actions in writing. 10. The applicant and the other members of the group were held in the corridor of the District Department. According to the applicant, she was allowed neither to contact her lawyer nor to call her family. She was then taken to an investigator’s office where she explained the circumstances surrounding this incident. The applicant was released at 4.16 p.m. It appears that no record of detention was drawn up. 11. On 24 November 2003 the head of the college submitted a request that the police prosecute the picketers for disturbing lessons at the college. 12. On the same day one of the police officers involved in the events of 24 November 2003 issued a report which read: “... On 24 November 2003 at 12.30 p.m. following a telephone call I arrived at [the college]. Upon arrival I found that the police had been called by [the head of the college], who stated that unknown people had burst into her office and interfered with her work. These people were taken to the [District Department] ... for further investigation of these events...” 13. On 3 December 2003 a senior investigator of the District Department rejected the request of 24 November 2003 as unfounded. 14. On 4 December 2003 the head of the college repeated her request. 15. On 14 December 2003 the authorities again refused to institute criminal proceedings. 16. On 15 April 2004 the prosecutor’s office of the Tyumen Region quashed the decision of 14 December 2003 and remitted the case to the authorities for an additional investigation. Without noting any specific defects in the investigation, the prosecutor concluded that it had not been thorough. 17. On 14 May 2003 the investigating authorities refused to institute criminal proceedings. The decision read as follows: “... [The investigating authority] established that on 24 November 2003 the non-governmental organisation the Trade Union Centre of the Tyumen Region, acting with official authorisation of the town council dated 20 November 2003, staged a public picket near the [college]. This event took place from noon to 1 p.m. The demonstrators were demanding that college the authorities put an end to violations of the rights of its employees and students. After the picket [the applicant and five other persons of the movement] entered the college building and went to the office of the head of the college to hand over their petition. [The head of the college] refused to meet them and called the police. The police officers, who arrived at the place of the incident, escorted the demonstrators to the [District Department] to collect their explanations in writing. ... [In the context of the present investigation the applicant] has refused to give any explanations to the police, noting that she had already given her statements in respect to these events to the Prosecutor’s Office. [The applicant’s and other protestors’ actions] did not amount to a criminal offence.” 18. In the above proceedings, the applicant did not complain of the police actions of 24 November 2003. 19. On 2 December 2003 one of the leaders of the picketers, Mr Kh, and three other demonstrators including the applicant requested that a criminal investigation be instituted in respect of their arrest and detention on 24 November 2003. The applicant also brought complaints against the police officers, seeking to prosecute them for her allegedly unlawful arrest and detention. It seems that the proceedings regarding their complaints were joined together in one case. 20. The investigating authorities conducted an internal investigation and drafted a report dated 28 December 2003, which read: “The Trade Union Centre of the Tyumen Region, the Trade Union of the Elevator Operators of the Town of Tyumen SOTSPROF, and the Tyumen Regional Fund for the protection of civil rights ‘Resonance’ informed the local administration about the picket of 24 November 2003, which would be held from noon to 1 p.m., Mr [Kh.] having been named as a person responsible for it. The picket was supervised by [five police officers], who were present at its location from 11.45 a.m. to 12.45 p.m. The picketers did not disturb the peace. The police officers did not speak to them. By 12.45 p.m. the crowd had dispersed. At 12.50 p.m. the police officers returned to [the District Department]. On 24 November 2003 [a police officer on duty] received a telephone call from [the college]. Following this call [a group of three police officers on duty and a driver] arrived at [the college]. On their arrival they found out that the call had been made by the [head of the college], who explained that several unknown persons had burst into her office and interfered with the activities of the college. She stated that she would request the prosecution of these people. Later the police officers realised that those people were the participants in the picket. [The group] was taken to [the District Department]. In the District Department the police collected the statements from the [head of the college], who requested that [the group] be prosecuted. [Two police officers] collected written statements from the detained parties and then let them go home. None of the detained persons was put in a special cell. Consequently, they were not deprived of their liberty. On 3 December 2003 [the police] refused to institute criminal proceedings at the request of the [head of the college]. On the grounds given above, I would conclude that ... the [police officers] acted lawfully”. 21. On 29 December 2003 the group was notified of this decision. Neither the applicant nor other participants challenged it in court. 22. On an unspecified date Mr Kh. informed the Tyumen Region prosecutor’s office of the allegedly unlawful police actions which had been performed in connection with the picket of 24 November 2003. 23. The prosecutor’s office examined the case in parallel with the proceedings instituted by the police and held that the rights of the picketers had been violated. It issued notice of violation no. 7-75-04 dated 26 February 2004 which read: “The prosecutor’s office has examined [Mr Kh’s] request. The examination has indicated numerous violations of law in the actions of the police. The Trade Union Centre of the Tyumen Region, the Trade Union of the Elevator Operators of the Town of Tyumen SOTSPROF and the Tyumen Regional Fund for the protection of civil rights ‘Resonance’ informed the administration about the picket of 24 November 2003, which was to be held from noon to 1 p.m. Initially, the picketers stood outside the entrance to the [college]. Later they entered the ante-room of the office of the head of the [college]. Following the telephone call which was made by [the head of the college], police officers arrived at the scene of the incident. The police officers took the picketers to [the District Department] ... Pursuant to [the provisions of the Police Act], the police should have escorted the picketers in accordance with the provisions of either administrative or criminal law. [The police officer] who escorted the picketers to the Kalininskiy District Department of the Interior of the Town of Tyumen drew up a report without examining the circumstances surrounding their arrest. The report is unclear as to the commission of precisely which offence the actions of the group could have amounted to. Simultaneously [another police officer] received an oral request for the institution of criminal proceedings against the persons who had organised the unlawful picket near the [college] and disturbed the peace. This request was submitted by [the head of the college]. Subsequently, the investigating authorities instituted a preliminary criminal investigation... In the present case the police should have conducted a preliminary investigation in accordance with administrative law procedure... Article 27.1 of the Code of Administrative Offences of Russia entitles [police officers] to employ a variety of measures aimed at ensuring the conduct of administrative proceedings. In particular it gives them a right to escort persons and detain them. This power may be exercised in order to stop an administrative offence, to identify an offender, and to draw up an administrative offence record in cases where such a record cannot be drawn up at the place of the incident. Article 27.2 of the Code of Administrative Offences of Russia requires the police to note the execution of an escort operation in an administrative arrest record or to make a special note in an administrative offence record. The act of escorting an individual may be also indicated in an escort operation record. This indicates that administrative proceedings have been instituted. Administrative proceedings should be finalised with a procedural decision. The inappropriate organisation and conduct of the investigation has resulted in the violation of [the picketer’s rights]. Moreover, following the inquiry conducted under Article 145 of the CCrP of Russia, the police officers did not decide whether or not the demonstrators’ actions had amounted to an administrative offence. The deadline for bringing administrative proceedings as provided by Article 4.5 § 4 of the Code of Administrative Offences of Russia has since expired. In accordance with Article 24.5 § 6 of the Code of Administrative Offences of Russia, the administrative proceedings should be discontinued. In the light of the above circumstances, taking into account Article 24 of the Federal Law On Prosecutor’s Office of Russia, I recommend [to the Head of the police]: That the present recommendations be examined. That an internal inquiry be carried out to decide whether a disciplinary punishment should be imposed on the police officers. That it be ensured that all police officers study the administrative legislation ...” 24. On an unspecified date the police authority notified the picketers of this decision. 25. On 30 March 2004, in response to the prosecutor’s notice of violation of 26 February 2004, the police – having conducted an internal inquiry – fully endorsed its own previous findings and the conclusions of the report of 28 December 2003 (see paragraph 20 above). 26. The applicant and the group of the protesters did not further pursue the institution of proceedings through either the police or the prosecutor’s office. 27. In February 2004 the applicant lodged a civil complaint against the police authorities before the Kalininskiy District Court of the Town of Tyumen (“District Court”). She sought a declaration that the actions of the police on 24 November 2003 had been unlawful because they had breached her freedom of expression, freedom of assembly and right to liberty. 28. On 25 February 2004 the District Court informed the applicant that she should substantiate her claim by providing more evidence concerning the events in question and specifying the names of the policemen involved. She should also be specific as to which actions she considered to have been unlawful. The applicant was given until 5 March 2004 to correct these shortcomings in her application to the court. 29. On 22 March 2004 the Tyumen Regional Court, at the applicant’s request, quashed the decision of 25 February 2004. 30. On 29 March 2004 the District Court refused to examine the applicant’s case on the merits. It stated that it had no competence to deal with the applicant’s complaints within the context of civil proceedings, since a criminal investigation in respect of the police officers had been instituted at her request. It concluded that the normal remedy for exhaustion purposes would be to appeal under Chapter 16 of the Code of the Criminal Procedure of Russia (CCrP) against the police’s decision not to prosecute the police officers. Since the applicant had failed to seek recourse through this remedy, the merits of her claim were left unexamined. The relevant part of this judgment read: “The court has established that [the prosecutor’s office] conducted a preliminary investigation into [the applicant’s] arrest and her detention on the premises of the Kalininskiy District Department of the Interior of the Town of Tyumen on 24 November 2003. This investigation resulted in the decision not to institute criminal proceedings. All of the participants in the picket were advised of their right to challenge this decision. Chapter 16 of the CCrP sets out special rules governing appeals against the decisions of the police. In accordance with Article 134 § 1 of the Code of Civil Procedure of Russia, a court must refuse to examine a claim on the merits if it cannot be examined in civil proceedings. From the foregoing, the court concludes that it must refuse to examine [the applicant’s] claim on the merits...” 31. On 2 June 2004 the Tyumen Regional Court upheld the judgment of the District Court on appeal, essentially endorsing the reasoning of the lower court. It pointed out that the picketers had been informed of the outcome of their proceedings by the police and the prosecutor’s office. This gave them an opportunity to challenge the relevant decisions in court under Chapter 16 of the CCrP. According to the court, they had brought a civil claim falling outside the civil courts’ jurisdiction. 32. The applicant did not follow the courts’ recommendations and did not institute proceedings under Chapter 16 of the CCrP. 33. The Constitution guarantees the right to freedom of peaceful assembly and the right to hold meetings, demonstrations, marches and pickets (Article 31). 34. Decree of the Presidium of the USSR Supreme Council no. 9306-XI of 28 July 1988 (in force at the material time pursuant to Russian Presidential Decree no. 524 of 25 May 1992) provided that organisers of an assembly were to submit written notification to the municipal authorities no later than ten days before the planned assembly (§ 2). The authority was to give its response no later than five days before the assembly (§ 3). An assembly could be banned if its purpose was contrary to the Constitution or threatened public order or the security of citizens. 35. Article 27.2 of the Code of Administrative Offences of Russia of 30 December 2001 (CAO) states that the escorting or transfer by force of an individual for the purpose of drawing up an administrative offence report – if this cannot be done at the place where the offence was discovered and if the drawing-up of a report is mandatory – is to be carried out by the police. The escort operation must be carried out as quickly as possible and it must be recorded in an escort operation report, an administrative offence report or an administrative detention report. The escorted person must be given a copy of the escort operation report if he or she so requests. 36. Article 27.3 of the CAO provides that administrative arrest, that is to say a temporary restriction of liberty of an individual, may be ordered in exceptional circumstances where it is necessary for a correct and prompt examination of the administrative case. 37. In accordance with Article 27.4 of the CAO the administrative arrest must be recorded in a report 38. Article 27.5 of the CAO provides that the duration of administrative arrest must not exceed three hours, except for situations involving persons subject to administrative proceedings concerning an offence punishable by administrative detention, who may be placed under administrative arrest for a period not exceeding forty-eight hours. 39. Chapter 16 of the CCrP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons’ interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual’s access to court” may be subject to judicial review (Article 125).
| 0 |
test
|
001-156265
|
ENG
|
ITA
|
CHAMBER
| 2,015 |
CASE OF OLIARI AND OTHERS v. ITALY
| 3 |
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev
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9. The details concerning the applicants may be found in the Annex. 10. In July 2008 these two applicants, who were in a committed stable relationship with each other, declared their intention to marry, and requested the Civil Status Office of the Trent Commune to issue the relevant marriage banns. 11. On 25 July 2008 their request was rejected. 12. The two applicants challenged the decision before the Trent Tribunal (in accordance with Article 98 of the Civil Code). They argued that Italian law did not explicitly prohibit marriage between persons of the same sex, and that, even if that were the case, such a position would be unconstitutional. 13. By a decision of 24 February 2009 the Trent Tribunal rejected their claim. It noted that the Constitution did not establish the requirements to contract marriage, but the Civil Code did and it precisely provided that one such requirement was that spouses be of the opposite sex. Thus, a marriage between persons of the same sex lacked one of the most essential requirements to render it a valid legal act, namely a difference in sex between the parties. In any event there was no fundamental right to marry, neither could the limited law provisions constitute discrimination, since the limitations suffered by the applicants were the same as those applied to everyone. Furthermore, it noted that European Union (“EU”) law left such rights to be regulated within the national order. 14. The applicants appealed to the Trent Court of Appeal. While the court reiterated the unanimous interpretation given to Italian law in the field, namely to the effect that ordinary law, particularly the Civil Code, did not allow marriage between people of the same sex, it considered it relevant to make a referral to the Constitutional Court in connection with the claims of unconstitutionality of the law in force. 15. The Italian Constitutional Court in judgment no. 138 of 15 April 2010 declared inadmissible the applicants’ constitutional challenge to Articles 93, 96, 98, 107, 108, 143, 143 bis and 231 of the Italian Civil Code, as it was directed to the obtainment of additional norms not provided for by the Constitution (diretta ad ottenere una pronunzia additiva non costituzionalmente obbligata). 16. The Constitutional Court considered Article 2 of the Italian Constitution, which provided that the Republic recognises and guarantees the inviolable rights of the person, as an individual and in social groups where personality is expressed, as well as the duties of political, economic and social solidarity against which there was no derogation. It noted that by social group one had to understand any form of community, simple or complex, intended to enable and encourage the free development of any individual by means of relationships. Such a notion included homosexual unions, understood as a stable cohabitation of two people of the same sex, who have a fundamental right to freely express their personality in a couple, obtaining – in time and by the means and limits to be set by law – juridical recognition of the relevant rights and duties. However, this recognition, which necessarily requires general legal regulation aimed at setting out the rights and duties of the partners in a couple, could be achieved in other ways apart from the institution of marriage between homosexuals. As shown by the different systems in Europe, the question of the type of recognition was left to regulation by Parliament, in the exercise of its full discretion. Nevertheless, the Constitutional Court clarified that without prejudice to Parliament’s discretion, it could however intervene according to the principle of equality in specific situations related to a homosexual couple’s fundamental rights, where the same treatment of married couples and homosexual couples was called for. The court would in such cases assess the reasonableness of the measures. 17. It went on to consider that it was true that the concepts of family and marriage could not be considered “crystallised” in reference to the moment when the Constitution came into effect, given that constitutional principles must be interpreted bearing in mind changes in the legal order and the evolution of society and its customs. Nevertheless, such an interpretation could not be extended to the point where it affected the very essence of legal norms, modifying them in such a way as to include phenomena and problems which had not been considered in any way when it was enacted. In fact it appeared from the preparatory work to the Constitution that the question of homosexual unions had not been debated by the assembly, despite the fact that homosexuality was not unknown. In drafting Article 29 of the Constitution, the assembly had discussed an institution with a precise form and an articulate discipline provided for by the Civil Code. Thus, in the absence of any such reference, it was inevitable to conclude that what had been considered was the notion of marriage as defined in the Civil Code, which came into effect in 1942 and which at the time, and still today, established that spouses had to be of the opposite sex. Therefore, the meaning of this constitutional precept could not be altered by a creative interpretation. In consequence, the constitutional norm did not extend to homosexual unions, and was intended to refer to marriage in its traditional sense. 18. Lastly, the court considered that, in respect of Article 3 of the Constitution regarding the principle of equality, the relevant legislation did not create unreasonable discrimination, given that homosexual unions could not be considered equivalent to marriage. Even Article 12 of the European Convention on Human Rights and Article 9 of the Charter of Fundamental Rights did not require full equality between homosexual unions and marriages between a man and a woman, as this was a matter of Parliamentary discretion to be regulated by national law, as evidenced by the different approaches existing in Europe. 19. In consequence of the above judgment, by a decision (ordinanza) lodged in the relevant registry on 21 September 2010 the Court of Appeal rejected the applicants’ claims in full. 20. In 2003 these two applicants met and entered into a relationship with each other. In 2004 Mr Felicetti decided to undertake further studies (and thus stopped earning any income), a possibility open to him thanks to the financial support of Mr Zappa. 21. On 1 July 2005 the couple moved in together. In 2005 and 2007 the applicants wrote to the President of the Republic highlighting difficulties encountered by same-sex couples and soliciting the enactment of legislation in favour of civil unions. 22. In 2008 the applicants’ physical cohabitation was registered in the authorities’ records. In 2009 they designated each other as guardians in the event of incapacitation (amministratori di sostegno). 23. On 19 February 2011 they requested their marriage banns to be issued. On 9 April 2011 their request was rejected on the basis of the law and jurisprudence pertaining to the subject matter (see Relevant domestic law below). 24. The two applicants did not pursue the remedy provided for under Article 98 of the Civil Code, in so far as it could not be considered effective following the Constitutional Court pronouncement mentioned above. 25. In 2002 these two applicants met and entered into a relationship with each other. In the same year they started cohabiting and since then they have been in a committed relationship. 26. In 2006 they opened a joint bank account. 27. In 2007 the applicants’ physical cohabitation was registered in the authorities’ records. 28. On 3 November 2009 they requested that their marriage banns be issued. The person in charge at the office did not request them to fill in the relevant application, simply attaching their request to a number of analogous requests made by other couples. 29. On 5 November 2009 their request was rejected on the basis of the law and jurisprudence pertaining to the subject matter (see Relevant domestic law below). 30. Mr Perelli Cippo and Mr Zacheo challenged the decision before the Milan Tribunal. 31. By a decision (decreto) of 9 June 2010 lodged in the relevant registry on 1 July 2010 the Milan Tribunal rejected their claim, considering that it was legitimate for the Civil Status Office to refuse a request to have marriage banns issued for the purposes of a marriage between persons of the same sex, in line with the finding of the Constitutional Court judgment no. 138 of 15 April 2010. 32. The applicants did not lodge a further challenge (reclamo) under Article 739 of the Code of Civil Procedure, in so far as it could not be considered effective following the Constitutional Court pronouncement.
| 1 |
test
|
001-157515
|
ENG
|
TUR
|
CHAMBER
| 2,015 |
CASE OF METIN GÜLTEKİN AND OTHERS v. TURKEY
| 3 |
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)
|
Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano;Ksenija Turković
|
5. The applicants were born in 1960, 1963, 1988 and 1986 respectively and live in Zonguldak. The first two applicants are the parents, the third applicant is the brother and the fourth applicant is the fiancée of Mr Toğay Gültekin. 6. Toğay Gültekin was born in 1983 and started doing his compulsory military service on 22 August 2003 in the city of Kırklareli. At that time he had no known health problems. 7. On 17 March 2004 Toğay Gültekin was examined by a doctor at his regiment and the doctor decided to refer him to a hospital specialising in infectious diseases. On 22 March 2004 a doctor who examined him at his regiment’s infirmary referred him to Trakya University Hospital (“The University Hospital”) for suspected hepatitis or meningoencephalitis. The following day Toğay Gültekin was sent to the hospital in Edirne where, after a number of examinations were conducted, he was diagnosed with fulminant hepatitis (acute liver failure). A decision was taken on 24 March 2004 to send him to the Haydarpaşa GATA Hospital in Istanbul for a liver transplant operation. On arrival at the hospital in Istanbul the same afternoon he was put in the intensive care unit. 8. At 5.15 p.m. on 27 March 2004 he died at the GATA Hospital. No autopsy was performed. 9. An investigation was carried out at the military unit where Toğay Gültekin had been doing his military service. On 30 and 31 March 2004 a total of eleven military personnel who knew or had had dealings with Toğay Gültekin were questioned by their superiors. 10. The eleven military personnel all stated that Toğay Gültekin had spoken to his commanding officer on 16 February 2004 and told him that a friend of his had hepatitis and that he had suspected that he might also have contracted the same disease. His superior had then transferred him to the regiment’s infirmary where tests had been conducted, establishing that he did not have hepatitis. 11. One of the eleven military personnel was the doctor who had examined Toğay Gültekin in the regiment’s infirmary on 22 March 2004 (see paragraph 7 above). The doctor stated that on 22 March 2004 Toğay Gültekin had come to see him because he had been feeling unwell and the colour of his urine had been darker than usual. He had then sent Toğay Gültekin for a urine examination and when he had got the results back he had noticed a problem. The same day he had asked for Toğay Gültekin to be referred to the University Hospital. 12. The military officers who carried out the investigation concluded, on the basis of the statements referred to above, that the military authorities had acted in accordance with their duties when providing medical assistance to Toğay Gültekin and that there had been no fault attributable to them in his death. 13. On 28 September 2004 the applicants initiated compensation proceedings against the Ministry of Defence before the Supreme Military Administrative Court (“the Military Administrative Court”). They argued, in particular, that Toğay Gültekin had not received prompt or adequate medical care in his regiment. 14. The applicants submitted in their petition that, according to the official documents in their possession, Toğay Gültekin had been examined by a doctor attached to his regiment on 17 March 2004 and that the doctor had recommended his transfer to a hospital specialising in infectious diseases. Nevertheless, the military authorities had not followed that recommendation. When his condition had deteriorated he had been examined by another doctor at the regiment on 20 March 2004. However, that doctor had not sought to obtain blood or urine tests and had sent him back to his military unit. When Toğay Gültekin’s condition had deteriorated even further on 22 March 2004, he had been examined once again and this time a urine test had been carried out. The doctor who had evaluated the results of the test had considered that Toğay Gültekin might have hepatitis or meningoencephalitis and had asked for him to be referred to hospital. Nevertheless, Toğay Gültekin had still not been transferred to the hospital promptly and only the following day had he been put on a bus and sent to the hospital. The applicants argued that it had been these inordinate delays that had caused Toğay Gültekin’s death. They pointed out that Toğay Gültekin had been performing his military service and had thus not had the opportunity to leave his military unit and seek medical assistance of his own volition. Therefore, the authorities had been under an obligation to protect his well-being and to ensure timely medical treatment for him. 15. On 14 January 2005 the Ministry of Defence submitted its observations to the Military Administrative Court. Based on the testimonies of the soldiers from the same regiment (see paragraphs 9-11 above), it argued that on 16 February 2004 Toğay Gültekin had seen his superior and told his commanding officer that his friend had contracted hepatitis and that he suspected that he himself might have been infected as well. A blood test had been conducted, but the results had not revealed any abnormalities. 16. The Ministry of Defence alleged that Toğay Gültekin had not gone to the infirmary between 16 February 2004 and 20 March 2004, but accepted that he had been examined by a doctor at the regiment’s infirmary on 20 March 2004 and then sent back to his military unit. It maintained that the military authorities had not acted in a negligent fashion when dealing with Toğay Gültekin’s medical problems. 17. In their replies to the Ministry of Defence the applicants submitted that there was no evidence to show that a blood test had been carried out on 16 February 2004. They also referred to the medical reports and stated that it had been clearly indicated in the records that Toğay Gültekin had seen the doctor at the infirmary on 17 March 2004 and that his referral to an infectious diseases clinic had been decided by that doctor. 18. During the proceedings the Military Administrative Court appointed three medical experts, namely two professors and an associate professor from the infectious diseases department of the Gazi University Medical School, in order to clarify whether the military authorities had acted negligently. The medical experts reached the following conclusion in their report of 20 September 2005: “... An examination of the documents and other information in the file shows that Toğay Gültekin started his military service on 22 August 2003. On 2 January 2004 he was treated for a retractile testicle at Çorlu Military Hospital. On 5 January 2004 he was prescribed medication at the regiment’s infirmary for an upper respiratory tract infection. On 17 March 2004 the regimental infirmary doctor decided to refer him to the Çorlu Military Hospital’s infectious diseases department, but that was not done. On 20 March 2004 he was diagnosed with and treated for an infection of the upper respiratory tract. On 22 March 2004 he was referred to the University Hospital with suspected hepatitis and he was sent there. On 23 March 2004 he was diagnosed with fulminant hepatitis. On 24 March 2004 he was transferred to the GATA Research Hospital in Haydarpaşa where he died on 27 March 2004 as a result of fulminant hepatitis. Two of the causes of fulminant hepatitis are hepatitis A virus and hepatitis B virus. Hepatitis A may be contracted by drinking contaminated water and by eating raw vegetables and fruits. Hepatitis B spreads through sexual contact, or by coming into contact with infected blood by sharing personal items such as toothbrushes, razors, or needles. Military service, in itself, does not pose a special risk for hepatitis contamination. Having examined the medical reports in the file, we consider it very likely that the first symptoms regarding Toğay Gültekin’s disease became obvious on 20 March 2004 and his condition then deteriorated for one week until his death. The first symptoms of the liver disease (acute liver failure) which is caused by hepatitis A and hepatitis B viruses include tiredness and general complaints which are not specific to any of the organs. They can be similar to the symptoms of upper respiratory tract infection. Only after developing typical symptoms, such as jaundice, does it become easier to diagnose. The disease caused by these two viruses (hepatitis) can be more serious in adults. According to the medical reports in the file, Toğay Gültekin was contaminated with both hepatitis A and hepatitis B viruses within a short period of time and his liver was infected with both viruses at the same time. This is a condition which worsens the damage to the liver and increases the risk of fulminant hepatitis (fast-deteriorating acute liver failure). The mortality rate of fulminant hepatitis is 70% within the first week; a liver transplant is the sole method of ensuring patient survival. Normally, the patient would be kept in hospital under close observation. Having taken cognisance of the documents in the file, we have not established any delays, fault or negligence in the medical treatment provided to Toğay Gültekin at the infirmary of his regiment, at the University Hospital or at the GATA Hospital in Haydarpaşa.” 19. The applicants lodged an objection to this report. They maintained that the authorities had acted negligently as they had delayed Toğay Gültekin’s transfer to hospital. Referring to the medical reports in the file, the applicants stated that although the doctor at the regiment had decided to refer Toğay Gültekin to an infectious diseases clinic on 17 March 2004, the military authorities had failed to comply with the doctor’s decision until 23 March 2004. The applicants also asked the Military Administrative Court to obtain an additional medical expert report. 20. On 26 October 2005 the Military Administrative Court dismissed the applicants’ claim. In its decision the court relied on the medical expert report summarised above (see paragraph 18), and concluded that no fault could be attributed to the authorities for Toğay Gültekin’s death. No mention was made in the decision of the applicants’ complaint regarding the failure to transfer Toğay Gültekin to hospital on 17 March 2004. 21. The applicants lodged a request for rectification of the Military Administrative Court’s decision and argued, inter alia, that if, as alleged, Toğay Gültekin had told his commanding officer on 16 February 2004 that he might have been infected with hepatitis (see paragraphs 9-11 above), his superior should have taken it seriously and referred him to hospital. However, there were no records showing that any action had been taken. They also pointed out that their complaints did not relate to the period following Toğay Gültekin’s transfer to the hospital, but to the authorities’ negligence in failing to refer Toğay Gültekin to hospital between 17 and 23 March 2004. 22. On 28 December 2005 the Military Administrative Court refused to entertain the rectification request lodged by the applicants.
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test
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001-141949
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ENG
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SWE
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CHAMBER
| 2,014 |
CASE OF W.H. v. SWEDEN
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No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iraq)
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Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Vincent A. De Gaetano
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7. The applicant was born in 1978. She is from Baghdad and is of Mandaean denomination. She was once married, but divorced her husband in 1999, after which she lived with their son, born in 1998, in Iraq while her former husband moved to the United States. 8. The applicant arrived in Sweden on 27 August 2007 and applied for a residence permit the following day and for asylum on 21 January 2008. She stated that she and her son had left Iraq on 25 July 2007 and had then stayed with relatives in Amman, Jordan, for a month. In Amman she had left behind her son, because she had not been able to afford his trip. Later, her former husband had come to Jordan and brought the son back with him to the United States. To the Swedish authorities the applicant submitted an Iraqi citizenship certificate, an identity card, divorce documents and a membership card for Mandaeans regarding her and her son. 9. Assisted by legal counsel, the applicant stated in essence the following in support of her application. Her main reason for leaving Iraq was the generally insecure situation for Mandaeans in Iraq, which had affected her and her family personally. Her fears had led to her son going to school only sporadically during the past year. Moreover, at the beginning of June 2007 her mother had received a threatening phone call from someone who had wanted to contact the applicant, presumably to forcibly remarry her with another man. If they did not comply, the applicant understood that her family would have to leave the neighbourhood. They had taken the threats very seriously and she had moved immediately with her son to her grandmother’s house in the al-Dora neighbourhood of Baghdad, where they had stayed for a month. The applicant further stated that her only remaining relative in Iraq was her mother. 10. On 31 October 2008 the Migration Board (Migrationsverket) rejected the application and ordered the applicant’s deportation to Iraq. The Board held that she had not proved her identity, but that she had made it plausible that she was from Iraq. It further considered that the situation in Iraq as such did not constitute grounds for asylum. While noting that Mandaeans were an exposed minority, their general situation did not suffice either for an individual be granted protection, but his or her personal circumstances would have to be assessed. The Board went on to state that the applicant had not submitted any written evidence in support of her allegations of persecution. Furthermore, she had received a threat on only one occasion and it had not been shown that the person threatening her had referred to her religious beliefs. Nor was there any other indication that she had been ill-treated on account of those beliefs or that she had received other threats before leaving Iraq. The Board then noted that the applicant’s brother, who had also applied for asylum in Sweden, had had his application rejected and his deportation to Iraq ordered and that, consequently, the applicant would likely not lack a male network upon return to Iraq. In conclusion, the Board found that she had not made it probable that she was at personal risk of being subjected to serious ill-treatment if she returned to Iraq. 11. The applicant’s brother, who had arrived in Sweden on 18 December 2007, had his application for a residence permit rejected by the Migration Board on 2 October 2008. 12. The applicant appealed, adding the following to her story. Mandaeans, being the smallest and most vulnerable minority in Iraq, were subjected to extortion, kidnappings and murder. Mandaean women and children had been forced to convert to Islam, often after having been assaulted and raped. The Mandaeans were not a large enough community to be able to protect and support each other and there was no particular region where they could settle safely. This was enough to show that she was in need of protection. The applicant asserted that the threat against her had to be seen against this background. Her whole existence had been marked by the threatening atmosphere and demands directed at non-Muslim women and in particular the Mandaeans. Her situation had been further aggravated by the fact that she is a single woman without a social network in Iraq. Her mother had had the intention of leaving the country as well, but the applicant had no information on her whereabouts. Furthermore, in Sweden the applicant had met a Muslim man from Iraq together with whom she now lived. This situation would never be accepted in Iraq. Also, when she had talked about her new relationship in Sweden, her family had reacted very negatively and had virtually frozen her out. 13. On 14 December 2009 the Migration Court (Migrationsdomstolen) upheld the decision of the Board. The court acknowledged the difficult situation for Mandaeans in Iraq and stated that, consequently, a lower threshold was applied in assessing the individual risks than in Iraqi cases in general. The general situation for Mandaeans did not suffice of itself to be granted protection, however; an assessment of the applicant’s individual circumstances was necessary. In the absence of written evidence, the court went on to examine the statements made by the applicant. It considered that the threat received concerning forced marriage was primarily related to the general security situation in Iraq at the time. In the two years since the applicant had left the country, the security situation had improved. While the Mandaeans remained disadvantaged, there was no sign that she was still being searched for in Iraq. Nor was there anything to indicate that her mother’s possible exile had been caused by continued threats. The court further found that the negative reaction of the applicant’s family to her new relationship did not imply a need of protection. In that connection, it further noted that the asylum appeal lodged by her brother, who had not turned his back on her, had been rejected on the same day. Thus, she could return to Iraq with him and thereby have a social network in the country. 14. On 16 February 2010 the Migration Court of Appeal (Migrations-överdomstolen) refused the applicant leave to appeal. On 25 February 2010 it refused leave to appeal also in the applicant’s brother’s case. 15. Subsequently, the applicant, as well as her brother, claimed that there were impediments to the enforcement of their deportation orders. Their petition mainly concerned the brother’s period of active duty in the Iraqi army, during which he had gained knowledge of important people in the army and their illegal actions. This knowledge would put both the applicant and her brother at risk if they were returned. The applicant further claimed that her mother had been kidnapped. 16. On 8 May 2010 the Migration Board rejected the petition, finding that no new circumstances justifying a reconsideration had been presented. It considered that the claims made in relation to the brother did not in any way show that there were threats against him or the applicant. The allegation that the mother had been kidnapped was actually new, but it was unclear when this incident was supposed to have happened and there was nothing to conclude that the possible kidnapping had any personal connection to the situation of the applicant and her brother. The applicant did not appeal against the Board’s decision. 17. On 23 August 2010 the applicant submitted a letter to the Migration Board, which was perceived by the Board as a new petition for reconsideration. The applicant stated that, if she were forced to return to Iraq, she would have to do so without her current partner or her brother, who were both in Sweden. Her partner had been issued a visa to Syria, as he was born in Damascus, and could not return to Iraq. Consequently, they would be separated, because she could not travel to Syria since she lacked a passport and would not be granted a visa. The applicant further asserted that she had no relatives in Iraq. 18. On 25 August 2010 the Migration Board decided not to reconsider the case. Although the fact that the applicant’s partner had been granted a visa to Syria was considered to be new, the Board stated that this fact did not constitute a lasting impediment to the enforcement of the deportation order. The applicant did not appeal against the Board’s decision. 19. The respondent Government have submitted the following notes to the Court, taken from the files of the Migration Board. The applicant’s mother was living with relatives and friends in Baghdad. When the applicant left Iraq, her grandmother and cousins were living in the al-Dora neighbourhood of Baghdad. In Sweden, the applicant has been living in the same flat as her brother and her partner from October 2009 onwards. Her partner left Sweden in October 2010 to be reunited with his family in Syria, whereas her brother is still in Sweden. Furthermore, in reply to the Government’s request for information in the case, the Migration Board had stated that it was likely that the applicant had a large number of relatives left in Baghdad. 20. The applicant has given the following additional account to the Court. Following her divorce in 1999, she went to live with her parents and her brother. Her father, under whose protection she was living, died in 2005. Her grandmother, with whom she had briefly lived after the threatening telephone call, died in 2008. To her knowledge, she has no relatives left in Iraq, cousins or others. Several relatives are living abroad, in Sweden, France, the Netherlands, the United Kingdom, Spain and Canada. Her sister is living in Denmark. After the applicant and her brother had left Iraq, their mother went to live with a Christian family in Baghdad, from whom she rented a room. In the beginning of 2010, the applicant and her brother received information about their mother’s disappearance. The family with whom the mother had lived called the applicant’s uncle in Sweden and said that they did not think that she had left voluntarily. A police report, sent to the uncle only in 2012, states that the report was filed on 7 June 2011 by the mother’s landlord, who had told the police that the mother had been missing since 5 December 2010. The applicant does not know why the landlord did not file a report earlier or why he did not state that her mother had been missing for several months before December 2010. The applicant is still unaware of what has happened to her mother following her disappearance. However, given the time that has passed without any contact with her, she assumes that she is dead. The applicant is still in a relationship with the man she met in Sweden, although he is now living in Syria. The people who disowned her because of that relationship were her relatives in Sweden, with the exception of her brother. The brother married a relative, who is a Swedish citizen, on 27 May 2012. He left Sweden and applied at the Embassy in Tehran for a Swedish residence permit based on his marriage. By a decision of 5 November 2013 the Migration Board granted him a residence permit until 5 November 2015. 21. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716). 22. An alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1 of the Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2). 23. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6). Special consideration should be given, inter alia, to the alien’s health status. According to the preparatory works (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit. 24. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). 25. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has acquired legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these criteria, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19). 26. Matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal. 27. A deportation or expulsion order may – save for a few exceptions of no relevance to the present case – be enforced only when it has acquired legal force. Thus, appeals to the courts against the Migration Board’s decision in ordinary proceedings determining the right to asylum and a residence permit have an automatic suspensive effect. If the alien subsequent to the ordinary proceedings having acquired legal force lodges a petition under Chapter 12, sections 18 or 19, it is up to the Board to decide whether to suspend the enforcement (inhibition) on the basis of the new circumstances presented. Accordingly, such a petition has no automatic suspensive effect, nor does an appeal to the courts against the Board’s decision taken under section 19 (no appeal lie against a decision pursuant to section 18). 28. In its Report on Human Rights in Iraq: July – December 2012, published in June 2013, the Human Rights Office of the United Nations Mission for Iraq (UNAMI) gave, inter alia, the following summary (at pp. vii-viii): “Violence and armed violence continued to take their toll on civilians in Iraq. According to the Government of Iraq, 1,704 civilians were killed and 6,651 were injured in the second half of 2012, resulting in a total of 3,102 killed and 12,146 injured for 2012. According to UNAMI, 1,892 civilians were killed and 6,719 were injured in the last six months of 2012, resulting in a total of at least 3,238 civilians who were killed and 10,379 who were injured for the year. These figures indicate that the trend of recent years of a reduction in the numbers of civilian casualties has reversed and that the impact of violence on civilians looks set to increase in the near to medium future. Terrorists and armed groups continued to favour asymmetric tactics that deliberately target civilians or were carried out heedless of the impact on civilians. Political instability and regional developments continued to impact negatively on the security situation in Iraq, with its concomitant toll on civilians. Although the Government takes the impact of violence on civilians extremely seriously and has taken measures to enhance security, more needs to be done to ensure the proper coordination of financial, medical and other forms of support for the victims of violence. ... Women continue to suffer from domestic and other forms of violence, and to face discrimination and other barriers in accessing economic, social and educational opportunities. The law continues to permit ‘honour’ as a mitigating factor in crimes of violence committed against women and family members. There is still no effective system of shelters and coordinated care for the victims of domestic violence, and services available to victims remain inadequate. The family protection bill remains stalled in the Council of Representatives. Women’s representation at a senior level in political, governmental and judicial institutions remains low at the federal, governorate and district levels. ... Iraq’s various ethnic and religious groups continued to be targeted by violence. In particular, members of the Turkmen community were subjected to various acts of violence, including kidnapping, murder, harassment, and other threats. Members of religious communities, including Yezidis, Christians and Shabaks, also suffered threats and acts of violence. Shi’a pilgrims attending various religious festivals and activities similarly came under attack in various parts of the country.” In regard to the Kurdistan region, the report stated (at p. ix): “The overall human rights situation in the Kurdistan Region continued to improve, although challenges remain, including concerns over respect for freedoms of assembly and expression, and the protection of journalists. The Kurdistan Region experienced almost no insurgent violence, although civilians living in areas close to the international borders continued to suffer from the effects of cross-border shelling and military operations conducted by foreign forces. ... Progress was made towards full implementation of the Law on Combatting Violence Against Women, with the establishment of a high level inter-ministerial committee to oversee implementation of the law, and the adoption of a five-year plan to combat violence against women, along with other reforms and initiatives.” 29. In his report of 16 February 2011, the Representative of the (United Nations) Secretary-General on the human rights of internally displaced persons, Mr Walter Kälin, noted the following (at paras. 9-10) after a visit to Iraq in September/October 2010: ”Despite improvements in the overall security situation since 2006, the situation in Iraq is still characterized by continued indiscriminate attacks against civilians, including religious and ethnic minorities, arbitrary arrests, alleged ill-treatment while in detention, and sexual and gender-based violence. Moreover, impunity is reported as being widespread, while access to justice is largely absent due to fear of reprisals, lack of capacity among rule of law institutions, corruption and lack of awareness of accountability mechanisms. In the Kurdistan Region of Iraq, while the security situation is considerably better than in the rest of the country, specific concerns have been raised with regard to, inter alia: serious violations of the rights of suspects and detainees by KRG [Kurdistan Regional Government] authorities; sexual and gender-based violence; and the impact of anti-terrorism legislation on human rights, including specifically the practice of keeping persons in de facto unlimited administrative detention.” 30. The UK Border Agency Iraq Operational Guidance Note of December 2011 noted (at paras. 2.3.4 and 2.3.5): “Violence, albeit still far above what ought to be tolerable, has levelled off in the past two years. Iraqi security forces have taken the lead in several important operations. Recently, they have withstood three noteworthy tests: the departure of close to 100,000 US troops since January 2009; the March 2010 parliamentary elections; and, over the past several months, political uncertainty prompted by institutional deadlock. If insurgents remain as weak as they are and find no fresh opportunity to exploit political fractures, security forces operating at less-than-optimal levels still should face no serious difficulty in confronting them. It has been reported that although oversight by the MOI [Ministry of Interior] and MOD [Ministry of Defence] has increased, problems continue with all security forces, arising from sectarian divisions, corruption, and unwillingness to serve outside the areas in which personnel were recruited. ...” 31. In its July – December 2012 report, UNAMI noted, inter alia, the following: “While there have been some improvements in terms of security for Iraq’s ethnic and religious groups, their situation remains precarious. During the second half of 2012, UNAMI continued to receive reports of attacks directed at persons on account of their ethnic or religious affiliations. UNAMI has particular concerns regarding the situation of the Turkmen community in the disputed areas, Christian families that migrated from Baghdad to Erbil following attacks against the community in 2010, and the rising tension between the Shabak and the Christian minorities in Ninewa. Figures collected by UNAMI indicate that members of minority groups are still leaving their homes in many areas on account of insecurity and acts of violence perpetrated against their communities, compounded by lack of access to basic services and poor economic opportunities.” This report does not contain any information on the Mandaean community, but UNAMI’s 2011 report, published in May 2012, noted the following about their situation in the Kurdistan Region (at p. 32): “The numbers of Sabian Mandaean families have fallen to approximately 75 in the Kurdistan Region due to migration of members of the group. Some community representatives informed UNAMI that they do not face any threat or persecution in the Kurdistan Region and they are supported by the Government, but most are migrating for economic reasons.” 32. The Minority Rights Group International described the Mandaeans in Iraq thus (Iraq’s Minorities: Participation in Public Life, November 2011, p. 9): “Sabean Mandaeans, whose religion is one of the oldest surviving Gnostic religions in the world, have existed in Iraq for more than two millennia. Many of the 60,000–70,000 present in the Middle East once lived in Iraq, but today, their numbers there have dwindled to around 5,000 people, mainly through displacement, but also through killings. Traditionally, many Sabean Mandaeans have worked as goldsmiths; the resulting perception that they are wealthy has contributed to their being targeted for kidnapping. They are forbidden by their faith to marry outside the religion, which has contributed to their reduced numbers since 2003.” In regard to minority women, the Minority Rights Group International gave, inter alia, the following account (ibid., p. 25): “For minority women, the situation again follows the general trend, with the added security risk that comes from being from a minority. Fifty-seven per cent of respondents to the IMC [Iraqi Minorities Council] survey said that they believed that women needed to hide their religious affiliation, either by not wearing their religious symbols or traditional makeup, by covering their heads even if they are secular or non-Muslims, or by not speaking in their traditional languages ... . A number of Faili Kurd, Sabean-Mandaean and Christian women stated that they avoid speaking their language (e.g. Assyrian, Armenian) or wearing clothes that indicate their community belonging when in public. Non-Muslim minority women in particular complain of pressure to modify their dress. ... Overall, only 25 per cent of respondents surveyed said that they thought that women felt safe when leaving the home. Sabean-Mandaean women have reported being pressured to convert to Islam; they also report physical and verbal abuse on the street from university staff, or, if in employment, for not covering their heads and not adhering to an Islamic dress code.” 33. On 31 May 2012 the United Nations High Commissioner for Refugees (UNHCR) issued the latest Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq (hereafter “the UNHCR Guidelines”). The situation for members of religious minorities is summarised as follows (at p. 27): Iraq are likely to be in need of international refugee protection on the grounds of religion, (imputed) political opinion or membership in a particular social group. Christian converts are likely to be in need of international refugee protection in the whole country, including the Kurdistan Region.” In regard to minority women, UNHCR states (at p. 27): “Minority women are likely the most vulnerable section of Iraqi society, facing violence and discrimination from a variety of actors on account both of their gender and their religious affiliation. Minority women’s freedom of movement and freedom to express their religious identity through the way they dress has been severely restricted by ongoing threats of violence and growing religious intolerance. This, in turn, restricts their access to health services, employment and education.” UNHCR give the following information relating to the Mandaean community (at p. 29): “The Sabaean-Mandaean religion is a gnostic religion with John the Baptist as a central figure and considered a prophet. Its adherents cannot marry outside the faith and they do not accept converts. Before 2003, there were an estimated 50,000 to 70,000 Mandaeans living in Iraq many of whom were well educated and worked as doctors, engineers, dentists and jewelers. After the fall of the former regime, Sunni and Shi’ite armed groups, as well as criminals, have singled out Sabaean-Mandaeans on the basis of their religion, profession and (perceived) wealth. Some Sabaean-Mandaeans elders, who traditionally wear long beards, have reportedly been attacked by Shi’ite militants who have mistaken them for strictly observant Sunni Arabs or Wahhabists. Sabaean-Mandaeans are particularly vulnerable to attacks for several reasons. Unlike other groups in Iraq, the pacifist Mandaeans did not form militias to defend themselves. Further, the already small community lives mainly in scattered groups. Their disputed status as “people of the book”, which under the Qur’an would provide them with a level of protection, failed to dissuade extremist groups from targeting them. As a result of general violence and targeted attacks, large numbers of Mandaeans fled Iraq, mainly to Syria and Jordan. Currently, an estimated 3,500 to 7,000 Mandaeans remain in Iraq. Most of them live in Baghdad and southern Iraq, including in Amara, Basrah and Nassiriyah. According to a spokesman for the Mandaean community, there are currently about 500 Mandaean families in southern Iraq, mostly in the Governorate of Basrah. Since 2003, Sabaean-Mandaeans have been subjected to threats, abductions and killings. There are also reports of forced conversions to Islam and some Sabaean-Mandaeans have reportedly been killed for refusing to do so. Most religious leaders have either been killed or fled the country. Eight Sabaean-Mandaeans were reportedly killed and five injured in 2010 in what were reported to be targeted attacks. In 2011, additional kidnappings and killings were reported by the Mandaean Associations Union. Sabaean-Mandaean goldsmiths reportedly continued to receive threats and suffer from attacks. Even in cases of kidnapping for ransom, the perpetrators may deliberately single out Sabaean-Mandaeans due to their vulnerable status as a religious minority, considered “infidel”. There have been reports of kidnapped Sabaean-Mandaeans killed or remaining missing despite the payment of ransom. In addition to targeted violence perpetrated against Sabaean-Mandaeans, the community has also suffered from social marginalization and religious discrimination. There are no schools in southern and central Iraq that teach children in their language, Aramaic, and children are obliged to undertake Qur’anic studies at public schools. Sabaean-Mandaean women are pressured to observe the hijab in public in order to avoid physical and verbal abuse, although their religion does not require veiling. Reportedly, Sabaean-Mandaean women have been pressured to marry outside their faith in contradiction with their own religious customs and have been pressured to convert to Islam.” 34. In its International Religious Freedom Report for 2012, published on 20 May 2013, the United States Department of State summarises the religious situation in Iraq thus: “The constitution provides for religious freedom and the government generally respected religious freedom in practice. The trend in the government’s respect for religious freedom did not change significantly during the year. The constitution recognizes Islam as the official religion, mandates that Islam be considered a source of legislation, and states that no law may be enacted that contradicts the established provisions of Islam. However, it also states that no law may contradict principles of democracy or the rights and basic freedoms stipulated in the constitution. The constitution guarantees freedom from intellectual, political, and religious coercion. Some apparent contradictions between the constitution and other legal provisions were tested in court during the year; the courts upheld full legal protection for religious freedom in those cases. Other contradictions remain untested. Officials sometimes misused their authority to limit freedom for religious groups other than their own. However, the government continued to call for tolerance and acceptance of all religious minorities, provided security for places of worship such as churches, mosques, shrines, and religious pilgrimage sites and routes, and funded the construction and renovation of places of worship for some religious minorities. Al-Qaeda in Iraq (AQI) and other terrorist and illegally armed groups commited violent attacks that restricted the ability of all believers to practice their religion. There were reports of societal abuses and discrimination based on religious affiliation, belief, or practice. Sectarian violence occurred throughout the country, although to a lesser extent in the Iraqi Kurdistan Region (IKR), and restricted religious freedom. No reliable statistics on religiously motivated violence were available. The overwhelming majority of mass casualty terrorist attacks targeted Muslims. A combination of sectarian hiring practices, corruption, targeted attacks, and the uneven application of the law had a detrimental economic effect on minority non-Muslim communities, and contributed to the departure of non-Muslims from the country.” 35. Designating Iraq as a “country of particular concern” for the sixth year running, the United States Commission on International Religious Freedoms, in its 2013 Annual Report, published on 30 April 2013, made the following findings: “Over the last several years the Iraqi government has made efforts to increase security for religious sites and worshippers, provide a stronger voice for Iraq’s smallest minorities in parliament, and revise secondary school textbooks to portray minorities in a more positive light. Nevertheless, the government of Iraq continues to tolerate systematic, ongoing, and egregious religious freedom violations, including violent religiously-motivated attacks. Violence against Iraqi civilians continued in 2012 at approximately the same level as in 2011. In addition, the government took actions that increased, rather than reduced, Sunni-Shi’i and Arab-Kurdish tensions, threatening the country’s already fragile stability and further exacerbating the poor religious freedom environment. ... Shi’i Muslims experienced the worst attacks of any religious community during the reporting period, including against pilgrims participating in celebrations on or around important religious holidays. The government has proven unable to stop religiously-motivated attacks from occurring and lacks the will or capacity to investigate attacks and bring perpetrators to justice. This has created a climate of impunity, which in turn exacerbates a perpetual sense of fear for all religious communities, particularly the smallest ones. Large percentages of the country’s smallest religious minorities – which include Chaldo-Assyrian and other Christians, Sabean Mandaeans, and Yezidis – have fled the country in recent years, threatening these communities’ continued existence in Iraq. The diminished numbers that remain face official discrimination, marginalization, and neglect, particularly in areas of northern Iraq over which the Iraqi government and the Kurdistan Regional Government (KRG) dispute control. Religious freedom abuses continue towards women and individuals who do not conform to strict interpretations of religious norms or attacks on businesses viewed as “un-Islamic”. However, in a positive development, the Iraqi parliament shelved a problematic draft Information Crimes law that would have restricted the freedoms of religion and expression. Additionally the KRG parliament rejected a draft law to “protect sanctities,” which, if adopted, would violate these same freedoms. However, there are reports that KRG officials may still pursue legal action against the media for offending religion, Kurdish history, or national symbols. ... Many of the non-Muslim minorities internally displaced by violence have gone to the north of the country, mainly to Nineveh governorate and the territory of the KRG, which is comprised of three other governorates. Northern Iraq, particularly the Nineveh Plains area of Nineveh governorate, is the historic homeland of Iraq’s Christian community, and the Yezidi community is indigenous to Nineveh and the KRG governorate of Dahuk. The three KRG governorates are relatively secure, but Nineveh governorate, particularly in and around its capital Mosul, remains extremely dangerous, and control over this ethnically and religiously mixed area is disputed between the KRG and the central Iraqi government. Religious and ethnic minorities in these areas, including non-Muslims and ethnic Shabak and Turkomen, have accused Kurdish forces and officials of engaging in systematic abuses and discrimination against them to further Kurdish territorial claims. These accusations include reports of Kurdish officials interfering with minorities’ voting rights; encroaching on, seizing, and refusing to return minority land; conditioning the provision of services and assistance to minority communities on support for Kurdish expansion; forcing minorities to identify themselves as either Arabs or Kurds; and impeding the formation of local minority police forces. The minorities also accuse both Arab and Kurdish officials of ignoring these vulnerable communities as they focus on their fight for territorial control.” 36. The Representative of the UN Secretary-General stated in the above-mentioned report of 16 February 2011 (at para. 65): ”In the Kurdistan Region of Iraq, the Representative acknowledges that KRG has received and provided safety to IDPs [internally displaced persons] from all over Iraq regardless of their origin, particularly in the aftermath of the sectarian violence in the country 2006. Stronger coordination and cooperation mechanisms between the Central Government and KRG are necessary however, to address the situation of IDPs in this region, including vulnerable groups, as well as a number of administrative and financial assistance issues, such as difficulties in transferring PDS cards [Public Distribution System food ration cards] and receiving pensions, which are adversely affecting the rights and standard of living of IDPs. As well, while improved social, security, and economic conditions prevail in this region, continued cross border attacks continue to cause periodic displacement of its border populations. The Representative believes that stronger cooperation between the Government of Iraq and KRG, as well as concerted diplomatic efforts and border dialogues with relevant neighbouring countries, must be undertaken in order to prevent and raise awareness of the impact of cross-border attacks on civilian populations.” 37. The UNHCR Guidelines contain the following observations (at pp. 27 and 48-51): “In the Kurdistan Region, the rights of religious minorities are generally respected and groups can worship freely without interference. The KRG Ministry of Education funds public schools at the elementary and high school level in the Aramaic language. The curriculum in the Kurdistan Region does not contain religion or Qur’an studies. A significant number of religious minorities, in particular Christians, have sought refuge in the region. ... A large number of persons from the central governorates have found refuge in the three northern governorates since 2006. Commensurate with the sharp decrease in new displacements generally, the flow of new arrivals has decreased significantly; however, only a few of those previously displaced have to date returned to their places of origin. The influx of IDPs has had an important impact on the host communities, including increasing housing and rental prices, additional pressure on already strained public services and concerns about security and demographic shifts. At the same time, the three northern governorates have also benefited from the migration of professionals bringing skills and disposable incomes that boost the local economy. Unskilled IDPs have provided a source of affordable labour for the construction industry. The KRG authorities continue to implement stringent controls on the presence of persons not originating from the Kurdistan Region. Depending on the applicant, particularly his/her ethnic and political profile, he/she may not be allowed to relocate to or take up legal residence in the three northern governorates for security, political or demographic reasons. Others may be able to enter and legalize their stay, but may fear continued persecution as they may still be within reach of the actors of persecution or face undue hardship. Therefore, despite the hospitable attitude of the KRG authorities towards a considerable number of IDPs, the availability of an IFA/IRA [internal flight/relocation alternative] must be carefully assessed on a case-by-case basis ... ... Since the fall of the former regime, the KRG authorities are very vigilant about who enters the Kurdistan Region and have introduced strict security measures at their checkpoints. However, there are no official and publicly accessible regulations concerning procedures and practices at the entry checkpoints into the Kurdistan Region. An ad hoc and often inconsistent approach can be expected in terms of who is granted access, varying not only from governorate to governorate, but also from checkpoint to checkpoint. The approach at a particular checkpoint may be influenced by several factors including the overall security situation, the particular checkpoint and its staff, the instructions issued on that day and the particular governorate where the checkpoint is situated. UNHCR has repeatedly sought to obtain information and clarification from the KRG authorities on checkpoint practices and entry/residence in the Kurdistan Region, without success. Therefore, persons seeking to relocate to the Kurdistan Region depend on informal information with regard to entry procedures. Individuals/families wishing to enter the Kurdistan Region can seek to obtain a tourist, work or residence card. The tourist card, which is commonly given to persons from central and southern Iraq who seek to enter the Kurdistan Region, allows the holder to stay for up to 30 days. Depending on the person’s profile, but also the checkpoint and the officer in charge, persons seeking to enter as tourists may be required to produce a sponsor. Arabs, Turkmen and Kurds from the disputed areas are usually requested to have a sponsor, while Kurds (not from the disputed areas) and Christians are able to enter without a sponsor. Alternatively, persons who have a proof of employment (letter of appointment) can obtain a work card, which is valid for 10-15 days and is, in principle, renewable. Persons seeking to stay more than 30 days should in principle obtain a residence card. Long-term stays always require a sponsor. UNHCR is not aware of any IDPs who have received the residence card. The sponsorship process lacks clarity and there is no uniform procedure in place. In some cases, the sponsor is required to be physically present at the checkpoint to secure the person’s entry. In other cases, it seems to suffice that a person seeking to relocate to the Kurdistan Region produces a letter notarized by a court clerk attesting to the person’s connection to the sponsor. In some cases, the officer at the checkpoint will simply make a phone call to the sponsor to verify the acquaintance. Iraqis without sufficiently strong ties to the Kurdistan Region and who, therefore, are unable to find a sponsor, may be denied entry into the Kurdistan Region. There are reportedly also different requirements as to the nature of the sponsor. UNHCR is aware of individuals who have been refused entry into the Kurdistan Region. Arabs, Turkmen and certain profiles of Kurds will likely face extensive questioning and may be denied entry at the checkpoint, mostly due to security concerns. In particular, single Arab males, including minors, are likely either to be denied entry into the Kurdistan Region or to be allowed entry only after a lengthy administrative procedure and heavy interrogation. Checkpoints reportedly maintain “blacklists” of individuals banned from entering the Kurdistan Region, including those considered a security risk, but also those who have previously overstayed or did not renew their residence permits. Christians, especially those who fled due to targeted attacks, reportedly do not face difficulties in entering the Kurdistan Region. Persons not originating from one of the three northern governorates intending to remain in the Kurdistan Region for more than 30 days must approach the neighbourhood security station (Asayish) in the area of relocation to obtain a permit to stay (“information card” or karti zaniyari). As with the entry procedures, there are no official rules or regulations concerning the issuance of information cards. Generally, in all three governorates, a sponsor is required in order to obtain the information card. This means that those that were able to enter without a sponsor are, at this stage, obliged to find a sponsor. Families, provided they have a sponsor from the governorate concerned and the necessary personal documentation, are usually able to secure the information card. Single people apparently face more difficulties. Persons who do not have a sponsor will not be able to regularize their continued stay and may be forced to leave. Persons fleeing persecution at the hands of the KRG or the ruling parties will almost always not be able to find protection in another part of the Kurdistan Region. Persons fleeing persecution at the hands of non-state actors (e.g. family/tribe in the case of fear from “honour killing” or blood feud) may still be within reach of their persecutors. The same applies for persons fearing persecution by armed Islamist groups.” 38. As regards the acquisition of identity documents, the UK Border Agency maintained (Iraq Operational Guidance Note of December 2011, para. 2.4.5, and of December 2012, para. 2.4.4): “It is not necessary for an individual to return to their registered place of residence to transfer documents to a new area of Iraq. It is possible for example to apply at a registration office in Baghdad, to have documents transferred from elsewhere in Iraq. However the MoDM [Ministry of Displacement and Migration] have said that in practice this does not happen because it is now safe enough for someone to return to their registered place of residence to arrange to transfer documents. The processes and procedures were the same throughout governorates across south and central Iraq.” Disagreeing with the UNHCR as to the possibility of internal relocation for Iraqi asylum seekers, the Border Agency further stated (Iraq Operational Guidance Note of December 2011, para. 2.4.14): “We do not however accept UNHCR’s conclusions on internal relocation from the central governorates and consider that there is likely to be considerable scope for internal relocation that achieves both safety and reasonableness in all the circumstances. We consider UNHCR’s position is tied in with general policy considerations (e.g. about managing the rates of return) deriving from their general and Iraq-specific remit; we do not consider that in the light of the evidence taken as a whole that mere civilian returnees are at real risk of persecution under the Refugee Convention or of serious harm under either the [EU] Qualification Directive or Article 3 [of the European Convention on Human Rights] currently.” In its December 2012 note (at para. 2.4.17), the Border Agency added the conclusions drawn by the UK Upper Tribunal (see the following paragraph). 39. In a country guidance determination, MK (documents – relocation) Iraq CG [2012] UKUT 00126 (IAC), delivered on 25 April 2012, the UK Upper Tribunal (Immigration and Asylum Chamber) concluded, among other things, the following (at para. 88): “Entry into and residence in the KRG can be effected by any Iraqi national with a CSID [Civil Status ID], INC [Iraqi Nationality Certificate] and PDS, after registration with the Asayish (local security office). An Arab may need a sponsor; a Kurd will not. Living conditions in the KRG for a person who has relocated there are not without difficulties, but there are jobs, and there is access to free health care facilities, education, rented accommodation and financial and other support from UNHCR.” 40. The findings in MK were endorsed in a recent country guidance determination, HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409 (IAC), of 13 November 2012. Having particular regard to the Danish/UK report extensively quoted below (at § 42), the Upper Tribunal stated (at para. 348): “Taking the evidence as a whole, we consider that if anything, it tends to show that no-one needs a sponsor, rather than, as was concluded in MK, that a Kurd will not and an Arab may. By needing a sponsor we refer not only to entry but also to residence in the KRG. ...” On the issue of identity documents, it further noted (at para. 358): “... [In MK] the Tribunal commented that there was nothing to show that it was, or perhaps ever had been, the case that a central register in Baghdad had been kept. [F]urther evidence [now presented] requires us to modify that position. Given the current state of the evidence in this regard, we consider that we can add to the guidance in MK by noting the existence of the Central Archive retaining civil identity records on microfiche, providing a further way in which a person can identify themselves and obtain a copy of their CSID, whether from abroad or within Iraq.” 41. The Finnish Immigration Service and the Swiss Federal Office for Migration published on 1 February 2012 the Report on Joint Finnish-Swiss Fact-Finding Mission to Amman and the Kurdish Regional Government (KRG) Area, May 10-22, 2011 (“the Finnish/Swiss report”). In summarising the situation (at p. 3), it noted, among other things, the following: “At the time of the FFM [Fact-Finding Mission], there seemed to be little discrimination against ethnic or religious minorities. The flight of Christians from Central Iraq to the KRG area has continued since the bomb attack on a church in Baghdad in October 2010. Internally displaced persons (IDPs) and refugees are better off in the KRG area than in the rest of Iraq and generally felt safe in the region at the time of the FFM. At the same time, some suffer from poverty, remain unregistered, and lack access to proper housing, education, health care, and employment.” It further stated (at pp. 49-50): “Interviewed sources confirmed that the KRG is open and liberal toward religious minorities and normally also toward ethnic minorities. The areas controlled by the KRG can be considered safe for minorities. In the Iraqi Kurdish areas, a majority of Kurds live close to minorities such as Christians, Arabs, Turkmen, Yazidis, Fayli Kurds, Shabak, Kakai, and Mandaeans / Sabaeans. Fayli Kurds, Yazidis, Kakai, and Shabak are perceived as Kurds and therefore are generally not persecuted, but they can be under social pressure for assimilation.” On the subject of entry procedures at the KRG area border, the report gave the following account (at pp. 59-60): “The fact-finding mission learned that there have been no relevant, recent changes to KRG entry and screening procedures. UNHCR Iraq in Erbil indicated that there are no government statistics available on who has entered the KRG area and who has been denied access. There are four main entry checkpoints to the KRG area, which are controlled by the KRG Security Protection Agency. The checkpoints apply basically the same entry procedures. At the same time, some international organizations, NGOs, and the UNHCR claimed that the guidelines on entry practices are not consistent between the three northern governorates of the KRG or between checkpoints leading to a single governorate. There are also no published instructions or regulations on entry procedures, as these would be against the Iraqi Constitution. According to the UNHCR, entry often depends on the commander on duty and the commander’s daily instructions at the checkpoint. The procedures can be tightened or relaxed according to the current security situation in the area. Several NGOs and the UNHCR have surveyed IDPs at different times concerning entry procedures to the KRG region at different checkpoints. A comparison of the results shows differences in entry practices between governorates and time periods. For instance, the surveys show that the need for a sponsor / guarantor has essentially ceased at a Dohuk governorate entry checkpoint, but that even at one checkpoint congruency can lack at different times. ... People who are denied entry to the KRG area are often not of Kurdish ethnicity. Kurds and Christians are generally allowed entry, whereas single male Sunni Arabs without a sponsor in the KRG area are refused. The UNHCR noted that female Arabs have also had trouble entering the KRG area. Single females are also at higher risk of harassment by authorities. However, a source mentioned that Arabs from Central and Southern Iraq who invest in the KRG area are welcomed to the region. According to another source, IDPs with money are able to move to Erbil and start a business. Anyone wishing to enter the KRG area who does not originate from the region typically needs to know someone there (a so-called sponsor / guarantor) or have a letter of reference from an employer in the KRG area. A sponsor is needed if the person wants to stay in the KRG area for more than 10 days or wants to register and seek residency in the region. If someone enters the KRG area and subsequently commits a crime, his or her sponsor will be punished and may even face a prison sentence. A member of the immediate family or some other relative often acts as the sponsor. An institution such as an university can also act as a sponsor. The fact-finding mission received conflicting information during interviews on whether or not a church can act as a sponsor. The policy applied to Christians was said to have been relaxed after the bomb attack at a church in Baghdad in October 2010. Christians may currently be able to nominate senior clerics as sponsors. The fact-finding mission heard that it is easier for Kurds originating outside the KRG area than for persons of other ethnicities to find a sponsor in the region.” 42. Published in March 2012, the Joint Report of the Danish Immigration Service / UK Border Agency Fact Finding Mission to Erbil and Dahuk, Kurdistan Region of Iraq (KRI), conducted 11 to 22 November 2011 (“the Danish/UK report”) gave the following information: “1.02 According to the Director of an international NGO in Erbil, all Iraqis irrespective of ethnic origin or religious orientation are free to enter KRI through the KRG external checkpoints by presenting their Iraqi Civil ID Card [and] there were thousands of persons of Arab origin living in KRI, many living with their families, whilst others had come to KRI for work, including individuals. ... 1.08 [The Director of the Bureau of Migration and Displacement (BMD) of the Ministry of Interior in Erbil explained that at] present approximately 40,000 IDP families from [southern and central] Iraq and the disputed areas reside in all three governorates of KRI, i.e. Erbil, Suleimaniyah and Dohuk governorates. ... 1.10 ... [The Director of BMD stated that] there are large numbers of IDPs from religious minority communities in [southern and central] Iraq and the disputed areas. These are mostly Christians and Saebaens who were displaced following sectarian violence. ... 2.04 [The Head of the Private Bureau of General Security (Asayish)] explained that it was important the KRG authorities knew who was entering KRI and therefore the Asayish had good levels of cooperation with Iraqi intelligence, sharing details of persons who they were required to arrest and stop. In addition the Asayish maintained their own classified information on terrorist groups, such as Ansar-e-Islam or Al Qaeda in Iraq. [He] explained there were two security lists in operation, the “black list”, which included persons who had an arrest warrant outstanding for their detention and a second list, i.e. the “stop list”. ... 2.16 According to [the Head of Asayish,] at KRG external checkpoints, documents would be required to prove the identity of a person[. T]his could include their Civil ID Card, Nationality Card, passport or, if they worked for a government department, their departmental ID card. However[, he] further explained that a person would not necessarily be denied entry into KRI because he or she lacked some identification documents, as the system is computerised. [He] went on to explain that a person already on their database system would be logged with their photo and name recorded onto the system. Consequently such a person could even enter KRI with only a driving licence or a similar document which proved the individual’s identity and Iraqi citizenship. ... 2.28 [The General Manager of Kurdistan checkpoints in the Kurdistan Regional Security Protection Agency, KRG Ministry of Interior, Erbil] explained [that] after a person had finished providing information about their identity to Asayish at the KRG external checkpoint, they would then undergo a second procedure at the checkpoint to apply for the appropriate entry card. There existed three entry cards: a Tourism Card, a Work Card, and an Information Card/Residency Card for those seeking to reside in KRI. Once the relevant card had been issued, the person would then be free to travel throughout KRI, including travel between the three KRI governorates, without being required to show any further form of documentation. [He] stated that this procedure made it easy for anyone to move freely within KRI. ... 2.30 During a visit by the delegation to the Mosul-Erbil checkpoint, ... [w]hen asked what would happen if a person did not have an address or know anyone in KRI, [the major who had overall operational responsibility for the checkpoint] explained that such a person would still be allowed to enter and the majority of those coming into KRI were migrant workers in search of employment with no reference in KRI. 2.31 PAO [Public Aid Organisation, the UNHCR Protection and Assistance Centre partner in Erbil] outlined the entry procedures at the KRG external checkpoints and noted that persons seeking to enter the KRI would be questioned and asked to provide their identification, usually a Civil ID Card or Nationality Card, after which they would obtain one of three cards for entry – a Tourism Card, valid for 1 day or up to 1 month and which was renewable; a Work Card valid for 10 – 15 days which was also renewable; or an Information Card/Residency Card for those seeking to reside in KRI. PAO did not know how long this card, issued at the checkpoint, would be valid for. ... 3.05 The Director of an international NGO in Erbil explained that whenever there are specific security concerns and/or threats of terrorist attacks the security and entry procedures will be adapted to the situation. Such procedures only related to security concerns and not to any other factor and these procedures are normal even in Europe. 3.06 When asked if there would be variations in applied entry procedures at KRG checkpoints, an international organization (A) stated that such variations are only related to security concerns and precautions and nothing else. 3.07 According to Harikar NGO, all entry procedures are only related to security considerations and nothing else. Harikar NGO emphasized that its cooperation with the Asayish is good and that the Asayish comply with the law, including the procedures applied at KRG checkpoints. Harikar NGO has not noticed any irregularities or arbitrary practices at the checkpoints. 3.08 [The Head of Asayish] clarified that the policy requiring a person to provide a reference at the KRG external checkpoint, i.e. before entry, existed when the security situation was more precarious, but was abandoned around two or three years ago. However[, he] added there may still be some instances in which a person was asked by Asayish at the checkpoint to make a telephone call to somebody they knew, to verify their identity. 3.09 During a tour of the Mosul-Erbil checkpoint [the major who had overall operational responsibility for the checkpoint] explained that there was no longer a requirement for a reference to be present at the KRG external checkpoint and [that] this procedure was abolished around four years ago. ... 3.11 The Director of an international NGO in Erbil explained that the former requirement that a reference should be present at the KRG checkpoint in order for a person to enter KRI has been abolished. 3.12 Harikar NGO stated that there is no requirement for a reference to be present at a KRG checkpoint in order for an Iraqi from outside KRI to enter. ... ... 4.34 When asked how persons without genuine identity documents would be treated by the KRG authorities when seeking to enter KRI, an international organization (B) explained that a Kurd without personal ID documents may be treated more sympathetically and be permitted entry because they would normally know someone in KRI who could identify him or her or they would have a known family/clan name which was recognised. With regard to Christians, the entry arrangements were significantly easier and such persons may even be able to enter KRI without providing any documentation at all. This was because Christians were not considered a terrorist threat to the region – the KRG authorities were very lenient towards Christians. However, the international organization (B) concluded that a person of Arab origin without genuine documents to identify themselves would not be permitted entry. ... 4.41 According to the Director of an international NGO in Erbil, all Iraqis irrespective of ethnic origin or religious orientation are free to enter KRI through the KRG external checkpoints by presenting their Iraqi Civil ID Card. The Director added that Iraqi Turkmen, Christians and Faili Kurds normally enter through these checkpoints without any difficulties. On the other hand Iraqis of Arab origin would normally be required to undergo greater scrutiny, requested to present their Civil ID Card at the checkpoint and explain the nature and intention of their visit to KRI. However, this procedure was unproblematic and did not require that a reference should be present at the checkpoint. According to [the Director] all persons would be required to routinely show their Civil ID Card at the entry checkpoint and persons of Arab origin faced no problems in staying in the KRI. However the same source clarified that persons of Arab origin would normally have their Civil ID Card photocopied as an extra security precaution. The Director emphasized that persons of Arab origin do not need a reference to be present at the checkpoint.”
| 0 |
test
|
001-148292
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF ALEKSANDR VALERYEVICH KAZAKOV v. RUSSIA
| 4 |
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)
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Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
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5. The applicant was born in 1960 and lives in Petropavlovsk-Kamchatskiy. 6. On an unspecified date the prosecutor’s office opened a criminal investigation into the activities of a criminal gang allegedly organised by V., a high-ranking police officer at the time. The members of the gang were suspected of numerous thefts of goods and foodstuffs from various storage facilities. One of the episodes under investigation was a fraudulent attempt by the members of the gang to sell scrap metal, which belonged to a private company, to a scrap metal processing plant. According to the official version, the attempt to sell the scrap metal was carried out by V., the applicant, who was also a high-ranking police officer at the time, and G., another member of the gang. On an unspecified date in November 2000 V., the applicant and G. met with M., a director of the scrap processing plant, and fraudulently represented to him that the scrap metal belonged to K. and that they were acting on her behalf. M. agreed to purchase the scrap metal and on 23 November 2000 he sent a group of workers to the company’s site in order to have the scrap metal removed. G.’s boyfriend Yer., another member of the gang, was also present at the site at the time. The removal of the scrap metal was interrupted by B., one of the private company’s directors. Yer. phoned G., who told him to go to the police station to notify V. of the incident. Then both Yer. and G. returned to the site to settle the issue with B., who had complained to the police about the attempted theft of the scrap metal. B. also informed Vosh., the company’s managing director, of the incident. Acting in his official capacity, V. assigned the investigation into the attempted theft of scrap metal to Yem., who decided to question M. However, V. interviewed M. himself and brought Yem. M.’s statement. Yem. questioned K., who submitted that she had nothing to do with the removal of the scrap metal from the company’s premises. 7. On 8 May 2002 the applicant was arrested and remanded in custody. On 3 December 2002 he was released on bail. 8. On 9 December 2002 the applicant was formally charged with more than ten counts of financial fraud, theft and embezzlement committed in collusion with eight members of the gang. 9. The trial opened in January 2003. At the end of the trial the prosecutor dropped all the charges against the applicant except the attempted theft of scrap metal. 10. The applicant maintained his innocence. The testimony he gave at the trial was summed up as follows in the judgment: “... he has known V. since 1996 due to his service in the Ministry of the Interior[.] They have been friends. Since the late nineties he has known G. too, whom he met from time to time at different places and visited her at her home for work purposes. In the summer of 2000, V. asked ... to take him to the site [where the scrap metal was] in order to meet G. G. asked him and V. to help the buyer of the scrap metal to ensure its safety. He and V. promised to ask one of the police patrol teams to secure the scrap metal. They informed accordingly the buyer who arrived later to inspect the scrap metal. He did not talk to anyone about stealing and selling the scrap metal. He did not conspire with such intent and he did not take part in any negotiations about that. He did not receive any proceeds from the sale of the scrap metal or any advance payment. Nor did he take any measures to conceal the crimes committed by G. She falsely accused him of the involvement in the attempted theft of the scrap metal.” 11. The trial court questioned B., Vosh., and Yem. It further admitted into evidence the statements made by M., Yersh., and K. when questioned by the investigator. As regards witness M., the court noted that he had been away on a business trip and could not attend the court hearing. It considered that this absence amounted to an extraordinary circumstance that would permit the reading-out of his earlier statement. Despite the applicant’s objection, the court dispensed with summoning M. again for questioning and proceeded with the reading-out of his statement. According to the Government, the information concerning M.’s absence was communicated to the court by M.’s wife by telephone. 12. According to the written statement, used by the court, M. stated as follows: “... he has been the General Director of the Steel Company LLC since 1995. It specializes in buying scrap metal from individuals and legal entities in the region. One of the long-term suppliers for his company was [G.]. In the spring of 2000 [G.] proposed being a middle person between the Steel Company LLC and her acquaintances who intended to sell a large quantity of scrap metal. She suggested that [he] meet with those persons to discuss the terms and conditions of the transaction. As was suggested by [G.], at the end of May 2000 he met with those persons at the site where the scrap metal was located ... . He met two men whose names were Aleksandr and Vladimir. They claimed that the scrap metal belonged to them and offered him to buy it. Subsequently, [G.] told him that those men were high ranking police officers ... . During the meeting Aleksandr asked him to make an advance payment for the scrap metal in the amount of RUB 150,000. [He also said] that it was for the Steel Company LLC to saw and dismantle the metal structure. When he asked them to show the documents confirming their title to the scrap metal, Aleksandr and Vladimir “stepped back” and explained that they were also middle men and that the scrap metal belonged to another person. [G.] did not take part in the discussion. He suggested that they could get back to discuss the transaction once they had the necessary documents. Then he left. In mid-November 2000 [G.] contacted him again as regards that scrap metal. She explained that police officers Aleksandr and Vladimir would present all the documents for the scrap metal and that she would draft the purchase contract. Several days later [G.] brought [a draft contract] which indicated that the scrap metal belonged to K. ... . According to [G.], the owner of the scrap metal was at the seaside and would contact him later ... . [G.] convinced him that the transaction was legal as the middle men and “underwriters” were high ranking police officers. He has known [G.] for her good reputation. He trusted her assurances as to the guarantees provided by the police officers and signed the contract. He asked his employees to start sawing the metal structure. Then a criminal investigation was opened. [G.] came to see him and explained that the police officers Aleksandr and Vladimir had set her up and that she had paid each of them RUB 10,000 from the amount his company had paid her for the metal. A day later, Vladimir came to see him. He asked him to make a written statement and said that he would resolve all the problems and that the criminal case would be closed. He responded that he had no problems because all his actions had been in compliance with law.” 13. According to the applicant, the trial court refused to summon K., O. and P., witnesses for the defence. 14. On 14 June 2005 the Petropavlovsk-Kamchatskiy Town Court found the applicant guilty of an attempted theft of scrap metal. The applicant was sentenced to six years’ imprisonment. 15. The Town Court’s findings as regards the applicant’s guilt were based on the testimonies of B., Vosh. and Yem., who were questioned during the trial. The court also referred to the statements given by K. and Yer. during the pre-trial investigation. Lastly, it relied on the statement made by M. during the pre-trial investigation. 16. The text of the judgment remained silent as to G.’s testimony regarding the attempted theft of the scrap metal. It was indicated that she had pleaded guilty to that charge. 17. Lastly, the trial court examined and admitted as evidence the following documents: (1) B.’s complaint to the police about the attempted theft of the scrap metal; (2) his company’s financial statements; (3) a contract for removal of the scrap metal signed by G. and M.; (4) G.’s telephone records; (5) M.’s statements recorded by V. and (6) the police order appointing V. to the post of the head of the police station. 18. On an unspecified date the applicant lodged an appeal against the judgment of 14 June 2005. He complained, inter alia, about M.’s nonattendance. 19. On 27 September 2005 the Kamchatka Regional Court upheld, in substance, the applicant’s conviction but reduced his sentence to four years’ imprisonment.
| 1 |
test
|
001-164467
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ENG
|
UKR
|
CHAMBER
| 2,016 |
CASE OF ZOSYMOV v. UKRAINE
| 4 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);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)
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André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits
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5. In 1996 the applicant and his wife started a family business which involved, among other things, the replication of digital data and the sale of blank data storage devices. They used a flat on P. Street in Kyiv owned by the applicant’s mother as their office, in which they had copying equipment set up. 6. On 20 August 2002 several police officers from the Kyiv Economic Crime Unit (“KECU”) inspected the applicant’s office at P. Street in his and his wife’s presence. 7. On the same date the KECU officers also inspected the applicant’s garage and his car. 8. After the inspection the police seized seven computers, sixty-six optical disc recording devices, a printer, a modem, over three thousand optical discs with recordings, some thirty thousand blank optical discs and some seven thousand printed disc covers. The seizure was documented on three standardised forms (one for each site inspected), which included the following pre-filled printed text: “Beginning of the inspection: _______ [time, date] End of the inspection: _________ [time, date] I (we), ______ of the KECU on the premises of ______ [site] ... inspected and seized from _________ [name, address, place of work of the person whose possessions were subject to seizure] the following ________ [list of seized items]. The seized items will be stored with the KECU pending resolution of the matter on the merits. This Deed has been completed in duplicate and read out. ...” 9. It appears from the forms that the inspection of the office started at 7.30 p.m. and ended at 7.30 a.m. the following morning, 21 August 2002. Other sites were inspected at the same time – the car from 7.30 p.m. until 1.34 a.m. and the garage between10.25 and 11.45 p.m. 10. According to the applicant, for the whole night the police officers questioned him, his wife and the members of their extended family who were on the premises. The questions related to the applicant’s family business and the observance of copyright law in the business’s use of software and in its replicating activities. 11. On 22 August 2002 a report was published on the Ministry of Interior’s website, which stated that the Kyiv Police had: “... identified a criminal group of two [individuals]. These two [individuals] organised an entire underground production [facility] in their office. With the help of computer equipment they replicated CD-ROMs containing various programs and games ...” 12. The report also featured a photograph of the applicant’s wife without a caption and listed the seized items, declaring their estimated value as 117,000 Ukrainian hryvnias (UAH). 13. On 15 November 2002 investigator O.K. from the Investigative Department of the Kyiv Police instituted criminal proceedings concerning “the suspected breach of copyright” under Article 176 of the Criminal Code of Ukraine, without naming any suspected offenders. In his decision, he referred to the search of the office of the applicant and his wife and the seizure of their belongings on 20 August 2002. He further noted that they had been found not to have a license agreement with the law firm S., the official representative of the Microsoft Corporation, whose software they had used in their business, thereby causing damage to the software copyright owner. 14. On 20 November 2002 O.K. declared the property seized from the applicant and his wife as physical evidence to be stored by the police pending the investigation of the case. 15. On 21 November 2002 the Shevchenkivsky District Court of Kyiv (hereinafter “the District Court”) issued search warrants in respect of the applicant’s and his wife’s flats, noting that they were suspected of breaching criminal legislation concerning copyright protection. 16. On 23 November 2002 these flats were searched pursuant to the warrants. It appears from the case file that no items were seized. 17. As follows from the applicant’s submissions, after these searches and several interviews, the proceedings stagnated, with the police never pressing any charges against the applicant or any other person. 18. On numerous occasions the applicant asked the police and the prosecutor’s office to order the return of his seized property. On various dates (in particular 24 February 2003, 11 August 2003 and 13 May 2005) the respective authorities rejected his requests, notifying him that his seized property constituted physical evidence in a criminal case, that keeping it in the possession of the authorities was justified by the need to carry out expert assessments and that, more generally, in accordance with Article 81 of the Code of Criminal Procedure 1960 (“the CCP”), the fate of the items had to be determined upon the final resolution of the case. 19. On 27 September 2004 the Kyiv prosecutor’s office rejected a request by the applicant to have the criminal case in which his possessions had been seized transferred to court with a view to having the proceedings closed as time-barred. They noted, in particular, that proceedings could only be terminated on such grounds in cases in which a particular person had been indicted. 20. On 25 February 2005 the police rejected a request by the applicant to have the criminal proceedings discontinued for lack of corpus delicti, noting that discontinuing proceedings on such grounds also presupposed the identification of a particular defendant. 21. On 4 April 2004 the police informed the applicant in response to his complaint about being denied any status in the criminal proceedings – which, in his view, concerned him as a de facto suspect – that there were no grounds for instituting a criminal case against him personally. There was insufficient evidence that he had unlawfully replicated copyrighted materials or distributed counterfeit products. 22. In March 2006 the criminal proceedings were still pending. No investigative measures concerning the applicant had been ordered. His property remained in the control of the police as physical evidence in the case. 23. In their subsequent submissions – the last correspondence from the applicant’s lawyer and the Government was received in March and June 2013 respectively – the parties did not provide any further information concerning the outcome or status of the aforementioned criminal proceedings and the fate of the seized items. 24. On an unspecified date the applicant and his wife instituted defamation proceedings against the police authorities for publishing an inaccurate crime report on their website (see paragraph 11 above), seeking the retraction of the information contained therein. 25. On 27 October 2003 the District Court allowed the claim. 26. It follows from the case file that this judgment was not appealed against and became final. 27. On 22 August 2003 the prosecutor’s office rejected the applicant’s request for criminal proceedings to be instituted against three KECU officers who had taken part in the search of his office, car and garage and had seized his property. It was noted in the relevant decision, in particular, that the police officers had not “searched” but “inspected” the applicant’s office and other sites. The inspection had been lawful, as it had been carried out in the police officers’ competence to carry out investigative and operational activities for the purpose of crime detection within the meaning of the Law of Ukraine “On operational and investigative activities” and with the applicant’s and his wife’s consent. 28. On 13 October and 4 December 2003 respectively the Pecherskyy District Court and Kyiv City Court of Appeal (“the Court of Appeal”) rejected appeals by the applicant against that decision. 29. On an unspecified date the applicant instituted civil proceedings in the Shevchenkivskyy District Court in Kyiv to reclaim his computer equipment, optical discs and other property seized by the police. 30. On 10 October 2003 the court suspended these proceedings pending resolution of the criminal case in which the property had been retained by the police (see paragraphs 13-23 above). 31. In April 2003 the applicant lodged a complaint against the Investigative Department of the Kyiv Police with the District Court. Initially referring to Article 248 of the Code of Civil Procedure 1963 in force at the material time, he alleged, in particular, that the inspection of his office and search and seizure of his property in August 2002, as well as the institution of criminal proceedings on 15 November 2002 had been unlawful. 32. In court the applicant reformulated his claims. Referring to Article 234 of the CCP (see paragraph 46 below) he contended that there had been no lawful grounds for instituting the criminal proceedings concerning the suspected breach of copyright. He requested that the investigator’s decision of 15 November 2002 (see paragraph 13 above) be set aside. In this respect the applicant submitted, in particular, that on 20 and 21 August 2002 KECU officers had conducted an arbitrary search and seizure of his property without a court warrant or any other lawful grounds for taking such actions. The applicant argued that there was no reason to suspect that a crime had been committed justifying the search and seizure of his belongings; that, in breach of the applicable law, the measures had been taken at night-time; that the same people had been appointed as lay witnesses for all three sites, which had been inspected all at the same time; and that following the institution of the criminal proceedings he had not been summoned to participate in any investigative activities. The proceedings at issue had been instituted in bad faith, to prevent him from recovering his seized property and to cover up the unlawful conduct of the KECU. 33. On 26 June 2003 the District Court found that Article 234 of the CCP (not Article 248 of the Code of Civil Procedure 1963) was the appropriate provision for examining the applicant’s allegations. It rejected them, finding that the applicant lacked standing to bring the proceedings. In particular, the disputed criminal case had been instituted “into the matter” rather than “against the applicant” (see paragraph 46 below quoting Article 98 of the Code of Criminal Procedure), who had neither been a formal suspect nor a defendant in the proceedings at issue. He could not therefore claim that his rights had been breached by the institution of the proceedings. As regards his complaints concerning the allegedly unlawful actions of the police, in accordance with Article 234 of the Code of Criminal Procedure, these complaints could be brought only within the framework of the above-mentioned criminal case and fell to be examined by the court which would try that case, during either the preliminary hearing or trial. 34. The applicant appealed, stating in particular that he had been a de facto suspect in the proceedings at issue. As he had been denied formal status as a suspect, he could not defend himself properly. In addition, as the proceedings had been artificially protracted, he had been deprived of the opportunity to reclaim his seized property pending resolution of the case. 35. On 17 September 2003 the Court of Appeal quashed the District Court’s decision and decided to discontinue the proceedings. Like the lower court, it considered that the applicant had no standing to bring the proceedings at issue and, more generally, that the actions of the police authority complained of could only be challenged before the court examining the criminal case, after the relevant investigation had been completed and the case transferred to the court for examination. In these circumstances, rather than rejecting the applicant’s complaints on the merits, the proceedings had to be discontinued. 36. The applicant appealed on points of law. 37. On 13 July 2004 the Supreme Court of Ukraine quashed the previous decisions and remitted the case to the lower courts for fresh consideration. It noted, in particular, that on 30 January 2003 the Constitutional Court of Ukraine had found that the provisions of Article 234 of the CCP, which had made it impossible to appeal separately against decisions of investigative authorities concerning the institution of criminal proceedings, were unconstitutional (see paragraph 47 below). The foregoing ruling also meant that courts should likewise admit for consideration complaints about other procedural actions, decisions or inaction on the part of investigative authorities, which could result in irreparable or grave damage to an individual’s constitutional rights if their judicial review were to be delayed. The Supreme Court further noted that there was sufficient evidence to suggest that the applicant had been substantially affected by the criminal proceedings at issue – in particular, with regard to the search of his premises and the seizure and retention of his belongings. It stated that the proceedings appeared to be protracted without any justification and instructed the lower courts to verify whether the conduct of the investigative authorities could indicate ulterior motives aimed at concealing unlawful actions on their part. 38. On 14 October 2004 the District Court allowed the applicant’s complaint and revoked the decision of 15 November 2002. Regard being had to the grounds for taking that decision, the proceedings should have been instituted against the applicant, who had been a de facto suspect in relation to breach of copyright. Institution of the proceedings “into the matter” without indicating a specific defendant had been artificial and had restricted the applicant’s procedural rights. The police officers’ actions which had led to the institution of the proceedings had been tainted by procedural breaches, regard being had, in particular, to the unjustified inspection of the premises at night-time in the absence of the flat owner (the applicant’s mother ), as well as various other procedural violations. 39. On 3 November 2004 the Kyiv prosecutor’s office appealed against that decision. 40. On 24 December 2004 the Court of Appeal quashed the District Court’s decision and remitted the criminal case concerning the suspected breach of copyright to it for further investigation. By assessing the lawfulness of the investigative actions, the District Court had in fact touched upon the admissibility of evidence, a matter which could only be examined in the course of a criminal trial. It further found that by instituting the criminal proceedings “into the matter” rather than “against the applicant”, the police had not caused irreparable damage to the applicant’s constitutional rights such as would necessitate the setting aside of their decision by way of judicial proceedings. Any irregularities in the formulation of the decision to institute criminal proceedings could be more appropriately addressed by the prosecution authorities. 41. The applicant appealed on points of law, alleging in particular that the Court of Appeal had breached procedural rules in admitting the appeal of the prosecutor’s office. 42. On 25 July 2005 Justice V.P. of the Supreme Court refused to consider the applicant’s request for leave to appeal on points of law, stating that the Supreme Court lacked jurisdiction over the decisions taken by the Court of Appeal in the relevant matters, unless they concerned the termination of proceedings.
| 1 |
test
|
001-180838
|
ENG
|
RUS
|
CHAMBER
| 2,018 |
CASE OF ANDREY SMIRNOV v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
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Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1992 and lives in Tver. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 7 May 2009 the applicant and his classmate A. were arrested on suspicion of causing grievous bodily injuries to a boy from their school. They confessed to their deeds. The applicant was initially released under parental supervision, whilst A. was remanded in custody. The following day they retracted their confessions. 8. On 16 November 2009, after the investigator had reclassified their actions as a more serious offence, the Zavolzhskiy District Court in Tver ordered the applicant’s placement in custody, citing the gravity of the charges and the fact that he had recanted. The District Court interpreted the latter element as amounting to the risk of an obstruction of justice. On 11 December 2009 the Tver Regional Court upheld the detention order on appeal, finding as follows: “[The fact that the defendant] has a permanent place of residence, lives with his family, is studying in high school and does not have a criminal record does not provide a basis for rejecting unconditionally the investigator’s application [for a detention order] in the light of the extreme gravity of the charges.” 9. On 12 January 2010 the District Court extended the authorised detention period, pointing out that the applicant “had changed his attitude to the committed offence from an outright acknowledgement to a downright denial”. In the court’s opinion, that implied that the applicant might interfere with justice if released. The District Court also added that the custodial measure was necessary “to secure the enforcement of the conviction”. On 3 February 2010 the Regional Court upheld the District Court’s assessment on appeal, in particular its finding that a non-custodial measure would not be sufficient to secure the enforcement of the conviction. 10. On 20 January 2010 the investigator in charge of the applicant’s case refused the parents’ request for leave to visit their son, reasoning as follows: “The investigation appointed Mr V. Smirnov, the father of Mr A. Smirnov, as the legal representative of the underage defendant. However, the investigation considers that Mr V. Smirnov is using all means to interfere with the criminal proceedings because of his vested interests; he has not responded when summonsed by the investigator or court, and is causing all kinds of delays in the proceedings. The investigation considers that this kind of conduct on the part of Mr V. Smirnov may have a negative influence of the defendant Mr A. Smirnov, as well as interfering with the establishment of the truth in the criminal case.” 11. On 25 January 2010 the supervising prosecutor rejected a complaint from the applicant’s father about the investigator’s decision, recalling that the granting of leave to visit a detainee was at the investigator’s discretion rather than being a legal obligation and that the arguments for refusing leave were “persuasive and well-justified”. 12. On 3 February 2010 the District Court issued a further extension order, holding that the applicant had been charged with a particularly serious offence and that the circumstances warranting the application of a custodial measure still obtained. On 19 February 2010 the Regional Court upheld the order on appeal. 13. The final extension order of 11 March 2010 referred to the gravity of the charges against both co-defendants, without distinguishing between their individual situations. 14. By a judgment of 25 March 2010, the Regional Court found the applicant and his co-defendant guilty of attempted murder and sentenced each of them to five years’ imprisonment. On 9 June 2010 the Supreme Court of the Russian Federation upheld the conviction. 15. Between November 2009 and July 2010 the applicant’s parents visited him in prison a total of sixteen times. All visits were carried out under the supervision of a warden while the applicant was separated from his parents by a glass partition.
| 1 |
test
|
001-153907
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF KHAVA AZIYEVA AND OTHERS 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;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life)
|
Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicants are: 1) Ms Khava Aziyeva, who was born in 1983, 2) Ms Aysha Aziyeva, who was born in 2008, and 3) Mr Abdurrakhman Aziyev, who was born in 2010. They live in Grozny, the Chechen Republic. They are the relatives of Mr Rizvan Aziyev, who was born in 1979. The first applicant is his sister, the second and third applicants are his children. 6. At the material time the applicants and Mr Rizvan Aziyev lived at 23 Gagarina Street, in the settlement of Staraya Sunzha in Grozny. The first applicant’s two other brothers, Mr I.A. and Mr Kh.A., had been convicted for the participation in illegal armed groups and were serving their sentences. 7. In 2005 Mr Rizvan Aziyev was arrested in Irkutsk, Russia, and then convicted for the participation in illegal armed groups. In 2008 he was released upon completion of the sentence. 8. For an unspecified period of time, prior to August 2008, the first applicant was married to Mr A.Kh. who was wanted by the authorities for active membership in illegal armed groups. On 31 October 2009 he had been killed as a result of a special operation carried out by the authorities in Grozny (see application Gaysanova v Russia, no. 62235/09 concerning alleged abduction of the applicant’s daughter Ms Zarema Gaysanova by State agents during that special operation). 9. On 31 October 2009 the applicants and their relatives were at home. Mr Rizvan Aziyev was not there. The applicants’ neighbours in the house across the street (at 20 Gagarina Street) were preparing a wedding dinner; their house was full of guests. 10. In the evening on that date a large group of servicemen in military camouflage or black uniforms arrived in about fifteen UAZ and VAZ model civilian vehicles and cordoned off several streets around the applicants’ house. According to the applicants’ neighbours, the servicemen blocked access to the nearby streets to its residents explaining that they were conducting a special operation. 11. At about 7 p.m. a group of about twenty to thirty armed men arrived at the applicants’ house in Gagarina Street in several vehicles. The men were in military camouflage uniforms, they were armed with automatic rifles, had portable radios and special military ammunition belts. The men spoke Chechen and Russian. The applicants and their relatives thought that these men were police officers. 12. Three of the men went into the applicants’ house whereas the rest remained outside blocking the building and the nearby houses. One of the three men, who was in charge of the group, demanded in Chechen that the first applicant telephoned her brother Mr Rizvan Aziyev and asked him to come home without mentioning that the police were waiting for him. Meanwhile, two other men quickly searched the house. One of the intruders received a phone call on his mobile phone and explained to someone that he was at work. 13. The first applicant called Mr Rizvan Aziyev and asked him to come home as soon as possible. Mr Rizvan Aziyev told her that he would be there in about ten minutes. The man in charge of the intruders’ group stood next to the applicant and listened to the conversation. As soon as the conversation was over he took the phone away from her and went outside whilst one of his colleagues remained in the house. 14. The first applicant looked out from the window and saw that a group of about fifteen other men was standing under the shed in the yard. 15. About twenty minutes later one of the policemen opened the house door and asked his colleague to come out. The first applicant tried to follow the man, but he closed the door from the outside. About two minutes later he opened it and left the yard. Immediately afterwards the first applicant heard several cars starting their engines and driving away from the house. 16. According to the applicants’ neighbour, Ms R.A., she saw Mr Rizvan Aziyev being taken away by the abductors who had waited for him next to the applicants’ house. 17. A number of the applicants’ neighbours and the wedding guests at 20 Gagarina Street witnessed the arrival of the group of the men, who had resembled police officers, to the applicants’ house and Mr Rizvan Aziyev’s removal by them. According to the applicants, the overall duration of the special operation was about half an hour. 18. About an hour after the abduction, the first applicant’s relative Mr A. - M.A. went to the Leninskiy district department of the interior in Grozny (the ROVD) and complained in writing about the arrest of Mr Rizvan Aziyev. The officers at the ROVD denied any involvement into the events. 19. On the same evening, 31 October 2009, an officer who introduced himself as Mr Isa, the district police officer, arrived at the applicants’ house, although neither the applicants nor their relatives had informed him about the events. The officer knew that Mr Rizvan Aziyev had been arrested and asked the applicants and their relatives about him and Ms Zarema Gaysanova (see paragraph 8 above). He denied having any knowledge about the whereabouts of the applicants’ relative but promised to assist the applicants in his release. Next morning the applicants’ relative, Mr A.-M.A., spoke with him. The officer denied having any information concerning Mr Rizvan Aziyev’s whereabouts. Subsequently, the applicants found out that Mr Isa had not been a district police officer but a high-ranking officer of a Chechen law-enforcement agency. 20. The following days the applicants and their relatives complained about the abduction to a number of local law-enforcement agencies. None of them accepted the responsibility for arresting or detaining Mr Rizvan Aziyev. 21. On 5 February 2011 the first applicant watched the video footage of the special operation conducted by the authorities against Mr A.Kh. on 31 October 2009 (see paragraphs 8 and 19 above) and recognised one of the law-enforcement officers who had participated in the special operation against Mr A.Kh. as the commanding officer of the group of the abductors who had taken away Mr Rizvan Aziyev later on the same date. That officer on the video had spoken with the Chechnya Minister of the Interior Mr Alkhanov. It is unclear whether the first applicant informed the authorities thereof. 22. The applicants’ submission concerning the circumstances of the abduction and the surrounding events is based on the statements of the first applicant lodged with the application and the additional statement dated 10 February 2011, the statement of the applicants’ neighbour Mr M.T. dated 4 February 2011, the statement of the applicants’ relative Mr A.A. dated 4 February 2011 and copies of the contents of the investigation file opened in connection with Mr Rizvan Aziyev’s abduction. 23. The Government did not dispute the facts as presented by the applicants. At the same time they pointed out that the abduction had been perpetrated by unidentified armed persons, whose outfits and firearms had been common among ordinary criminals, that the body of Mr Rizvan Aziyev was never found and that the witnesses to the abduction had not been sufficiently precise in the description of the abductors’ appearance. 24. On 1 November 2009 the first applicant complained in writing about the abduction to the Leninskiy inter-district prosecutor’s office (the prosecutor’s office). 25. On 2 November 2009 the investigator from the ROVD forwarded information requests to various district police departments in Chechnya asking whether Mr Rizvan Aziyev’s body had been found and/or whether he had been detained by their agents. 26. On 4 November 2009 a group of investigators from the prosecutor’s office arrived at the applicants’ house and briefly examined the crime scene. They only took photographs of the house and questioned Ms R.A. who stated that she had seen the abductors taking away Mr Rizvan Aziyev (see paragraph 42 below). 27. On 6 November 2009 the investigators again examined the crime scene and collected photos and the passport of Mr Rizvan Aziyev. 28. On 11 November 2009 the Leninskiy district investigating department of the prosecutor’s office (the investigating department) instituted an investigation into the abduction of Mr Rizvan Aziyev under Article 126 § 2 (aggravated kidnapping). The case file was given the number 66093. 29. On 12 November 2009 the interim head of the investigating department ordered that by 30 November 2009 the investigators into the abduction took, amongst others, the following steps: “... the murder of Mr Rizvan Aziyev could have been committed by servicemen of law-enforcement agencies. To investigate the matter fully and thoroughly and identify the perpetrators, it is necessary to ... establish eye-witness to the crime and obtain their information concerning its circumstances and the culprits ...” 30. On 14 November 2009 the investigators forwarded information requests to local hospitals and detention centres asking whether they had any information concerning Mr Rizvan Aziyev. The replies received were in the negative. 31. On 16 November 2009 the applicants’ relatives, Ms Kha.A. and Mr A.-M.A., were granted victim status in the criminal case and questioned (see paragraphs 41 and 44 below). 32. On 16 and 17 November 2009 the investigators reiterated their information requests to various district police departments in Chechnya asking whether Mr Rizvan Aziyev’s body had been found and/or whether he had been detained by their agents. The replies received were in the negative. 33. On 10 December 2009 the deputy head of the Chechnya investigating committee criticised the investigation in the criminal case and ordered that, amongst others, that the following steps be taken: “... to correct the deficiencies of the investigation in the criminal case... it is necessary: - to examine again the crime scene to find such evidence as fingerprints with the participation of the [relevant] forensic expert;... - to obtain list of phone calls made by Mr Rizvan Aziyev ... and the list of all mobile phone calls made in the vicinity of the crime scene between 6 and 8 p.m. on 31 October 2009 and establish the owners of the phone numbers from which they had originated ...” 34. On 15 or 16 December 2009 the investigators again examined the crime scene. No evidence was collected. 35. On 11 February 2010 the investigation in the criminal case was suspended for failure to identify the perpetrators. 36. On 20 April 2010 the first applicant was granted victim status in the criminal case. 37. On an unspecified date between January and April 2010 the investigators obtained a detailed list of connections made from the Mr Rizvan Aziyev’s mobile telephone on the date of the abduction, 31 October 2009. According to the list, after the abduction, text-messages were received by the phone in the vicinity of the town of Argun which was about fifteen kilometres from Grozny. 38. According to the applicants, the investigators did not inform them of the progress in the criminal case. The applicants were able to familiarise themselves with the contents of the investigation file only after having been provided with a copy of its contents furnished by the Government upon the Court’s request to this end made on 27 August 2010. 39. On 4 February 2011 the first applicant complained to the head of the Chechnya investigating department that the investigation of her brother’s abduction was ineffective, stating, amongst other things, the following: “... I familiarised myself with the contents of the criminal case file as a result of which the following has been established: 1. My brother had been detained at about 7.20 p.m. on 31 October 2009. The case file contains the list of his mobile phone connections for that day. According to that list, after the abduction, my brother’s mobile telephone had received a text message while being in Argun. At that time a checkpoint had been functioning on the roads leading from Grozny to Argun. Therefore, the persons who had detained my brother had taken him or his telephone to Argun; they had passed through two checkpoints of the law enforcement agencies. However, there is nothing in the case file showing that the investigators had taken any steps in respect of the staff who had manned those checkpoints on 31 October 2009. 2. On 31 October 2009 the persons who had detained my brother had carried out a special operation in Staraya Sunzha. From the information obtained from the local residents, they had condoned off several streets and had not allowed anyone into the sealed off area.... In addition, these persons had used at least ten vehicles ... from the case file it does not follow that the investigation took steps to verify this information. 3. The investigators, when questioning the local residents, could have asked them not only of the vehicles used by the abductors, but also of the direction in which they had left. However, no such steps have been taken. 4. Mr Rizvan Aziyev had been abducted by a large group of armed persons who had arrived in at least ten vehicles and cordoned off significant area in Staraya Sunzha. Every time if a member or several members of illegal armed groups resurface in Chechnya, the authorities take urgent steps to eliminate them. In my brother’s case, the law-enforcement agencies had failed to take any steps to search for his abductors. They had arrived at the crime scene to inspect it several days later after the crime had been reported to them, in spite of the fact that already in about an hour after the abduction my cousin Mr A.-M.A. had informed the Leninskiy ROVD of the abduction. From this it is possible to conclude that the authorities had known that the persons who had detained my brother, had belonged to law-enforcement agencies. It also follows that the investigation in the criminal case should have questioned lawenforcement officials responsible for the Leninskiy district in Grozny in order to find out the reasons for their failure to take urgent steps to apprehend the abductors ... 5. The persons who detained my brother on 31 October 2009 had been armed, in camouflage uniforms, had arrived as a large group, driven openly around Grozny and cordoned off large areas in the town. Nonetheless, the law enforcement authorities, having received the information about the abduction, had taken no steps to identify and arrest them. Such circumstances provide me with grounds to believe that my brother had been a victim of the State agents as a result of their special operation. In spite of those clear facts, the authorities had failed to establish the law-enforcement agencies empowered to carry out such operations in the Leninskiy district in Grozny and to questions their servicemen. 6. From the above it follows that the investigation should have obtained information of all special operations conducted in Grozny on 31 October 2009 and their results. From the case file it follows that no such information was requested by the investigators. 7. ... I and my relatives believe that Zarema Gaysanova provided the authorities with information about my brother which served as the basis for his arrest. Of course, Rizvan had known my former husband [Mr A.Kh.]. In connection with this the investigation in the criminal case should verify the theory of my brother’s abduction by the same persons who had abducted Zarema Gaysanova and question the lawenforcement officer known as Mr Isa who had asked me about Zarema Gaysanova. From the case file it follows that no steps have been taken to follow up on this information. ... In the light of the above, the actions of the investigation in the criminal case which led to failure to take the above and other investigative steps are unlawful and unsubstantiated... On the basis of the above ... I request that you: 1. Recognise as unlawful and unsubstantiated the actions of the investigators in criminal case no. 66093 for the failure to take all of the above investigative steps; 2. Oblige the investigators in the criminal case to resume the proceedings and take the above steps; 3. Inform me of the results of the examination of this request in accordance with the law...” It is unclear whether any reply has been given to this request. 40. No further information was submitted to the Court on the progress of the proceedings; but from the documents submitted it follows that the investigation is still pending. 41. On 4 November 2009 the investigators questioned the applicants’ relative Ms Kha.A. who provided detailed description of the abduction similar to the applicants’ account submitted to the Court. 42. On 4 or 6 November 2009 (the date is illegible) the investigators questioned the applicants’ neighbour Ms R.A. whose statement was similar to that of the applicants submitted before the Court. In addition, she stated that the abductors had told her in Chechen to get back in the house and stay inside. From the conversation she had overheard between them, the witness had understood that the fair-haired intruder of medium height and solid built in embroidered scullcap (tubeteyka) had been in charge of the group. 43. On 6 November 2009 the investigators questioned the first applicant whose statement was similar to the applicants’ account submitted before the Court. 44. On 6 November 2009 the investigators also questioned Mr A.-M.A. whose statement was similar to the applicants’ account submitted to the Court. 45. On 16 November 2009 the investigators again questioned Ms Kha.A. and Mr A.-M.A., both of whom reiterated their previously given statements. 46. On 23 November 2009 the investigators again questioned the first applicant who reiterated her previously given statement. 47. On 23 November 2009 the investigators also questioned the applicants’ relative and the father of Mr Rizvan Aziyev, Mr L.A., whose statement was similar to the applicants’ account submitted to the Court. 48. On 25 November 2009 the investigators questioned the applicants’ neighbour Ms R.M. whose statement was similar to the applicants’ account submitted before the Court. In addition, she stated that the abductors had spoken Chechen and that she had subsequently learnt from the first applicant that when the abductors had arrived at their house, Mr Rizvan Aziyev had been in a shop in the 3rd district in Grozny. 49. On 16 December 2009 the investigators again questioned Ms Kha.A. and the first applicant both of whom reiterated their previously given statements. 59. The applicants maintained that it was beyond reasonable doubt that State agents had taken away Mr Rizvan Aziyev and subsequently killed him. In support of their complaint they referred to the following facts. The abductors had arrived as a large group of armed men in uniforms in numerous civilian vehicles which were typically used by the local law-enforcement agencies; the abductors had used portable radio-stations and condoned off a large area, which would have been impossible for an illegal armed group. The abductors had acted openly, without any fear of being discovered by the authorities and openly spoken with the applicants’ neighbours. The abductors had acted as an organised group under chain of command and had been able to drive unobstructed through checkpoints in the area. The authorities had not taken any urgent steps to establish the whereabouts of Mr Rizvan Aziyev in spite of the applicants’ immediate complaint about it. Finally, the authorities had motives for the abduction of Mr Rizvan Aziyev owing to his past as a member of illegal armed groups and his acquaintanceship with Mr A.Kh. who had been killed during the special operation carried out in another neighbourhood in Grozny on the same date. The applicants submitted that they had made a prima facie case that their relative had been abducted by State agents and that the essential facts underlying their complaints had not been challenged by the Government. They stressed that Mr Rizvan Aziyev had disappeared in life-threatening circumstances, that he had been missing for a long period of time and that therefore, he must be presumed dead. 60. The applicants further argued that the investigation of the abduction had been ineffective. In particular, they alleged that the investigators had either failed to take a number of crucial investigative steps or they had taken important steps with major delays and deficiencies. In spite of being informed of the abduction shortly after the events, the authorities opened the criminal case only on 11 November 2009 and carried out the crime scene examination without forensic experts only on 6 November 2009, almost in a week after the report of the abduction. By December 2009 the crime scene had not been examined by forensic experts (see paragraph 33 above) that had led to the loss of such evidence as the culprits’ fingerprints, and the tracks of their boots and the vehicles’ tires. Not all the witnesses to the events had been established and those who had been identified and questioned had been questioned belatedly and in a superficial manner. The investigation into the abduction had accepted the theory that the perpetrators belonged to the State authorities and forwarded information requests to verify whether Mr Rizvan Aziyev had been in State custody whereas the other theories had not been verified. Despite the clear indications to the special operation against Mr Rizvan Aziyev, the investigators neither took steps to identify and question the law-enforcement officials as to the reasons for their belated reaction to the abduction nor requested information on special operations carried out in the area on 31 October 2009. The investigation was suspended in spite of the investigators’ failure to take basic steps (see paragraph 38 above). 61. Referring to the cases Shaipova and Others v. Russia, no. 10796/04, § 85, 6 November 2008 the Government contended that the applicants had failed to make a prima facie case of State agents’ involvement into the abduction as the witnesses had not been sufficiently precise in the description of the perpetrators; the vehicles, uniforms and the firearms of the abductors could have been used by any other criminals and that there was no proof that Mr Rizvan Aziyev had been dead as his body was never found. They further claimed that the investigation of the incident had met the Convention requirement of effectiveness, as all possible measures available under national law were being taken to have the crime solved. 62. The Court points out that a number of principles have been developed in its case-law as regards applications in which it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005VIII). 63. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Avşar, cited above, § 283), even if certain domestic proceedings and investigations have already taken place. 64. The period of time that has elapsed since the person disappeared, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time that goes by without any news of the disappeared person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2 (see, among other authorities, Timurtaş v. Turkey, no. 23531/94, § 83, ECHR 2000VI). 65. The Court reiterates that where the applicant makes out a prima facie case, it is for the Government to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005II). 66. The Court notes that in reply to its request for a copy of the investigation file into the abduction of Mr Rizvan Aziyev, the Government furnished its contents reflecting the period of the investigation between November 2009 and August 2010. The Government furnished no further updates on the progress of the proceedings. The applicants, on their part, updated the Court on the progress in the proceedings to the extent known to them. 67. The Court notes that the criminal case materials in its possession reflect primarily the first year of the investigation into the circumstances of the abduction. Taking into account the importance of the first several months of an investigation into disappearance for the subsequent progress of the proceedings, the Court finds that the materials furnished by the parties suffice for the examination of the application. 68. In view of the parties’ submission, the Court’s’ relative. As for the Government’s reference to Shaipova and Others, cited above, § 85, the Court notes, that unlike in that case where the abductors had arrived on foot and where the applicants’ statements concerning the perpetrators had been vague, in the present one there are materials in its possession demonstrating the validity of the applicants’ allegation of special operation for the following reasons. In spite of the absence at the material time of curfew in the area and the abductors arrival at the applicants’ house in civilian vehicles – unlike in numerous other cases concerning abductions perpetrated by State agents in the same district several years prior to the events in question (see, for example, Askhabova v. Russia, no. 54765/09, § 135, 18 April 2013 concerning abduction perpetrated in August 2009) the Court would like to point out the following. Firstly, the abductors arrived as a large group in at least ten vehicles; they cordoned off several streets and acted as an organised group. Their vehicles were able to drive freely through the military checkpoints situated in vicinity of Staraya Sunzha. The abductors had informed the local residents that they had been conducting a special operation (see paragraphs 10 and 12 above). Secondly, from the investigation file it follows that the investigators took no meaningful steps to check whether the abduction could have been perpetrated for other reasons, such as a blood feud, ransom, drugs or hostility. No serious steps were taken to verify those hypotheses and no information was obtained that the abductors could have been other than State agents (see, by contrast, Zubayrayev v. Russia, no. 67797/01, § 81, 10 January 2008). Lastly, the reluctance of the authorities to verify the information concerning the connection between the abduction of Mr Rizvan Aziyev and the killing on the same date as a result of the special operation of Mr A.Kh. (see paragraphs 8, 19, 21 and 39 above) provide the Court with the grounds to conclude that the applicants have made a prima facie case that their relative was abducted by State agents. The Government’s statement that the investigators found no evidence proving the involvement of members of lawenforcement authorities in Mr Rizvan Aziyev’s disappearance is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties and drawing inferences from the Government’s failure to provide another plausible explanation for the events in question, the Court finds that Mr Rizvan Aziyev was arrested on 31 October 2009 by State servicemen. 69. There has been no reliable news of Mr Rizvan Aziyev since his arrest. The Government have not submitted any explanation as to what happened to him afterwards. 70. The Court finds that, in a situation where a person is detained by unidentified police officers without any subsequent acknowledgment of the detention and is then missing for several years, that situation can be regarded as life-threatening. The absence of Mr Rizvan Aziyev or of any news of him for more than five years supports this assumption. 71. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Mr Rizvan Aziyev must be presumed dead following his unacknowledged detention by State agents.
| 1 |
test
|
001-172456
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF SADKOVA AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Branko Lubarda;Dmitry Dedov;Luis López Guerra
|
4. All the applicants were party to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became binding and enforceable but were subsequently quashed by the supervisory review courts on the ground of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix).
| 1 |
test
|
001-158478
|
ENG
|
ALB
|
COMMITTEE
| 2,015 |
CASE OF SHARRA AND OTHERS v. ALBANIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Ledi Bianku;Nona Tsotsoria;Paul Mahoney
|
7. On 28 December 1994 the Vlora Commission on Property Restitution and Compensation (“the Commission”) recognised the applicant’s and other heirs’ inherited title to a number of plots of land measuring 46,750 sq. m, of which 900 sq. m were restored to them. As the remaining plot of land was occupied, the Commission decided that the applicant and the other heirs would be compensated in one of the ways provided for by law in respect of 45,850 sq. m. The Commission could not determine the boundaries of a plot of land measuring 13,750 sq. m and did not decide on the recognition of the applicant’s inherited property rights. 8. On 8 March 2011 the Court delivered its judgment in the case of Eltari v. Albania, no. 16530/06 as regards the authorities’ failure to pay compensation in respect of a plot measuring 10,500 sq. m, which was part of the Commission decision. 9. To date, no compensation has been paid. 10. On 21 March 1996 the Lushnjë Commission recognised the applicants’ inherited property rights over a plot of land measuring 576 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law. The applicants submitted that they were the remaining heirs of the above plot of land in respect of which the Court had already delivered the judgment in the case of Hamzaraj v. Albania (no. 1) (no. 45264/04, 3 February 2009). 11. To date, no compensation has been paid to the applicants. 12. On 18 May 1995 the Tirana Commission recognised the applicants’ inherited property rights over a plot of land measuring 1,000 sq. m. It ordered that the plot of land should be entirely restored to the applicants. On 11 February and 14 December 2000 the Tirana District Court and the Tirana Court of Appeal amended the Commission decision and ordered that the applicants would be compensated in one of the ways provided for by law of which 200 sq. m were restored to them. Since the remaining plot of land measuring 800 sq. m was occupied, the applicants would be compensated in one of the ways provided by law. 13. To date, no compensation has been paid. 14. On 13 September 1996 the Tirana Commission recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 16,500 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law. 15. To date, no compensation has been paid. 16. On 25 October 1995 the Tirana Restitution and Compensation of Properties Commission (“the Commission”) recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 150,000 sq. m of which 29,700 sq. m were restored to them. Since the remaining plot land measuring 120,300 sq. m was occupied, the applicants would be compensated in one of the ways provided by law. 17. To date, no compensation has been paid. 18. On 10 December 1999 the Korçë Commission recognised the applicants’ inherited property rights over a plot of land measuring 11,000 sq. m of which 10,100 sq. m were to be compensated in one of the ways provided by law. 19. To date, no compensation has been paid. 20. On 23 October 1996 and 24 April 1998 the Korçë Commission recognised the applicant’s inherited property rights over a plot of land measuring 9,950 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law. 21. To date, no compensation has been paid. 22. On 7 July 2006 the Tirana Commission recognised the applicants’ inherited property rights over a plot of land measuring 800 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law. 23. To date, no compensation has been paid. 24. On 28 February 1995 the Tirana Commission recognised the applicant’s inherited property rights over a plot of land measuring 335 sq. m of which 162 sq. m were restored to him. Since the remaining plot land measuring 173 sq. m was occupied, the applicant would be compensated in one of the ways provided by law. 25. To date, no compensation has been paid. 26. On 28 February 1995 the Tirana Commission recognised the applicants’ inherited property rights over a plot of land measuring 910 sq. m of which 630 sq. m were restored to them. Since the remaining plot land measuring 280 sq. m was occupied, the applicants would be compensated in one of the ways provided by law. 27. To date, no compensation has been paid. 28. On 21 December 1995 and 22 April 1996 the Berat Commission recognised the applicant’s inherited property rights over a plot of land measuring 3,435 sq. m of which 130 sq. m were restored to him. Since the remaining plot land measuring 3,305 sq. m was occupied, the applicant would be compensated in one of the ways provided by law. 29. To date, no compensation has been paid. 30. On 10 August 2007 the Agency for Restitution and Compensation of Property (“the Agency”), which had replaced the Commission, recognised the applicant’s inherited property rights over a plot of land measuring 14,400 sq. m located in Vlora. Since the plot of land was occupied, the applicant would be compensated in one of the ways provided by law. 31. To date, no compensation has been paid.
| 1 |
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