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test
|
001-175483
|
ENG
|
HUN
|
CHAMBER
| 2,017 |
CASE OF LENGYEL v. HUNGARY
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions)
|
Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
|
5. The applicant was born in 1960 and lives in Budapest. 6. The applicant was placed in retirement on grounds of disability and received a disability pension as of 1 November 2006, the amount of which was 91,363 Hungarian forints (HUF) (approximately 305 euros (EUR)) per month. The entitlement was based on a final decision of the Supreme Court. At the material time the medical board rated her state of health at 46 per cent. 7. The methodology for disability assessment changed as of 1 January 2008. 8. Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity was enacted on 29 December 2011 and entered into force as of 1 January 2012. It introduced a new system of allowances and beneficiaries of the old scheme were invited to re-apply under the new rules. 9. The applicant lodged a fresh application for disability allowance under the new law. Pending approval of her new application, she continued to receive a monthly disability allowance in the amount of HUF 89,925 (approximately EUR 300) on the strength of the fact that on the day the new law entered into force, she had been in receipt of a disability benefit. 10. On 29 June 2012 the National Rehabilitation and Social Authority assessed the applicant’s state of health at 59 per cent. She was categorised as a person suitable for rehabilitation on the basis of that assessment. However, owing to the applicant’s other circumstances, her rehabilitation was not recommended. 11. In application of the relevant rules, the applicant’s rehabilitation allowance was established at 45 per cent of the minimum wage, that is, in the amount of HUF 41,850 (approximately EUR 140), by a decision of the Budapest Governmental Office (Directorate of Pension Insurance) given on 19 September 2012 and effective as of 1 December 2012. 12. The applicant appealed. 13. A medical assessment carried out in the course of the second-instance administrative proceedings resulted in the finding that the applicant’s state of health was at 58 per cent. It was reaffirmed that her rehabilitation was not recommended. Since the minor difference in the scores did not alter the calculation of the allowance, the National Rehabilitation and Social Authority upheld the first-instance decision on 17 January 2013. 14. The applicant sought a judicial review. 15. On 23 February 2016 the Budapest Administrative and Labour Court dismissed her action. Having obtained fresh medical assessments and the opinion of the national forensic body, the court was satisfied that the applicant’s state of health was at 54 per cent (her locomotor, digestive and endocrinological conditions were calculated cumulatively as per the method prescribed in Annex 1 to Decree no. 7/2012 (II. 14.) NEFMI). Again, the minor difference in the scores had no bearing on the calculation of the allowance. The court upheld the administrative decisions. 16. On 12 September 2016 the Kúria dismissed the applicant’s petition for review. It observed in particular that the lower courts had found that the applicant’s state of health (for the purposes of the application of rules of disability benefits) had improved and that the applicant had challenged that finding. It pointed out that such an improvement did not necessarily correspond to actual healing from a condition, but could also result from a change in, or stricter application of, the relevant rules of medical assessment. 17. The applicant submitted that, as of August 2015, she no longer received any benefits. The legal or factual circumstances underlying this state of affairs are not known.
| 1 |
test
|
001-168351
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF ZADONSKIY AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
4. All the applicants were convicted by Russian courts and given custodial sentences. 5. They served their sentences in penitentiary facilities which were overcrowded and suffered from a shortage of sanitary installations.
| 1 |
test
|
001-180847
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF BOYKO v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
5. The applicant was born in 1959 and lives in Moscow. 6. The facts of the cases, as submitted by the parties, may be summarised as follows. 7. On 24 November 2006 the applicant, the owner and CEO of a large dairy producer, was charged with large-scale fraud and money laundering and summoned for questioning. He did not show up for a few initial interviews and the investigator put his name on the list of fugitives from justice. 8. On 26 January 2007 the investigator, acting on the information that the applicant had fled abroad, asked the Ostankinskiy District Court in Moscow for a detention order. 9. The detention hearing was fixed for 1 February 2007. The applicant’s lawyers had been notified of the date and time of the hearing on the previous day but did not show up and asked the investigator to postpone the examination of his application because they were busy in other proceedings. The District Court appointed legal-aid counsel to represent the absent applicant, proceeded with the hearing and issued the detention order, referring to the fact of the applicant’s absconding to Ukraine and from there to Hungary, the gravity of the charges against him and the risk of interference with the investigation. On 9 February 2007 the applicant’s lawyers appealed. 10. On 15 February 2007 the applicant was arrested in Moscow. 11. On 19 March 2007 the Moscow City Court heard an appeal against the detention order. The applicant and his lawyers were present at the hearing. Considering that the risks of flight and obstruction of the investigation were sufficiently established, the City Court upheld the detention order. 12. The applicant’s detention was later extended on nine occasions. The applicant appealed against each of the detention orders, lodging statements of appeal within two to ten days of the hearing date. It took the appeal courts between twenty-six and sixty days to examine the complaints. 13. The most recent detention order of 25 July 2008 was quashed on appeal by the Supreme Court on 2 October 2008. The Supreme Court considered that there was no evidence substantiating the risk of absconding or interfering with justice. The investigation had been pending for over two years of which the applicant had spent more than a year and a half in custody. The Supreme Court concluded that that the proceedings had been unreasonably long and ordered the applicant’s release on bail. 14. While in custody, the applicant asked the investigator to be allowed to receive visits from his mother, wife and children and also pastoral visits from two Orthodox priests, A. and S. 15. With the investigator’s consent, the applicant’s mother and daughters visited him on two occasions in April and May 2007. In August and September 2007 the investigator interviewed his wife and mother as potential witnesses but they refused to testify, invoking the constitutional guarantee against self-incrimination. The investigator refused the applicant’s subsequent applications to see his family, stating that such visits could “have a negative influence on the conduct of the investigation”. As to the Orthodox priests, on 29 March 2007 the investigator invoked the same ground to refuse a visit from S. On 30 August 2007 the investigator once again refused a pastoral visit, stating that the applicant should see the prison chaplain instead. 16. Counsel for the applicant applied for a judicial review of visiting restrictions. 17. On 24 October 2007 and 6 February 2008 the Tverskoy District Court pronounced the refusal of pastoral visits to be lawful and justified, holding that the investigator had full discretion to determine whether or not such visits ran counter to the interests of the investigation. On 18 June 2008 the City Court upheld the latter decision on appeal, holding that a restriction on religious rights was an inherent consequence of the pre-trial detention. 18. As regards family visits, on 30 October 2007 the Tverskoy District Court granted the applicant’s complaint in part, finding as follows: (a) restrictions on visits from the applicant’s wife and mother in the period after the investigator had interviewed them as witnesses in the criminal proceedings had been lawful and within the discretion of the investigator; (b) restrictions on visits from the wife and mother in the preceding period had not been justified but no relief could be afforded to the applicant because they had already been granted the status of witnesses and the investigator might wish to interview them again at some point in time; (c) restrictions on visits from the applicant’s children were not justified and the investigator had an obligation to remedy a breach of the applicant’s rights. 19. On 10 December 2007 the applicant’s representative before the Court, Ms Kostromina, asked the director of the remand prison to allow her to see the applicant and provided credentials confirming her status. Her application was referred to the investigator. 20. On 24 January 2008 Ms Kostromina lodged a complaint with the Preobrazhenskiy District Court claiming that the prison director should have authorised her visit without any restrictions, on the basis of Article 34 of the Convention guaranteeing unhindered access of an applicant to his representative. 21. On 15 February 2008 the District Court dismissed the complaint, finding that Ms Kostromina was not the applicant’s counsel in the domestic criminal proceedings and could not therefore visit him. On 6 May 2008 the Moscow City Court upheld that decision on appeal.
| 1 |
test
|
001-146380
|
ENG
|
HUN
|
CHAMBER
| 2,014 |
CASE OF SZKÓRITS v. HUNGARY
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić
|
6. The applicant was born in 1929 and lived in Budakalász. 7. He had a joint title to a plot of land in the value of 4.59 “gold crowns” (aranykorona). The land was, from an unspecified date on, in the possession of, and used by, a Socialist “collective farm”. Following the adoption of Act no. II of 1993 on Land Settlement and Land Distribution Committees, the Pest County Land Registry adopted a plan on the division of such properties. That decision was subsequently upheld by the Bács-Kiskun and Pest County Office of Compensation. 8. On 15 November 1999 a plot of arable land of 979 square metres, situated in the village of Budakalász, was designated by the Pest County Land Registry for the purpose of privatisation, under lot no. 3305. This measure was approved by the Regional Office for Restitution and Compensation Affairs. On 15 November 1999 the applicant was granted ownership of the plot by the Regional Office of Agriculture. His title to the land was registered on 28 August 2000. 9. However, he could not enter into possession, because the plot which he had been granted was apparently occupied and being used by the owners of the neighbouring plots. 10. The applicant brought a trespass claim before the District Notary, asserting that his use had been unjustifiably interfered with. Following the dismissal of his request, he sought judicial review of the decision, bringing a civil action before the Budapest II/III District Court against the neighbours, seeking protection of his possession rights. 11. While this case was pending, the respondents initiated the correction of the land register maps. In the ‘remapping’ proceedings, the District Land Registry observed that plot no. 3305 did not exist in reality. On appeal, the County Land Registry confirmed this finding, designating a new plot for the applicant, under no. 3305/1, on 21 June 2006. This plot was nonetheless smaller than that originally allocated to the applicant, and was apparently not suitable for farming. Quite independently of the present dispute, on 16 December 2005 a new, digitally compiled land register was put in place by the Budakalász authorities, with the apparent intention of eliminating the existing inaccuracies. 12. The applicant’s civil action was stayed for the duration of the remapping proceedings. After the adoption of the County Land Registry’s final decision, the District Court dismissed the action on 15 December 2006, observing that the respondents had not used the applicant’s land unlawfully, as the plot of land registered under plot no. 3305 did not exist in reality. The applicant appealed. 13. The appeal proceedings appear to have been subsequently suspended since the applicant sought judicial review of the remapping decision. In the course of these administrative court proceedings, it was confirmed by an expert land surveyor that the applicant had originally been granted a plot which had been registered with topographic and editing errors, and that these had been duly corrected in the remapping proceedings. Therefore, the Pest County Regional Court dismissed the applicant’s claim on 13 March 2008. This was confirmed by the Supreme Court on 28 April 2009. 14. Since in the remapping proceedings the location of the land belonging to the applicant eventually became indisputable and it turned out that this plot was not possessed by any of the respondents, the applicant withdrew his appeal against the first-instance judgment of 15 December 2006. 15. As a result of the above proceedings, the applicant could finally obtain possession of the land in question ten years after having acquired it, that is, sometime in 2009. 16. On 28 October 2009 the applicant lodged an official liability action against the District and the County Land Registries. His action was dismissed by the Buda Surroundings High Court on 13 March 2012. The court found that the applicant’s damage had been caused by his own conduct since he had initiated a number of futile proceedings before various authorities. 17. The applicant appealed; however, the appellate proceedings were suspended on account of his death on 16 March 2012, with a view to the successor’s joining the case. It appears that the proceedings are still pending, that is, remain suspended.
| 1 |
test
|
001-179856
|
ENG
|
HUN
|
COMMITTEE
| 2,018 |
CASE OF SOLTÉSZ AND OTHERS v. HUNGARY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
|
3. The list of applicants and the relevant details of the complaints are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings.
| 1 |
test
|
001-144678
|
ENG
|
MKD
|
CHAMBER
| 2,014 |
CASE OF DONČEV AND BURGOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 3 |
Remainder inadmissible;No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-d - Examination of witnesses)
|
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
|
5. The applicants were born in 1971 and 1970 respectively and live in Strumica. They were police officers. 6. On 3 March 2005 the public prosecutor ordered, under sections 42(2)(2) and 142-b of the Criminal Proceedings Act (see paragraphs 31 and 32 below), special investigative measures including secret surveillance, audio-visual recording, a simulated offer of a bribe and the use of undercover agents (the last two measures were to be applied by six police officers whose identity remained undisclosed in the order). The order was valid between 15 March and 13 May 2005. It was issued on the basis of a request from the Department for Control and Professional Standards within the Ministry of the Interior, which suspected that traffic police officers had been accepting bribes from traffic offenders. 7. On 28 April 2005 the applicants stopped a car near Strumica, since it was being driven at more than 30 km/h over the stipulated speed limit. The driver was a certain K.N. from Skopje (“the driver”). The applicants warned the driver and registered his name and the fact that they had warned him in the official record. They did not draw up an official report (записник), nor did they press charges against him. 8. On 8 June 2005 the Ministry of the Interior (“the Ministry”) lodged a criminal complaint with the public prosecutor, alleging that the applicants had accepted a bribe of 500 Macedonian denars (MKD) from the driver (who was in fact an undercover agent, see paragraph 6 above) in exchange for not drawing up an official report and pressing charges against him. The complaint stated that the first applicant had fully admitted to the accusations and the second applicant had partially done so. 9. On 12 July 2005 an investigating judge of the Strumica Court of First Instance (“the trial court”) opened an investigation into the allegation that the applicants had accepted a bribe. In the proceedings before the investigating judge the applicants remained silent. 10. According to the indictment of 19 September 2005, the applicants accepted the bribe in exchange for not drawing up a report and instituting misdemeanour proceedings against the driver. The public prosecutor requested that the trial court take oral evidence from the accused and admit the evidence obtained as a result of the order of 3 March 2005 (see paragraph 6 above): four photographs; and an audio and video recording of the discussion between the applicants and the driver of 28 April 2005 (see paragraph 7 above). 11. On 28 November 2005 the trial court admitted the evidence produced by the prosecutor. The applicants remained silent. On 30 November 2005 the court rendered a judgment in which it convicted the applicants and sentenced them to a suspended prison term of six months. On the basis of the audio recording of the incident, the court established that the driver had exceeded the speed limit. He had offered – and the applicants had accepted – money in exchange for not pressing charges against him. In this connection, the court noted that under the law the driver was liable to a fine (between MKD 4,000 and MKD 12,000) or thirty days’ imprisonment, as well as a compulsory security measure (driving ban), for such an offence. 12. The applicants’ legal representatives, Ms M.G. and Mr V.Š., appealed against the judgment, arguing that there was no evidence to corroborate the applicants’ guilt. The audio evidence attested that the driver had offered the applicants money, but it did not establish that they had accepted it. Indeed, no bank notes marked in advance were found in their possession. The applicants further argued that under the applicable regulation, they had been authorised to warn the driverThe first applicant challenged the credibility of the audio recording, arguing that the transcript of the audio material was incomplete. The second applicant further complained that the trial court had neither examined the driver, nor confronted them with him. 13. On 28 June 2006 the Štip Court of Appeal accepted the applicants’ appeals and ordered a re-examination of the case. In so doing, it found that the lower court had incorrectly established the facts and had not provided sufficient reasons for its judgment. In this connection, it stated that neither the photographs nor the audio evidence had established that the applicants had accepted the bribe from the driver, who had not been examined. It therefore instructed the trial court to re-examine already admitted evidence and to question the driver in order to establish whether he had offered, and the applicants had accepted, MKD 500 in exchange for not pressing charges against him. It further stated: “... other evidence should be admitted if necessary (confrontation between the accused and (the driver)).” 14. At a hearing, before the trial court, held on 15 May 2007, the applicants denied that they had accepted money from the driver. They stated that they had been authorised, under the law, to warn him. They further contested the audio recording, arguing that there were gaps and interruptions in it. Mr V.Š., the applicants’ legal representative, asked the court to hear oral evidence from the driver, as ordered by the Court of Appeal (see paragraph 13 above), and to obtain information from the Ministry as to whether the money had been marked. 15. On 21 May 2007 the trial court asked the Ministry to provide the name and address of the driver in order to examine and confront him with the applicants, “as instructed by the higher court”. It also sought information as to whether, under the order of 3 March 2005 (see paragraph 6 above), the money allegedly given to the applicants had been marked. In the absence of a reply, on 20 June 2007 the court repeated its enquiry. On 28 June 2007 the Ministry informed the court that the money had not been marked. That would have been the case had special investigative measures (audio and video recording) not been ordered. It further stated that the undercover agent (лице со прикриен идентитет) who had been used to simulate the offer of a bribe could be examined as a protected witness under section 147(2) and (3) of the consolidated version of the Criminal Proceedings Act (“the Act”), (which corresponded to section 142-c of the Act as amended in 2004, see paragraph 33 below). 16. In a hearing held on 5 October 2007 the applicants objected to the court’s examining the driver. In this connection, they stated that there were three persons with the same initials (K.N.) as the driver employed in the Ministry. 17. On 7 December 2007 the trial court examined the driver. According to the depositions taken on that date, he was regarded as a protected witness (заштитен сведок) and his examination was carried out under section 293 of the Act (which corresponds to section 270-a of the Act of 1997 as amended in 2004 (see paragraph 36 below)). The relevant parts of the court record of that date read as follows: “The protected witness should be examined in a special room only in the presence of the judge and the public prosecutor in order to protect his identity. Since there is no such room in the court building, [the applicants] and their representatives, (as well as) the entire public, were ordered, on the basis of an advance agreement (претходен договор), to go into the waiting room. The accused and the lawyers did not object. ... The witness, whose pseudonym is K.N. (protected witness) from Skopje, fifty-years of age ... having been warned about the legal consequences of false testimony, states: ‘At 3 p.m. on 28 April 2005, in accordance with the [public prosecutor’s] order, I drove to Strumica together with two other persons ... I deliberately exceeded the speed limit assuming that there would be a road patrol ... I was stopped ... (then he described the events concerning another car which the applicants had stopped at that time, when (one of the applicants) had allegedly received MKD 500 from the driver of that car) ... the policeman who took the money from the other driver approached me and I said that it was unfair that they should punish me unlike the other (driver), who had paid ... Then the other policeman, who still had (in his hands) my (driving) documents, told me ‘Ok, we won’t punish you either’ and gave the documents back to me. I asked them whether I should also reward them for having not punished me, as the (other) driver had done, to which (one of the applicants) replied ‘It will be fine if you give something’. I asked ‘how much should I give?’, and he replied ‘There is no pricelist for that, it’s up to you’. Then, I said ‘I’ll give you as much as (the other driver), MKD 500’. I took out from my pocket MKD 500 and gave them to (one of the applicants) ... I asked them whether they would press charges against me or issue any penalty, to which (one of the applicants) replied ‘Keep your mouth shut and drive on’ ... 18. The public prosecutor further asked the driver whether the money had been marked, to which he replied negatively. 19. The record further stated: “Since there are no further questions, the court decides to remove the protected witness from the court room and to call the accused and their lawyers. A transcript of the statement of the protected witness should be given to them so that they may put questions to him through the court, to which the protected witness should reply. The accused and their lawyers were called to enter the court room and at that moment, they said, in a loud voice ‘We request exclusion of the adjudicating judge, the panel, the trial court and the Štip Court of Appeal, since (the judge) is conducting the proceedings unlawfully and is not following the instructions of the Appeal Court. It is so since we were removed from the court room for 45 minutes, instead of being confronted with the witness. We suspect that no one gave a statement, all the more so since the accused have already met the protected witness”. 20. The court ordered an adjournment. On 7 and 13 December 2007 the presidents of the trial court and the Štip Court of Appeal respectively rejected the applicants’ requests for exclusion. 21. A hearing held on 1 April 2008 was attended by the applicants and Ms M.G., their lawyer. The driver was absent. The court stated that there was no evidence that he had been properly summoned for the hearing. The applicants were served with a copy of the court record of 7 December 2007 and the driver’s statement. The court minutes stated: “... (the applicants) were told that they could put questions in writing, which the court would then forward to the protected witness in order for him to reply.” 22. On 9 May 2008 the trial court held a hearing. It was attended by the applicants and Mr V.Š., their lawyer. The driver was not present, despite the fact that he had been properly summoned. Mr V.Š. stated: “I decline to examine the protected witness, K.N. and I object to the court record of 7 December 2007 since it is contradictory and untrue (Се откажувам од распит на заштитениот сведок К.Н. и приговарам на записниикот од 07.12.2007 бидејќи е контрадикторен и невистинит).” 23. On 15 May 2008 the trial court held another hearing, at which the applicants confirmed that they had received the bill of indictment and understood the charges against them. Both applicants maintained that they would be represented by Mr V.Š. They further stated: “I maintain the statement given at the hearing of 15 May 2007 [see paragraph 14 above] and I have nothing to add”. 24. The court then read aloud the driver’s statement of 7 December 2007 and admitted as evidence the public prosecutor’s order, four photographs, as well as the audio and video recording of the critical event. The applicants made no reference as to the examination of the driver. 25. In the concluding remarks, Mr V.Š. denied that there was any material evidence that the applicants had committed the crime imputed to them; in particular, the video and audio material did not establish that they had received any money from the driver, nor had any marked bank notes been found in their possession. He further stated that: “... we object to the use of the term ‘protected witness’ since it is not disputed that the (applicants) and (the driver) knew each other ... they saw each other and it is unreasonable to use that person as a protected witness.” 26. Both applicants stated: “I fully adhere to the concluding remarks of my representative. I want to add that I’m not guilty because I have not received any money”. 27. On 16 May 2008 the trial court rendered a judgment in which it found the applicants guilty and sentenced them to six months’ imprisonment, suspended for two years. It established that they had accepted the bribe from the driver, a police officer who had been following the public prosecutor’s order to use special investigative techniques. They received MKD 500 in exchange for not pressing charges, despite the fact that the relevant law provided for a fine or thirty days’ imprisonment, coupled with a security measure, for such an offence. The audio evidence established that the driver had exceeded the speed limit and had offered – and the applicants had accepted – the money. In this connection, the court stated: “Following the instructions of the higher court, the (trial) court examined the driver with the pseudonym K.N. as a protected witness. He confirmed that he had been stopped on the day in question, since he had deliberately exceeded the speed limit ... [the applicants] had agreed to accept a bribe in the amount of MKD 500 in exchange for not drawing up a report and pressing charges. In this context, the statement of the protected witness and the audio material are totally consistent ... In the note [of 28 June 2006], [the Ministry of the Interior] submitted that the identity of the witness K.N. was protected, i.e. that he was a protected witness. [For this reason] the court did not confront him with [the applicants].” 28. The applicants appealed against the judgment and maintained that there had been insufficient evidence that they had accepted the money. They argued that there had been no written warrant authorising the operation that had led to the proceedings against them; that the bank notes had not been marked; that they had not taken possession of any such bank notes; that the audio material had not established that they had accepted the bribe; and that the warning issued against the driver had been registered in the official records and had been prescribed for such offences. They further complained that their conviction had been based, to a decisive extent, on the driver’s statement and the audio material, the credibility of which they had challenged. As to the driver, they complained that it had been unreasonable to use him as a protected witness since they had already met him. They further complained that: “The statement (of the driver) was taken in the absence of the accused and the defence ... the accused and the defence were not allowed to put questions to that person; there was no confrontation between that person and the accused”. 29. In a public hearing held on 18 November 2008 in the presence of the applicants and their lawyers, the Štip Court of Appeal dismissed the appeal lodged by the applicants, finding no grounds to depart from the established facts and reasons given by the trial court. It found that the special investigating measures (audio-visual recording and the use of a protected witness) had been ordered by the public prosecutor in accordance with the Criminal Proceedings Act (see paragraphs 31 and 33 below). Accordingly, the judgment could be based on that evidence and the driver’s statement, as lawfully obtained evidence. The court further stated that: “Having regard to the Court of Appeal’s judgment Кж.бр.474/06 of 28 June 2006, at the re-trial, the trial court summoned, and at a hearing (главен претрес) it examined the witness K.N., who was driving the car at the relevant time ... This witness was considered a protected witness by the court. On the basis of an agreement reached with the accused and their representatives, [the witness] was examined in their absence. However, after his examination, the court provided the accused and their representatives with the opportunity to put questions through the court. ... For the offence committed (by the driver), the accused neither drew up a report nor did they press charges against him, despite the fact that the offence was of a more serious nature ... they warned him orally, although a fine and a compulsory security measure – a driving ban – are prescribed for this offence. The witness K.N. provides an objective and detailed description of the events ... Indeed, the MKD 500 bank note which the accused received from this witness had not been marked and secured as evidence, but the court undoubtedly established, on the basis of the statement of this witness, that he had offered – and (the applicants) had accepted – the money as a bribe. The statement of this witness is corroborated by the written transcript of the audio material ... so, the established facts are not put into question ...” 30. This judgment was served on the applicants on 15 and 19 December 2008 respectively. 31. Under section 42(2)(2) of the Act, as regards criminal offences subject to automatic prosecution by the State, the public prosecutor may order the use of a special investigative technique in pre-trial proceedings under the conditions and in the manner specified by law. 32. Section 142-b of the Act provides that special investigative techniques may be ordered where there are reasonable grounds for suspecting that certain criminal offences have been committed by an organised group. Secret surveillance, audio-visual recordings, a simulated offer of a bribe and the use of undercover agents (лица со прикриен идентитет) are among the special investigative techniques permitted (section 142-b(1) (3), (4) and (6)). 33. Section 142-c provides that information, documents and objects obtained by means of special investigative measures may be used as evidence in criminal proceedings. The undercover agents can be examined as protected witnesses. Their identity is classified (службена тајна). 34. Under section 142-d(3), the use of special investigative techniques at the pre-trial stage may be ordered by an investigating judge in a reasoned written decision following a reasoned written request by the public prosecutor, or by the public prosecutor in a reasoned written decision following a reasoned written request by the Ministry, but only in respect of a person whose identity is unknown. 35. Under section 142-e(4) of the Act, evidence obtained through special investigative techniques cannot be used at trial if the techniques were applied without an order by the investigating judge or the public prosecutor or contrary to the Act. 36. Under section 270-a of the Act, the public prosecutor, investigating judge or trial judge must take measures to ensure the effective protection of witnesses if there is a risk that they may be threatened or that their life, health or physical integrity may be endangered. Their protection must be guaranteed by means of special arrangements for the examination of the witnesses and their participation in the proceedings. Protected witnesses are examined in the presence of the public prosecutor, the investigating judge or the trial judge, in a location which guarantees the protection of their identity, unless they agree to be examined using special streaming media, for which a court order is needed. An unsigned copy of the witness’s statement is forwarded to the accused and his or her representative, who can put questions in writing through the court. 37. In accordance with section 339(1), the court decided on the basis of facts and evidence admitted at the trial. 38. Under section 380(3) of the Act, the trial court was bound to take all procedural actions and to discuss all disputed issues indicated in the judgment of the second-instance court. 39. Under section 270-b of the Act, special arrangements for the examination of a protected witness may involve concealment of his or her identity and face. If the arrangements concern the witness’s personal information, he or she may produce evidence under a pseudonym (псевдоним). Otherwise, the general rules for the examination of witnesses apply. A witness who is examined under a pseudonym may also have his or her face concealed (прикривање на изгледот) with the use of special streaming media, which distort one’s voice and face. The protected witness must be placed in a special room that is physically separated from the courtroom in which the investigating or trial judge, as well as other persons attending the examination, are present. 40. Under section 339(3) of the Act, the judgment cannot be based solely on evidence given by a protected witness and obtained by means of witness protection.
| 0 |
test
|
001-142637
|
ENG
|
TUR
|
CHAMBER
| 2,014 |
CASE OF HASAN YAZICI v. TURKEY
| 4 |
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano
|
4. The applicant, a professor of medicine, was born in 1945 and lives in Istanbul. 5. On 29 November 1981 a well-known journalist/columnist published an article in the daily newspaper Cumhuriyet in which he drew attention to the similarities between the books Mother’s Book, written by Professor Dr I.D., a prominent academic and president of the Higher Education Council between 1981 and 1992, and that of Dr Benjamin Spock entitled Baby and Childcare. It mentioned, humorously, that the latter must have copied from Professor Dr I.D.’s book. 6. On 14 December 1997 the applicant brought to the attention of the members of the Turkish Academy of Sciences the allegation that Professor Dr I.D. had committed plagiarism in respect of the above-mentioned book. 7. On 9 January 1998 the applicant, acting as the head of the Ethics Committee of the Turkish Academy of Sciences, together with two other members of the Committee, submitted a two-page report in which they took the view that Professor Dr I.D. had committed plagiarism in his book entitled Mother’s Book. They gave five examples in this connection. They asked the Council of the Academy of Sciences to take various actions in this regard. It appears, however, that no action was taken. 8. Similar allegations were also made by Professor Dr M.T.H. in his book The History of the University in Turkey, 2nd edition, 2000. 9. In December 2000 an article written by the applicant entitled ‘Ethics of Science and plagiarism’ was published in the Turkish Journal of Physical Medicine and Rehabilitation. In this article the applicant renewed his claim that Professor Dr I.D. had committed plagiarism in his book entitled Mother’s Book. 10. In the meantime, on 15 November 2000, a daily newspaper, Milliyet, had published a shortened version of the article that was to be published in the Turkish Journal of Physical Medicine and Rehabilitation. The headline read, in small type, “the YÖK is establishing an ethics committee to examine the ethics of science of docent candidates”, and in larger type “D. should first be reprimanded”. A photograph of Professor Dr I.D. accompanied the article. 11. In this article the applicant stated, inter alia, that there were many ways to deviate from the ethics of science, but that the most primitive and dangerous way was to present the work of others as one’s own, that “plagiarism” was, unlike in Turkey, an action frowned upon in Western culture, and those who committed it were seen as common criminals, that such actions were punished by the laws on copyright, and that in developing countries like Turkey creative ideas and their products had not yet reached the sacred untouchable status they had in developed countries. In this connection, the applicant noted that the YÖK had decided to create an ethics committee to examine the publications of docent candidates. He maintained that plagiarism was so common that the YÖK’s decision was well-founded, and proposed that the latter should approach its founder, I.D., and ask him to apologise for the plagiarisms he had committed. In this part of the article the applicant claimed that Professor Dr I.D.’s book Mother’s Book was plagiarised from Dr Benjamin Spock’s book Baby and Childcare. The applicant congratulated YÖK for the initiative of the ethics committee, but considered that it was not possible to correct “our ethics of science” without first dealing with this issue. Later in the article the applicant criticised the application of the statute of limitations to plagiarism and the lack of flexibility of the applicable sanction. In a small box next to the article the applicant gave an account of his unsuccessful attempt to deal with plagiarism while head of the ethics committee at the Turkish Academy of Sciences. In this connection, he referred to the ethics committee’s above-mentioned opinion regarding I.D. and the resistance it had encountered in that respect, prompting the resignation of committee members. 12. On 18 November 2000 the General Assembly of the Turkish Paediatrics Association condemned the above article published in Milliyet, considering it an attack on Professor Dr I.D. 13. On 29 November 2000 Professor Dr I.D. (“the plaintiff”) brought a civil action for compensation against the applicant before the Ankara Civil Court of First Instance on the ground, inter alia, that the applicant’s assertion that the book written by the plaintiff entitled Mother’s Book was plagiarised from Benjamin Spock’s Baby and Childcare constituted an attack on his personality rights. 14. On an unspecified date the applicant brought a civil action for compensation against Professor Dr I.D. on the ground that some of the remarks made by the plaintiff constituted an attack on his own personality rights. 15. In the course of the proceedings before the Ankara Civil Court of First Instance that court decided to obtain an expert report with a view to establishing the veracity of the applicant’s assertion that the plaintiff had committed plagiarism. It appointed two professors of paediatrics and one lawyer. 16. On an unspecified date the applicant objected to the appointment of the two professors of paediatrics on the ground that they both had close links with the plaintiff. In this connection, he stated that one of them currently worked and the other one had worked prior to his retirement at Hacettepe University, which had been established by the plaintiff, and that they were members of the Turkish Paediatrics Association, which was also headed by the plaintiff. 17. On 18 September 2001 the expert report, which concluded that there had been no plagiarism, was submitted to the firstinstance court. It held, in brief, that the content of Professor Dr I.D.’s book was “anonymous” information regarding child health and care which organisations such as WHO or UNICEF sought to have disseminated, that the plaintiff in the introduction to the book stated that the book had been compiled on the basis of questions asked by parents and conclusions reached from scientific research and experience of experts in the field, that it was natural for the two books to resemble each other – they were handbooks, and neither of them contained any bibliography or sources. In this connection, it pointed out similarities which existed in other similar handbooks, such as Mayo Clinic Family Health Book and John Hopkins Family Health Book. The experts also noted that the book in question was not a scientific publication. The report also assessed the merits of the complaint, holding that in the present case the plaintiff’s personality rights had been violated. 18. On 25 October 2001 the Ankara Civil Court of First Instance (11th Division), relying on the conclusions reached by the expert report of 18 September 2001, held, inter alia, that the applicant’s assertion was neither true nor topical. It ordered the applicant to pay compensation to Professor Dr I.D. in the amount of 10,000,000,000 Turkish liras (TRL), plus interest at the statutory rate applicable from the date of the impugned publication. Counterclaims by the applicant were dismissed, and those decisions subsequently became final, as the applicant did not lodge an appeal in this respect. 19. In his appeal to the Court of Cassation the applicant argued, inter alia, that two of the experts had close ties with the plaintiff and that therefore the expert report was biased. In this connection, the applicant submitted that the first expert was the plaintiff’s student and that the second expert was a student of the first expert and that they were both members of the Turkish Paediatrics Association, which had already voiced its opinion on this subject. He maintained that experts should not be chosen from Bilkent University and Hacettepe University, because those universities had been set up by the plaintiff. The applicant further argued, inter alia, that the domestic court had based its decision on the conclusions of an inadequate and biased report which contained praise for the plaintiff and that the applicant’s comments were true, as had been attested to by witness and documentary evidence included in the case file, including a report dated 24 January 2001 and written by Professor Dr J.P., Professor of English Literature and Comparative Literature at Bogazici University. (This report compares the 1968 edition of Mother’s Book with that of Dr Spock and concludes, inter alia, that a number of paragraphs and sentences in the plaintiff’s book were copied from Dr Spock’s book by way of word-by-word translation and by using other methods considered as plagiarism. The report contains an annex with some examples.) The applicant further argued, by referring to various examples such as legal changes in domestic law provisions, that the issue of plagiarism was a topical subject. 20. On 14 May 2002 the Court of Cassation (4th Division) held a hearing and quashed the judgment of the first-instance court. In its decision it held that the first-instance court should first determine whether the allegations of plagiarism were well-founded. In this connection the court, inter alia, found the experts’ report inadequate and not in compliance with the rules prescribed in Article 276 of the Civil Code of Procedure. 21. On 11 November 2002 the Court of Cassation dismissed the plaintiff’s request for rectification of its decision. 22. When the case was remitted back to the first-instance court, the latter appointed as experts Professor Y.A., professor of paediatrics, Professor S.D., professor of paediatrics, and Professor Dr A.E., professor of English. These appointments were made on 4 February 2003. All these experts worked at Gazi University. 23. On 21 April 2003 the experts’ report, which concluded that there had been no plagiarism, was submitted to the firstinstance court. The experts compared the plaintiff’s book with that of Dr Spock as translated into Turkish by Zuhal Avci, and noted, inter alia, that there was no similarity between the manner in which the two books were conceptualised and shaped, namely the number of pages, picture on the cover, and section headings. Underlining the differences in each section of the book, the experts also concluded that there were no similarities as regards the contents of the book. The experts noted that it was natural for certain information such as Apgar scales or symptoms of various childhood illnesses to be similar. In this connection, they held that these were not the “original views” of Dr Spock. 24. In the course of the proceedings the applicant objected to the report, particularly on the ground that the first two experts worked with a person close to the plaintiff and that they were themselves members of the Turkish Paediatrics Association. 25. Following objections to the report by the applicant, on 1 October 2003 the first-instance court appointed three new experts for a second report. 26. On various dates two of the court-appointed experts, namely Professor Dr D.B. and Professor Dr B.E., both professors of English language and literature at Hacettepe University, resigned because of a potential conflict of interest. 27. On 22 December 2003 the experts’ report prepared by Professor Dr N.A., professor of paediatrics at the Ankara University School of Medicine, Professor Dr S.A., professor of paediatrics at the Ankara University School of Medicine, and Professor Dr G.C., professor of English language and literature at Atılım University, was submitted to the court. 28. In this report, the experts submitted that they had compared the first edition of the plaintiff’s book, published in 1952, with a copy of Dr Spock’s book as originally published. In sum, the experts held that the plaintiff’s book was a popular health book, that it was not a word-for-word translation or citation from Dr Spock’s book, that in the first edition of his book the plaintiff referred at the end of his book to Dr Spock and J.H. Kenyon as regards the methodology he had followed, that there were sections in the book which did not exist in Dr Spock’s book, and that the plaintiff’s book contained national-specific matters and various laws and customs, but that in certain parts of the book there were paragraphs where the translation method had been used and which were similar to Dr Spock. As regards this last point the experts considered that these parts did not concern scientific information but anonymous information known to all paediatricians, and that following these paragraphs the plaintiff had referred to national- specific matters. They further considered that certain conditions required for scientific books, such as citation of sources, were not required for books published at that time, and that an acknowledgement only in the form of thanks sufficed. The experts concluded that the book written by the plaintiff was a popular health book, that in its first edition he had thanked those whose books had inspired him, and that the book was in conformity with the rules of the time of its publication. In this connection, they noted that even today reference by full citation was mostly applicable only to scientific and academic books, and that even if such ethical rules should be held to be applicable to popular health books a book written in 1952 should not be judged by current standards. 29. On 29 December 2003 the applicant lodged a criminal complaint with the Ankara public prosecutor’s office, claiming that the transcript of the court decision of 1 October 2003 regarding the appointment of experts, namely Professor Dr G.C., had been tampered with. 30. On 25 February 2004 the Ankara Civil Court of First Instance (11th Division) ordered the applicant to pay compensation to Professor Dr I.D. in the amount of 10,000,000,000 Turkish liras (TRL), plus interest at the statutory rate applicable from the date of the impugned publication. In its decision, the court began by stating that, after the parties had asked the court to appoint experts, it had requested a list of qualified experts from all universities in Ankara and that it had appointed experts who had not taken part in the academic debate between the parties. It further added that following the applicant’s objection to the first report the court had commissioned a second expert’s report. The court, referring to the evidence in the case file, held that the book written by the plaintiff was not a copy of the book written by Dr Spock, that it was a genuine publication, and that therefore the applicant’s assertion was not correct. It found therefore that there had been an unlawful attack on the plaintiff’s personality rights and scientific career. 31. The applicant appealed, complaining, inter alia, that one of the experts, Professor Dr G.C., was working at Hacettepe University, which gave rise to concerns as to her impartiality. 32. On 19 October 2004 the Court of Cassation (4th Division) held a hearing and quashed the judgment of the first-instance court. The court, after referring to the importance of citation of sources in publications, especially scientific publications, held, relying on the information provided in the experts’ report, that a mere reference to Dr Spock, as regards the methodology followed in the book, in the original edition, was not sufficient to consider that the plaintiff had made a proper reference and that, in addition, in subsequent editions there was no such reference in the book in question. It therefore found no unlawfulness in the applicant’s remarks and held that the case should be dismissed. 33. On 8 November 2005 the Ankara Civil Court of First Instance (11th Division) decided not to abide by the decision of the Court of Cassation, and ordered the applicant to pay compensation to Professor Dr I.D. in the amount of 10,000,000,000 Turkish liras (TRL), plus interest at the statutory rate applicable from the date of the impugned publication. In its decision, it held, inter alia, that experts had been appointed in accordance with the previous decision of the Court of Cassation, that these experts had concluded that there had been no plagiarism, and that the court could not draw conclusions which were contrary to the assessment of the experts. The court held that the applicant had suggested that the plaintiff had committed plagiarism, which under the disciplinary regulation of the YÖK required the heavy sanction of expulsion from the university. It underlined in this connection that everyone had the right to criticise a person exercising a public function. However, criticism which overstepped objective boundaries and became unjust vilification or belittling in bad faith was unlawful. In the circumstances of the present case, the court considered that the plaintiff’s personality rights had been infringed. 34. In his appeal to the Plenary Session of the Court of Cassation, the applicant underlined, inter alia, that the first-instance court had failed to properly assess the decision of the Court of Cassation. In particular, the court had failed to address the fact that there were parts of the book which were translations, and that a reference to Dr Spock in the first edition, which in any event does not figure in later editions, could not be considered a proper citation. In this connection, the applicant underlined that using a methodology adopted in another book and repeating the same words and paragraphs cannot be considered provision of anonymous information, and that there was no scientific basis for the first-instance court’s view that plagiarism only applied to original ideas. The applicant repeated, inter alia, that there was no unlawfulness in his assertion that the plaintiff had in his book plagiarised from Dr Spock’s book by way of translation and quotations without providing proper references, that this fact was already known by the public as such allegations had been previously made by others and the plaintiff had failed to sue them, and that the voicing of this fact was in the public interest. The applicant further criticised the wording of the decision, in particular the use of capital letters to emphasise certain words, and others. 35. On 10 May 2006 the Court of Cassation (plenary session), by a majority, upheld the judgment of the first-instance court. In its decision, the court held, inter alia, that all the experts’ reports included in the case file since the beginning had insistently underlined that both books were handbooks, that they contained anonymous information and not original ideas developed by the authors, and that therefore it was not necessary to provide references therein. It further considered that, contrary to the experts’ reports, the applicant had since 1998 brought similar criticisms against the plaintiff, leading sometimes, as in the present case, to unlawful attacks on the plaintiff’s personality rights. In the present case the applicant in the article in question had insulted the plaintiff and attacked his personality rights instead of assessing the establishment of the ethics committee by the YÖK. The court considered that there was not even the smallest connection between the subject of the article and the plaintiff. It therefore found that the subject was not topical. The court maintained that there was no reason why the applicant would include the plaintiff in this subject. It therefore held that the incident, as established by experts’ reports, was not only false but also not topical. The court further noted that when it had first quashed the decision of the first-instance court, the Court of Cassation (4th Division) had held that the veracity of the allegation was to be established by a report written by experts on the subject and that the first-instance court should make its decision on the basis of that report. It therefore held that if the report concluded that there had been no plagiarism, the applicant’s article - as it was not topical - would constitute an attack on personality rights and an award of compensation would be required. It considered that since the first-instance court had decided to abide by the above decision of the Court of Cassation there was an acquired procedural right in favour of the plaintiff. It considered, however, that the 4th Division, in its second decision to quash the first-instance court judgment, had revised its view and, contrary to the experts’ report, had taken the view that the book was a scientific publication. In this connection, the court referred to its case-law in which it had previously held that where an issue required expertise judges could not rule on it on the basis of their own personal views and opinions. It underlined that this case-law was also applicable to the Court of Cassation. Otherwise, the acquired procedural right would be violated. The court underlined the conditions that must be met for compensation to be awarded for an attack on personality rights in the press: unlawfulness, fault, damage and interconnectedness between reason and conclusion. It further held that for a published criticism or news item to be held unlawful there must be a violation under one of the following criteria: truthfulness, topicality, public interest, public good and interconnectedness between the subject, form and idea. The court noted that in the present case, according to experts’ reports, the article published in Milliyet was not true, that the article was not topical, and the opinions expressed in the article exceeded the limits of criticism and insulted the plaintiff. It further found that the 4th Division’s assessment referred to above was contrary to its case-law regarding the assessment of experts’ reports. The court therefore found that the first-instance court’s decision to resist the 4th Division’s judgment was justified. It transferred the case back to the 4th Division of the Court of Cassation for determination of the amount of compensation. Two dissenting members (judges sitting on the bench of the 4th Division) considered, inter alia, that in the instant case the conditions of public interest, topicality and veracity had been met, and that the form and the words used by the applicant in his criticism of an important public figure and academic was not contrary to law. 36. On 27 September 2006 the Court of Cassation (plenary session) dismissed a request by the applicant for rectification of its decision. 37. On 16 November 2006 the Court of Cassation (4th Division), finding the amount awarded to the plaintiff excessive, reduced the amount of compensation to 2,500 new Turkish liras (TRY). 38. On 14 March 2007 the Court of Cassation (4th Division) dismissed the parties’ request for rectification of its decision. 39. A description of the relevant domestic law at the material time can be found in Sapan v. Turkey, no. 44102/04, §§ 24-25, 8 June 2010.
| 1 |
test
|
001-147626
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,014 |
NICOLAE v. ROMANIA
| 4 |
Inadmissible
|
Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Luis López Guerra
|
1. The applicant, Mr Gheorghe Nicolae, is a Romanian national, who was born in 1951 and lives in Drăganu. He was represented before the Court by Mr G. Ionescu, a lawyer practising in Piteşti. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In the early hours of 18 August 2008 at around 1 a.m. the applicant, who had just returned home from a party, started arguing with his wife and twenty-one-year-old son. Fearing that the applicant might become physically violent, his wife, I.N., called the police. 4. Officer C.V. from the local police, accompanied by C.A.C., the night guard at the local mayor’s office, arrived shortly afterwards at the applicant’s house and entered the yard after being invited in by I.N., who complained that the applicant, who was drunk, was swearing and throwing stones. They found the applicant outside, in his underwear, in an agitated state. C.V. tried to talk to him in order to settle the dispute. After the applicant calmed down, I.N. asked the policeman not to leave, so that she could collect some personal things in order to leave the house with her son. According to C.V., at that very moment the applicant became agitated again and tried to hit his son. When C.V. stepped between them, the applicant started swearing at him, hit him in the face and then appeared to lean over to pick something up from the ground. At that point C.V., with the help of C.A.C., pushed him to the ground and handcuffed him. The applicant’s glasses were broken in the incident. 5. The applicant was then taken in the police car to Drăganu police station, where he was held for thirty minutes, until his wife and son arrived. He was then told he was free to leave, and walked the two-kilometre journey back home in his underwear. 6. In the meantime, officer C.V. had drafted an event report describing the incident (see paragraph 4 above). The applicant’s wife and son had signed the report as witnesses, stating in their own handwriting that “the facts mentioned in the present report are true”. 7. In addition, C.V. had drafted an offence report, fining the applicant 1,000 lei for disturbing public order. The report stated that the applicant had shouted vulgar words and insults addressed to both his wife and the police officer, both at his house and once at the police station. 8. Later that morning the applicant went to see a doctor and obtained a forensic medical certificate stating that he had a 2 x 2 cm excoriation on the left knee with swelling and functional immobility, three excoriations measuring 0.2 x 0.2 cm on the right knee, and a 2 x 2 cm and two smaller ecchymoses (bruises), with swelling, on the left hand. The doctor also mentioned that the applicant had complained of pain in the lumbar area, so he had recommended him an orthopaedic examination, which he had refused. His injuries were considered to require five to six days’ medical care. 9. The applicant contested the offence report drafted by C.V. at the time of the incident. He alleged that there were personal reasons connected to his wife and son which had provoked his behaviour that night; C.V. had abused his authority by not taking them into consideration and by handcuffing him and taking him to the police station. 10. On 12 January 2009 the Piteşti District Court held that the offence report drafted by C.V. was corroborated by the event report signed by the applicant’s wife and son. It was therefore in accordance with the law and presented the facts correctly. The court also took into account the fact that when asked to sign the offence report, the applicant, who refused to do so, did not make any objections concerning the facts as presented by C.V.; however, in view of the personal circumstances referred to by him, the court decided to replace the fine with a warning. 11. This judgment became final as the parties did not appeal. 12. On 20 August 2008 the applicant lodged a complaint concerning the incident with the prosecutor’s office of the Argeş County Court. He alleged that on 18 August 2008 he had not at all been violent. He had just been upset because his wife and son were constantly taking advantage of him and spending his money. The applicant considered that the police officer had only intervened that night to help I.N. take things from the family home. He further complained that he had been pushed to the ground by the officer and night guard, in spite of the fact that he was old and suffering from diabetes. He also claimed that his glasses had been broken in the incident. Lastly, he requested that the truth be uncovered. 13. On 17 September 2008 statements from all the parties involved in the incident, including the applicant, were taken by the investigating authorities. I.N. declared that she had been inside the house to collect some personal things and had not seen what had happened in the moments before the applicant had been pushed to the ground and handcuffed. The applicant’s son also declared that he could not see the incident as he had been busy taking things to his car. He also stated that he had offered to take the applicant home in his car on their return from the police station that night, but he had refused. A witness statement was also taken from a night guard who had been patrolling the field across from the applicant’s house. He declared that he had heard an argument that night between the applicant and his family. When the police had arrived, he had heard the applicant swearing at the police officer and had subsequently seen him resisting getting into the police car. 14. On 3 March 2009 the prosecutor’s office decided not to charge C.V. At first, the prosecutor classified the applicant’s complaint as a complaint of abusive conduct against C.V. Subsequently, the prosecutor held that C.V. had been invited into the applicant’s yard by his wife, who had requested protection, and that the officer had acted in conformity with Law no. 218/2002, which allows for anyone disturbing public order to be taken to a police station, and also allows the use of force in the event of any resistance on their part. In addition, the police officer acted in accordance with the same Law also when he requested support from C.A.C, who therefore was entitled to take part in the operation. 15. The applicant’s complaint about this decision was rejected as ill-founded on 26 March 2009 by the deputy prosecutor of the same prosecutor’s office. 16. The applicant contested the prosecutors’ decisions before the Argeş County Court. The applicant maintained to the court that there was no proof that he had been violent; the police officer had therefore acted unlawfully. He also highlighted the fact that he had been taken to the police station and then left to return home in his underwear. With respect to the investigation, he complained that he had neither been heard by the prosecutor nor confronted with the two alleged perpetrators, stressing that he had also lodged complaints against C.A.C., as well as both perpetrators, about the destruction of his glasses. 17. On 17 December 2009 the Argeş County Court decided to send the case back to the prosecutor’s office, because the applicant’s complaint about the prosecutor’s decision of 3 March 2009 had been solved by the deputy prosecutor and not the head prosecutor, as required by law. 18. On 8 February 2010 the head prosecutor rejected the applicant’s complaint about the decision of 3 March 2009 as ill-founded. 19. The applicant complained again to the Argeş County Court about the prosecutors’ decisions. He attached statements from his wife and son declaring that they did not know what they had signed at the Drăganu police station on 18 August 2008. 20. On 14 June 2010 the Argeş County Court rejected the applicant’s complaint as ill-founded. The applicant’s wife and son made statements to the court that on 18 August 2008 “the applicant was drunk and had an uncontrolled outburst” but had not been aggressive towards the police officer, who had reacted in an unjustified manner. The court decided not to take these statements into consideration since the two of them had mentioned, at the time of the incident, in their own handwriting, that the facts as described in the event report were true. The court further held in reply to the applicant’s allegations concerning the investigation that the initial complaint he had lodged was not clearly formulated; the prosecutor had therefore correctly classified it as a complaint of abusive conduct against the police officer who had conducted the operation on 18 August 2008. Lastly, the court concluded that C.V. had acted in accordance with Article 31 of Law no. 218/2002 on the organisation and functioning of the police in order to restrain the applicant, who had been aggressive towards his family and the police officer. 21. On 21 October 2010 the Piteşti Court of Appeal rejected an appeal on points of law (recurs) brought by the applicant against this judgment as ill-founded. 22. The applicant was represented by a lawyer of his own choosing throughout the entire proceedings before the domestic courts. 23. The relevant provisions of the Romanian Criminal Code in force at the time with regard to ill-treatment and abusive behaviour are summarised in the case of Ghiurău v. Romania (no. 55421/10, §§ 43 and 44, 20 November 2012). 24. The relevant provisions of Law no. 218/2002 on the organisation and functioning of the police, in force at the relevant time, are as follows: “1. In the exercise of their duties, police officers are trustees of public authority and have the following rights and obligations: ... b) to accompany to the police station those who pose a danger to others, public order or other social values ...; in cases of non-compliance with [their] orders, [the police] are authorised to use force ... k) to request if needed, the help of citizens in order to track, catch, restrain and accompany to the police station those suspected of committing crimes ...”
| 0 |
test
|
001-168839
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF PANOV v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
4. The applicant was born in 1977 and is currently serving a sentence in a correctional colony in the Tambov Region. 5. On 17 July 2007 the applicant was arrested on suspicion of robbery. On the following day the Meshchanskiy District Court of Moscow authorised his detention. 6. On 6 September 2007 the Taganskiy District Court extended the detention. That detention order was upheld on appeal on 22 October 2007 by the Moscow City Court. 7. Another extensions of detention followed on 16 October 2007 and 11 December 2007. The applicant appealed against both detention orders. 8. On 17 January 2008 the applicant was convicted as charged and sentenced to nine years’ imprisonment. The conviction became final on 19 March 2008. 9. On 2 July 2008, in reply to the applicant’s complaint about the failure to examine his appeal, the City Court informed him that his appeal against the detention order of 16 October 2007 was not received by the City Court. However, by a letter of 22 August 2008 the City Court forwarded the applicant’s appeal statement lodged on 17 October 2007 to the District Court, requiring it to perform procedural steps necessary to initiate the appeal proceedings. The City Court also informed the applicant that his appeal complaint of 17 October 2007 was mistakenly attached to another case-file. 10. No further information on organisation of the appeal hearing against the detention order of 16 October 2007 was provided.
| 1 |
test
|
001-177127
|
ENG
|
MNE
|
ADMISSIBILITY
| 2,017 |
ĆALOVIĆ v. MONTENEGRO
| 4 |
Inadmissible
|
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
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1. The applicant, Ms Vanja Ćalović, is a Montenegrin national who was born in 1978 and lives in Podgorica. She is an executive director of MANS, a Montenegrin NGO. Its avowed aim is, inter alia, “to increase the transparency and responsibility of institutions and improve the civil control thereof”. The applicant was represented by Mr V. Radulović, a lawyer practising in Podgorica. 2. The Montenegrin Government (“the Government”) were represented by their Agent, Mrs V. Pavličić. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 4 September 2006 the Government adopted an Action Plan for the Fight against Corruption and Organised Crime (“the Action Plan”). The Action Plan, inter alia, provided for “ensuring connection to the databases of telecommunication services providers for the purposes of collecting data, in accordance with police powers (ovlašćenjima) as provided for by the Criminal Procedure Code”. 5. On 27 September 2007, in accordance with this Action Plan, the Montenegro police (Uprava policije Crne Gore) concluded an agreement with M-tel, one of the telecommunication providers operating in Montenegro, which allowed them direct and uncontrolled access to M-tel’s entire database through an adequate interface “whenever possible and necessary”, including access to lists of all calls and their duration, messages, location, date, and time. 6. On 2 July 2008 the applicant, who was subscribed to M-tel’s services, filed a constitutional appeal with the Constitutional Court. She maintained that the police could obtain all the information on her telephone calls without any judicial control; that the police could directly access the computer network and database of mobile telephone operators; and that the scope of the police authority was unknown, given that the agreement was classified as “top secret” (strogo povjerljivo). In doing so, she relied on, inter alia, Article 8 of the Convention and the relevant case-law of the Court. 7. On 24 June 2010 the Constitutional Court rejected the applicant’s constitutional appeal as inadmissible, as it had not been lodged against any individual decision relating to her own rights. The decision was served on the applicant on 13 September 2010. 8. On 5 April 2016 the application was communicated to the respondent Government. In their observations dated 26 July 2016 the Government informed the Court of the following. 9. On 21 January 2011 the Data Protection Agency (“the Agency”) carried out an inspection at M-tel of its own motion. In a report of 4 February 2011 the Agency stated that the impugned agreement, concluded on the basis of Article 230 of the Criminal Procedure Code 2003 in force at the time (see paragraph 23 below), was contrary to certain sections of the Data Protection Act. 10. On 28 March 2011 the Agency, acting upon an objection by M-tel to the previous report, issued a decision ordering M-tel to discontinue providing data contrary to the Data Protection Act, a decision which was upheld by the Agency’s Council on 20 April 2011. The Agency’s Council also cited Article 8 of the Convention and some of the Court’s case-law in its decision, such as Malone v. the United Kingdom (2 August 1984, Series A no. 82), and Copland v. the United Kingdom (no. 62617/00, ECHR 2007I). None of the parties initiated a further administrative dispute before the Administrative Court. 11. On 17 April 2011 M-tel deactivated the login by which the police could access its data. 12. On 14 June 2011 the Agency carried out an inspection at the police offices. In a report of 20 June 2011 it stated that no irregularities had been found. In particular, M-tel had complied with the Agency’s decision and had deactivated the interface through which the police had direct access to its data. 13. Between an unspecified date in 2010 and 30 June 2016 the Agency received 106 protection requests, in relation to which it issued twenty decisions, eight of which were in favour of those who had submitted the requests. Apparently, in the remaining eighty-six cases, the Agency issued reports with recommendations which were complied with, thus no separate decision was necessary, and the proceedings were consequently terminated. 14. On an unspecified date the applicant and two of her colleagues instituted civil proceedings, seeking that the impugned agreement be declared null and void. They did not seek compensation. 15. On 19 July 2013 the Court of First Instance (Osnovni sud) in Podgorica ruled in favour of the applicant and her colleagues. It found that the agreement was contrary to, inter alia, Article 8 of the Convention and the Court’s case-law, and was thus null and void. The court analysed the agreement in detail and found that it had enabled the police to obtain direct and unrestricted access and recover all of M-tel’s data, without defining the scope of those measures or the method of their implementation, or against whom those measures could be applied or for which reasons. All of this, in the court’s opinion, represented an interference with citizens’ privacy and was not necessary within the meaning of Article 8 § 2 of the Convention. It also found that the provider’s clients had no means of establishing if any measures were in place or had been applied in the past in respect of them, nor did they have any “effective control” at their disposal, which also represented a violation of Article 8. The court cited Niemietz v. Germany (16 December 1992, Series A no. 251B); Halford v. the United Kingdom (25 June 1997, Reports of Judgments and Decisions 1997III); Lambert v. France (24 August 1998, Reports of Judgments and Decisions 1998V); and Malone (cited above). 16. That judgment became final on 5 August 2013. 17. On an unspecified date in 2011 the applicant and twenty-four colleagues filed a compensation claim against the police in relation to having their electronic communication put under surveillance in connection with the publication of a certain video on YouTube. 18. On 16 October 2014 the Court of First Instance in Podgorica ruled in their favour and awarded them 1,500 euros (EUR) each under section 207 of the Obligations Act (see paragraph 25 below). The court found that, on the basis of all the evidence, there was a reasonable probability that the communications of the applicant and her colleagues over the internet had been put under police surveillance for the purposes of identifying an IP address from which the said video had been put on YouTube, and that the applicant and her colleagues had never obtained the data thereby collected, even though they had explicitly asked for it. The court held that, even if the police action had been lawful, it did not meet the criterion of necessity in Article 8 § 2. It found a violation of Article 8 of the Convention and relied on the Court’s case-law, notably Gaskin v. the United Kingdom (7 July 1989, Series A no. 160), and Niemietz, Copland, and Halford (all three cited above). 19. On 2 March 2015 the High Court (Viši sud) in Podgorica reduced the damages awarded to EUR 500 each and upheld the remainder of the previous judgment. 20. On 2 July 2008 and 25 November 2011 MANS filed proposals for the assessment of the constitutionality of Article 230 of the Criminal Procedure Code 2003 and Article 257 § 2 of the Criminal Procedure Code 2009 (see paragraphs 23 and 24 below). 21. On 18 July 2013 and 23 July 2014 the Constitutional Court found the relevant part of those Articles unconstitutional and contrary to Article 8 of the Convention, namely the part which enabled the police to ask a telecommunication provider “to check if telecommunication addresses which established a connection at a certain time [were] identical” (see paragraph 23 below). In doing so, the Constitutional Court cited the Court’s case-law, such as Rotaru v. Romania [GC] (no. 28341/95, ECHR 2000V); Klass and Others v. Germany (6 September 1978, Series A no. 28); Kruslin v. France (24 April 1990, Series A no. 176A); Malone; and Copland (both cited above). 22. In accordance with this Act, a person who believes that his or her rights under this Act have been violated can file a request for protection with the Agency, an independent supervisory body, which has to make a decision on the request within sixty days (section 47(1) and (2), and sections 49-50). Those who collect, store, change, use, publish, erase or destroy information will be responsible for any damage caused by a violation of the rights provided for by this Act, in accordance with the general rules on compensation (sections 4a, 9 and 48). The Agency carries out an inspection (nadzor) of its own motion, but anybody else can also file a proposal for an inspection (section 65). 23. Article 230 provided, inter alia, that if there was a reasonable suspicion that a criminal offence prosecuted ex officio had been committed, the police had a duty to implement the necessary measures in order to find the perpetrator, ensure that the perpetrator or an accomplice did not flee or hide, uncover and secure the traces of the criminal offence and objects which could serve as evidence, and collect all the information which could be useful in criminal proceedings. Paragraph 2 of the same Article provided that, in order to fulfill their duties under paragraph 1, the police could ask a telecommunication services provider to “check if telecommunication addresses which established a connection at a certain time [were] identical” (zatraži provjeru identičnosti telekomunikacijskih adresa koje su u određenom vremenu uspostavile vezu). No court order was needed in this regard. 24. This Code entered into force on 1 September 2011 and thereby repealed the previous Code (except for Chapter XXIX, which is not relevant to the present case). The relevant part of Article 257 § 2 corresponded to Article 230 § 2 of the previous Code. 25. Section 151(1) provides that anyone is entitled to ask a court or another competent body to order the termination (prestanak) of an action violating his or her personal integrity, personal and family life and other personal rights (prava njegove ličnosti). Section 166(1) provides that a legal entity, including the State, is liable for any damage caused by one of “its bodies”. Sections 206-207 provide that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of personal rights (prava ličnosti) is entitled to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which might be capable” of affording adequate non-pecuniary relief. This Act entered into force on 15 August 2008. 26. Between 6 June 2013 and 2 October 2015 the High Court in Podgorica issued four judgments (Gž.br. 2182/13, Gž.br. 3884/13, Gž.br. 4669/14 and Gž.br. 4259/15-12) awarding damages to various plaintiffs for violations of their reputation, honour and personal rights (see paragraph 25 above). Two of the judgments were against the State, one against the city of Podgorica and one against a private person.
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test
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001-141950
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ENG
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RUS
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CHAMBER
| 2,014 |
CASE OF MATYTSINA v. RUSSIA
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Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);No violation of Article 6 - Right to a fair trial (Article 6-3 - Rights of defence;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - award
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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 1971 and lives in Khabarovsk. 6. In 1997 the Department of Justice of the Irkutsk Region registered a non-profit non-governmental association, “The Art of Living” (hereinafter “the association”). The goals the association set out in its charter included the “promotion of social adaptation”, the popularisation of a healthy lifestyle, helping people in stressful situations and improving social and family relations. In practical terms the activity of the association consisted of training sessions, lectures, personal consultations and the like. Participation in the “programmes” of the association was offered to anyone interested and was free of charge, although participants were encouraged to make voluntary contributions to support the activities of the association. The association also issued a number of brochures containing information about its goals and basic principles. The brochures explained that the association was inspired by the teachings of SriSri Ravi Shankar, a modern Indian spiritual leader. According to one of the brochures, participation in the programmes of the association would help its participants to fight insomnia and depression, strengthen their cardio-vascular systems, control their emotions and boost their natural defence mechanisms. 7. The association operated without a licence. On 2 February 2001 the association applied to the Committee on Sport and Recreation of the Administration of the Khabarovsk Region for a licence. On an unspecified date in February the Committee confirmed to the association that it did not require a licence to run its programmes, stating the following: “... Your type of activity, [namely] yoga seminars with application of the postures (asana) of Hatha Yoga, Bhakti Yoga, and Kriya Yoga (practising kriya pranayama, i.e. rhythmical breathing at different speeds) does not belong to the category of sports activities or health-improving gymnastics and is not listed in the Unified Russian Register of Sports Activities”. 8. In the spring of 2002 Ms S.D., who was at the time a third-year student at the Institute of Pedagogy in Irkutsk (hereinafter – “the university”), enrolled in the basic programme of the association, “The Healing Breath Workshop”. She enrolled together with her twin sister, Ms N.D. The applicant was one of the “instructors” of the association responsible for that programme. The course included elements of yoga, special breathing techniques, mantra singing, meditation, listening to music, aromatherapy and other similar practices. Participants were recommended to follow a certain diet and do exercises at home. The applicant claimed that she had been doing the exercises regularly herself since 1994. 9. In April 2002 Ms S.D. and her sister started to attend daily training sessions on the premises of the association. Ms S.D. contributed 700 roubles (about 20 euros) to the association as a gift. Upon completion of the course Ms S.D. was encouraged to enrol in an advanced course called “Eternity”, which was run by a different instructor, Ms M.S. 10. At a certain point Ms S.D. started experiencing serious psychological problems. Her mother called the association and blamed the instructors for having turned Ms S.D. “into a zombie”. According to the applicant, Ms S.D.’s mother was a fervent Orthodox Christian and did not approve of her daughters’ interest in a group which the mother described as a “sect”. 11. According to Ms S.D.’s mother, after the training sessions Ms S.D. started having hallucinations and delusions, lost contact with her family, skipped classes at the university, and almost completely stopped eating. On 27 June 2002 Ms S.D.’s mother called the emergency psychiatric services for her daughter; a doctor administered an injection, which did not help. Shortly thereafter Ms S.D. fainted and was hospitalised. 12. In the following months Ms S.D. was hospitalised several times. The diagnosis initially made was “reactive psychosis”. Later the doctors described her mental condition as a “stress-related schizoid disorder”. The parties disagreed as to whether the disorder of Ms S.D. was serious enough to be characterised as “schizophrenia” according to the classifications of mental illness in use in Russia; subsequent expert opinions were not unanimous on that point. 13. According to the doctors at the clinic where Ms S.D. was treated, her mental condition was related to her participation in the programmes of the association, which was referred to in the medical record of 2 July 2002 as a “sect”. Later entries in her medical record also mentioned the “religious” character of her delusions. Following the admission of Ms S.D. to the clinic, an internal inquiry was conducted, which concluded that her medical condition was of a “religious and occult nature” and had been caused by her participation in the programmes of the association. 14. In 2003 the association ceased its activities due to lack of funds. 15. In the years that followed, the diagnosis of Ms S.D. was re-formulated several times; in 2009 the doctors concluded that she was suffering from schizophrenia. 16. On 24 July 2003 an investigator from the Khabarovsk Region police force questioned Ms S.D. in connection with the events of April-June 2002. According to her testimony, the association received payment from the participants of the programme; the programme consisted of breathing techniques, listening to audio-recordings of the voice of the guru, and other similar practices which Ms S.D. characterised as brainwashing. Ms S.D. testified that she had almost stopped eating completely during the period she was attending the courses because the teachers had told her that food was poison. She had also dropped out of her course at the university. At some point she had lost track of the events and had returned to her normal self only in the clinic. 17. On an unspecified date in the first half of 2003 the police investigator ordered an expert examination of the alleged victim, Ms S.D. 18. On 25 July 2003 Ms S.D. was examined by a group of psychiatrists, including Dr Gul., Dr N., and Dr Ig. Dr Ig. acted as the “rapporteur” for the group of experts. In report no. 1170, the group concluded that Ms S.D. had developed an “acute schizoid psychotic disorder” which was related to her participation in the programmes of the association. The experts concluded that after 5 September 2002 Ms S.D. had regained her mental health and, at the time of examination, was capable of participating in the proceedings and giving accurate testimony to the investigator and before the court. 19. On 30 July 2003 an investigator from the Khabarovsk Region police department opened a criminal investigation under Article 235 of the Criminal Code (“Illegal medical practice”). The investigative authorities suspected that members of the association had been involved in quackery and had dispensed medical services to Ms S.D. (“the alleged victim”) without the necessary licences and training. However, the investigative authorities did not charge anybody with that crime when opening the case. 20. On 11 August 2003 the investigator ordered an expert examination of the activities of the association. In particular, the investigator sought to establish whether the association had been dispensing medical services to the participants of the programmes, and whether the alleged victim had suffered any damage to her health as a result of participating in those programmes. The examination was entrusted to the Medical Forensic Bureau (MFB) of the regional Public Health Department. An expert team was put together which consisted of Dr Chern. (the president), Dr Makh., Dr Bes., and Dr Ch. 21. On 17 September 2003 the investigative authorities searched the applicant’s house and seized documents and literature related to the activities of the association. 22. On 19 November 2003 the MFB delivered the first report. The report was based on an examination of the materials in the criminal case file. The report noted that the techniques used by the association in its programmes were known both in conventional (scientific) and alternative (“folk”) medicine circles. However, it did not answer the question as to whether those techniques were medical. It also concluded that the medical condition of the alleged victim was “most probably” related to her participation in the programmes of the association. 23. On 10 December 2003 the investigator asked the MFB to carry out an “additional” (dopolnitelnaya) expert examination of the activities of the association. The MFB expert team was composed of Dr Chern. (the president), Dr Makh. and Dr Ch. Again, the experts did not examine Ms S.D. in person and based their conclusions on the written materials contained in the case file. 24. On 9 April 2004 the MFB delivered a second report as requested by the investigator (no. 36). The MFB again did not give a definite answer to the question of whether the association had been dispensing medical services. It noted that the charter of incorporation and other documents pertaining to the association did not contain any indication as to the medical nature of its programmes. In the opinion of the experts, it was important to distinguish between the “Eternity” programme and the other programmes of the association. 25. The experts also concluded that in the particular case of the alleged victim the techniques used by the association were at the origin of her mental disorder. The basic programme, referred to by the experts as “The Art of Living”, had weakened the alleged victim physically. Her subsequent involvement in the “Eternity” programme had aggravated her somatic condition with a psychiatric disorder. 26. In April 2004 the investigator in charge of the case requested the opinion of the Ministry of Health of the Khabarovsk Region concerning the activities of the association. On 22 April 2004 the Acting Minister of Health replied in the following terms: “The practising of folk medicine ... is subject to the licensing requirement laid down in the Federal Law of 8 August 2001 “On the licensing of certain types of activities”, Governmental Decree no. 499 of 4 July 2002 “On the licensing of medical activities”, and Order of the Federal Ministry of Health no. 238 of 26 July 2002 “On the organisation of the licensing of medical activities”, as well as on the basis of the “Basic Principles of the Legislation of the Russian Federation on Public Health” adopted on 22 July 1991. Order of the Ministry of Health no. 142 of 29 April 1998 ... is no longer in force. At present the list of medical services ... is set out in Order no. 238 of 26 July 2002. Breathing techniques and other methods listed in the list of medical services, as well as hypnotic infusion, belong to the category of ‘medical activities’ and must be licensed under the head ‘psychotherapy’ on the basis of: (1) Order of the Ministry of Health no. 438 of 16 September 2003 “On psychotherapeutic treatment”; (2) Methodological recommendations ... which are annexed to Order no. 438; (3) Psychotherapeutic Encyclopaedia by B. Karvasarskiy (2002). The use of trancelike states as a part of Eriksonean psychotherapy is considered as a medical practice. However, that technique is not used in the ‘Art of Living’ programme; [the programme is based on the use of] relaxation on the basis of traditional meditation within the framework of spiritual practices, which do not require a license. Physical exercises on the basis of yoga asanas [(postures)] are not medical activities and are not liable to the licensing requirement. The term ‘private medical practice’ includes both medical services and services of folk medicine, so those notions are different.” 27. On 22 April 2004 the investigator questioned Ms S.D. again. She largely confirmed her earlier testimony. She also explained that as a part of her participation in the “programme” she had had an obligation to practise special breathing techniques every evening for forty days in a row, and that she had not been allowed to eat meat or fish in any form. She described in detail the “Eternity” programme, which was conducted by the applicant’s co-accused, Ms M.S., and described the effects that programme had had on her physical condition. 28. On 23 April 2004 the investigator ordered a new expert examination of the activities of the association. The examination was entrusted to Dr A., chief psychotherapist of the Khabarovsk Health Department. 29. The report was prepared on 5 May 2004. A copy of that report was submitted to the Court by the Government but is only partially legible. 30. The first question put to the expert concerned the licensing requirements for folk medicine. The expert replied that the licensing of folk medicine was regulated by Governmental Decree no. 238 of 26 July 2002. 31. The investigator further asked whether certain practices (such as “breath gymnastics”, “hypnotic infusion“, “physical exercises on the basis of yoga postures”, and “entrancement”) belonged to the methods of folk medicine and required a medical licence. As to “yoga postures”, the expert concluded that they were not “medical activities” and did not require a licence. Concerning “breath gymnastics” and “hypnotic infusion”, the expert confirmed that these were well-known psychotherapeutic methods, but they had not been used by the association. Elements of those programmes could be used by medical doctors as supplementary methods of psychotherapeutic treatment; however, the “Art of Living” programmes, according to the expert, did not have any medical purpose, were not aimed at curing ailments and, therefore, were not “medical”. 32. On 12 August 2004 the investigator ordered a “forensic and legal examination” of the activities of the association. It was entrusted to the Ministry of Public Health of the Khabarovsk Region. 33. On 23 November 2004 Dr Iv., a doctor in psychiatry and the chief psychiatrist of the Health Department of the Jewish Autonomous Region, drew up a report in which he concluded that the activities of the association had been “medical” in nature and had thus required a licence. 34. On 26 November 2004 the applicant was formally charged. She pleaded not guilty as from the first questioning. 35. On 16 December 2004 the defence obtained an expert opinion by four doctors from the State Medical Academy of Krasnoyarsk (including one professor of medicine). The expert team examined 118 people who had participated in the “Art of Living” programmes for at least three months. The team concluded that most of the people in the test group had observed various positive effects of the programmes, including easing of their chronic diseases, restoration of psychological balance and increased efficiency at work. The report emphasised that “moderate and consistent practice of yoga within the ‘Art of Living’ programme is not incompatible with chronic diseases or old age and can be recommended for rehabilitation after traumas, surgical operations and diseases”. It is unclear whether that written opinion was added to the case file. 36. On 27 December 2004 the applicant’s lawyer asked the investigator to carry out an additional forensic examination. From the materials in the case file it is unclear whether that examination was supposed to cover the activities of the association, the state of health of Ms S.D. or another issue. On 28 December 2004 the investigator replied that all the necessary expert examinations had already been carried out, that the applicant’s guilt had been established, and that there was no need to carry out any new examinations. 37. On 5 March 2005 the investigator commissioned a new expert examination on the activities of the association, which was again entrusted to Dr Iv. On 12 March 2005 the defence was handed a copy of the investigator’s decision to order an expert examination. 38. The report was produced on 1 April 2005. It was based on the written materials of the case file. Dr Iv. started by analysing the applicable legislation. Section 57 of the Public Health Act of 1993 provided that the practising of alternative medicine (also referred to in the law as “folk medicine”, “traditional medicine” or “healing”) required a “healer’s diploma”. Section 56 of the Public Health Act required a private practitioner to have a doctor’s or paramedic’s degree, a “specialist certificate” and a licence (for example, for practising “alternative medicine”). Decree no. 142 of the Ministry of Health of 29 April 1998 provided that folk medicine was subject to the licensing requirement. 39. The Licensing Act of 8 August 2001 (no. 128-FZ) and Government Decree no. 135 of 11 February 2002 included folk medicine in the list of activities subject to the licensing requirement. 40. Order of the Ministry of Public Health no. 113 of 10 April 2001 contained a glossary of “simple medical services”, which included, amongst other activities, items nos. 13.30.005 (“psychotherapy”) and 13.30.006 (“hypnotherapy”). The expert concluded that such services were covered by the licensing requirement and should be provided by specialists in the relevant fields. 41. Furthermore, referring to Government Decree no. 499 of 4 April 2002 on the licensing of medical services, the expert indicated that a person providing medical services was required by law to have, in addition to a special degree or training, a certain amount of work experience in their specific field of medicine. Decree of the Ministry of Public Health no. 238 of 26 July 2002 set out a list of what constituted “medical services”, which included a section on folk medicine. The Decree stipulated that a licence was required to practise folk medicine. On 14 November 2003 the First Deputy Minister for Public Health issued a “Methodological Directive on the Licensing of Folk Medicine”, which described certain activities as falling within the ambit of folk medicine; the list included “traditional systems of invigoration”. 42. The expert also studied specialised medical literature. He concluded that the applicant had used psychotherapeutic methods which were described in the medical literature, such as “trance inducement”, “breath control” and “therapeutic gymnastics”. The latter, according to the Ministry of Public Health’s recommendation no. 2001/13 of 14 March 2001, could include elements of yoga. The expert concluded that the use of such methods placed the applicant’s activity within the scope of “private medical practice”, which needed a licence under the heads of “psychotherapy” and “therapeutic gymnastics”. 43. The expert referred to the Methodical Directive of the Ministry of Health of 26 February 2002, which characterised yoga as a “traditional method of healing”. The same Directive noted that “traditional methods of healing”, including yoga, were not officially recommended by the Ministry of Health for application in medical practice, and, therefore, were not covered by a licensing regime. From that, the expert inferred that in Russia “official application of traditional methods of healing” was not allowed. The expert further referred to the Decree of the Ministry of Health of 13 June 1996 which warned against the use of “occult practices” and other non-recommended healing techniques. 44. The expert noted that the charter of incorporation of the association did not mention that it had been created to dispense medical services. However, the brochures issued by the association described the effects of its “programmes” in medical terms, for example: “a complex of detoxicating dynamic exercises”, “improved functioning of all internal organs”, “harmonisation of all levels of the personality”, “controlled meditation and certain other techniques which guarantee deep relaxation, appeasement of emotions, and help to overcome stress”, and so on. The brochures referred to cases of seriously ill individuals suffering from, inter alia, insomnia and depression, having been cured following completion of the association’s programmes. The techniques used in the programmes were described as a “synthesis of old wisdom and modern science”. On 10 May 2003 SriSri Ravi Shankar obtained patent no. 2203645 “on the breathing technique” which specified that this technique could be used for medical purposes. 45. The expert further studied witness evidence from former participants of the programmes of the association. According to some of the participants, the instructors told them that they had medical diplomas and that the programmes were supposed to have healing effects. The participants were required by the instructors to fill in forms which contained questions about their health. The expert also analysed their description of the techniques used in the programmes, such as relaxation techniques, physical exercises, breathing techniques, meditation and so on. 46. To describe the activities of the association its brochures used terms such as “psychological adaptation”, “autogenic training” and “relaxation” which could be found in specialised medical literature and were in fact techniques of psychotherapy and psychiatric treatment. The expert compared the techniques used by the instructors of the association with “holotropic therapy”, which is a method used in psychotherapy, and pointed out a number of similarities. 47. On the strength of that evidence the expert concluded that the activities of the association could be characterised as “folk medicine”, which required a license. The activities of the association, in the opinion of the expert, were medical in nature. 48. On an unspecified date in April 2005 the defence asked the investigator to question a number of witnesses in order to decide whether there was a need for a further psychiatric examination of the victim. On 29 April 2005 the investigator replied in the negative, stating that the personality of the victim had already been thoroughly examined and that the investigator had obtained an expert report and questioned one of the members of the expert team, Dr Ig. 49. On 1 July 2007 Prof. Z. from the Far East State Medical University situated in Khabarovsk delivered an expert opinion at the request of the applicant’s lawyer. Prof. Z. criticised the earlier expert assessments, which had characterised the activities of the association as “medical”. Prof. Z. asserted that elements of the programmes of the association could be found in many traditional practices, such as yoga, qigong and various martial arts. He also cast doubt on the conclusions of the earlier expert reports that the mental condition of Ms S.D. had been caused by her participation in the association’s programmes. He supposed that her interest in the activities and ideas practised within the association could have been caused by her mental condition. 50. On an unspecified date the applicant’s lawyer solicited the opinion of the Moscow-based Independent Association of Russian Psychiatrists (IAPR) in respect of the expert opinion of 25 July 2003. The applicant’s lawyer provided the IAPR with copies of certain materials from the criminal case file, in particular, reports nos. 197 and 36 and the witness testimony of Dr Ig. 51. On 17 January 2006 a group of experts from the IAPR, composed of two psychiatrists, Dr Sp. and Dr Sav., and one psychologist, Dr Vin., delivered a written opinion. Their report criticised the methods used to carry out the expert examination of 25 July 2003 which resulted in report no. 1170 (see paragraphs 16 et seq.), and condemned the report as unreliable and incomplete. 52. The applicant’s case was heard by Judge Sh. of the Tsentralniy District Court of Khabarovsk. 53. At the trial the applicant and her co-defendant, Ms M.S., pleaded not guilty. They acknowledged that neither they nor the other instructors at the association had medical degrees. They also acknowledged that the alleged victim had been their apprentice and that she had had health problems after completing the two programmes. However, they denied having caused any harm to the alleged victim and insisted that her mental disorder was related to a pre-existing condition or other life circumstances. 54. In particular, they claimed that both the alleged victim and her sister had been born and raised in a very religious family, that they had both had problems fitting in at school, and that they had a difficult relationship with their mother. Several members of the alleged victim’s family had a history of mental disorders, so her own problems could have been explained by a hereditary predisposition. She had started attending the programmes of the association because of her social and psychological problems. 55. Further, the applicant asserted that the “programmes” of the association could not be described as “medical treatment”. Since its creation the association had been inspected several times by the Department of Justice, which had not detected anything illegal in its activities. 56. The defence also claimed that the programmes of the association were not “medical” in nature, and thus did not require any special education or licence. Their purpose was to help people to attain social and psychological harmony, discover the true meaning of life, and so on. The instructors did not receive any remuneration of their work and their participation in the programmes was voluntary. 57. In the first round of the proceedings the court questioned several witnesses. They gave evidence about the mental and physical condition of the alleged victim before, during and after her participation in the programmes of the association. They all associated Ms S.D.’s health problems with her participation in the programmes. 58. From the materials and explanations produced by the Government it appears that neither Ms S.D. herself (the alleged victim) nor her twin sister, Ms N.D., appeared in court. Thus, at the hearing of 27 March 2007 Judge Sh. stated that according to the medical certificates of 19 January 2006 and 22 March 2007 the doctors did not recommend that Ms S.D take part in the trial as it could cause a relapse. Both medical certificates were issued at the request of Ms S.D. and contained no further information about her state of health or any examination conducted in that connection. 59. The court heard several other witnesses called at the request of the prosecution, namely, Ms O.L., the president of the association, Ms L.P., a member of the association and a former teacher of Ms S.D. at university, Ms E.B., a member of the association who had attended the programme together with Ms S.D. (the alleged victim), Ms S.Ch. and Ms V.Z. The testimonies of those witnesses were generally consonant with the case of the defence. 60. The court heard an expert for the prosecution, Dr N., who had participated in the expert teams which had earlier assessed the materials of the case. Dr N. was not categorical in her conclusions and testified that she had not been given information or materials about the alleged victim’s character, social and family life or medical history, and that her conclusion about the link between the programme and the ailments of Ms S.D. had been assumptive. 61. Dr Ig., who had participated in the preparation of report no. 1170, was summoned but failed to appear. The judge tried to secure her attendance for 27 March 2007 through the regional hospital where she worked. However, according to a letter from the hospital, Dr Ig. was on leave until 29 March 2007; after that date her contract with the hospital would be terminated since she planned to move abroad. At the hearing of 27 March 2007 the court, at the request of the prosecution, decided to read out Dr Ig.’s previous testimony. In her testimony Dr Ig. had asserted that the mental condition of Ms S.D. was directly linked to her participation in the programmes of the association. 62. The court examined written evidence from the case file submitted by the prosecution, in particular, records of the questioning of Ms I.G., a former teacher who had been Ms S.D.’s class tutor at school, other documentary evidence and official correspondence. The court examined a letter of 17 June 2003 from the acting chief of the Public Health Department of Khabarovsk. In that letter Ms S.D.’s problems were associated with the activities of the association, which was characterised as a “sect”. The court examined search records and items seized during the searches, including brochures, books and audio-cassettes released by the association for its members. The court examined Ms S.D.’s medical history, the expert report by the MFB of 19 November 2003, the expert report of 23 November 2004 and the expert report by Dr Iv. of 1 April 2005. 63. The court also heard other witnesses, who gave circumstantial evidence about the case. 64. The court questioned a number of witnesses proposed by the defence, namely, Ms D., a former member of the association and an acquaintance of Ms S.D., Ms K., the association’s lawyer, and Dr L., who had been contacted by Ms S.D.’s mother in connection with the mental condition of the former. They all testified that the mental condition of Ms S.D. had been caused by pre-existing factors. 65. A similar statement was made by Dr A., who had prepared a written expert report on Ms S.D.’s case on 5 May 2004. Dr A. was questioned in the capacity of “specialist”. 66. The court also examined the written opinion of Prof. Z. 67. On 23 July 2007 the Tsentralniy District Court of Khabarovsk acquitted the applicant and Ms M.S. In particular, the court concluded that the applicant and Ms M.S. had not realised that their activities might fall within the ambit of medical practice or that they could have been harmful to the health of others. The court also found that the programmes of the association did not amount to medical practice. 68. The court excluded from evidence the expert reports of 25 July 2003, 19 November 2003, 9 April 2004 and 1 April 2005 as incomplete, self-contradictory and unreliable. The court also detected various irregularities in the way the expert examinations had been ordered and conducted. As to the expert opinion by Dr Iv. (reports of 23 November 2011 and 1 April 2005) the court noted, inter alia, that it had been based on legislation which had entered into force after the events imputed to the applicant and to Ms M.S. 69. The court also refused to admit the report by Prof. Z. in evidence as it had been obtained in breach of the domestic law, notably because Prof. Z. had not been informed by the investigator or the president of the court about criminal liability for false statement. 70. The prosecution appealed. 71. On 20 December 2007 the acquittal was quashed by the Regional Court and the case was referred back to the trial court. The Regional Court disagreed with the assessment of evidence by the trial court, and with its decision to declare some evidence, namely, expert reports, inadmissible. The Regional Court also pointed to various procedural shortcomings in the trial proceedings. The Regional Court noted that Dr A. should not have been questioned, since he had participated in the proceedings earlier in his capacity as an expert. Amongst other things, the Regional Court recommended that the trial court conduct new psychiatric examinations of Ms S.D., the alleged victim. 72. In the second round of the trial proceedings the case was heard by the District Court in a single-judge formation: first by Judge Z. and subsequently by Judge M. 73. At the trial both the prosecution and the defence submitted their evidence to the court. The prosecution submitted written expert opinions and witness statements, items of documentary evidence and exhibits obtained at the previous trial or at the investigation stage. The prosecution also submitted medical certificates of 19 January 2006 and 22 March 2007 whereby the doctors recommended that the alleged victim refrain from attending court hearings in order to avoid a relapse. 74. The alleged victim (Ms S.D.) did not appear in court. As follows from the materials submitted by the Government, her name was on the list of prosecution witnesses to be called. Instead, Ms S.D. sent to the court a written declaration asking the court to discontinue the criminal prosecution of the applicant and her co-accused due to their “reconciliation”. She also informed the court that she did not wish to participate in the proceedings. 75. The District Court heard Ms Z.D. (the mother of the victim) and several other witnesses. Expert Dr Ig. did not appear; according to the court, the summons had not been handed to her and had returned by post. The defence insisted that Dr Ig. be contacted through her employer. 76. On 29 July 2008 the judge sent a request to the town psychiatric hospital concerning the state of health of Ms S.D., the victim. The hospital replied that they had lost contact with Ms S.D. in September 2007, and that Ms S.D. had refused to continue to receive out-patient treatment by the doctors of that hospital. The hospital also informed the judge that Ms S.D.’s brother (Mr Ye.D.) and sister (Ms N.D.) had previously been treated in the hospital in connection with certain mental disorders. 77. According to the hearing records, the prosecution asked permission to read out the testimony Ms S.D. had given at the investigation stage. The defence did not object to her testimony being read out. According to the applicant, the defence sought to question those witnesses in person. The court decided to read out the records of the questioning of Ms S.D., as well as the statements her mother, brother, and sister had made during the first round of the proceedings and before the investigative authorities. 78. Witness for the defence Ms E.K. testified in person before the court. The court also heard several other witnesses for the defence, namely, Ms E.D. and Ms E.Iv. They gave testimony consonant with the position of the defence. 79. The court questioned expert Dr N., who had participated in the expert examination of 25 July 2003 (no. 1170). The court also questioned expert Dr Ch., who had participated in the expert examinations of 19 November 2003 and 9 April 2004 (nos. 197 and 36). They confirmed the conclusions of the expert reports and provided further information on the case. 80. The defence sought to exclude the expert opinions produced by the prosecution on the ground that Ms M.S. (the co-defendant) had not been aware of the decision of the investigator to conduct the expert examination. However, the court refused to exclude those opinions on the ground that the defence had had the opportunity to challenge the experts and their conclusions after the completion of the reports or to seek additional expert examinations in the course of the court proceedings. 81. On 1 October 2008 the lawyer representing Ms M.S. (the applicant’s co-defendant) asked the court to conduct an additional expert examination of the state of health of Ms S.D (the victim). It appears that a request in similar terms was lodged by the applicant’s lawyer as well. 82. On 31 October 2008 the prosecutor asked the court to order another expert examination of the materials of the case in order to clarify whether the “programmes” of the association included medical services. The defence asked the judge to entrust the examination to a State institution in Moscow, but the judge refused and entrusted the examination to a local forensic centre in Khabarovsk. However, the court agreed to include an expert proposed by the defence on the team. The materials of the case were forwarded to the competent expert institution for examination. 83. On 14 April 2009 those materials were returned to the court without examination. The expert institution replied that it was impossible to reply to the questions as they had been formulated by the judge in overly broad terms, and that additional experts were needed to carry out that kind of examination. 84. In the first half of 2009 Judge Z. withdrew from sitting in the case for reasons which remain unknown. He was replaced by Judge M. The trial was resumed on 3 June 2009. It appears that due to the change of judge the case was heard again from the beginning (see Article 242 of the Code of Criminal Procedure in the “Relevant Domestic Law” part below). 85. At the hearing of 3 June 2009 the prosecution declared that they would agree to the discontinuation of the case on the ground that the statutory time-limits for prosecuting the defendants had expired. However, the applicant and Ms M.S. insisted on the continuation of the trial, stressing that they wished to prove their innocence. 86. Having examined the list of witnesses summoned to the hearing, Judge M. noted that Dr Ig. had been summoned but that the court had “received no information about her proper notification”. 87. The prosecution again asked to read out the testimony of Ms S.D. and Ms N. D. obtained at the pre-trial investigation stage but the defence objected. They asked the judge to request information about the ability of those witnesses to testify in court in person. 88. On 2 July 2009 Judge M. decided to read out the testimony Ms S.D. had given at the pre-trial investigation stage. On the basis of the materials in the case-file and “information received”, the judge ruled that the state of health of Ms S.D. prevented her from participating in the trial. 89. The judge also noted that it was impossible to hear expert witness Dr Ig., without, however, explaining why, and ordered the reading out of her testimony obtained by the investigator. 90. On 4 July 2009 Judge M. requested the opinion of the regional psychiatric hospital as to whether the state of health of Ms S.D. and Ms N.D. permitted them to take part in the proceedings. On 11 July 2009 the hospital replied that since Ms S.D. and Ms N.D. had not been treated in that hospital, it was impossible to say whether they were fit to attend the trial. 91. Subsequently the judge read out testimony by several other witnesses who had been questioned at the earlier stages of the proceedings, including Ms Z.D. (the mother of the victim) and Mr Ye. D. (the brother of the victim). 92. It appears that at the subsequent hearings the judge heard oral evidence from several witnesses, namely, Ms Ye. Iv. and Ms D. However, the Government did not produce copies of the records of the relevant hearings. 93. On 7 December 2009 Judge M. heard two experts – Dr Ch. (who had participated in drafting expert opinions nos. 197 and 36) and Dr N. (who had participated in the drafting of expert opinion no. 1170). During his questioning Dr Ch. stated, inter alia, that lacunas in the previous expert examinations could have been filled by carrying out a new psychiatric examination of Ms S.D. Dr N. was of the same opinion. 94. The defence asked the judge to read out the testimony of expert Dr A., who had drafted the report of 5 May 2004 and who had been questioned at the first trial. The judge agreed and Dr A.’s recorded testimony was examined. 95. On the same day the defence requested the court to order an additional expert examination of the causes of the mental disorder of Ms S.D. and its relation to her participation in the programmes of the association. The defence stated that the expert examinations obtained earlier were inconsistent and did not address certain important issues. 96. That request was refused: the judge concluded that the previously obtained expert opinions were sufficient to reach a conclusion on the merits of the case. The examination of evidence was closed and the judge ordered the parties to proceed to the final pleadings. 97. On 25 December 2009 the Central District Court of Khabarovsk found the applicant and Ms M.S. guilty under Article 235 § 1 of the Criminal Code. 98. The District Court found that between 24 April and 23 June 2002, in the guise of “programmes” and “training courses”, the applicant and Ms M.S. had dispensed to Ms S.D. the following medical services: “psychological adaptation”; “autogenic training”, “dietetic therapy”, “medicinal gymnastics”, and “psychotherapeutic treatment”. All those activities belonged to various fields of medicine (such as psychotherapy, psychiatry and narcology). The nature of the activities of the accused was in itself indicative of the deliberate and conscious nature of their actions. To dispense such services a special education and a licence were required. The defendants had operated without any licence and did not have any medical training. There was a direct causal link between Ms S.D.’s participation in the programme and her health problems in 2003. Thus, the unlawful and careless behaviour of the applicant and Ms M.S. had caused Ms S.D. moderately serious health damage. 99. In support of its conclusions the court referred to the following evidence: the testimony of Ms S.D. given on 24 March 2003 and 22 April 2004, the testimony of Ms N.D., the sister of the alleged victim, given during the pre-trial investigation on 9 September 2003, and the testimonies of Ms Z.D. (the mother of the alleged victim), and Mr E. D. (the brother) given at the trial. 100. The court further referred to expert opinions, namely, the expert reports of 25 July 2003 (no. 1170), the reports of 19 November 2003 (no. 197) and 9 April 2004 (no. 36), the expert report by Dr Iv. of 1 April 2005, and the record of expert Dr Ig.’s questioning by the investigator. The court also referred to the oral testimony of experts Dr N. and Dr Ch. given at the trial. 101. The court also referred to other evidence, namely, the records of the testimonies of Ms E. K., Ms O.L., Ms E.B., Ms I.G. and others, given either to the investigator during the investigation stage of the proceedings or at the first trial. The court also relied on documentary evidence, including the medical history of Ms S.D., the charter of incorporation of the association and brochures and leaflets published by it. 102. The court dismissed as inconclusive witness statements by Ms K. (defence witness) and Ms D. (defence witness), and did not analyse the testimony of Dr L. The court also discarded the testimonies of those witnesses who had themselves participated in the programmes of the association on the ground that their opinion about the nature and effects of those programmes was “subjective”. 103. Expert opinions proposed by the defence were declared inadmissible in evidence. In particular, the District Court held that the expert opinions of Prof. Z. and the IAPR were inadmissible on the ground that they had been obtained in breach of Articles 58, 251 and 270 of the CCrP. The court explained that under the law “a party cannot, on its own initiative and outside of the court hearing, solicit and obtain the opinion of a specialist” (page 25-26 of the judgment). 104. The written testimony of Dr A. was excluded on the ground that Dr A. had earlier produced an expert report on the case. Consequently, under the Article 72 § 2 of the CCrP he was precluded from being questioned in his capacity as a “specialist”. 105. As to the references in the report of Dr Iv. of 1 April 2005 to the legal acts adopted after the events imputed to the applicant, the court noted that these references did not contradict the conclusions of Dr Iv. but only strengthened them, and that Dr Iv. had also referred to the legal acts in force at the time of the events at issue (page 27 of the judgment). 106. In the concluding paragraphs of the judgment the court noted as follows: “The court considers that the evidence [submitted by the parties] is admissible, relevant and reliable to the extent that it does not contradict the The District Court sentenced the applicant to two years of imprisonment; however, she was relieved from serving the sentence owing to the expiry of the relevant statutory time-limit. Mr M.S. was sentenced to one year and six months of imprisonment. 107. The defence appealed. They complained, in particular, that judge M. had based the judgment on the testimony of witnesses he had not heard in person. They also complained about the refusal of the trial court to admit expert opinions submitted by the defence in evidence and obtain a new expert examination of the condition of Ms S.D. On 25 March 2010 the Khabarovsk Regional Court upheld the conviction. The court of appeal did not find any breach of the domestic substantive or procedural law in the proceedings before the trial court. The Regional Court ruled, inter alia, that the defence had conceded to the reading out of the previous testimony of the alleged victim and her relatives. The Regional Court noted that the record of Ms S.D.’s questioning by the investigator was a reliable source of information because when she had given that evidence she had not been suffering from a mental condition.
| 1 |
test
|
001-177398
|
ENG
|
MNE
|
COMMITTEE
| 2,017 |
CASE OF NEDIĆ v. MONTENEGRO
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
|
Jon Fridrik Kjølbro;Nebojša Vučinić
|
5. The applicant was born in 1950 and lives in Podgorica. 6. On 6 September 2003 the applicant lodged an application with the Commission for Restitution (Komisija za restituciju nepokretnosti) in Berane requesting restitution of the property expropriated from his father in 1969. 7. Following the adoption of a new Restitution Act (Zakon o povraćaju oduzetih imovinskih prava i obeštećenju), on 28 December 2005, the applicant submitted another application to the newly established Commission for Restitution and Compensation in Berane (Komisija za povraćaj oduzetih imovinskih prava i obeštećenja) requesting compensation. 8. In 2008 all the Commissions for Restitution and Compensation were consolidated into three regional Commissions in Bar, Bijelo Polje and Podgorica. Due to the location of the expropriated property, the applicant’s request was assigned to the Commission with its seat in Bijelo Polje (hereinafter “the Commission”). 9. On 19 February 2009 the applicant sought opinion from an independent expert regarding the expropriated property. 10. On 21 July 2009 the Commission also requested an assessment report on the expropriated property. The report was submitted to the Commission on 24 July 2009. 11. Due to Commission’s inactivity, on 4 September 2009 the applicant lodged an appeal (žalba zbog ćutanja uprave) with the Appeals Commission (Komisija za žalbe u postupku za povraćaj imovinskog prava ili obeštećenja). 12. On 23 October 2009 and 5 December 2013 the applicant filed complaints with the Ministry of Finance and the Administrative Court, respectively, about the Appeals Commission’s inactivity. 13. On 24 December 2013 the Appeals Commission ordered the Commission to decide on the applicant’s request within a period of 30 days. 14. On 13 October 2014 the Commission ruled against the applicant. 15. On 23 December 2014 the Appeals Commission upheld that decision on appeal. 16. The applicant filed and action with the Administrative Court seeking redress. 17. On 17 April 2015 the Administrative Court rejected the applicant’s claim as unfounded. This decision was served on the applicant on 23 April 2015. 18. On 23 June 2015 the applicant lodged a constitutional appeal. On 24 July 2015 the Constitutional Court rejected his appeal for failure to make proper use of other available domestic remedies. According to the Constitutional Court, the applicant should first have made use of an additional request for the judicial review of his case (zahtjev za vanredno preispitivanje sudske odluke).
| 1 |
test
|
001-179849
|
ENG
|
UKR
|
COMMITTEE
| 2,018 |
CASE OF NAKONECHNYY AND OTHERS v. UKRAINE
| 4 |
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 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
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André Potocki;Mārtiņš Mits;Síofra O’Leary
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-178105
|
ENG
|
MLT
|
ADMISSIBILITY
| 2,017 |
SCHEMBRI v. MALTA
| 4 |
Inadmissible
|
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
|
1. The applicant, Ms Concetta Schembri, is a Maltese national who was born in 1944 and lives in Rabat. She was represented before the Court by Dr M. Camilleri, a lawyer practising in Valletta. The Maltese Government were represented by their Agent, Dr Peter Grech, Attorney General. 2. The facts of the case, as submitted by the parties, may be summarised as follows: 3. In 2004 S., a Pakistani citizen of Afghan origin, arrived irregularly in Malta by boat and was detained under the applicable immigration laws. While in detention, S. met C., the applicant’s brother, who worked with the detention services. 4. Following his release from detention in 2005, S. maintained contact with C. and started carrying out some maintenance work in the latter’s house. S. eventually started living in that house in October 2005 and met the applicant, with whom he started a relationship. It appears that for some time the applicant also lived there while renovation work was being carried out in her own place. Three months later S. wanted to marry the applicant, but she did not agree. According to the Government, the applicant and S. had only gone out together once and S. spoke little English; however, during the domestic proceedings (see paragraphs 5, 12 and 15 below), the applicant stated that she had originally got to know S. online and that after they had met they had sometimes gone out together – when asked whether their outings had been romantic she replied that they had been normal outings. 5. After some time, in 2006, once his asylum application (at first instance) had been rejected, S. entered Italy unlawfully and went to Naples. According to the applicant’s testimony S. contacted the applicant around a month later by phone and the two remained in contact via telephone calls around twice a week. An appeal against the asylum decision was never examined since S. could not be traced. 6. In November 2007 the applicant went to Milan on holiday and met S. again; she then prolonged her stay. In December 2007 her brother and the latter’s daughter joined them and on that occasion the applicant and S. decided to get married. According to the applicant she lived with S. for some time and then returned to Malta for a few months before returning to Italy in March 2008. The Government submitted that there was no evidence of their cohabitation. 7. On 19 March 2008 the applicant married S., who was thirty years her junior, under the regime of separation of estates. The rest of the applicant’s family (save for C.) was not informed. They married in Milan, Italy and their marriage was registered in the Public Registry of Malta in the same year, given that one of the spouses was a Maltese national. 8. According to a declaration by two Italian lawyers (who had assisted the applicant) dated 2011, to their knowledge the applicant and S. lived together before and after their marriage until they went abroad. 9. In April 2008 the applicant and S. went to the Maltese embassy in Rome in order to apply for a visa for S. He was interviewed in that connection. According to the applicant, following the interview S. was informed verbally that he would not be granted a visa to enter Malta. No written decision was issued nor was he informed about any possibility of appeal. The applicant alleged that it had been suggested to S. that he go back to Pakistan wherefrom he could apply for an entry visa. The embassy denied this (during the domestic proceedings), their position being that his visa had been refused because during the interview it transpired that S. had been lying, in particular concerning the status of his stay in Italy and the means by which he had entered Italy, and his means of subsistence. In her testimony the Consul stated that she had consulted the Central Visa Unit in Malta (“the Visa Unit”) and submitted a report to this effect, and subsequently, on an unspecified date, a letter had been sent to S. rejecting his application. 10. In May 2008 the applicant went back to Malta to ask for a review of the decision taken by the embassy and to try to obtain a visa for her husband through the Visa Unit in Malta. She was informed that she had to write a letter to the Visa Unit outlining her request. She followed this instruction on 5 August 2008 and then returned to Italy on 8 August 2008. She continued communicating with the Visa Unit, but no decision was communicated to her. 11. In October 2008 S. returned to Pakistan to try and obtain an entry visa from there. However, the Italian embassy in Islamabad could not provide assistance. 12. In the meantime the applicant had returned to Malta and continued pursuing the application for an entry visa from there. She was sent from one office to another to no avail. On an unspecified date, at a meeting with M.C. and J.M. (two employees of the Visa Unit), the applicant, who referred to having met S. online, was told that if the visa were to be issued she would have to give personal guarantees with regard to the financial support of her husband. She accepted that responsibility. No attempts were made to contact S. and no decision ensued. 13. It appeared that an internal board had started to investigate the applicant’s complaint. It also transpired that the authorities suspected that the applicant’s marriage to S. had been one of convenience, which was why a visa would not be issued. Moreover, it appeared that S.’s intention was to stay in Rome. The Visa Unit submitted their conclusions to the department of Citizenship but no decision had been formally issued by the time the proceedings hereinafter mentioned were instituted. In any event, according to the applicant, the law did not appear to provide for a possibility to appeal against any such decision (unless it had been taken by the Principal Immigration Officer, which did not appear to be so in the present case). 14. On 23 July 2009 the applicant instituted constitutional redress proceedings complaining that the refusal to issue her husband a visa had been unlawful and had constituted a violation of Article 8 of the Convention. 15. The court heard evidence from a number of witnesses including the applicant (who reiterated the facts as mentioned above), but not S., who did not testify. 16. J.M., the director of the Department of Citizenship, stated that S. was an exempt person but that his status had not yet been confirmed. He explained that exempt status was an inherent right of a spouse of a Maltese citizen, unless the spouses did not live together or if there had been an order by the Minister responsible. He explained that he had been in contact with the Visa Unit and the embassy in Italy and that his role was to ensure that the legislation was not abused, particularly in the light of marriages of convenience, which were not rare and which could be detected through an EU Council Resolution which gave pointers on identifying such situations. He further testified that even with exempt-person status an individual could not automatically enter the country and a visa was still required. J.M. noted that the exempt-person status of S. had never been confirmed. At the same time he also stated that there was no application to be lodged, since an individual should not have to apply for something which belonged to him or her by right. He explained that there was an enquiry form requiring details of the exempt person and when this was filled in, a letter confirming the status would be sent out. However, J.M. stated that this was simply a formality because the exempt-person status was acquired as soon as the marriage was contracted. S. had never filled in this form, as he had never entered Malta following his marriage. Nevertheless, J.M. testified that an informal request had been made by the applicant, who had been accompanied by a lawyer. 17. M.S., another employee of the Visa Unit, stated that S.’s visa application had been refused but that there was a right of appeal – he later stated that it was not an appeal but a review or reconsideration. He declared that the Visa Unit had reviewed the case and decided that the application should be refused because there had been a suspicion that it had been a marriage of convenience. M.S. explained that the file had been sent to the Department of Citizenship and that the case had not yet been concluded, and no decision letter had been sent out. 18. By a judgment of 29 November 2011 the Civil Court (First Hall) in its constitutional jurisdiction dismissed the applicant’s claim. 19. The court rejected the Government’s objection as to non-exhaustion of ordinary remedies. It considered that the reconsideration procedure as undertaken by the Visa Unit in the present case could not be considered an effective remedy – it had taken too long, despite the Visa Unit having had all the relevant information from the Maltese embassy in Rome. Indeed the Visa Unit had had no reason to prolong issuing a decision, to the extent that it was never rendered. Furthermore, the procedure eventually came to a halt with the institution of the constitutional redress proceedings. Moreover, such a remedy was not independent of the Visa Unit since it was decided upon by the same unit. It followed that, having regard to the totality of the procedure and its ineffectiveness, the court had to exercise its constitutional competence to assess the merits of the complaint. 20. It also held that the applicant had had a juridical interest in lodging the complaint in her name, since her complaint was that as a result of the impugned actions or omissions, her own family life was being violated. 21. In connection with the merits, the court referred to the testimonies of the applicant, M.C. and J.M. and that the latter officials considered that S. needed a visa in order to enter Malta. This would have enabled him to apply for a residence permit and to travel in the Schengen area. 22. The court noted that the couple had never cohabited in Malta, and that the applicant had never had the intention to marry S. when he had been in Malta. Referring to general principles of the Court’s case-law, it considered that the couple had never envisaged having a family life together, and why the applicant had changed her mind and decided to marry S. in Italy was a mystery. The court was not convinced that the applicant’s decision to marry had been genuine – not once in her testimony had she declared her love for her husband, nor had she in the slightest touched on the level of intimacy she had with her husband, who was thirty years her junior; neither had she given an explanation about her change of mind, nor why she had not wanted to follow her husband to Pakistan. She had also admitted that she had not been living with her husband as he had been in Pakistan, thus implicitly admitting that she had been de facto separated. Thus, S. could not have expected to obtain exempt status, nor could it be said that there had been family life in the present case, and the authorities had simply applied the law. Furthermore, S. had shown a total disregard for the proceedings, having chosen not to submit any written testimony corroborating the applicant’s statements or challenging those of the authorities. The court considered that it was not for it to decide whether there had been a marriage of convenience; it sufficed to find that the authorities refusal to issue S. with a visa had not breached Article 8 of the Convention. 23. The applicant appealed. By a judgment of 26 April 2013 the Constitutional Court rejected the applicant’s appeal. 24. It considered that when they had been in Malta the applicant and S. had not formed a family, and their encounters had been rather ambiguous, tenuous and lacking any commitment towards each other. The same appeared to be the case of their life in Italy. While it was true that they had married there, the only commitment undertaken appeared to have been for S. to acquire a visa. The Constitutional Court pointed out that according to the Court’s case-law it was only genuine marriages undertaken according to law which were protected by Article 8 of the Convention. While the Constitutional Court was ready to accept that the marriage had been contracted according to law, it had to address the State’s argument as to whether the marriage had been a genuine one. 25. The Constitutional Court noted that the applicant had been aware of the precarious situation S. had been in (since he had been a third country national, thus requiring a visa to enter Malta) despite her claim that he had not required a visa. Nevertheless, S. had never instituted an ordinary remedy to challenge the refusal. It could not be ignored that the applicant had refused to marry S. when they had been in Malta, and had only changed her mind in Italy after a few months and despite the age difference between them. Their cohabitation in Italy had been temporary and they could not have aspired to making it permanent owing to a variety of reasons, specifically S.’s irregular status in Italy, the applicant’s refusal to follow him to Pakistan (which she had not proved would have been problematic), and the visa refusals by the Maltese authorities. Furthermore, the court was struck by the lack of commitment towards, and interest in the proceedings by S., who had not even bothered to submit written testimony, or at least to attempt to send a letter or make use of letters of request or other means which were available to persons not on the territory of the State. 26. All the above led the Constitutional Court to conclude that there had been no family life, within the meaning of Article 8 of the Convention, in the present case and that therefore there had been no breach of the applicant’s rights. 27. Part IV of the Immigration Act deals with “Prohibited Immigrants” and requires all, except those with a right of entry and residence according to the provisions of the Act, to obtain permission to enter Malta from the Principal Immigration Officer. 28. Part II of the Act concerning “Exempt Persons” provides that Part IV of the Act does not apply to exempt persons. The relevant provision, namely Article 4 (1) reads as follows: “The provisions of Part IV of this Act shall not apply to any person - (a) who is a citizen of Malta; or ... (g) who is the spouse of any person referred to in any of the foregoing paragraphs and is still married to and living with that person; ...” 29. The Act as applicable at the time of the present case provided, in its Article 25 A (5), for a review of a decision only in limited circumstances. It read as follows: “Any person aggrieved by any decision of the competent authority under any regulations made under Part III, or in virtue of article 7, article 14 or article 15 may enter an appeal against such decision and the Board shall have jurisdiction to hear and determine such appeals.” 30. For the purposes of comprehending the above, Part III of the Act concerns special provisions connected to the European Union, Article 7 concerns residence permits, Article 14 concerns removal orders and Article 15 concerns carriers. It follows that visas, which are dealt with in Article 8 (Part IV) of the Act are in theory excluded from any available review according to this provision. 31. Nevertheless, Regulation 19 of Subsidiary Legislation 271.04 provided, amongst its miscellaneous provisions, that “Any person aggrieved by any decision of the Principal Immigration Officer may appeal to the [Immigration Appeals] Board as provided for in article 25A(5) of the Act.” 32. In 2012, the situation regarding visa appeals was clarified by means of Regulation 2 of Legal Notice 2 of 2012 which reads as follows: “The Immigration Appeals Board has the competence to hear appeals related to the refusal, annulment or revocation of the visa with reference to the provisions of paragraph 3 of Article 32 and paragraph 7 of Article 34 of the Regulation (EC) No. 810/2009 of the European Parliament and of the [EU] Council of 13 July 2009 establishing a Community Code on Visas (Visa Code).” 33. The time limit of such an appeal was three days, eventually extended to fifteen days by Legal Notice 20 of 2013. 34. Article 38 of the Marriage Act reads as follows: “(1) Any person who contracts a marriage with the sole purpose of obtaining - (a) Maltese citizenship; or (b) freedom of movement in Malta; or (c) a work or residence permit in Malta; or (d) the right to enter Malta; or (e) the right to obtain medical care in Malta, shall be guilty of an offence and shall on conviction be liable to imprisonment for a term not exceeding two years. (2) Any right or benefit obtained by a person convicted of an offence under subarticle (1) on the basis of the marriage referred to in that subarticle (1) may be rescinded or annulled by the public authority from which it was obtained. (3) Any person who contracts a marriage with another person knowing that the sole purpose of such other person in contacting the marriage is one or more of the purposes referred to in subarticle (1) shall be guilty of an offence and shall on conviction be liable for the same punishment laid down in subarticle (1).” 35. Articles 1 to 5 of the (EU) Council Resolution of 4 December 1997 read as follows: “1. For the purposes of this resolution, a ‘marriage of convenience` means a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State. 2. Factors which may provide grounds for believing that a marriage is one of convenience are in particular: - the fact that matrimonial cohabitation is not maintained, - the lack of an appropriate contribution to the responsibilities arising from the marriage, - the spouses have never met before their marriage, - the spouses are inconsistent about their respective personal details (name, address, nationality and job), about the circumstances of their first meeting, or about other important personal information concerning them, - the spouses do not speak a language understood by both, - a sum of money has been handed over in order for the marriage to be contracted (with the exception of money given in the form of a dowry in the case of nationals of countries where the provision of a dowry is common practice), - the past history of one or both of the spouses contains evidence of previous marriages of convenience or residence anomalies. In this context, such information may result from: - statements by those concerned or by third parties, - information from written documentation, or - information obtained from inquiries carried out. 3. Where there are factors which support suspicions for believing that a marriage is one of convenience, Member States shall issue a residence permit or an authority to reside to the third-country national on the basis of the marriage only after the authorities competent under national law have checked that the marriage is not one of convenience, and that the other conditions relating to entry and residence have been fulfilled. Such checking may involve a separate interview with each of the two spouses. 4. Should the authorities competent under national law find the marriage to be one of convenience, the residence permit or authority to reside granted on the basis of the third-country national’s marriage shall as a general rule be withdrawn, revoked or not renewed. 5. The third-country national shall have an opportunity to contest or to have reviewed, as provided for by national law, either before a court or before a competent administrative authority, a decision to refuse, withdraw, revoke or not renew a residence permit or authority to reside.”
| 0 |
test
|
001-171087
|
ENG
|
SVN
|
CHAMBER
| 2,017 |
CASE OF LEKIĆ v. SLOVENIA
| 3 |
Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions;Possessions)
|
András Sajó;Boštjan Zalar;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1956 and lives in Ljubljana. 6. On 8 October 1992 the applicant acquired a share in L.E., a limited liability company based in Ljubljana. His name was entered in the court register of legal entities (hereinafter “the court register”) and he became one of nine equal registered members of the company, each holding an 11.11% share. The share capital of L.E. stood at 2,995,250 Slovenian tolars (SIT) (12,498.96 euros (EUR)). 7. Two of the founding members withdrew from company L.E. at the beginning of 1993. On 2 February 1993 the applicant, in addition to being a member, was also employed by company L.E. as head of its IT department. In addition, he provided assistance to the finance director. 8. On 19 February 1993 two key members and managers of company L.E. died in a car accident and two others were seriously injured. As a result, the company’s business operations could not be carried out and the company sustained a large financial loss. Moreover, its management was seriously undermined and during the course of 1993 all members except the applicant and another person withdrew from the company’s management board. Following those events, the applicant first assumed the role of acting director of company L.E. on 29 April 1993, and then the role of managing director on 23 February 1995. In that capacity he acted as the company’s representative. 9. Meanwhile, on 24 August 1993, the Railway Company of Slovenia (Slovenske železnice) had applied for an enforcement order against L.E. based on an authentic document for unpaid transport services. L.E. challenged the enforcement order and the parties were directed to settle the issue in contentious proceedings. The Railway Company lodged a civil action, claiming the payment of three sums totalling approximately SIT 5,000,000 (EUR 20,000). 10. In 1995, L.E. was converted into a limited liability company in accordance with section 580 of the Companies Act, which required companies falling under its jurisdiction to increase their share capital and to align their operations with the provisions of the Act (see paragraph 34 below). However, at the time of the conversion the company was no longer liquid or solvent. 11. On 6 May 1996 the applicant stepped down as managing director of L.E. following a decision of the general meeting of the company. The members failed to appoint a new managing director and henceforth the company existed without any management. The applicant’s resignation from the post of managing director was not entered in the court register of legal entities (hereinafter “the court register”). 12. On 19 June 1997 the members of company L.E. decided at its general meeting to apply for bankruptcy on account of the company’s insolvency. L.E. filed a bankruptcy petition with the competent court, but it was rejected as the company had failed to make the required advance payment to cover costs and expenses of the bankruptcy proceedings in the amount of SIT 150,000 (EUR 626). The members established that they could not incur the costs of bankruptcy and thus decided to wait for the courts to liquidate the company proprio motu, in accordance with the then applicable legislation, namely, the Compulsory Composition, Bankruptcy and Winding-Up Act as amended, which entered into force on 1 July 1997. The amendment to the Act authorised the courts to initiate bankruptcy proceedings of their own motion in certain specified circumstances (see paragraph 34 below). 13. On 31 July 1997 the applicant stopped working for company L.E. Moreover, by the end of 2000, another two members of the company had died. 14. In the civil proceedings initiated by the Railway Company against L.E. the applicant was summoned to appear at a hearing to be held on 22 November 2000. As he was unable to attend the hearing, he made written submissions explaining that the company had not been solvent for a number of years. On 22 November 2000 the District Court of Ljubljana rendered a judgment ordering L.E. to pay the Railway Company the three sums claimed. 15. Meanwhile, on 1 July 1999 the Compulsory Composition, Bankruptcy and Winding up Act was again amended, inter alia, to repeal the provisions on bankruptcy proprio motu. Moreover, on 23 July 1999 the Financial Operations of Companies Act (hereinafter “the FOCA”) entered into force. It introduced a measure decided proprio motu whereby insolvent and/or inactive companies were struck off from the court register without winding up. Thus those companies could be dissolved without the prior procedure of disposing of their assets and repaying – to the extent possible – their creditors. However, in order to ensure that creditors of struck-off companies were protected, the FOCA provided that the members of those companies would assume joint and several liability for the former companies’ debts. 16. On the basis of a notification from the Agency for Public Legal Records and Related Services that company L.E. had not performed any transactions through its bank account in a period of twelve consecutive months, on 19 January 2001 the Ljubljana District Court, acting in its capacity as the registry court, initiated proceedings to strike off the company from the court register. 17. On that day, the decision to initiate strike-off proceedings was entered in the court register and an unsuccessful attempt was made to serve it on the company at its registered office. The document was sent to the address of the company, but since no representative of the company was there to receive it, a delivery slip was left in its mailbox, informing the company that the relevant correspondence could be collected at the post office. On 12 February 2001 the document was returned to the registry court with the information that the addressee had failed to collect it. The registry court then served it by posting it on its notice board, as provided for by the Court Register of Legal Entities Act. According to the applicant, company L.E. had ceased to operate at the address of its registered office already in 1997 and had not been present at those or any other premises since. Moreover, there were no mailboxes at the office building at issue and all mail would have been left at the reception desk. 18. No objection was made to the decision to initiate strike-off proceedings either by company L.E. or by its members. Consequently, on 11 May 2001 the registry court issued a decision to strike off company L.E. from the court register. The decision was published in the Official Gazette on 30 May 2001. The registry court also attempted to serve the decision on company L.E. by sending it to the company’s address, but like the previous document it was returned on 4 June 2001 with the information that the addressee had failed to collect it. Again, the decision was posted on the registry court’s notice board. Neither company L.E. nor any of its members, who were entitled to lodge an appeal against the strike-off decision, appealed against the decision, so on 17 August 2001 it became final. 19. On 25 September 2001 company L.E. was struck off from the court register and thus ceased to exist. Notification of the strike-off was published in the Official Gazette on 6 February 2002. 20. The applicant stated that he had become aware that L.E. had been struck off from the court register on 22 December 2004, when an enforcement order was served on him for seizure of his property. 21. Meanwhile, based on the judgment ordering L.E. to pay the Railway Company approximately EUR 20,000 (see paragraph 9 above), on 5 April 2002 the creditor lodged an application for enforcement with the Ljubljana Local Court against seven members of the company. 22. On 5 June 2002 the Ljubljana Local Court granted the creditor an enforcement order to seize the applicant’s personal possessions, which was later expanded to include his salary. 23. On 29 December 2004 the applicant lodged an objection to the enforcement order, arguing that the local court had failed to establish his actual role in company L.E. and to acknowledge his status of an “inactive member” (see paragraphs 48-49 below), which would have exonerated him from liability for the company’s debts. He maintained that the creditor’s claim against the company had arisen before he had joined it, and that he had only become involved in the management of the company because the two members who had previously performed that role had died. Moreover, the applicant was of the view that the onus rested on the creditor to establish that he had been an active member of the company, and that the matter should be examined in contentious civil proceedings. Lastly, he applied for a stay of enforcement. 24. On 12 March 2005 the applicant’s objection was dismissed. The Local Court found that the onus of proving his inactive status was on the applicant, and that he had failed to prove that he had not been an active member of L.E. The Local Court established that with his 11.11% share in the company, the applicant had enjoyed the rights of a minority member, and furthermore, he had been employed by the company and actively involved in its management since April 1993. In his capacity as acting director and later managing director, he had been authorised to act on behalf of the company. Moreover, even after the applicant had resigned as managing director, he had still been active in the operations of the company and had also signed the bankruptcy petition. The Local Court further dismissed the applicant’s request for a stay of enforcement, as he had failed to demonstrate that the enforcement would have caused him irreparable or serious damage. The applicant appealed against that decision, reiterating the arguments he had raised in the objection to the enforcement order. 25. On 6 May 2005 the applicant attended a hearing with regard to an objection to the enforcement order raised by D.P., another member of company L.E. 26. On 9 February 2006 the Higher Court of Ljubljana dismissed the applicant’s appeal on essentially the same grounds as the first-instance court, and the enforcement order thus became final. The court noted, inter alia, that the Constitutional Court had found the measure of “lifting the corporate veil” under the applicable Financial Operations of Companies Act to be in accordance with the principle of separation of a company’s assets from those of its member, and thus consistent with the Constitution. The Higher Court considered it irrelevant whether the applicant had become a member of L.E. before or after the creditor’s claim had arisen. Having joined the company, he had assumed its assets as well as its liabilities, and moreover, he had had the rights of a minority member. The Higher Court placed considerable emphasis on the fact that the applicant had been actively involved in the management of the company. It explained that the reasons for lifting the corporate veil under the FOCA were not identical to those provided for in the Companies Act. The FOCA established a non-rebuttable presumption that members of inactive companies intended to have the companies dissolved and, to that end, made it clear that they assumed joint and several liability for their outstanding debts (see paragraph 41 below). 27. On 5 May 2006 the applicant lodged two constitutional complaints before the Constitutional Court, one concerning the strike-off proceedings and the other the enforcement proceedings. 28. On 31 January 2007 the Constitutional Court rejected the applicant’s complaint regarding the strike-off proceedings. The decision was served on the applicant on 5 February 2007. The court observed that the applicant lacked legal interest in challenging the decision of the registry court, as company L.E. had already been struck off from the court register. Therefore, even a positive outcome of the constitutional complaint could not improve the applicant’s legal position. On 9 July 2007 the Constitutional Court rejected also the complaint regarding the enforcement proceedings, finding that the applicant’s human rights had manifestly not been violated. Reiterating that only active members of struck-off companies could be held liable for the companies’ debts, the Constitutional Court found that the lower courts had correctly established that the applicant’s active involvement in the management of company L.E. could not exempt him from personal liability for the latter’s debts. 29. In 2010 the enforcement order against the applicant’s salary was executed and part of each of the applicant’s monthly salaries was seized to pay off his debt. On 23 September 2011 the applicant reached an out-of-court settlement with the Railway Company and paid the agreed amount, and the application for enforcement against him was withdrawn. The proceedings against the applicant were terminated on 28 September 2011. In total, the applicant paid EUR 32,795 to his creditor.
| 0 |
test
|
001-153767
|
ENG
|
MDA
|
CHAMBER
| 2,015 |
CASE OF BOTEZATU v. THE REPUBLIC OF MOLDOVA
| 3 |
Preliminary objection joined to merits and dismissed (Article 34 - Victim);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 (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
4. The applicant was born in 1978 and lives in Băcioi. 5. The applicant is a police officer and on 21 July 2004 the Centru District Court delivered a judgment obliging the Chișinău municipality to provide him and his family with social housing. This judgment was upheld by the Chișinău Court of Appeal on 19 October 2004 and became final on 4 November 2004. Enforcement proceedings were instituted on 11 May 2005. 6. After the communication of the present case to the Government, on 2 August 2011, the applicant initiated court proceedings under Law no. 87 (see paragraph 12 below) seeking enforcement of the final judgment in his favour and compensation for non-pecuniary damage in the amount of 10,000 euros (EUR), for pecuniary damage in the amount of 129,700 Moldovan lei (MDL) (equivalent to EUR 7,886) (MDL 123,200 of which represented the rent he had paid from September 2004 to December 2011 for alternative accommodation and MDL 6,500 of which represented costs and expenses before the Court), and MDL 3,950 (EUR 240) as costs and expenses in domestic proceedings. In support of his claims in respect of pecuniary damage, the applicant submitted four lease contracts, each of them concluded for periods of less than three years. 7. In court, the Ministry of Finance disputed the validity of the lease contracts, arguing that they were fictitious because the landlady and the applicant were relatives, because the landlady had not applied for commercial registration (patenta de intreprinzator) to earn profits from lease, and because the contracts had not been registered with the tax authorities until 2011 and had never been registered in the land register. 8. On 30 November 2011 the Rîșcani District Court acknowledged that there had been a violation of the applicant’s rights under Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention resulting from the nonenforcement of the final judgment in his favour for over seven years. The court dismissed the arguments of the Ministry of Finance, holding that the lease contracts had been concluded for periods of less than three years and were therefore not subject to mandatory registration in the land register. The court also took the view that the landlady’s failure to register promptly her lease profits and her commercial activity had resulted in penalties and taxes ‒ which had been paid ‒ but that this failure was anyway not imputable to the applicant and did not affect the validity of the contracts. The court awarded the applicant MDL 112,000 (equivalent to EUR 7,050) in respect of non-pecuniary damage and granted his claims in respect of pecuniary damage and for costs and expenses in full. The Ministry of Finance appealed. 9. On 29 February 2012 the Chișinău Court of Appeal upheld the appeal, quashed the first-instance judgment and delivered a new judgment, acknowledging a violation of the applicant’s right under Article 6 of the Convention resulting from the non-enforcement of a final judgment for a period of 78 months (from 11 May 2005 to 30 November 2011). The court awarded the applicant MDL 36,000 (equivalent to EUR 2,270) in respect of non-pecuniary damage and MDL 8,965 (EUR 565) for costs and expenses. The court dismissed the applicant’s claims in respect of pecuniary damage as unsubstantiated, arguing that the lease contracts had been ineffective vis à vis the State on the grounds cited by the Ministry of Finance (see paragraph 7 above) and cited Article 876 of the Civil Code. This judgment was final. 10. On 8 August 2012 the municipality issued the applicant with an occupancy voucher (bon de repartiție), entitling him to move into a new flat. 11. By a letter of 15 May 2014 the Government informed the Court that the final judgment in the applicant’s favour had been enforced on 8 August 2012. The applicant did not dispute this.
| 1 |
test
|
001-140028
|
ENG
|
ITA
|
CHAMBER
| 2,014 |
CASE OF PLACÌ v. ITALY
| 3 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms;Impartial tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
|
5. The applicant was born in 1975 and lives in Specchia (Lecce). 6. In 1993 the applicant, aged eighteen at the time, was called up to undertake compulsory military service. For the purposes of his conscription he had a combined psychological evaluation and physical examination on 3 December 1993, as a result of which he was found to be fit for military service. The detailed report, which was not disclosed to the applicant (until 21 September 2010 in the course of pension proceedings), considered that the applicant was slow in understanding and executing a task but logical in its exercise, although prone to giving up. In an evaluation covering language and cultural skills, motivation, mental performance and behaviour, he obtained a grade of 4 out of 10 in each area. 7. Upon his conscription, the applicant underwent another medical examination on 14 June 1994, as a result of which he was again found to be fit for military service on the basis that he was not suffering from any illness. He was assigned to Battalion no. 123 in Chieti, where he was subject to intensive physical and mental training, including in the use of firearms. 8. On 9 July 1994 the applicant was transferred to the provincial command unit in Aquila, where he remained until 30 December 1994. During this time, from 1 September to 2 November 1994 he temporarily formed part of its logistical battalion. While in Aquila the applicant was subjected to multiple punishments. According to the documentation presented, he was subjected to eight punishments between July and December, amounting to twenty-four days of confinement, including periods of solitary confinement, for reasons ranging from negligent care of his camp-bed area to failure to report to his supervisor, or informal behaviour towards his superior. During the time he spent with the logistical battalion he was hospitalised at least four times for medical care unrelated to his mental problems (see below). 9. On 30 December 1994 the applicant was transferred to Lecce, where a commander noted that the applicant suffered from nervous tics and twitches, difficulty in socialising and learning, and absent-minded behaviour. The commander ordered the applicant to undergo a specialised medical assessment to test his fitness to perform military service. 10. On 24 January 1995 he was admitted to hospital, where he was diagnosed with anxiety disorder and considered to be in a fragile state of mind. A medical report by the NHS of Tricase of 6 February 1995 considered that in his youth the applicant had suffered from affection-relational problems and learning difficulties. He was physically weak and insecure, had a low aptitude for learning and was prone to isolation, was dysfunctional and incapable of taking up responsibilities. Tests revealed that he was unable to perform assigned tasks, had difficulty orienting himself and impaired cognitive functions (a deficit in logic and memory). He was considered to have a slight intellectual deficit (an IQ of 67) and to be incapable of creating positive relationships with people. This inadequacy caused him to live military life with anxiety and fear of his fellow soldiers, who he considered were aggressive towards him, even if they had only been joking. The report considered that the longer he remained in military service, the more severe his anxiety would become, and his defensive attitude arising from his fears would intensify. 11. The applicant remained on medical leave for recovery purposes until April 1995, when, following a specialised assessment to determine his suitability for military service, on 8 April 1995 the applicant was found to suffer from “dysphoria and borderline personality [disorder]” and was discharged due to unfitness. 12. Following his discharge, the applicant underwent further medical examinations. A report by the NHS of Tricase of 20 October 1995 considered that the applicant no longer had a defensive attitude, nor was he suffering from dysphoria and nervous tics. He was still, however, insecure, prone to isolation, unstable and unwilling to take up responsibilities. Following the tests performed, the report concluded that the stressful situation, namely his military service, having ended, the applicant had slightly improved. However, he still displayed signs of intellectual deficit. 13. At the time a report by the applicant’s doctor (Dr Russo) considered that the applicant had fallen sick because of military service or that there was at least a causal link between the two. In consequence, on 13 January 1996 the applicant asked the Defence Ministry to pay damages under Law no. 416 of 1926 and presidential decree no. 686 of 1957. 14. In the course of the examination of his request for damages, on 30 September 1999 the Medical Commission of the Bari Military Hospital diagnosed the applicant with “obsessive-compulsive disorder” (“OCD”), which it considered was not a result of his military service. It opined that the mental infirmity at issue was a pre-existing condition. It did not appear that during his military service the applicant had been involved in any events or had to carry out any duties which, given their importance, duration and nature, could have seriously influenced the onset or progression of this mental health problem. It further considered the request to have been made out of time. 15. In the meantime the applicant had repeatedly asked the relevant authorities to provide him with a copy of the pertinent documents regarding the period in which he had served in the military to enable him to substantiate his claims. On 24 November 1999 he further asked the Lecce Military District to provide him with the administrative and health documents related to his case together with the minutes of the Medical Commission’s meeting in his respect. This request was repeated four times in the year 2000 and remained unanswered. 16. On 19 June 2000 the second instance Medical Commission of Bari confirmed the findings of the Medical Commission dated 30 September 1999. 17. On 11 July 2000 the Ministry of Defence rejected the applicant’s request for damages, noting that the Medical Commission (second instance) of the Command of the Naples Health Service had, on 19 June 2000, determined that the OCD from which the applicant suffered had not been caused by his military service. 18. According to a medical certificate submitted by the applicant to this Court, issued by the Maglie Local Health Centre (mental health department) on 29 July 1999, the applicant, who had been treated by the department since 1977 for a fragile state of mind, a low IQ, and OCD which had become chronic, had developed behavioural problems to the extent of violent outbursts towards his family following his military service. 19. On 21 July 2000 the applicant instituted proceedings before the Lecce Regional Administrative Tribunal (“TAR”) for the recognition of the causal link between his mental health problems and his compulsory military service, and in the event that the court considered his condition to be preexisting he asked it to ascertain the military’s liability for recruiting him and in consequence to make an award of damages in his favour. 20. On 4 August 2000 the applicant lodged an urgent request with the relevant authorities to access medical documents relating to the fitness-for-service examination prior to conscription, details about his time in the military – training, work, and so on, his disciplinary record, i.e. of the punishments endured, and a record of his hospital stays, an assessment by his commander of his personality and professionalism and all other relevant material held by the Military Administration. On 22 September 2000 he was informed that the unit in Aquila had been disbanded. He was further informed that he had spent twenty-three days in “consegna semplice” (a punishment prohibiting an individual from leaving the base) and one day of “consegna di rigore” (a punishment confining the individual to a specified area on the base) and that any further information had to be requested from the Lecce Recruiting Office. The applicant lodged a request with the Lecce Recruiting Office on 28 September 2000 and on 16 October 2000 the office replied, sending the applicant an excerpt containing his disciplinary record and noting that he had spent twenty-eight, rather than twenty-three, days in “consegna semplice”. No other documentation was sent to the applicant. Following further requests on 19 October 2000, the Lecce Recruiting Office sent the applicant the psycho-physical training file. 21. On 28 December 2002 the TAR appointed Dr S. as a court expert to ascertain the nature of the applicant’s infirmity and submit a report within sixty days. 22. Following an examination of the applicant, Dr S. failed to deliver the requisite report. Thus, on 30 January 2007, the applicant asked the TAR to replace the expert. 23. By a judgment filed in the relevant registry on 20 July 2007 the TAR, considering the applicant’s interlocutory request as an application for renewal (“rinnovo”), rejected the request, noting that for seven years the applicant had failed to solicit any action whatsoever. Considering that no more evidence was necessary, it proceeded to give judgment. It held that the two Medical Commissions had agreed about the source of the applicant’s infirmity and that it had resulted from a pre-existing condition. Indeed the first-instance Medical Commission had referred to a diagnosis of the applicant made in 1997 (when he had been admitted to hospital) which evidenced a fragile and vulnerable mental state. The court went on to note that it transpired that the medical examination of June 1994 to determine the applicant’s fitness for service had not been accurate, since it should already have transpired that the applicant was not entirely fit to take up military service. 24. On 9 July 2008 the applicant appealed to the Supreme Administrative Court (“CS”). He complained, inter alia, that: the outcome of the case had been illogical – even though the TAR had considered that his fitness-for-service examination had not been accurate it had failed to pronounce itself on any liability and to award damages; the TAR had considered the applicant’s interlocutory request for the replacement of the expert as an application for renewal, even though replacement of the expert was clearly due given the delay in performing his functions, leading to the court taking a decision to dismiss the action without the relevant information. 25. By a partial judgment of 19 January 2010, the CS considered that a specialised medical examination was indeed necessary to determine the connection, if any, between the applicant’s infirmity and his military service. It ordered that such an examination be carried out by the Defence Ministry’s Medical Board (Collegio Medico Legale della Difesa – the “Medical Board”), by means of a medical assessment in the presence of the applicant’s general practitioner, and that a report be submitted within thirty days. It appears from the documents that the Medical Board appointed for the applicant’s case was made up of four full members, three from the military and one from the State Police, and an external expert in neurology. 26. In June 2010 the Medical Board’s report was filed. Its findings took into consideration a report produced that year by an expert engaged by the applicant which he had been allowed to submit to the Board (before being submitted to the CS). The Medical Board’s report noted that when the applicant was discharged he had been suffering from dysphoria, anxiety disorder and borderline personality disorder and had been considered to suffer from slight intellectual disability. It confirmed the reports submitted by the Bari Medical Commissions and highlighted the relevance of the preexisting nature of the applicant’s condition, also noting that upon examination by the Bari Military Hospital’s Medical Panel on 30 September 1999 and at the date of the report in 2010 the applicant had been suffering from “chronic OCD, a slight degree of intellectual disability, displayed personality changes and was prone to have marginal traits”. It concluded that at the date of review, according to the information available, the infirmity could not be considered to have been the direct result of or aggravated by ordinary military service. 27. On an unspecified date the report of 6 May 2010 prepared by the applicant’s expert (Dr Russo) was filed with the court. It noted that the applicant, a mentally healthy subject upon undergoing medical assessments prior to being drafted, had never shown any symptoms of mental illness before conscription into the military service and it was only after repeated punishment that such traits had emerged. Therefore, even assuming that he was predisposed to mental health problems, it was evident that it was the treatment he had been subjected to during military service that had caused the emergence of the illness. The implications of military service were generally of great emotional impact and a source of stress, which for a person who was in a fragile state of mental health or predisposed to mental health problems, unlike in the case of a healthy person, could trigger mental illness. The applicant’s being away from his family and his inability to relate to colleagues and superiors, in the absence of the necessary psychological support and in view of the repeated punishments imposed on him, had caused him to develop dysphoria which had later evolved into chronic OCD. Thus, in the applicant’s case there had been a causal link between his mental health problems and his military service, or the latter had at least contributed to the development of his condition. 28. On 12 November 2010 the applicant filed pleadings contesting the findings of the Medical Board and arguing that its report could not be considered objective and impartial given its nature and composition, as it was an organ of the opposing party in the proceedings. He argued that there had been a lack of transparency in the production of the report, which was highlighted by the fact that he had recently become aware of other documents related to the case which had never been disclosed to him by the authorities, the substance of which had been reflected in the report. On 14 December the applicant made further oral pleadings. 29. By a judgment filed in the relevant registry on 4 February 2011 the CS rejected the applicant’s appeal, holding that the applicant’s infirmity was antecedent to his military service and that it had not been detectible during the examination in 1994, as had been established by the Medical Board. As to the failure to disclose documentation, it considered that such documentation did not relate to the period during which the applicant had carried out military service. In any event the crux of the applicant’s complaint had concerned the conclusions of the Medical Board’s report which did not accord with his claim. However, the CS considered that the report was not contradictory or illogical in itself and it had not ignored relevant facts. It followed that given that the CS (in its limited powers of judicial review of administrative acts) (in sede di legittimità) was not allowed to assess the merits of that report, the applicant’s challenge could not be upheld. In respect of the original medical examination to determine the applicant’s fitness for military service, the CS again adopted the findings of the Medical Board, which had considered that it was possible that the applicant’s health problems had not manifested themselves in the absence of particular stimuli.
| 1 |
test
|
001-142546
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,014 |
HUČKO v. SLOVAKIA
| 4 |
Inadmissible
|
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
|
1. The applicant, Mr Stanislav Hučko, is a Slovak national, who was born in 1964 and lives in Otley, the United Kingdom. He was represented before the Court by Mr F. Chochol, a lawyer practising in Vranov nad Topľou. The Slovak Government (“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. In 1998 a former business partner sued the applicant for a sum of money in the context of the dissolution of their partnership. On 8 January 2001 the applicant filed a counterclaim. 4. The case was dealt with by courts at two levels of jurisdiction. 5. On 27 April 2009 the Humenné District Court dismissed both parties’ claims. It found the claim lodged by the applicant to have lapsed. 6. On 12 February 2010 the Prešov Regional Court rejected an appeal by the applicant as having been lodged out of time. 7. The Regional Court’s decision was served on the applicant by the District Court several times owing to difficulties in obtaining a certificate of service. Thus, in a letter of 10 August 2010 a judge stated that the above impediment had prevented the District Court from indicating the date when the decision in issue took effect. On 3 March 2011, following the receipt of the relevant document and the return of the case file, the District Court put a stamp on the decision indicating that it had become final on 13 December 2010. 8. In the meantime, on 10 May 2010 the applicant unsuccessfully applied to the General Prosecutor’s Office for the lodging of an extraordinary appeal on points of law on his behalf. He argued that he had appealed within the statutory time-limit. 9. On 12 January 2011 the applicant posted a complaint to the Constitutional Court. He alleged a breach of his right to a fair hearing within a reasonable time in the proceedings before the ordinary courts. The applicant affirmed that the complaint had been lodged within two months of 12 November 2010, when he had been notified that his application to the General Prosecutor’s Office had been dismissed. 10. The applicant noted that the copy of the Regional Court’s judgment enclosed with his constitutional complaint had no stamp indicating the date of final effect. This was due to the fact that such indication had to be made first in the original decision, and that had been possible only after the case file had been returned to the District Court. 11. On 3 February 2011 the Constitutional Court rejected the complaint as having been lodged outside the statutory time-limit of two months. It held that the applicant should have lodged his complaint within two months of the service of the Regional Court’s decision. The Constitutional Court admitted that the exact date of service of that decision was unknown. However, it found that decision to have been served not later than on 10 May 2010, the date of the applicant’s application to the General Prosecutor’s Office. The applicant had posted his constitutional complaint more than two months thereafter, namely on 12 January 2011. His application to the General Prosecutor’s Office could not affect the position as it concerned an extraordinary remedy. 12. On 3 May 2011, in a reply to the applicant’s complaint, the vicepresident of the District Court indicated, with reference to the case file, that the decision in the applicant’s case had become final on 13 December 2010. 13. On 24 May 2011 the applicant’s representative asked the Constitutional Court to review its decision. 14. In a letter of 13 September 2011 a judge of the Constitutional Court, after examining the file, replied that the Regional Court’s decision of 12 February 2010 had actually become final on 8 April 2010. It had been served on the applicant on that date; he had been the last person on the list of those on whom it had to be served. The indication of 13 December 2010 as the date of final effect of the decision by the District Court had been an error, but it could not affect the legal position because it was of a merely declaratory nature. Finally, the letter stated that the applicant’s complaint was in any event inadmissible on account of his failure to seek redress by means of an appeal on points of law. 15. Pursuant to Article 158 § 2 of the Code of Civil Procedure, a certified true copy of a judgment is to be served on the parties or their representatives in person. 16. Article 159 § 1 of the Code of Civil Procedure provides that a judgment which has been served and which can no longer be challenged by means of an appeal is final. 17. Section 53(3) of the Constitutional Court Act 1993 provides that a complaint to the Constitutional Court may be lodged within two months of the date on which the decision in question becomes final and binding or on which a measure is notified or notice of some other interference with the complainant’s interests is given. As regards measures and other types of interference, this period commences when the complainant has had a practical opportunity to become aware of them. 18. Pursuant to section 62(1) of Regulation no. 543/2005, a court’s legal secretary is obliged, as soon as the date of final effect of a decision has been established, to indicate the same on the cover page of the original of the court’s decision. Under section 63 of that Regulation, upon request courts are to confirm, by means of a stamp on the cover page of a true and certified copy, the date when the decision acquired final effect and became enforceable. 19. As regards complaints about ordinary courts’ decisions in the context of civil proceedings, the Constitutional Court has held, in a number of cases, that the above time-limit of two months starts running on the day when the contested decisions become final (see, for example, decisions II. ÚS 99/2010 of 4 March 2010; IV. ÚS 188/2010 of 19 May 2010; III. ÚS 106/2010 of 9 March 2010; or II. ÚS 298/2010 of 24 June 2010). 20. In the context of complaints about judicial proceedings the Constitutional Court has consistently considered irrelevant, when determining compliance with the time-limit of two months under section 53(3) of the Constitutional Court Act 1993, the dismissal of plaintiffs’ request for an extra-ordinary appeal to be filed on their behalf. It held the date of final effect of the contested judicial decisions to be relevant in that context (see, for example, decision file no. IV. ÚS 42/06 of 28 February 2006, with further references).
| 0 |
test
|
001-179412
|
ENG
|
TUR
|
COMMITTEE
| 2,017 |
CASE OF ŞAHİN v. TURKEY
| 4 |
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
|
Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström
|
6. The applicant was born in 1979 and lives in Adana. 7. On 11 July 2000 the Adana Magistrate’s Court ordered the detention of the applicant in absentia. 8. On 20 July 2000 the applicant was questioned by the gendarmerie in the absence of his lawyer. In his statement, the applicant gave a detailed description about his involvement in an illegal organisation and the activities in which he had taken part. Subsequently, he was brought before the public prosecutor at the Adana State Security Court. During the interview, the applicant stated, again in the absence of a lawyer, that his statements made to the gendarmerie had been correct. 9. On 15 September 2000 the investigating judge at the Mardin Magistrate’s Court ordered the applicant’s pre-trial detention, again in the absence of a lawyer. 10. On 24 October 2000 the public prosecutor lodged an indictment before the Adana State Security Court, charging the applicant under Section 125 of the former Criminal Code with carrying out activities with the aim of bringing about the secession of part of the national territory. 11. On 25 October 2005 the Adana Assize Court convicted the applicant as charged. 12. On 26 April 2006 the Court of Cassation quashed the conviction. 13. On 6 November 2007 the Adana Assize Court found that, inter alia, on the basis of the applicant’s statements to the gendarmerie and the public prosecutor, the applicant had committed the offence under Section 125 of the former Criminal Code and sentenced him to life imprisonment. 14. On 12 November 2008 the Court of Cassation upheld the conviction.
| 1 |
test
|
001-183372
|
ENG
|
AZE
|
CHAMBER
| 2,018 |
CASE OF RASHAD HASANOV AND OTHERS v. AZERBAIJAN
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 18+5-1-c - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5 - Right to liberty and security;Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion)
|
André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer
|
4. The applicants’ years of birth and home addresses are listed in the Appendix. 5. The applicants are civil society activists. They are board members of the civic movement NIDA, a non-governmental organisation established by a group of young people in February 2011. According to its manifesto, NIDA wants liberty, justice, truth and change in Azerbaijan and it rejects violence and uses only non-violent methods of struggle. NIDA is governed by a board of members composed of seven people. The first, second and fourth applicants are also co-founders. 6. In January and March 2013 a number of peaceful demonstrations were held in Baku in protest against the death of soldiers in the Azerbaijani army in non-combat situations. The demonstrations were organised through social media and the applicants and other members of NIDA actively participated in organising and conducting them. One of the demonstrations was scheduled for 10 March 2013 in the city centre. 7. On 7 March 2013 three members of NIDA (S.N., B.G. and M.A.) were arrested by agents of the Ministry of National Security (“the MNS”). Domestic proceedings concerning the arrest and pre-trial detention of S.N. and M.A. are the subject of other applications pending before the Court (see applications nos. 70106/13 and 65583/13). 8. On 8 March 2013 the Prosecutor General’s Office and the MNS made a joint public statement to the press, stating that “illegal attempts to undermine the social-political stability established in the country have recently been made by some radical destructive forces” (son dövrlər radikal yönümlü bəzi destruktiv qüvvələr tərəfindən ölkədə bərqərar olmuş ictimai-siyasi sabitliyin pozulmasına yönəlmiş qanunazidd cəhdlər göstərilir). The statement was also public confirmation that S.N., B.G. and M.A. had been arrested for planning to incite violence and civil unrest during the unlawful demonstration scheduled for 10 March 2013. It also said that criminal proceedings had been instituted against S.N., B.G. and M.A. as narcotic substances had been found in their flats. It further stated that nineteen Molotov cocktails had been found in B.G.’s flat, three Molotov cocktails had been found in S.N.’s flat and twenty-eight leaflets worded “Democracy urgently needed (təcili demokratiya tələb olunur), tel: + 994, address: Azerbaijan” had been found in M.A.’s flat. In that connection, the statement said that “it was established during the preliminary investigation that since mid-2012 all three individuals, being addicted to narcotic substances and becoming members of NIDA through the Internet, had actively participated in a number of illegal activities of the organisation and prepared a flammable liquid known as Molotov cocktails, found in their flats” (İlkin istintaqla müəyyən edilmişdir ki, hər üç şəxs 2012-ci ilin ortalarından etibarən internet vasitəsilə “Nida” vətəndaş hərəkatının üzvləri və narkotika aludəçisi olmaqla, təşkilatın bir sıra qanunsuz tədbirlərində fəal iştirak etmiş və yaşadıqları mənzillərdən aşkar edilmiş “Molotov kokteyli” adlanan tez alışan maye onlar tərəfindən hazırlanmışdır). 9. On the same day NIDA made a public statement, saying that the arrest of S.N., B.G. and M.A. had been politically motivated and had aimed to silence the protesters by creating a feeling of fear among them before the demonstration of 10 March 2013. 10. It appears from the documents in the case file that on the basis of the investigator’s decision of 8 March 2013 twenty-two Molotov cocktails found in the flats of S.N. and B.G. were submitted for an expert examination, which began on 12 March 2013. Expert report no. 4503/04, dated 10 April 2013 and signed by two experts, concluded that twenty of the Molotov cocktails “were only flammable (incendiary) tools which could not be considered explosive devices”. The report further stated that the two remaining Molotov cocktails could be considered explosive devices because there had been a syringe with gunpowder attached to the bottles. 11. On 14 March 2013 the first applicant, on 30 March 2013 the third and fourth applicants and on 1 April 2013 the second applicant were arrested and taken to the Serious Crimes Department of the Prosecutor General’s Office. 12. It appears from the documents in the case file that on the respective dates of their arrest the applicants were informed that they had been charged with an offence under Article 228.3 (illegal acquisition, transfer, sale, storage, transportation and carrying of arm, its accessories, supplies, explosive substances and devices by an organised group) of the Criminal Code. The decisions charging the applicants were made on various dates but by the same investigator. They were identical in their wording except for the name of the person charged. The description of the charges consisted of a single sentence half a page long. The relevant part of the decision concerning the first applicant stated: “... Rashad Zeynalabdin oglu Hasanov has been charged on the basis of sufficient charging evidence because in early March 2013 in Baku, in an organised group with B.G., S.N. and others with whom he had close ties, [he] unlawfully obtained twentytwo glass bottles of explosive devices known as Molotov cocktails, which are prepared with flammable liquid petrol as an explosive substance by inserting a cotton rag preventing the liquid from dispersing and evaporating, as well as acting as a fuse, [and arranged storage] until 7 March 2013 by giving nineteen of them to B.G. who lives in ... and three of them to S.N. who lives in ... Through these actions, Rashad Zeynalabdin oglu Hasanov committed a criminal offence under Article 228.3 of the Criminal Code of the Republic of Azerbaijan. ...” 13. On the respective dates of their arrest the First Deputy Prosecutor General of the Republic of Azerbaijan requested that the courts remand each applicant in custody (həbs qətimkan tədbiri). In each case, the prosecutor used the exact same wording as in the decisions charging the applicants. 14. On the same dates the applicants were brought before a judge of the Nasimi District Court. Referring to the official charges brought against them and the prosecutor’s requests to remand them in custody, the judges ordered their detention for a period of three months. It appears from the transcripts of the court hearings before the Nasimi District Court available in the case file that the applicants denied the charges against them, stating that their arrest was related to their social and political engagement. Although the Nasimi District Court’s decisions were delivered on various dates and by different judges, their wording was almost identical. Each time, the judges justified the applicants’ detention pending trial by the gravity of the charges and the likelihood that if released they might abscond or obstruct the investigation. Moreover, in respect of the first applicant, the judge also noted that the first applicant had avoided the investigation until his arrest on 14 March 2013 because he had been wanted by the police since 10 March 2013 on the basis of the investigator’s decision charging him with a criminal offence under Article 228.3 of the Criminal Code. 15. On various dates in March and April 2013 the applicants appealed against the decisions ordering their pre-trial detention. They complained that there was no evidence that they had committed a criminal offence and there had been no justification for their detention pending trial. The first applicant also submitted that he had never been informed of any decision of the investigator charging him with a criminal offence until his arrest on 14 March 2013. In that connection, he pointed out that between 10 and 14 March 2013 he had not gone into hiding and had actively participated in the political life of the country, giving an interview to a newspaper and participating in the gathering of a political movement. 16. On various dates in March and April 2013 the Baku Court of Appeal dismissed the applicants’ appeals, finding that the detention orders were justified. In that connection, the appellate court held that the Nasimi District Court had correctly taken into account the seriousness of the criminal offence attributed to the applicants and the likelihood that if released they might abscond or obstruct the normal functioning of the investigation. 17. On 26 April 2013 the first applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pretrial detention. He claimed, in particular, that his detention was not justified and that there was no reason for it to continue. In support of his request, he pointed out that he had a permanent address, had never been convicted, and that there was no risk of his absconding or obstructing the investigation. 18. On 27 April 2013 the Nasimi District Court dismissed the request, finding it unfounded. 19. On 3 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision. 20. On 29 May 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the first applicant’s pre-trial detention of three months, submitting that more time was needed to complete the investigation. 21. On 30 May 2013 the Nasimi District Court extended the first applicant’s detention pending trial until 7 September 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges, and the likelihood that if released the first applicant might abscond or obstruct the investigation by influencing those participating in the criminal proceedings. 22. On 3 June 2013 the first applicant appealed against that decision. He complained, in particular, that there was no evidence that he had committed a criminal offence and that the first-instance court had failed to justify the extension of his detention pending trial. 23. On 6 June 2013 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court’s decision of 30 May 2013. 24. No further extension decisions were included in the case file. 25. On 26 April 2013 the second applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pretrial detention. He claimed, in particular, that there was no risk of his absconding or obstructing the investigation and that the courts had failed to take his personal situation into consideration. 26. On 30 April 2013 the Nasimi District Court dismissed the request, finding it unfounded. 27. On 6 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision. 28. On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the second applicant’s pre-trial detention for a period of three months. In that connection, he submitted that more time was needed to complete the investigation. 29. On 24 June 2013 the Nasimi District Court extended the second applicant’s detention pending trial by three months, until 1 October 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges and the need for additional time to carry out further investigative measures. 30. On 27 June 2013 the second applicant appealed against that decision, reiterating that there was no evidence that he had committed a criminal offence and that the Nasimi District Court had failed to justify his continued detention. 31. On 1 July 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of the second applicant’s detention pending trial was justified. 32. On 15 July 2013 the second applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention, reiterating his previous arguments. 33. On 17 July 2013 the Nasimi District Court dismissed the request, finding that the grounds for his pre-trial detention had not changed. 34. On 25 July 2013 the Baku Court of Appeal upheld the first-instance court’s decision. 35. On 17 September 2013 the prosecutor lodged a request with the court asking for an extension of the second applicant’s pre-trial detention for a period of two months. The prosecutor gave as the reason for the need to extend the detention the complexity of the case and the need for more time for the accused and his lawyer to familiarise themselves with the material in the case file. 36. On 18 September 2013 the Nasimi District Court extended the second applicant’s detention pending trial by two months, until 1 December 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges, the need for additional time to carry out further investigative measures and the likelihood that if released the second applicant might abscond or obstruct the investigation by influencing those participating in the criminal proceedings. 37. On 27 September 2013 the Baku Court of Appeal upheld the firstinstance court’s decision. 38. No further extension decisions were included in the case file. 39. It appears from the documents in the case file that on an unspecified date in May 2013 the third applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention. In that regard the Court notes that it explicitly requested the Government to submit copies of all the documents relating to the applicants’ pre-trial detention; they failed to do so. 40. On 17 May 2013 the Nasimi District Court dismissed the request, finding that there was no need to use an alternative preventive measure to custody. 41. On 23 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision. 42. On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the third applicant’s pre-trial detention for a period of three months, submitting that more time was needed to complete the investigation. 43. On 22 June 2013 the Nasimi District Court extended the third applicant’s remand in custody by three months, until 30 September 2013. The court substantiated the need for the extension by the gravity of the charges, the risk of his reoffending, and the likelihood that if released he might abscond or obstruct the investigation. 44. It appears from the documents in the case file that on an unspecified date in June 2013 the third applicant appealed against that decision. The Government did not make a copy of the appeal available to the Court. 45. On 27 June 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of his detention pending trial was justified. 46. On 30 July 2013 the third applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention. He claimed that his continued detention was not justified and that no investigative measures had been carried out since the beginning of his pre-trial detention. 47. On 31 July 2013 the Nasimi District Court dismissed the request. 48. On 7 August 2013 the Baku Court of Appeal upheld the firstinstance court’s decision. 49. No further extension decisions were included in the case file. 50. On 15 April 2013 the fourth applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pretrial detention. He claimed, in particular, that there was no risk of his absconding or obstructing the investigation and that the courts had failed to take his personal situation into consideration. 51. On 17 April 2013 the Nasimi District Court dismissed the request. 52. On 22 April 2013 the Baku Court of Appeal upheld the first-instance court’s decision. 53. On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the fourth applicant’s pre-trial detention for a period of three months, submitting that more time was needed to complete the investigation. 54. On 24 June 2013 the Nasimi District Court extended the fourth applicant’s remand in custody by three months, until 30 September 2013. The court substantiated the need for the extension by the complexity of the case, the need for additional time to carry out further investigative measures and the possibility of the fourth applicant’s absconding or influencing persons participating in the criminal proceedings. 55. On 25 June 2013 the fourth applicant appealed against that decision, reiterating that there was no evidence that he had committed a criminal offence and that the first-instance court had failed to justify his continued detention. 56. On 4 July 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of his detention pending trial was justified. 57. On 7 August 2013 the fourth applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention or to be released on bail. He submitted in support of his request that there was no reason justifying his continued detention and that the courts had failed to take into account his personal situation. 58. On 13 August 2013 the Nasimi District Court dismissed the request, finding that there was no need to use an alternative preventive measure to custody. 59. On 22 August 2013 the Baku Court of Appeal upheld the firstinstance court’s decision. 60. It appears from the documents in the case file that on an unspecified date in September 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the fourth applicant’s pre-trial detention for a period of two months. The Government did not make a copy of the request available to the Court. 61. On 18 September 2013 the Nasimi District Court decided to extend the fourth applicant’s detention pending trial for a period of two months, until 30 November 2013. 62. On 19 September 2013 the fourth applicant appealed against that decision, complaining that there was no justification for his continued detention. He reiterated that there was no reasonable suspicion that he had committed a criminal offence and that the first-instance court had failed to justify its decision. 63. It appears from the documents in the case file that on 4 October 2013 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 18 September 2013. The Government did not make a copy of the appellate court’s decision available to the Court. 64. No further extension decisions were included in the case file. 65. It appears from the documents in the case file that in September 2013 the applicants were additionally charged with new criminal offences under Articles 28 (preparation of a crime) and 220.1 (mass disorder) of the Criminal Code. The Government did not make the investigator’s decisions in this respect available to the Court. 66. On 6 May 2014 the Baku Court of Serious Crimes found the applicants guilty on all counts and sentenced the first applicant to seven and a half years’ imprisonment, the second applicant to eight years’ imprisonment, the third applicant to seven years’ imprisonment and the fourth applicant to eight years’ imprisonment. 67. On 16 December 2014 the Baku Court of Appeal upheld that judgment. 68. On 2 June 2015 the Supreme Court upheld the appellate court’s judgment in respect of the first and third applicants. 69. On 15 October 2015 the Supreme Court upheld the appellate court’s judgment in respect of the second and fourth applicants. 70. In the meantime, on 29 December 2014 the second and third applicants were released from serving the remainder of their sentence after being pardoned by a presidential decree. 71. On 17 March 2016 the first and fourth applicants were also released from serving the remainder of their sentence after being pardoned by a presidential decree.
| 1 |
test
|
001-179573
|
ENG
|
CHE
|
CHAMBER
| 2,017 |
CASE OF A. v. SWITZERLAND
| 3 |
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)
|
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
|
6. The applicant was born in 1982 and lives in Switzerland. He grew up in Iran and entered Switzerland in 2009. 7. The applicant applied for asylum under the name of L.B. on 13 August 2009, stating that he had entered Switzerland illegally the same day. He was questioned twice, on 18 August and 24 August 2009, by the Swiss authorities responsible for asylum and migration (until 31 December 2014 the authority was called the Bundesamt für Migration, but it was renamed with effect from 1 January 2015 as the Staatssekretariat für Migration, SEM – hereafter “the asylum authorities”). An interpreter was present at both hearings and the record was translated for the applicant prior to his signing it. A member of a non-governmental organisation was present at the second hearing as a neutral witness, in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the record of the hearing about any irregularities, but he made no such observations. 8. During the hearings the applicant stated that he had attended a number of demonstrations in connection with the presidential election in 2009. He had been arrested during one such demonstration on 15 June 2009 in I. He was subsequently placed in prison, where he was severely tortured every day. After twenty-two days in prison, he was scheduled to appear in court on 6 July 2009. He was placed in a bus with about thirty-five other people but managed to escape during a disturbance caused by one of the other detainees when disembarking from the bus. He then managed to hide with his relatives. After his escape, the authorities had sent a court summons to his home and, when he had failed to appear, the court had sentenced him in absentia to thirty-six months’ imprisonment. He managed to leave the country on 25-26 July 2009 with the help of a smuggler. In support of his account, the applicant submitted copies of his identity card, a court summons of 9 July 2009 and a judgment of 21 July 2009. He explained that the judgment had been sent to his home and that a neighbour had given it to him prior to his departure. 9. On 4 February 2013 the asylum authorities rejected his asylum application and ordered him to leave Switzerland, finding that his account was not credible as it was contradictory and, in relation to key aspects, not sufficiently substantiated. Despite repeated questions, the applicant had been unable to describe what he had experienced during his imprisonment in a detailed and differentiated manner. He had also contradicted himself regarding his transportation from the prison to court and his escape. Neither his alleged arrest in connection with his participation in a demonstration nor his subsequent detention and escape therefrom had been credible. The documents submitted by the applicant could not lead to a different result as they could easily be bought in Iran and falsified. Moreover, the alleged conduct of the Iranian authorities in sending a court summons to the applicant’s home after his escape, rather than going there to arrest him on the spot, was not credible, nor was his submission that the judgment of 21 July 2009 had been sent to his home and given to a neighbour prior to his departure. 10. As the applicant did not appeal, the decision became final. 11. On 13 November 2013 the applicant, through a lawyer, lodged an application for his asylum application to be reconsidered. He was by that time using the identity of A. and stated that he had entered Switzerland legally under that name in May 2009 based on a visa to visit his sister, who lived there. In substance, he stated that his relationship with his father had broken down entirely and that as a result he risked being arrested upon his return because his father had ties to the secret service. Moreover, he had been baptised as a Christian on 25 August 2013. Emphasising that Iran applied the death penalty for apostasy, he alleged that he was at risk of illtreatment on account of his conversion. He submitted a copy of his baptism certificate, issued by a Pentecostal church, a Protestant house church, to support his account. 12. On 17 January 2014 the asylum authorities, who treated the applicant’s request as a second asylum application, questioned the applicant in person. An interpreter was present and the record was translated for the applicant prior to his signing it. A member of a non-governmental organisation was present as a neutral witness in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the record of the hearing if he witnessed any irregularities, but did not make any such observations. 13. During the hearing, the applicant stated that he had first had contact with a Catholic church in Switzerland in 2011 and then with the Pentecostal church from early 2013. The members of the latter had gradually become his family. One of them had invited him home once or twice a week to familiarise him with the Bible. He had regularly attended church services and after about six or seven months had been baptised in that church. For him, being a Christian meant believing in Jesus Christ and spreading his message. He stated that he continued to study the Bible and recited parts of it. The principle of honesty enshrined in Christianity was particularly important to him. Even if he were unable to manifest his belief in the future, he would always retain the truthfulness of his faith, which nobody could take away from him. He submitted statements that he had attended different churches to support his account. The applicant did not make any submissions regarding the risk allegedly caused by the broken relationship with his father and the latter’s ties to the secret service. 14. On 26 February 2014 the asylum authorities rejected the applicant’s application. They considered that his conversion to Christianity did not in and of itself expose him to a real risk of ill-treatment. Such a risk could exist if he proselytised or attracted public attention in another way. Based on his statement, they considered that he did not intend to practise his faith in such a manner. There were no indications that the Iranian authorities were even aware of his conversion. They also doubted that the applicant’s conversion was genuine and lasting, noting, in particular, that it had occurred after the applicant’s first asylum application had been rejected, that the baptism had taken place in a house church rather than a church recognised by the State, and that the applicant did not base his conversion on the key aspects of Christianity, but on the personal relationships he had formed with members of his church community. 15. On 31 March 2014 the applicant, represented by a lawyer, appealed against that decision. He pointed out that there had been an increased number of arrests of members of Christian house churches since 2010 and argued that his conversion to Christianity in and of itself exposed him to a real risk of ill-treatment. A Christian convert faced a much greater risk of ill-treatment than those born into the Christian religion. His conversion to Christianity was genuine and lasting. He had first had contact with a Catholic church in Switzerland in 2011 and was serious in practising his faith, as evidenced by the documents he had submitted. 16. On 14 May 2014 the Federal Administrative Court dismissed the applicant’s appeal as manifestly ill-founded. It expressed doubts as to whether his conversion had been genuine or was lasting, but found that this did not have to be determined. It considered that a person could only face a real risk of ill-treatment upon return to Iran if that person’s Christian faith had been manifested in Switzerland in such a way as to make it visible to the outside and if it could be assumed that his or her family and acquaintances in Iran would learn about that active manifestation of faith, even if it was short of proselytising. If close family members were “fanatic” Muslims, they might denounce the conversion to the secret service. In addition, conversion to Christianity might be seen as treason. Where a conversion had taken place abroad, there had to be both an assessment of whether it was genuine and the extent to which it had become publicly known. Even assuming that the applicant’s conversion had been genuine and was lasting, the court considered that he did not manifest his Christian faith in the manner described. There were no indications that the Iranian authorities had even become aware of his conversion. 17. On 2 May 2016 the applicant, through a lawyer, lodged an application for temporary admission under section 83 of the Aliens Act. He relied on the risks presented by the Iranian authorities and non-state actors on account of his conversion and active membership of a Christian community in Switzerland, as well as his participation in a demonstration in Berne in August 2015 against human rights violations and the persecution of Christians by the Iranian authorities. In that connection, he had signed a letter of protest addressed by the organisers to the Iranian Government, which were thus aware of his conversion. To support his account he submitted photographs, letters of support from various persons and several reports. 18. On 14 June 2016 the asylum authorities rejected his application, which they had treated as a further asylum application. They noted that the applicant had previously been through two sets of asylum proceedings and that the alleged risk of ill-treatment on account of his conversion to Christianity had already been examined. It was not necessary to examine the matter again as the applicant had not put forward any arguments that could give rise to an assessment that was different from that of the Federal Administrative Court in its judgment of 14 May 2014. 19. It was true that the Iranian authorities took an interest in the activities of their citizens abroad, but such monitoring was focused on people who stood out from the large number of Iranians critical of the Government and who were perceived as a serious threat by the authorities because of their political or religious activities. Whether a person “stood out” was not so much a question of visibility and the possibility of identifying the person concerned, but was rather one of public exposure. The personality of the individuals concerned, the form of their appearances in public and the content of their public statements were relevant parameters in that regard. The asylum authorities considered that mere participation in a demonstration against the Iranian Government, without the applicant acting in a particular manner or holding a special function, was not sufficient for him to be perceived as a concrete threat by the Iranian authorities. They also noted that there were no indications that the authorities had taken any measures against him. 20. The Iranian authorities were aware that Iranian citizens at times attempted to rely on conversion to Christianity abroad in order to obtain refugee status in Western countries. Such circumstances would be taken into account by the Iranian authorities but would not, upon someone’s return, lead to ill-treatment within the meaning of the refugee definition. Moreover, it was possible to practise religions other than Islam in Iran in a discreet and private manner. Citing the criteria contained in the Federal Administrative Court’s judgment of 14 May 2014, the State Secretariat for Migration did not contest, per se, the fact that the applicant was part of a Christian circle in Switzerland. There were, however, no indications that he was involved in a leading function or was particularly exposed in other ways in connection with his Christian faith. His participation in a demonstration and the signing of a letter of protest to the Iranian Government did not lead to a different conclusion. He was only an ordinary member of a Christian organisation and there was, therefore, no concrete risk that the Iranian authorities had become aware of his conversion. The asylum authorities concluded that the applicant did not meet the requirements of the refugee definition or those for temporary admission. 21. On 13 July 2016 the applicant lodged an appeal against that decision, in substance repeating his earlier submissions. On 30 August 2016 the Federal Administrative Court dismissed the appeal as manifestly illfounded, fully endorsing the asylum authorities’ reasoning. 22. On 4 October 2016 the State Secretariat for Migration set a deadline for the applicant’s voluntary departure, which passed on 31 October 2016.
| 0 |
test
|
001-162208
|
ENG
|
HRV
|
CHAMBER
| 2,016 |
CASE OF KARDOŠ v. CROATIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)
|
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
|
5. The applicant was born in 1951 and lives in Zagreb. 6. The applicant was a co-owner of a block of flats on the island of Vir. 7. On 2 and 23 March 2006 building inspectors of the Inspectorate of the Ministry of the Environment, Spatial Development and Construction (Ministarstvo zaštite okoliša, prostornog uređenja i graditeljstva, Uprava za inspekcijske poslove) carried out an on-site inspection of the block of flats in question. 8. On 31 March 2006 one of the building inspectors ordered that the block of flats be demolished within three days from the date of service of the decision. 9. The applicant lodged an appeal against the demolition order, submitting that the time-limit for compliance was too short and that the block of flats was not within the protected coastal area. 10. On 15 May 2006 the appeal section of the Legal Department at the Inspectorate (Odsjek za postupak u drugom stupnju – “the second-instance body”) dismissed the appeal, finding that the block of flats had been built without a building permit. 11. Meanwhile, on 4 May 2006 the building inspector issued an administrative enforcement order (zaključak o dozvoli izvršenja), stating that the demolition order of 31 March 2006 had become enforceable on 6 April 2006 and that the co-owners had not complied with it within the given time-limit. He therefore ordered that the demolition be carried out by a third party after 11 May 2006, at the expense of the co-owners. 12. The applicant lodged an appeal against the administrative enforcement order, submitting that it was not sufficiently reasoned and that the construction of the block of flats could be retrospectively approved. 13. On 23 May 2006 the second-instance body dismissed the appeal as ill-founded. 14. On 27 June 2006 the co-owners had the block of flats demolished. 15. Meanwhile, on 26 June 2006 the applicant lodged an administrative complaint with the Administrative Court, repeating the arguments made in her appeal and seeking damages for the demolition. Since it was not clear whether the applicant was complaining about the second-instance decision concerning the demolition order or the administrative enforcement, on 11 July 2006 the Administrative Court requested her to specify which she wished to contest. 16. On 30 August 2006 the applicant replied that she was seeking annulment of the second-instance decision of 15 May 2006 concerning the demolition order. 17. On 22 April 2010 the Administrative Court dismissed her complaint as ill-founded, but addressed it as if it had been about the second-instance decision of 23 May 2006 concerning the administrative enforcement. 18. On 13 July 2010 the applicant lodged a constitutional complaint, alleging, inter alia, a violation of her right of access to court, on the ground that the Administrative Court had erroneously decided a matter which had not been the subject of her administrative complaint. 19. On 13 December 2010 the Constitutional Court declared the constitutional complaint inadmissible, on the grounds that the contested decision had not concerned the merits of the case and as such was not amenable to constitutional review. This decision was served on the applicant’s representative on 7 January 2011.
| 1 |
test
|
001-172458
|
ENG
|
SRB
|
CHAMBER
| 2,017 |
CASE OF MILISAVLJEVIĆ v. SERBIA
| 3 |
Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant, Ms Ljiljana Milisavljević, is a Serbian national who was born in 1966 and lives in Belgrade. 6. The applicant was a journalist employed at Politika, a major Serbian daily newspaper. In September 2003 she was requested by the editorial board to write an article about Ms Nataša Kandić. 7. Ms Nataša Kandić is a Serbian human rights activist primarily known for her activities in investigating crimes committed during the armed conflicts in the former Yugoslavia, including those crimes committed by Serbian regular and irregular forces. She was also recognised as one of the most vocal advocates for full cooperation of the Yugoslav and later Serbian authorities with the International Criminal Tribunal for the former Yugoslavia (hereinafter “the ICTY”). 8. At the time relevant to this case, between 40% and 64% of the Serbian population considered the ICTY to be a major security threat to the Republic of Serbia. Some 54% of the population was against cooperation with the ICTY, which would include arrests and transfers of Serbian suspects to this institution. In 2003, the ICTY’s assessment of Serbia’s cooperation with that court was that it was “neither full nor proactive”. The level of cooperation was further negatively influenced by the assassination of the Serbian Prime Minister Dr Zoran Đinđić in March 2003, a major political figure open to full cooperation with the ICTY. Ms Kandić herself came under attack by a significant portion of the Serbian political elite and general population. As a consequence, she was involved in several incidents. 9. The applicant’s article on Ms Kandić appeared in Politika on 7 September 2003. The integral translation of the impugned article, titled “The Hague Investigator”, reads as follows: “‘Even my son blames me for protecting everybody but the Serbs’, says the director of the Fund for Humanitarian Law. Ms Nataša Kandić, founder and Executive Director of the Humanitarian Law Centre for Serbia, Montenegro, and Kosovo and Metohija, a non-governmental organisation aimed at promoting human rights for minorities, last week, again, defended herself ‘from the Serbian patriotism surge’. On the occasion of the International Day of the Disappeared commemoration, at the gathering of the Association of Families of Missing and Kidnapped Persons in Kosovo and Metohija organised in the centre of Belgrade, following a short argument she slapped one of the participants. After this incident the Belgrade police submitted a request for the initiation of prosecution proceedings against her, and the Association of Families of the Missing lodged a lawsuit, demanding that she pay 30,000,000 Serbian dinars (RSD) for the insult to the families of those kidnapped and killed. Recently our media have also reported that this ‘prominent advocate of human rights and democratic reform in Serbia’ was awarded the annual Central European and Eurasian Law Initiative Award (CEELI) from the American Bar Association on 9 August during the ABA Annual Meeting luncheon in San Francisco. Former winners of this award were Petar Stoyanov from Bulgaria, Emil Constantinescu from Romania, Vaclav Havel from the Czech Republic, Stjepan Mesić from Croatia ... It was also reported that at the beginning of May the American magazine Time published a list of thirty-six individuals dubbed the European heroes, among which was Nataša Kandić, too. The Serbian campaigner for the truth on war crimes, a lonely voice of reason in Serbia or the Soros mercenary, the one who was named by all the banished FRY spies, has won many awards, including the Human Rights Watch Award, but none of them were awarded to her in Serbia. Nataša Kandić provokes stormy reactions wherever she appears. While the West lauds and praises her, in Serbia she is spoken about with contempt and accused of anti-Serbian politics. Most of all they blame her for never pursuing the crimes against Serbs but exclusively dealing with those committed by Serbs against other ethnicities. Although she has been called a witch and a prostitute and is permanently under threat (this year she has also had to cancel her appearance at a local TV station owing to a bomb threat), she says: ‘This is simply the part of this job. I don’t think that they hate me, only my message’. Nevertheless, she once made a public complaint: ‘Even my son has accused me of protecting everybody except the Serbs.’ Although later, she adds, she heard him defending her concern for the weak. Nataša Kandić was born in 1946 in Topola, to her father Radoslav and mother Vera. In 1966 she went to study in Great Britain and upon her return she enrolled in the Faculty of Philosophy at the University of Belgrade. She participated in the 1968 student demonstrations. In the 1970s she started working in the Belgrade municipality of Palilula. Afterwards she worked in the city trade union. During the mid-1990s she went to the Centre for Antiwar Action to work as a technical secretary, but before long she left it after a conflict with Ms Vesna Pešić. With a group of like-minded people she founded the Humanitarian Law Centre at the beginning of 1993. A year later, on the invitation of Ms Jeri Laber, the Helsinki Watch Executive Director, she left for New York. Upon discussion with top people at the Hague Tribunal, the Humanitarian Law Centre took charge of its work in respect of the socalled Serbian crimes against Muslims in Bosnia and Herzegovina, as well as violations and abuses of Muslim and Croatian minority rights in the FRY. That is how this organisation became the [ICTY] ‘investigator’. Starting from the second half of the 1990s the Centre became involved in the Kosovo and Metohija issues. During the NATO campaign she frequently travelled the Belgrade-Kosovo and Metohija-Montenegro routes. Her email messages sent via the Internet to foreign friends and collaborators are the evidence of her time and work in Kosovo and Metohija. With Lazar Stojanović, the Plastični Isus (‘Plastic Jesus’) director, she has a son Stefan, who lives in New York and is involved in graphic animation.” 10. On 10 November 2003 Ms Kandić started a private prosecution against the applicant. She claimed that the entire piece had been written with the intent of belittling her in the eyes of the public, to present her as a traitor to Serbian interests and as a “paid servant of foreign interests and a prostitute who sells herself for money”. She further claimed that the points introduced in the article were maliciously misrepresented, and that the article contained untruths and blatant insults. She explicitly refused to lodge any civil compensation claim within these proceedings. 11. The applicant, in her defence, stated that she was not expressing her own opinion of Ms Kandić, whom she did not intend to insult, and that she had written the entire article on the basis of the documentation of other magazines. She put the citations within quotation marks, but she omitted them when she was not literally citing but paraphrasing (“ono što nije stavila pod navodnike predstavljaju navode koji nisu citati, već ih je prepričavala iz drugih listova”). She provided details as to what phrases were taken from which articles and magazines, including from which article and magazine she had taken the phrase that Ms Kandić had been called a witch and a prostitute. 12. On 1 September 2005, after a remittal, the First Municipal Court (Prvi opštinski sud) in Belgrade found that the applicant had committed a criminal offence of insult when having stated for Ms Kandić “although she has been called a witch and a prostitute” and gave her a judicial warning. The court established that the impugned phrase had been indeed previously published in another article by another author in a different magazine. However, the applicant did not put it in quotation marks which meant that she agreed with it, thus expressing her opinion. The court concluded that there was therefore an intention to insult Ms Kandić. In view of no aggravating circumstances and a number of mitigating ones (the applicant had a clean record, was employed and of mature age (u zrelom dobu)), she was given a mere judicial warning (sudska opomena), on the grounds of Articles 41 and 59 of the General Criminal Code (see paragraph 18 below). No prison sentence or fines were imposed. 13. On an unspecified date thereafter the applicant appealed. She reiterated that the impugned words were not her own opinion, but an opinion of another author. The fact that she wrote also on the negative attitudes towards the private prosecutor and her work could not and must not make her, the applicant, criminally liable. She also submitted that such an attitude towards the freedom of press could have long-reaching consequences. 14. On 5 July 2006 the Belgrade District Court (Okružni sud) upheld the first-instance decision endorsing the reasons given therein. 15. In separate proceedings, on 2 October 2006 the Belgrade First Municipal Court ordered the applicant to pay Ms Kandić RSD 33,125 (around 386 euros (EUR)) in respect of costs and expenses. The applicant did not appeal against that decision. 16. The applicant submitted in her observations that she had been later discharged from Politika and that “her conviction [...] appear[ed] to have been the cause [thereof]”.
| 1 |
test
|
001-180845
|
ENG
|
UKR
|
CHAMBER
| 2,018 |
CASE OF TSEZAR AND OTHERS v. UKRAINE
| 3 |
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)
|
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
|
5. The applicants were born in 1954, 1952, 1964, 1926, 1952, 1960 and 1956 respectively and live in Donetsk. 6. From the beginning of April 2014 armed groups started to seize official buildings in the Donetsk and Luhansk regions and announced the creation of self-proclaimed entities known as the “Donetsk People’s Republic” and “Luhansk People’s Republic” (the “DPR” and “LPR”). 7. In response, on 14 April 2014 the Government, who consider the armed groups to be terrorist organisations, authorised the use of force against them in the legal form of an “anti-terrorist operation”. 8. In June 2014 the armed groups started to seize offices of the National Bank of Ukraine and other regional financial institutions in the Donetsk and Luhansk regions. 9. On 24 July 2014 the Ukrainian postal service Ukrposhta suspended its operations on the territories of the Donetsk and Luhansk regions that were outside the control of the Government, because of frequent attacks on its vehicles and employees by armed groups. 10. On 6 August 2014 the National Bank of Ukraine suspended all financial transactions on the territories outside the control of the Government (see paragraph 20 below). 11. Government forces recaptured some territories in the Donetsk and Luhansk regions, but certain parts of the regions have remained outside the Government’s control since that time. One part of the Donetsk region not under the Government’s control is the city of Donetsk. 12. On 2 September 2014, following changes in the law, jurisdiction of the courts in the non-controlled areas was transferred to the relevant courts in the neighbouring regions on the territory controlled by the Government (see paragraphs 34 to 36 below). 13. On 11 November 2014 all social benefit payments in the settlements of the Donetsk and Luhansk regions that were outside the control of the Government were suspended (see paragraph 26 below) 14. In December 2014 the Donetsk Regional Administrative Court and the Donetsk Regional Administrative Court of Appeal were relocated to the cities of Sloviansk and Kramatorsk, territory controlled by the Government (see paragraphs 37 and 38 below). 15. The applicants were registered as recipients of social benefits with different departments of the Pension Fund of Ukraine in Donetsk. Some applicants had been receiving their social benefits until 30 June 2014, others until 31 August 2014. 16. On 16 June 2015 the first and second applicants registered themselves with the Labour and Social Security Department of the Krasnoarmiysk District of the Donetsk region (currently the city of Pokrovsk), controlled by the Government. On the same day their social benefits was reinstated, including social benefits due to them for the period 1 July 2014 to 16 June 2015. 17. The sixth applicant was registered with the Labour and Social Security Department of the Obolonskiy District in Kyiv on 9 September 2015. However, she did not apply for reinstatement of her social benefits. 18. The other applicants did not apply to the relevant social authorities on the territory controlled by the Government for reinstatement of their social benefits. 19. According to the Government, the sixth and seventh applicants travelled from Donetsk to the territory controlled by the Government after their social benefits had been suspended. The Government provided a certificate from the State Customs Office stating that the sixth and seventh applicants had entered the territory controlled by the Government on 31 October 2015, through an authorised checkpoint near the frontline between Ukrainian forces and “DPR” armed groups in the town of Zaitseve.
| 0 |
test
|
001-155861
|
ENG
|
MNE
|
ADMISSIBILITY
| 2,015 |
GLENDŽA v. MONTENEGRO
| 4 |
Inadmissible
|
Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano
|
1. The applicant, Mr Sreten Glendža, is a Montenegrin national, who was born in 1962 and lives in Ulcinj. He was represented before the Court by Mr R. Vukmanović, a lawyer practising in Ulcinj. 2. The Montenegrin Government (“the Government”) were represented by their Agent at the time, Mr Z. Pažin. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 19 January 2009 the Supreme State Prosecution (Vrhovno državno tužilaštvo) issued an indictment against the applicant on suspicion that he had committed a war crime against civilians. 5. On 21 January 2009 the High Court (Viši sud) in Podgorica ordered his detention. 6. On 23 January 2009 the applicant was arrested. The same day he appealed against the detention order, which appeal was received at the High Court on 24 January 2009 at the latest. 7. On 24 February 2009 the applicant complained to the Supreme Court that, inter alia, he had received no decision upon his appeal against the detention order. 8. On 2 March 2009 the Court of Appeals (Apelacioni sud) in Podgorica dismissed the applicant’s appeal in this regard. 9. On 23 March 2009 the applicant lodged a constitutional appeal. He submitted, inter alia, that the Court of Appeals had failed to rule on his appeal against the detention order within 48 hours, contrary to the relevant domestic provisions in that regard (see paragraphs 14 and 23 below). 10. On 29 March 2011 the High Court acquitted the applicant and he was released. On an unspecified date thereafter the High Court decision would appear to have been quashed, but no order was given for the applicant to be re-detained. 11. On 2 June 2011 the Constitutional Court found a violation of Article 5 § 4 of the Convention and Article 30 § 3 of the Constitution of Montenegro. In particular, the Constitutional Court established that the High Court had not immediately transmitted the applicant’s case-file to the Court of Appeals for a ruling on his appeal against the detention order. Notably, on 5 February 2009 the High Court had sent the applicant’s case-file to the Court of Appeals, which had received it on 9 February 2009. The same day the case-file had been returned to the High Court because certain documents had been served improperly on some of the co-accused in the same set of criminal proceedings. On 27 February 2009 the High Court had transmitted the documents to the Court of Appeals, which court had received them on 2 March 2009 and the same day had ruled on the applicant’s appeal. The decision of the Constitutional Court was served on the applicant on 28 July 2011. 12. On 22 November 2012 the High Court acquitted the applicant, which judgment was upheld by the Court of Appeals on 17 May 2013. 13. On 12 February 2013 the applicant lodged a compensation claim, pursuant to the relevant provisions of the Criminal Procedure Code 2009 (see paragraph 25 below), seeking both pecuniary and non-pecuniary damage for unlawful detention. The claim would appear to be currently pending before the first-instance court. 14. Article 30 lays down detailed rules as regards detention. In particular, paragraph 3 provides that a detainee has the right to lodge an appeal against a detention order, on which the court shall rule within 48 hours. 15. Article 149 provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted. 16. The Constitution entered into force on 22 October 2007. 17. Section 48 of the Montenegro Constitutional Act provided that a constitutional appeal could be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies had been exhausted. 18. Sections 49-59 provided additional details as regards the processing of constitutional appeals. Section 56 provided that if the impugned decision had lost its force (prestalo pravno dejstvo) by the time the Constitutional Court ruled on the constitutional appeal, the Constitutional Court would only find a violation if it considered that a human right or freedom was breached. 19. None of the sections provided for a possibility for the Constitutional Court to award damages. 20. This Act entered into force in November 2008. 21. At the relevant time Article 16 provided, inter alia, for an obligation of the courts to conduct the proceedings without delay, and to keep the duration of detention to the shortest time needed. 22. Article 147 § 2 provided for a duty of all the bodies involved in criminal proceedings to act with particular urgency if the accused was in detention. 23. Article 149 provided, inter alia, that a detainee could appeal against a detention order within 24 hours. The appeal, the detention order and other relevant documents were to be immediately forwarded to the panel of judges, which was to rule on the appeal within 48 hours. 24. Articles 15, 174 § 2 and 176 of this Act correspond, in substance, to sections 16, 147 § 2 and 149 of the Criminal Procedure Code 2003. 25. Articles 498-506 set out details as regards compensation for, inter alia, unlawful detention. Article 502, in particular, provides that an individual is entitled to compensation if he or she was in detention and was subsequently acquitted by means of a final judgment. 26. This Code entered into force on 1 September 2011, repealing the 2003 Code, except for Chapter XXIX, which Chapter is not relevant in the present case. 27. Sections 151, 206 and 207 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or other personal rights (prava ličnosti) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction. 28. Section 166 provides, inter alia, that a legal entity (pravno lice), which includes the State, shall be liable for any damage caused by one of its bodies to a “third person” in the course of performing its functions or in relation thereto.
| 0 |
test
|
001-177351
|
ENG
|
LVA
|
CHAMBER
| 2,017 |
CASE OF ĀBELE v. LATVIA
| 3 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1968 and is currently detained in Jēkabpils Prison. He is a person with special needs. The applicant is deaf and mute since birth and his knowledge of sign language is poor. 6. At least as of 2 March 2001, when his disability was certified as permanent, the applicant has been recognised as being category 3 disabled (the least severe level of disability). On an unspecified date his disability was re-categorised as category 2 (medium level of disability). 7. On 7 May 2008 the applicant was convicted of aggravated murder and sentenced to fifteen years and six months’ imprisonment. That judgment became final on 24 February 2009. He started serving his sentence in the most restrictive “lower” regime in Liepāja Prison. 8. On 23 December 2011 the applicant was transferred to Brasa Prison. He was placed in the medium regime as he had served one quarter of his sentence. He was held in cell no. 301 (from 1 January 2012 to 26 February 2013) and cell no. 303 (from 26 February to 30 October 2013). 9. On 30 October 2013 the applicant was placed in the most restrictive “lower” regime. He was held in cell no. 203 (from 30 October 2013 until 16 February 2015). 10. On 24 February 2016 the applicant was placed in the least restrictive “higher” regime. It appears that as of that date he was held in three different multi-occupancy cells. The number of his cellmates varied from two to fourteen. Each inmate had no less than 4 sq. m of living space in those cells. 11. According to the applicant, he was held in dormitorytype cells nos. 301, 303 and 203 together with other inmates, all of whom were in good health except for the applicant. The applicant’s submissions as to the overall surface area in those cells as well as the size of the sanitary facilities were consistent with the Government’s submissions (see paragraph 13 below). His account of the number of inmates was slightly different – he alleged that he had been held together with ten to twenty inmates in cells nos. 301 and 303. However, as concerns cell no. 203 he agreed with the Government – six inmates had been held in that cell. 12. The applicant submitted that the heating had not been sufficient in those cells. He had been neither able to communicate with other inmates, nor with the prison management due to his disability. He had been in social isolation and had not received any special assistance. 13. According to the Government, the applicant was held in three different cells, the conditions of which are detailed in the table below. The calculation of personal space (overall surface area with the in-cell sanitary facility deducted, divided by number of inmates held therein) is based on an approximate measurement of the sanitary facility according to the floor plans of Brasa Prison. 14. As regards out-of-cell activities, the Government indicated that while being held in the medium regime – in cells nos. 301 and 303 – the applicant had been able to freely leave those cells in daytime and to use the common area. The Government further submitted that cell no. 301 had been equipped with one window. That window had been fitted with bars and had been placed in a wall (adjacent to a corridor) facing another window (in the corridor). This cell had had three fluorescent lamps, including one night lamp located above the door. Heating had been provided by one heating pipe of 5 cm in diameter and the heaters located in the adjacent corridor and in the hallway. A new automatic boiler had been installed in Brasa Prison, which had ensured a temperature of 18˚C. Heating arrangements in cell no. 303 had been the same as in cell no. 301. 15. While being held in the most restrictive “lower” regime – in cell no. 203 – the applicant had been able to leave this cell only for a daily walk (one hour), to take a shower or for appointments with a doctor, a prison chaplain or a social worker when necessary. 16. Overall, inmates in Brasa Prison had had access to a psychologist, but the applicant had never availed himself of this possibility. He had, however, met with a prison chaplain and a social worker on several occasions. The Government provided records of three conversations between the applicant and a social worker in 2016, including a meeting on 11 April 2016 where the latter had called a non-governmental organisation (Latvijas Nedzirdīgo Savienība) concerning the applicant’s hearing aid. Lastly, the applicant had visited a psychiatrist at least on six occasions in the time period from 1 April 2015 to 7 September 2016. 17. On 27 December 2011 the state of the applicant’s health was examined for the first time in Brasa Prison. It was noted that the applicant was deaf and mute and that he suffered from spondylosis. 18. The applicant submitted an extract of his medical record in Brasa Prison. According to that document (dated 26 July 2016), he had been deaf since birth. On 13 August 2009 a psychiatrist had detected a psychiatric health condition (psihiskas veselības problēmas), namely, “reaction to situations with anxiety” (situācijas reakcija ar trauksmi). On 21 January 2010 the same psychiatrist had detected another sleep-related condition. On 10 December 2015 another psychiatrist diagnosed the applicant as having “organic personality disorder” (organiski personības traucējumi). 19. The Government submitted another extract of the applicant’s medical record in Brasa Prison. According to that document (dated 7 April 2015), upon admission to Brasa Prison the applicant had been diagnosed as being deaf and mute and having spondylosis. During the above-mentioned period the applicant had consulted prison medical staff on thirtynine occasions. He had been examined, treated and provided with medication when necessary. No serious health conditions, which would have required an indepth examination, had been diagnosed. There had been no indications that outpatient examination or treatment had been necessary. The applicant had most often complained of colds, headache, poor sleep, gastritis and back pain related to spondylosis. Those complaints had not concerned his disability. In 2013 and 2014 the prison medical staff had organised an outpatient medical examination (in relation to tuberculosis) and a consultation by an ophthalmologist to obtain glasses. On 1 April 2015, upon the request of the Prisons Administration (Ieslodzījuma vietu pārvalde), the applicant’s state of health had been examined. It had been satisfactory, he had not had any complaints and he had gained weight while in prison. In sum, his health had not deteriorated. 20. Over the course of two years (2012-14) the applicant lodged some twentyfive handwritten complaints with various institutions (the management of Brasa Prison, the Prisons Administration, the Ministry of Justice and the Ministry of the Interior). 21. He informed the authorities that he had been deaf and mute since birth and complained as follows: 1) he had communication problems and conflicts with other inmates (he referred to “conflicts”, having been “influenced”, “offended” and “laughed about” by other inmates); 2) he wished to be transferred to a single or dual-occupancy cell; 3) he wished to be transferred to another prison; 4) he wished to have his prison regime changed; 5) his conditions of detention were inadequate and 6) his medical care was inadequate. 22. His complaints were examined by the Prisons Administration, save for three of them that were examined by the management of Brasa Prison. 23. The following conclusions were made: (1) There had been no real threat to the applicant’s life or health in Brasa Prison. He had not been subjected to psychological harassment. His complaints to the management of Brasa Prison had not concerned any threats from other inmates. (2) The applicant did not have a subjective right to choose his cell or cellmates. It fell within the competence of the management of Brasa Prison. There was a limited number of cells with a capacity of four inmates and those inmates could not be moved for security reasons. (3) The decision concerning the applicant’s transfer to another prison had to be taken by the Prisons Administration. Taking into account that the applicant’s state of health had permitted his placement in any prison, there had been no grounds to transfer him to another prison; he had had to continue serving his sentence in Brasa Prison. (4) The possibility of his transfer to the most lenient prison regime could not be examined before 10 June 2015, when he would have served the relevant proportion of his prison sentence. As to the possibility of his transfer back to the more restrictive prison regime such actions could only be taken in cases of serious or systematic breaches of the prison regime. (5) The conditions in cell no. 301 had been adequate. It had measured 36 sq. m. Natural and artificial lighting as well as heating had been sufficient. The temperature in cell had been 18˚C. The conditions in cell no. 303 had been similar to cell no. 301 – lighting and heating had been adequate. The conditions in cell no. 203 had been adequate. According to the Prisons Administration and the relevant floor plans that cell had measured 19.86 sq. m (including 1.87 sq. m for sanitation facilities). Besides the applicant, it had accommodated five other inmates. A reference was made to the Court’s case-law and the applicable domestic standard of 2.5 sq. m per male inmate. The temperature in the cell had been 18˚C. (6) The applicant’s medical care had been carried out in accordance with domestic law. He had received the necessary medication in response to his complaints. He had never complained to prison doctors of “neurological diseases”, “noises” or “fears”, but he had had at least one consultation with a psychiatrist. In any event, he had been able to complain of the quality of medical care in prison to the Health Inspectorate. 24. On 1 October 2012 a judge of a first-instance court refused to allow the applicant’s application to be transferred to another prison and to have his prison regime changed to a more restrictive one, a request made by the applicant in order to allow him to be held in a cell with a smaller number of inmates. Those issues fell within the realm of criminal law and could not be examined by the administrative courts. 25. On 25 October 2012 another judge refused to allow the applicant’s application to be transferred to another prison and to be relieved from the obligation to continue serving his sentence. As concerns his transfer, reference was made to the decision by the Prisons Administration whereby a conclusion had been drawn that the Administrative Procedure Law had not applied. As concerns judicial review of that decision, such a complaint had already been examined (see paragraph 24 above). As concerns the release application, it fell within the realm of criminal law; this issue could thus not be examined by the administrative courts. 26. The applicant attempted to appeal against the above-mentioned refusals, but his appeal did not appear sufficiently clear. Accordingly, on 21 November 2012 another judge decided not to proceed with his appeal (atstāt bez virzības), asking the applicant to render it more precise. 27. On 10 December 2013 another judge examined further complaints by the applicant. His application to be transferred to a more lenient prison regime and another prison were refused because such complaints had already been examined (see paragraphs 24-25 above). His complaint about insufficient heating in Brasa Prison did not appear sufficiently clear; the judge decided not to proceed with it, asking the applicant to render it more precise. As the applicant did not provide further information, the latter complaint was considered as not submitted (uzskatīt par neiesniegtu). 28. On 2 April 2014 the applicant complained to the administrative courts that the Prisons Administration had extended the time-limit for its last reply. On 29 May 2014 a judge terminated the administrative proceedings in this connection since the Prisons Administration had issued its decision in the meantime. 29. On 31 August 2016 a panel in Brasa Prison examined the possibility of the applicant’s transfer to a more lenient prison regime. The applicant and a sign-language interpreter were present. It was established that the applicant had been working in prison until 18 December 2015; he had stopped working owing to his state of health. He had a category 2 disability. He had completed secondary education but had not pursued his education further owing to being deaf and mute and needing a specialised learning programme. He had been working with an officer and a social worker for rehabilitation purposes. He had regularly visited a chaplain in prison; however, he had not met with a psychologist. He had participated in addiction recovery meetings. He had dedicated his free time to himself. He had received three positive citations (pamudinājums) from the prison management. 30. A conclusion was drawn that the applicant had participated in nearly all the rehabilitation activities provided in the prison taking into account his capabilities. Therefore it was possible to transfer him to a more lenient prison regime in a partly closed prison. 31. On 7 September 2016 the applicant was transferred to a partly closed prison in Jēkabpils, where he was held in a cell with two other inmates. One of them had a similar hearing impairment.
| 1 |
test
|
001-172134
|
ENG
|
FIN
|
CHAMBER
| 2,017 |
CASE OF A.-M.V. v. FINLAND
| 3 |
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement;Freedom to choose residence)
|
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano
|
5. The applicant was born in 1990. 6. The applicant is a man who is intellectually disabled. On 14 February 2001 he was taken, with his two brothers, into public care by the child welfare authorities and placed temporarily with a foster family with whom they had already been living since August 2000. The foster family lived in a village situated about 50 km from the applicant’s home town, which is in the South of Finland. 7. In June 2006 the foster family, the applicant and one of his brothers moved to a village in the North of Finland. The removal of the children was not authorised by the competent child welfare authority. In June 2007 the applicant finished his compulsory school education as a special needs student integrated into a normal school. Thereafter his foster parents planned to place him in a vocational school some 300 km away from their village, without authorisation by the competent child welfare authority. 8. On 11 July 2007 the competent child welfare authority decided to remove the applicant from the foster family and to place him in a disabled children’s home in his home town in southern Finland. The authority found that the foster care had not been satisfactory in the light of the fact that the foster parents had made important decisions without consulting the child welfare authorities, such as moving north and planning to place the applicant in a vocational school 300 km away from their home. The foster parents brought an appeal in court against that decision, but the decision was upheld by the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) on 18 February 2008 and subsequently by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) on 10 December 2008. 9. On 31 July 2007 the applicant was placed in a children’s home in his home town in southern Finland. One of his brothers was placed in the same home in the autumn of 2007. 10. On 23 July 2008 the applicant turned 18. On 13 August 2008 he began studying at a local vocational school. On 4 November 2008 a mentor (edunvalvoja, intressebevakare) was appointed for the applicant for matters other than those pertaining to his person. The applicant could thus freely make his own decisions in matters pertaining to his own person. 11. On 30 December 2008 the social welfare authorities requested the District Court (käräjäoikeus, tingsrätten) to appoint a mentor for the applicant also for matters pertaining to his person. The request was, inter alia, based on the fact that a conflict had emerged between the child welfare service and the applicant’s former foster parents as to where the applicant should live. The appointment of an external mentor was therefore needed in order to assess the applicant’s best interests and settle the matter accordingly. The applicant as well as his biological parents were heard before the court and none of them objected to the appointment of such a mentor. 12. On 25 January 2009 the former foster parents took the applicant to the North of Finland, invoking his decision to move there to live with them. He considered them to be his real family. The next day, the social welfare authorities arrived with the police to fetch the applicant and to take him back, against his will, to his home town. He was placed in his home town in a special living unit for intellectually disabled adults. 13. On 18 June 2009 the District Court, on the basis of the Guardianship Service Act, appointed a mentor for the applicant in matters concerning his property and economy, as well as matters pertaining to his person to the extent that the applicant was unable to understand their significance. The court found that, owing to his diminished mental faculties, the applicant was incapable of looking after his own interests and taking care of his personal affairs. The decision was based on medical records concerning the applicant’s level of development and on submissions according to which the applicant was gullible and keen on small children’s play. The appointed mentor was an official of the local public legal aid office entrusted with functions of this kind. 14. On 7 February 2011, after having received a psychologist’s report dated 26 November 2010 on the applicant, the appointed mentor decided, against the applicant’s will, that it was in his best interests for him to live in his home town, where his family members also lived. He had better educational and work opportunities there than in the village in the North of Finland, where he only knew his elderly former foster parents. The applicant was given a possibility to go for holidays to his foster parents in the North of Finland. 15. On 8 April 2011 the applicant asked the District Court to discharge the mentor appointed for him from her duties as far as matters pertaining to his place of residence and education were concerned. He requested that another person of his choosing be appointed as his mentor in those matters. 16. On 22 June 2011 the District Court, having heard the applicant in person, as well as witnesses including the applicant’s mentor, his former foster mother, his brother and two staff members from his housing service, refused his request. In its judgment, the court put on record the various testimonies. According to the record of the testimony of the applicant’s mentor, she had discussed with the applicant his plan to move prior to her decision. The mentor was of the view that the applicant did not understand all the consequences of the plan, and did not realise that the good things in his present situation would not be relocated with him. In the light of all the circumstances, the mentor considered that the move would have been against the applicant’s interests. 17. As regards the facts, the court recalled the background of the previous decision, taken on 18 June 2009 (see paragraphs 11 and 13 above). The court further noted that, according to an expert evaluation dated 26 November 2010 and established by a psychologist, the applicant’s decision-making skills were equal to those of a child aged between six and nine years. Consequently, the evaluation concluded that the applicant was not able to consider whether his plans about future were realistic and what consequences or implications they would have. The court noted that the applicant had told the court that he had no particular complaints about his current situation and that according to the witness statements he enjoyed his apartment and work in his home town. There was no evidence that the applicant’s situation in his home town was not good. The court found that the applicant clearly did not understand what it would be like to live in a remote part of the country, especially as he had previously lived there for only one year, and what the implications of the move would be for his situation. Moreover, the court found it uncertain how clear or strong the applicant’s will actually was, taking into account the evidence regarding his gullibility. It was likely that his opinion was influenced by that of the former foster parents. The applicant’s development had improved in his home town and he had been able to live in a special unit for intellectually disabled adults, to go to work and to cycle independently around town. The applicant had in his home town a support network consisting of relatives, friends and staff of the social welfare authorities, a job, hobbies and educational possibilities. Due to the remote and isolated location of the former foster parents’ home, the applicant would miss out on all these possibilities if he were to move there. The court further noted that according to the plan, the applicant would attend a vocational school far away from his new home, requiring daily long-distance trips each school day, more specifically a 15 km taxi ride to a bus station followed by a 70 km bus transport, and the reverse after school. The court was in doubt as to whether it was reasonable to expect that the applicant could cope with such demands on a daily basis. 18. As matter of law, the District Court stated that as, on the evidence, the applicant was not able to understand the significance of the envisaged decision, the mentor was not required, or even permitted, to resolve the question of the applicant’s place of residence in accordance with the applicant’s own wishes. Under such circumstances the mentor was required to take the decision on the basis of an assessment of the applicant’s best interests. 19. Taking into account the evidence and the factual findings referred to above (see paragraph 17 above), the District Court concluded that it was in the applicant’s best interests to remain in his home town. The mentor had not acted in breach of her powers and the District Court found no reason to replace the mentor by another person as regards matters concerning the applicant’s place of residence and his education. 20. On 15 July 2011 the applicant lodged an appeal with the Turku Court of Appeal (hovioikeus, hovrätten). He pointed out that the Finnish Constitution guaranteed everyone the right to choose their place of residence. Moreover, a mentor had to enjoy the confidence of his or her client, which was not so in the present case. 21. On 9 May 2012 the Turku Court of Appeal, after holding an oral hearing, rejected the applicant’s appeal and upheld the District Court’s decision by two votes to one. The Court of Appeal found no reason to deviate from the assessment of the evidence as conducted by the District Court and affirmed the conclusions reached by the latter. The dissenting judge found that the former foster mother had been the only adult with whom the applicant had had a long-standing and safe relationship in his life. The applicant had clearly understood the importance of this relationship in his life, he knew the former foster family and what life with them entailed, although he might not be able to understand all the implications of the envisaged move. When the applicant had been removed from the former foster family in 2007 and placed in a children’s home in Southern Finland, no specific reasons had been given as to why this measure had been in the applicant’s best interests. The decision taken subsequently by the mentor in February 2011 had merely confirmed the earlier decision. These decisions had created distrust between the applicant and his mentor. As both the present mentor and the proposed replacement were equally competent, the one who had the applicant’s trust should be chosen. 22. By a letter dated 6 July 2012 the applicant lodged an appeal with the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already submitted before the Appeal Court. 23. On 8 February 2013 the Supreme Court refused the applicant leave to appeal. 24. According to the information provided by the Government, in July 2013 the applicant learned that his foster father had died and he attended his funeral in Northern Finland. From 2010 to 1 January 2015 the applicant resided in his home town in a block of flats providing special care for persons with intellectual disability. Since 2 January 2015 he has been residing in sheltered accommodation, in a small two-room flat. He is employed by his home town, undertaking work five days a week in a shelter for intellectually disabled people. He is a talkative, efficient and well-liked employee and fits in very well in the working community. 25. The applicant’s former foster mother is in contact with the applicant via telephone but the frequency of their contact is not known. She moved to the eastern part of Finland before Christmas 2015 and invited the applicant to spend Christmas with her, but in the end he decided not to visit her. Instead, the applicant spent Christmas with his brother and other relatives. According to the Government, the applicant has not discussed the possibility of moving elsewhere for a long time. He is happy with his work and plays floorball twice a week as a hobby. The applicant states that he has stopped talking about his desire to move since there is no point in doing so, given the fact that the social welfare authorities do not want him to leave his home town. Although he now has a girlfriend in his home town, he maintains that his true and most sincere wish is still to live with or near to his former foster mother. There is nothing in his home town that keeps him there or makes him want to stay there.
| 0 |
test
|
001-172656
|
ENG
|
LTU
|
CHAMBER
| 2,017 |
CASE OF MAŽUKNA v. LITHUANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect)
|
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
|
6. The applicant was born in 1959 and lived in Pamažupiai, Pasvalys Region. 7. In February 2007 the applicant started working as a welder for the company N. On 17 April 2007 he was working at a factory construction site in the city of Klaipėda. Around 4.20 p.m., while the applicant and two other workers were standing on scaffolding approximately two metres above the ground, the scaffolding broke and all the workers fell to the ground (hereinafter “the accident”). 8. According to the applicant, he fell on his back and hit his head on a concrete surface, causing his helmet to break into pieces. One of his coworkers and a metal tool fell on top of him. The applicant lost consciousness. He stated that while he was unconscious, he was moved away from the location of the accident on the orders of his employer and all traces of the accident were removed. At 4.53 p.m. an ambulance was called and the applicant was taken to hospital. It appears that the other workers sustained only minor injuries. 9. The site of the accident was examined the same day by an inspector from the State Labour Inspectorate. He noted that at the time of the examination the scaffolding was intact and no workers were present at the construction site. The inspector spoke to the construction site manager, V.J.S., who stated that he had not seen the accident because he had been elsewhere on the site. The inspector also spoke to the person in charge of work safety in the company N. who informed him that, on the basis of the initial medical examination, the applicant had not sustained any serious injuries. Accordingly, the inspector decided that the State Labour Inspectorate would not investigate the circumstances of the accident. 10. On 31 May 2007 another inspector from the State Labour Inspectorate looked into how the accident had happened and concluded that the applicant had fallen from the scaffolding because of his own recklessness. The applicant submitted a complaint against that conclusion and on 15 July 2007 the Inspectorate adopted a new conclusion, holding that the accident had been caused by “the inappropriate organisation of dangerous work” (netinkamas pavojingo darbo organizavimas), in particular because the scaffolding had not complied with the applicable work safety requirements. 11. On 10 September 2007 the applicant asked the Klaipėda city prosecutor’s office (hereinafter “the prosecutor”) to open a pre-trial investigation into the accident. The investigation was opened on the same day and conducted by an investigator from Klaipėda police (hereinafter “the investigator”). 12. On 9 October 2007 the investigator instructed a court medical expert to examine the applicant’s medical file in order to determine the number, severity and causes of his injuries. The report on the results of that examination, delivered on 18 October 2007, showed that the applicant had sustained a large cut on his head, face and right ear, as well as multiple fractures of his facial bones, and a contusion on the chest. The injuries had been caused by blunt objects and flat surfaces, and could have occurred when falling from a height. The report noted that the injury on the head had bled, so there should have been traces of blood at the site of the accident. It concluded that the injuries to the applicant’s head and face amounted to a minor health impairment (nesunkus sveikatos sutrikdymas) while the injury to his chest amounted to a negligible health impairment (nežymus sveikatos sutrikdymas). However, it also noted that the injury to the face would leave a big scar, possibly resulting in disfigurement and impairment of facial expression. 13. On 13 November 2007 the applicant was interviewed as a witness in the investigation. He stated that just before the accident he and five other workers had been carrying a metal platform to attach to a reservoir tank. The applicant and two other workers had been holding the upper part of the platform while standing on the scaffolding and three others had been on the ground, holding the platform’s bottom part. The weight of the platform was about 200 kg. Suddenly, the scaffolding had collapsed and all three workers had fallen to the ground. At that point the applicant had lost consciousness. When he had come to, he had realised that he was not lying near the scaffolding, where he must have fallen, but in a different place. He had not seen any debris from the scaffolding around him, or any other traces of the accident. On the same day the applicant was granted the status of a victim in the investigation. 14. On the same day the investigator instructed a court medical expert to examine the applicant’s scars caused by the accident. The report on the results of that examination, delivered on 15 November 2007, found that the facial injury had left a large, rough scar, causing a minor disfigurement and impairment of facial expression. It also found that the scar and the resulting deformation could only be removed by plastic surgery, so the injury was considered as irreparable. As a result, the report concluded that the applicant’s injury was legally classified as serious health impairment (sunkus sveikatos sutrikdymas). 15. In November and December 2007 the investigator interviewed several of the applicant’s co-workers and other people who had worked near the factory construction site. It appears that the co-workers stated that no platform had been carried on the day of the accident. None of those interviewed had seen how the applicant had fallen from the scaffolding. From January to June 2008 more witnesses were interviewed and the investigator requested various documents from the applicant’s employer and from several State institutions which had assessed the applicant’s health and ability to work after the accident. 16. On 13 August 2008 the applicant was interviewed again. He stated that before the accident he had sometimes felt dizzy and had a feeling of numbness in his legs, but he had been declared fit to work after a medical examination. 17. On 6 October 2008 the prosecutor discontinued the pre-trial investigation. He relied on the State Labour Inspectorate report that no damage to the scaffolding on the day of the accident had been observed (see paragraph 9 above), and noted that none of the witnesses had corroborated the applicant’s description of how he had fallen. The prosecutor observed that the applicant may have fallen from the scaffolding owing to his own recklessness (dėl savo paties neatsargumo), possibly because of the numbness in his legs. Accordingly, the prosecutor decided that the scaffolding had complied with safety requirements, and that there were no grounds to find that the applicant’s employer had violated any laws. 18. The applicant appealed against the prosecutor’s decision. He also asked for the appointment of a different prosecutor to supervise the case and to carry out a forensic examination in order to determine the causes of the accident. On 27 October 2008 a senior prosecutor dismissed his appeal, noting that around fifty witnesses had been questioned, but nobody had corroborated the applicant’s claims. However, on 5 December 2008 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court noted that the prosecutor had not addressed the State Labour Inspectorate’s conclusion of 15 July 2007 (see paragraph 10 above), and that other witnesses had only stated that they had not seen how the applicant had fallen from the scaffolding but had not disputed his account. The court also considered that the prosecutor’s conclusion that the applicant had fallen because of his own recklessness or a medical condition had been “speculative and not based on any objective facts”. However, the court rejected the applicant’s request to appoint a different prosecutor as unfounded and did not examine his request to carry out a forensic examination, noting that the choice of investigative measures was the prerogative of investigators and prosecutors. 19. In January and February 2009 the investigator examined the site of the accident and interviewed more witnesses. 20. On 2 April 2009 the prosecutor instructed the investigator to carry out several additional investigative measures. Among other things, the investigator was requested to identify whether on the day of the accident or earlier the applicant and other workers had been ordered by their employer to attach the metal platform to the reservoir tank. 21. In April and May 2009 the investigator carried out additional interviews with several witnesses and requested further information from the applicant’s employer and from the medical institutions which had examined him. 22. On 12 May 2009, in response to a prior complaint by the applicant, the deputy chief prosecutor of the Klaipėda city prosecutor’s office informed him that there were no grounds to find that the pre-trial investigation in his case had been unduly protracted. 23. On 21 May 2009 the applicant’s co-worker V.K. submitted a written statement to the State Labour Inspectorate that on the day of the accident he and other workers had been ordered by their supervisor V.J.S. to attach the metal platform to the reservoir tank. V.K. also submitted that the scaffolding had been made of very thin wood and could have broken at any time. He further alleged that immediately after the accident the director of the company N. had told other workers to repair the scaffolding. V.K. also asserted that he had previously given different testimony because of pressure from his employer. 24. On 8 June 2009, in response to a complaint by the applicant about the length of the investigation, the chief prosecutor of the Klaipėda city prosecutor’s office noted that “the investigation had not always been of sufficient intensity” (tyrimo intensyvumas ne visada buvo pakankamas) and that the prosecutor had been instructed to set a deadline for completing the investigation. The chief prosecutor also informed the applicant that it was still necessary to interview several witnesses living in various parts of the country and to carry out further investigative measures. 25. On 17 June 2009 the State Labour Inspectorate adopted a new conclusion on the circumstances of the accident, holding that the scaffolding had not complied with applicable safety requirements and that the applicant had not been given appropriate instructions for working at height. Accordingly, the Inspectorate concluded that the applicant’s employer had breached the legal requirements concerning safety at work. 26. On 3 July 2009 the prosecutor discontinued the pre-trial investigation. He observed that the applicant and other workers had been using the scaffolding for several days before the accident and there had not been any accidents during that time, so there were no grounds to find that the scaffolding had been unsafe. The prosecutor also concluded that the workers had not been ordered by their employer to attach the metal platform to the reservoir tank because the construction manager, V.J.S., had not been at work on the day of the accident. Accordingly, the employer could not be held responsible for the workers’ decision to carry the platform on the scaffolding. The prosecutor further observed that, in any event, the applicant had had the right to refuse to carry out tasks which were unsafe or for which he was unqualified, but he had not exercised that right. The prosecutor therefore concluded that the accident had been caused by the recklessness of the workers and not by the actions or omissions of the employer. 27. The applicant appealed against the prosecutor’s decision but on 24 July 2009 a senior prosecutor dismissed his appeal. However, on 13 October 2009 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court observed that the absence of previous accidents on the scaffolding could not be interpreted as evidence that the scaffolding was safe. It also held that the applicant’s right to refuse to carry out tasks in unsafe conditions did not excuse the employer from a duty to ensure that unsafe conditions did not exist at the workplace. The court further noted that attaching the platform to the reservoir tank had clearly been part of the construction work, so the employer had a duty to properly supervise the workers and to instruct them how to carry out that task safely – and by failing to do so, the applicant’s employer had acted contrary to the law. 28. The prosecutor appealed against that judgment, but on 28 October 2009 the Klaipėda Regional Court dismissed the appeal. In its judgment the court noted that although more than two years had passed since the accident, the prosecutor had still not determined the precise way in which the accident had happened, and that without doing that it was not possible to determine who had been responsible for it. The court also considered it unlikely that the workers would have decided to attach the platform without receiving an order from their supervisor or at least informing him, so it was necessary to examine whether the construction manager V.J.S. had been present at the construction site at any time that day. Lastly, the court drew attention to the fact that “some witnesses” had admitted to giving false testimony under pressure from the employer and so it was necessary to investigate those claims further. 29. In November and December 2009 the investigator arranged several formal confrontations between witnesses, interviewed additional witnesses, and requested further information from the applicant’s employer and the hospital where the applicant had been examined. 30. On 17 December 2009, following a complaint by the applicant, the deputy chief prosecutor of the Klaipėda region prosecutor’s office sent a note to the Klaipėda city prosecutor’s office, observing that the pre-trial investigation had been going on for more than two years, and requesting that it promptly carry out any necessary further investigative measures in order to make a well-founded final decision. 31. On 7 January 2010, after an application by the prosecutor, the Klaipėda District Court ordered a forensic examination of the precise way in which the accident had happened and its causes. The forensic expert examined the case file and delivered a report on 17 February 2010. The report noted that there was insufficient information in the case file concerning the technical characteristics of the metal platform and the scaffolding, so the way the accident had happened could be established only in part. On the basis of the available material, the report found that the weight of the platform had exceeded the weight limit of the scaffolding and had thus caused it to collapse. Accordingly, it concluded that the scaffolding had not been suitable for the work for which it was used, and that the workers had not been adequately informed about how to carry out their work safely. The report found that the employer had thereby breached the applicable work safety requirements. 32. In March 2010 the investigator interviewed additional witnesses and arranged formal confrontations. 33. On 19 May 2010 the prosecutor again discontinued the pre-trial investigation. He held that witness testimony and other evidence showed that the applicant’s supervisor V.J.S. had not been present at the construction site on the day of the accident and that he had not ordered the workers to attach the platform. As a result, the prosecutor concluded that V.J.S. had not had any duty to ensure the safety of that operation. He further concluded that the accident had been caused by the workers’ reckless decision to carry the platform, which had exceeded the weight limit of the scaffolding. The prosecutor noted that although the scaffolding had not fully complied with the applicable safety requirements, that had not been the main cause of the accident and thus the applicant’s employer could be held liable only for an administrative offence of failure to comply with work safety requirements (see paragraph 58 below), but not for a criminal offence. The prosecutor also observed that a separate pre-trial investigation should be opened in order to examine the claims of some witnesses that they had been pressured by their employer to give false testimony. However, from the material available to the Court it appears that no such investigation was opened. 34. The applicant appealed against the prosecutor’s decision, but on 7 June 2010 a senior prosecutor dismissed his appeal. However, on 9 August 2010 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court underlined that attaching the platform to the reservoir tank had been an inherent part of the construction work carried out by the applicant and other workers, so it could not be considered that they had decided to do that of their own free will. It referred to the expert report of 17 February 2010, noting that that report had given grounds to believe that the applicant’s employer had failed to ensure safe working conditions. The court further noted that V.J.S. had not been officially authorised to leave his workplace on the day of the accident, and thus he had failed to ensure the safety of the workers under his supervision. 35. On 15 October 2010 V.J.S. was officially notified that he, being a person authorised by an employer to supervise construction work, was suspected of violating safety requirements at work, which had resulted in an accident, as set out in Article 176 § 1 of the Criminal Code. 36. In October and November 2010 the investigator interviewed V.J.S. and several witnesses. 37. On an unspecified date the applicant complained to the Prosecutor General’s Office that the pre-trial investigation had been protracted, in particular because it had been discontinued and reopened several times. On 26 November 2010 the Prosecutor General’s Office dismissed his complaint and stated that the repeated discontinuation of the investigation did not give grounds to find that any requirements of the Code of Criminal Procedure had been violated. 38. In January and February 2011 the investigator carried out additional interviews with several witnesses and requested further information from the applicant’s employer. 39. On 14 February 2011 the applicant was informed that the pre-trial investigation had been completed. V.J.S. submitted a request to continue the investigation and carry out additional investigative measures but that request was dismissed. 40. On 1 April 2011 the prosecutor issued an indictment against V.J.S. under Article 176 § 1 of the Criminal Code and on 5 April 2011 the case was transferred to the Klaipėda District Court for examination on the merits. On 28 April 2011 the chairperson of that court noted that the case was complex and large-scale, and allowed an additional thirty days to prepare for its examination. 41. The Klaipėda District Court held the first hearing on 30 June 2011 and decided to adjourn the case until 27 September 2011 because several witnesses were not present. 42. The next hearing was held on 27 September 2011 but several witnesses were absent again and the Klaipėda District Court fined them for failing to appear. The court also decided to adjourn the case until 24 November 2011 in order to ensure the participation of all the necessary witnesses and, as requested by the applicant, to obtain the technical details about the metal platform. 43. It appears that subsequently the case was adjourned again and a new hearing was scheduled for 14 December 2011. 44. On 13 December 2011 V.J.S. submitted a medical certificate to the court indicating that he would be sick from 12 to 16 December 2011, and asked for a further adjournment. 45. The Klaipėda District Court held a hearing on 14 December 2011 but because of the absence of the accused it was decided to adjourn and to schedule a new hearing for 5 January 2012. 46. At the hearing of 5 January 2012 V.J.S.’s lawyer informed the Klaipėda District Court that his client was still sick and had a medical certificate that was valid for another seven days. The court scheduled new hearings for 17, 19 and 24 January 2012. 47. On 16 January 2012 the applicant submitted a civil claim against V.J.S., asking for non-pecuniary damages of 300,000 Lithuanian litai (LTL – approximately 86,886 euros (EUR)). 48. On 17 January 2012 V.J.S.’s lawyer asked the court to adjourn the case again because his client had been admitted to hospital. Later, V.J.S. submitted a medical certificate indicating that he would be sick from 16 to 23 January 2012, which also showed that he would undergo rehabilitation treatment from 23 January to 6 February 2012. 49. The Klaipėda District Court held a hearing on 24 January 2012 and decided to adjourn until 14 February 2012. Subsequently, owing to the continued illness of the accused, the case was adjourned until 17 February 2012, then again until 1 March 2012 and 16 March 2012. 50. On 19 March 2012 the applicant asked the Klaipėda District Court to continue its examination of the case in the absence of the accused, complaining that the latter was deliberately avoiding appearing before the court. The Klaipėda District Court dismissed that application, informing the applicant that V.J.S. had submitted the required medical certificates to prove his illness and that domestic law did not allow for the examination of a criminal case in the absence of the accused. The court also noted that examination of the case had not been unduly protracted because the hearings had been scheduled with as little time between them as possible. 51. Subsequently, owing to the accused’s continued illness, the court further adjourned the case to 11 April 2012, 24 April 2012, and then to 8 May 2012. 52. On 7 May 2012 the applicant asked the court to adjourn the hearing because he had to be admitted to hospital for surgery. 53. The Klaipėda District Court held a hearing on 8 May 2012 from which the applicant was absent. During the hearing the prosecutor asked the court to terminate the case against V.J.S. as time-barred. The court adopted a decision on 14 May 2012 and terminated the case. It noted that V.J.S. had been charged with a crime of negligence, and in such cases the statute of limitations, applicable at the time of the accident, was five years (see paragraph 59 below). The court also observed that the domestic law provisions on the statute of limitations, applicable at the time of the accident, were “unconditional” (besąlygiškos nuostatos) and did not provide for the possibility to suspend the limitation period. The domestic law was subsequently amended to allow such a decision (see paragraph 60 below), but the new legal framework could not be applied retroactively to the detriment of the accused. The court did not examine the applicant’s civil claim and noted that he had the right to institute separate civil proceedings for damages. 54. On 4 June 2012 the applicant complained to the Klaipėda Regional Court that the examination of the case before the district court had been so protracted that it had become time-barred, and asked the regional court to identify the reasons for that protraction. The court considered that complaint as an appeal by the applicant against the Klaipėda District Court’s judgment of 14 May 2012 but refused to admit it because the applicant had not signed it or properly outlined the reasons for the appeal. The applicant did not submit another appeal against the judgment of 14 May 2012. 55. On an unspecified date V.J.S. appealed against the Klaipėda District Court’s judgment of 14 May 2012 and asked the court to examine the case on the merits and to acquit him, but on 13 June 2012 his appeal was dismissed. 56. On 22 November 2012 the Prosecutor General’s Office, in response to a complaint by the applicant, informed him that it had analysed the work of the prosecutors involved in the case and had not detected any “substantial violations” (esminiai pažeidimai) of the Code of Criminal Procedure.
| 1 |
test
|
001-166480
|
ENG
|
MDA;RUS
|
CHAMBER
| 2,016 |
CASE OF TURTURICA AND CASIAN v. THE REPUBLIC OF MOLDOVA AND RUSSIA
| 3 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property) (Russia);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations) (the Republic of Moldova);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Dmitry Dedov;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström
|
5. The applicants were born in 1962 and 1951 respectively and live in Lunga and Corjova, in the Transdniestrian region of Moldova. 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 in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012). 7. The present case concerns the confiscation and/or fining of the applicants for their failure to observe customs rules imposed by the authorities of the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”). 8. Both applicants used cars registered with the authorities of the Republic of Moldova and had Moldovan registration plates. Like many other inhabitants of the “MRT”, the applicants refused to use registration plates issued by the “MRT” authorities, which are not recognised by any country and which means that cars registered with them cannot leave the territory of Moldova. In November 2004, the “MRT” authorities adopted new rules, according to which any car with non-MRT registration plates could only enter the territory of the “MRT” after the payment of customs duties for temporary entry into the “MRT”. Failure to observe the new rules was punished with a fine which could be as high as the full value of the car. 9. On 27 January 2005 the applicant was driving a car (the first car) from his village to the right bank of the Dniester river when he was stopped by a customs officer of the “MRT”, who seized his car on the grounds that such a car with Moldovan plates had not been registered with the “MRT” customs authorities and no customs duties had been paid for its temporary use on the territory of the “MRT”. By a decision of 9 February 2005 by the chief of the Dubasari (“MRT”) customs office, the applicant was ordered to pay a fine of 2,725 Transdniestrian roubles, equal to twenty percent of the value of the car, in order to be able to recover it. 10. On an unspecified date, the applicant borrowed a car from a friend (the second car), which also had Moldovan number plates, and registered it with the “MRT” customs authorities by paying customs duties. The registration was due to expire on 30 August 2005. On the day of the expiry, since the applicant was ill, he sent his son to prolong the car’s registration period with the “MRT” customs authorities. However, registration of the car was refused on the grounds that the applicant had to be present in person. The applicant went the next day, only to have his car seized for failure to register it within the allocated time-limit. By a decision of 12 October 2005 of the Dubasari customs office the applicant was ordered to pay 4,275 Transdniestrian roubles, an amount which was equal to fifty percent of the value of the car, in order to be able to recover it. 11. The applicant challenged the decision of 9 February 2005 before the courts of the “MRT” and argued, inter alia, that he had been going through the customs check-point since 2002 and that nobody had informed him about the need to pay any customs duties. Moreover, the last time he had crossed the customs check-point had only been two days prior to the confiscation of his car. 12. By a decision of 8 December 2005 the Dubasari district court rejected the first applicant’s challenge to the decision of the Dubasari customs office of 9 February 2005 concerning his first car. As a result, the applicant decided not to challenge the decision of 12 October 2005 in the “MRT” courts. 13. The applicant also complained to the Moldovan authorities, which initiated criminal proceedings in respect of the unlawful seizure of his car. According to the materials submitted by the Moldovan Government, the criminal investigation was suspended on 14 December 2009 because the perpetrators could not be identified. 14. It appears from the case file that the applicant never recovered his cars from the “MRT” authorities. 15. The applicant had his car seized on 28 February 2007 on the grounds that he had failed to leave the territory of Transdniestria before the registration with the “MRT” customs authorities had expired. He was obliged to pay the equivalent of some 30 euros (EUR) in order to be able to recover his car. The applicant paid the money and had his car returned on 30 March 2007. He did not contest the decision of the “MRT” customs authorities before the “MRT” courts. 16. The applicant also complained to the authorities of Moldova. It appears that on 6 March 2007 the Dubasari chief police officer addressed a letter to the co-chair of the Joint Control Commission (“the JCC”) (see paragraph 18 below), informing him about the incident of 28 February 2007, and that the Moldovan initiative to examine the matter of the second applicant’s car had been ignored by the other members of the JCC, including the Russian representative. 17. In a letter dated 13 March 2007, the Reintegration Minister of the Republic of Moldova informed the second applicant about the refusal of the Transdniestrian and Russian members of the JCC, to examine the incident relating to the seizure of his car. The second applicant was also informed that the Ministry of Reintegration had brought the applicant’s case to the attention of the United States, European Union and Ukrainian ambassadors to Chisinau. A general issue concerning respect for human rights in Transdniestria was raised by the Moldovan representative to the OSCE on 8 March 2007. 18. In a letter dated 7 March 2007, the applicant was informed by the Prosecutor’s Office of the Republic of Moldova that it did not have the necessary means to solve the problem of the seizure of his car by the “MRT” authorities.
| 1 |
test
|
001-181601
|
ENG
|
HRV
|
COMMITTEE
| 2,018 |
CASE OF SMOLIĆ v. CROATIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
|
Aleš Pejchal;Armen Harutyunyan
|
5. The applicant was born in 1934 and lives in Stari Mikanovci. 6. The applicant was an employee of the State’s railway company, Hrvatske željeznice. He suffered a work-related accident and became unable to work. 7. On 26 April 1977 the Osijek County Court (Okružni sud u Osijeku) awarded the applicant a lump sum in compensation and ordered the defendant – Hrvatske željeznice – to pay him monthly payments in respect of the difference between his disability pension and the salary he would have been earning were it not for his inability to work. 8. On 5 May 1988 the Vukovar Municipal Court (Općinski sud u Vukovaru) increased the above-mentioned monthly payments. At the same time, it established that the applicant’s inability to work was only 50% due to the above-mentioned accident, and 50% due to a pre-existing illness. 9. On 24 December 1990 the applicant instituted civil proceedings against Hrvatske željeznice, seeking that the above-mentioned monthly payments be increased on the grounds of changed circumstances. 10. The defendant did not oppose an increase in the monthly payments, but disputed the amount requested. 11. The Vukovar Municipal Court commissioned a report from an accounting expert, and on 13 February 1991 the expert witness submitted his report. 12. At a hearing held on 20 February 1991 the expert witness gave oral evidence. 13. On 24 April 1991 the first-instance court allowed the applicant’s claim in part, but on 16 August 1991 the Vukovar County Court (Županijski sud u Vukovaru) quashed the first-instance judgment in part, because it found that the first-instance court had failed to correctly establish the facts. It remitted the case for fresh consideration and ordered the first-instance court to establish, in terms of a percentage, how much the applicant’s inability to work was due to his pre-existing illness. 14. In the resumed proceedings, the first-instance court commissioned a report from an accounting expert and ordered the applicant to pay costs in advance in the sum of 696.55 Croatian kunas (HRK). 15. On 5 June 2003 the expert witness submitted his report and the defendant objected to the expert’s findings. 16. On 15 October 2003 the expert witness submitted his observations in reply to the defendant’s objection. 17. At a hearing on 28 November 2003 the court heard oral evidence from the expert witness. He stated that he could not precisely determine individual amounts until the Croatian Pension Fund adjusted the applicant’s pension. 18. On 22 December 2003, after the Croatian Pension Fund had adjusted the applicant’s pension, the expert witness submitted an additional report. 19. At a hearing on 23 January 2004 the expert witness again gave oral evidence. 20. On the same date, on the basis of the expert witness’s report, the first-instance court issued a judgment allowing the applicant’s claim in part. 21. On 3 May 2005 the Vukovar County Court quashed the judgment of 23 January 2004 for substantial violation of the civil procedure rules and ordered a fresh consideration of the case. It held that the first-instance court had failed to take into account the fact: that the first-instance judgment of 24 April 1991 had become final as regards an amount of 63.80 former Yugoslav dinars (YUD) per month payable for the period from 1 January 1991 onwards; the applicant had turned 60 on 15 August 1994; and he should have lodged an application for his disability pension to be recalculated as an old-age pension. 22. At a hearing held on 15 September 2005 the first-instance court commissioned a further report from an accounting expert, in accordance with the instruction given by the second-instance court. Specifically, it ordered the expert witness, in calculating the monthly amount, to take into account the amount of 63.80 dinars which had already been awarded, as well as the fact that the defendant was 50% responsible for the damage at issue, and to establish whether the applicant had used his right to have his disability pension recalculated as an old-age pension when he had turned 60. 23. Meanwhile, the defendant split into four companies, and the firstinstance court ordered the applicant to correct his claim by accurately identifying the defendant. 24. On 2 November 2007 the first-instance court declared the claim inadmissible, because it held that the applicant had failed to properly correct the claim. 25. Upon an appeal by the applicant, on 9 September 2008 the Vukovar County Court quashed the first-instance decision, because it held that the applicant had already identified the defendant. 26. In the resumed proceedings, at a hearing held on 22 December 2008 the first-instance court commissioned a report from an accounting expert in accordance with the second-instance court’s instruction given in its judgment of 3 May 2005, and ordered the applicant to pay the related costs in the amount of HRK 2,578 in advance. 27. On 15 January 2009 and 3 February 2009 the applicant asked for an exemption from paying the costs of the expert witness, claiming that, given his financial situation, and the fact that his pension was HRK 2,313 per month and his wife was unemployed and without any income, he was unable to pay those costs without putting his own and his wife’s subsistence at risk. He asked for those costs to be covered by the first-instance court’s funds, a possibility provided for by the Civil Procedure Act. He submitted a certificate from the Croatian Pension Fund concerning his pension and certificates demonstrating his and his wife’s income. 28. At a hearing on 3 February 2009 the applicant reiterated all the arguments and repeated that he had not been able to pay for the costs of the expert report. He asked the court to allow his claim as specified in his submissions of 16 February 2007. Neither party put forward any new evidence. The court set aside its decision of 22 December 2008 regarding a further report from an accounting expert, because the applicant had failed to pay for the costs, and concluded the hearing. 29. On 16 February 2009, relying on the rules regulating the burden of proof, the first-instance court issued a judgment dismissing the applicant’s claim. It held that, owing to his failure to pay for the costs of the expert report, the court had not been able to establish the exact amount of the monthly payments. In its reasoning, the first-instance court stated that the Vukovar County Court, in its decision of 11 November 2008, had awarded the applicant HRK 20,000 for the violation of his right to a trial within a reasonable time, and that he could have paid for the costs of the expert witness with that money. 30. The applicant lodged an appeal, claiming that the amount awarded to him for the violation of his right to a trial within a reasonable time had been paid to him on 13 March 2009, namely after the first-instance judgment had already been delivered. 31. On 4 February 2010 the second-instance court upheld the firstinstance judgment. In addition, it held that the applicant failed to demonstrate when the State had deposited the amount of HRK 20,000 on a bank account of his representative. 32. The applicant then lodged an appeal on points of law (revizija), which the Supreme Court declared inadmissible on 10 January 2011. 33. The applicant then lodged a constitutional complaint with the Constitutional Court, and on 11 July 2012 the Constitutional Court declared it inadmissible as manifestly ill-founded.
| 1 |
test
|
001-163497
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,016 |
YEREMENKO v. RUSSIA
| 4 |
Inadmissible
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra
|
1. The applicant, Mr Yuriy Leonidovich Yeremenko, is a Russian national who was born in 1963 and is currently serving a prison sentence in the Republic of Tatarstan. He was represented before the Court by Mr E. Markov, a lawyer practicing in Strasbourg. 2. The Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 10 June 2002 the applicant was arrested on suspicion of being the organiser of a criminal group which committed dozens of violent offences, including murders. 4. On 17 July 2006 the Supreme Court of the Republic of Tatarstan found that the applicant had been the organiser of an established criminal group, and had masterminded and participated in a number of aggravated murders, extortion and money laundering offences. The applicant was sentenced to life imprisonment. The judgment became final on 12 December 2007 when it was upheld on appeal by the Supreme Court of Russia. 5. In the years preceding his arrest the applicant suffered from a slowly progressing second-stage encephalopathy of mixed etiologies at the stage of decompensation, arterial hypertension, chronic hepatitis with hepatic impairment and cirrhosis, pancreatitis and focal duodenitis. In February 2001 he was certified for a period of one year as having a third-degree disability. 6. Upon admission to a temporary detention facility in June 2002 the applicant underwent a general medical check-up which included the measurement of his height and weight, recording of his blood pressure and body temperature, a chest X-ray examination, and tests for HIV and syphilis. A prison doctor noted the applicant’s assertion that he was suffering from hepatitis C and prescribed him hepatoprotectors to support the liver. 7. Several months later the applicant complained of pain in the right hypochondrium. The prison doctor diagnosed him with hepatic cirrhosis. Hepatoprotectors, antispasmodic medications, vitamins and dietary nutrition were prescribed and provided. 8. Over the following two years the applicant was transferred between various detention facilities and each time was subjected to a thorough medical examination. It appears from the submitted documents that he was continuously provided with a special dietary regime and hepatoprotectors. The medical records show that he was examined and treated by prison doctors for an acute respiratory disease at the beginning of 2003, for headaches at the beginning of 2004, and haemorrhoids later in 2004. 9. In the autumn of 2005 the applicant was seen by a neurologist from a prison hospital and an infectious diseases specialist from a civilian hospital. The neurologist concluded that the applicant had encephalopathy of mixed etiologies and vegetative-vascular dystonia as well as a neuropathy of the right medium nerve. Nootropic medication and vitamins were prescribed. The infectious diseases specialist confirmed the presence of hepatitis and recommended a combined treatment involving cholagogue drugs and injections with both antiviral and hepatoprotective action. 10. At the beginning of 2006 the applicant complained to the prison doctor of discomfort in the abdominal area. The doctor found no signs of acute hepatitis and prescribed three weeks of treatment with hepatoprotectors and a special diet. In 2007 the applicant underwent regular check-ups performed by an infectious diseases specialist from a civilian hospital. On the doctor’s recommendation he was given antiviral drugs and vitamins. In 2008 the applicant was given a course of nootropics for his brain vascular disorder. According to the medical records, the state of the applicant’s health did not deteriorate over those years. 11. In 2009 the applicant was successfully treated for a cold, cystitis, orchitis and a perineum boil. 12. The authorities continued treating the applicant for hepatitis and cirrhosis of the liver. They also addressed his neurological problems and secondary medical conditions, such as seasonal colds. The applicant underwent a thorough medical examination performed by a medical panel comprising a number of specialists. In the report of 8 July 2010 the doctors concluded that the applicant was suffering from chronic hepatitis at a latent stage, first-stage cirrhosis of the liver and a second-stage encephalopathy of mixed etiologies. They also concluded that these primary chronic ailments had not progressed during the period of the applicant’s detention. In late 2010 the applicant was diagnosed with developed chronic prostatitis and acute cystitis. The conditions were brought fully under control with a comprehensive drug regimen. 13. In 2011 the applicant underwent a number of medical tests and received treatment for hypertension, which seemed to have become a major health issue for him at the time. 14. On 10 February 2012 the applicant was seen by a surgeon in connection with haemorrhoidal bleeding. A drug regimen was prescribed, but it did not bring the expected results. Two weeks later the doctor recommended inpatient treatment. 15. The applicant was admitted to the surgical department of the Regional Hospital in Solikamsk. After a number of tests, including a sigmoidoscopy, the doctors established that the applicant had chronic internal haemorrhoids of the first stage. No surgery was required. 16. On 30 August 2012 he underwent a medical examination by a panel of doctors with a view to establishing whether he should apply for renewed certification as a disabled person. The commission gave a negative answer as his condition did not involve any functional pathology of his organs and his vital activity was not restricted. 17. On 3 September 2012 the applicant was discharged from hospital. 18. In 2013 most of the applicant’s medical complaints concerned hypertension which, according to medical reports, had progressed to the second stage. His blood pressure was regularly monitored and he was given hypotensive drugs. The authorities also performed several tests, including an electrocardiogram examination in October 2013. That examination revealed a left bundle branch block. According to his medical records, the applicant continued to receive treatment for his heart, brain and liver conditions. 19. The applicant neither made any complaint about nor provided any description of the treatment received in the period after 2013. 20. The relevant provisions of the domestic and international law on general health care of detainees are set out in the judgment of Vasyukov v. Russia (no. 2974/05, §§ 36-50, 5 April 2011).
| 0 |
test
|
001-168933
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF GERASIMENKO AND OTHERS v. RUSSIA
| 4 |
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
6. The applicants were born in 1990, 1989 and 1990 respectively and live in Moscow. 7. D.E. was a major in the police. He was born in 1977. 8. On 28 November 2008 he was promoted to chief of the Tsaritsino branch of the Moscow Department of the Interior. 9. On the evening of 26 April 2009 D.E. had a birthday party. Shortly after returning home from the venue, he left again. 10. Between 12.30 and 1.20 a.m. on 27 April 2009 D.E. took a taxi to the Ostrov shopping centre on Shipilovskaya Street in Moscow. He was wearing police uniform and was armed with a handgun. 11. Initially, he fired several gunshots at the driver, E., who died of his injuries in hospital. 12. After D.E. got out of the car, he walked between some apartment blocks. Near one of them he saw two people he did not know, Ms S. and Mr K. Without saying anything, he opened fire and shot Ms S. three times and Mr K. twice. After a while he saw Mr L. and shot at him, also without saying a word. Mr L. however managed to run away. 13. D.E. then walked towards the Ostrov shopping centre. As it was open twenty-four hours a day, there were always people inside. D.E. opened fire at a group of people who were near the entrance, firing at least two shots at the first applicant and at least one shot at the second and third applicants. Another person, Ms B., was also wounded. 14. D.E. entered the shopping centre and approached Mr T. and Ms P. Without saying a word, he shot Mr T. in the head. After he fell to the ground, D.E. took Ms P. by the arm, pointed the gun at her head and, holding her hostage, continued moving through the shopping centre. Eventually, Ms P. managed to break free and run away. 15. When he passed a checkout counter, D.E. shot at a cashier, Ms T., who was killed instantly. 16. Staff and customers of the shopping centre tried to hide from D.E. Some of them used the fire exit and found themselves in the service yard of the shopping centre. D.E. followed them and, threatening them with his gun, ordered all the women who were hiding behind some boxes to step forward. One of them, Ms F., was trying to protect her pregnant daughter who was hiding together with her. She obeyed and approached D.E. He then pointed the gun at her head and pushed her towards a wall. He apparently intended to shoot her, but was distracted by a police unit that arrived at the scene. The police ordred him to let the people go, and surrender. D.E. started shooting at the police and Ms F. was able to escape, as were the other people hiding in the service yard. D.E. was subsequently apprehended by the police. 17. In the course of the events D.E. killed two people and wounded several others. 18. The first applicant suffered injuries to his head and body. He had a bullet entrance wound to the side of the face (parotic region) and an exit wound near the nose. He also had concussion and fractures to the walls of the right maxillary sinus and lower jaw. He also had a penetrating wound to the lumbar region, a ruptured spleen, a penetrating wound to the liver and diaphragm ligaments and a foreign body in the mediastinum. 19. The second applicant suffered head wounds. She had a perforating wound to the left cheek and oral cavity with a fractured lower jaw. 20. The third applicant had a non-penetrating wound to the left of the neck, a fractured left shoulder blade and a foreign body in the neck muscles. 21. On 27 April 2009 criminal proceedings were instituted against D.E. on two counts of murder and twenty-six counts of attempted murder in and around the Ostrov shopping centre. 22. On 5 May 2009 D.E. was dismissed from the police with effect from 27 April 2009. 23. On 7 May 2009 the first applicant was granted victim status in the criminal proceedings. 24. On 14 May 2009 D.E.’s mother was questioned. She submitted, in particular, that as a child he had had head injuries. At the age of between eleven and twelve years old he had suffered from severe headaches and throughout his school years he had been under the supervision of a neuropathologist. After the seventh grade he had been transferred to a different school because he would frequently have disagreements with his schoolmates. After the ninth grade he had been exempted from his school examinations on medical advice. 25. Between 25 June and 23 July 2009 a forensic psychological and psychiatric examination of Major D.E. was conducted by three psychiatrists and a psychologist. According to the conclusions set out in report no. 514 of 23 July 2009, D.E. did not suffer from any mental disorder, but had “accentuated” personality traits. The conditions he had suffered as a child and head injuries had led to the development of emotional instability, excitability, anxiety and demonstrative behaviour. This explained the difficulties in his adapting to school life and his behavioural deviations, which required psychiatric help. At the time of committing the offences he was accused of D.E. had not suffered from any temporary psychiatric disorder – that was apparent from the lack of evidence of his being in a psychotic state accompanied by delirium or hallucinations. He was able to understand the meaning of his actions and control them. He was neither a drug addict nor an alcoholic, although at the time of the events he had been in a moderate state of alcohol intoxication, as confirmed by an expert medical examination. 26. The psychologist who participated in the forensic examination stated that after his promotion in December 2008 until the time of the events D.E. had been in a “subjectively complex” situation. This had included an increased volume of work and management of a new team. D.E.’s qualities such as perfectionism, being highly demanding toward himself and others, needing to control all areas of professional activity and intolerance towards colleagues lacking diligence or competence had required, in the given situation, full use of his physical and personal resources. At the same time he had not been as enthusiastic about his new job as he had been about his previous job. Significant limitations on his independence and permanent accountability coupled with a lack of satisfaction from his work had led to emotional tension. D.E. had repeatedly wished to leave his job, but had felt responsibility for his duties and towards his subordinates. He had felt exhausted and had asked for leave, which his superiors had not granted him at the time. A complicated relationship with his wife had constituted another source of frustration. Furthermore, news of his direct supervisor leaving his job had constituted an additional traumatic factor, causing feelings of confusion unusual for D.E. The evening before the events D.E. had had his birthday party, which he had organised in the hope that he could relax in the company of his family and friends. However, on the morning of the party he had been busy at work and after leaving for the day, had expected to be called back. He had therefore been in a state of emotional tension. The fact that his wife and her father had been late for the party and the subsequent strained conversation he had had with her, coupled with his work-related anxiety and the feeling that the party had not gone as planned, had amplified the accumulated emotional tension and exhaustion. At the time of committing the offences D.E. had not been in an emotionally disturbed state. 27. In October 2009 (the exact date is illegible) the second applicant was granted victim status in the criminal proceedings. 28. On an unspecified date the third applicant was also granted victim status in the criminal proceedings. 29. On 19 February 2010 the Moscow City Court convicted D.E. of two murders, twenty-two counts of attempted murder, including the attempted murder of the applicants and law-enforcement officials, and the unlawful use of firearms. He was sentenced to life imprisonment. The court also stripped him of the rank of major. 30. When questioned in court D.E. pleaded partially guilty. He submitted that he had no recollection of the events and could not explain where and how he had come into possession of the handgun or cartridges. However, he did recognise himself on the footage of the CCTV at the shopping centre and therefore admitted that he had killed a man and tortured a woman, although he could not explain why he had done so. He pleaded not guilty with regard to all the other charges. 31. The court questioned numerous witnesses, who confirmed the account of events given in the preceding paragraphs. In particular, D.E.’s wife submitted that on returning from his birthday party he had behaved strangely. After he had left, she had called his parents and they had started to search for him. Police officers F. and Ya., who had apprehended D.E. at the Ostrov shopping centre, submitted that when they had asked him why he had done it, he had responded that “[you] should live [your] life in such a way that [you] would not want to live it again”. According to police officer Ya., D.E. also said that if he had had a machine gun “[it] would have been more fun” and, in response to a question about where he had got the firearms, he responded that, being police officers, they should know. 32. The court also noted that D.E. had had a 1968 Makarov ShI 3192 handgun and at least thirty-three cartridges. It further referred to information provided by the Tula Cartridge Factory on 26 August 2009 to the effect that the cartridges used by D.E. had been manufactured at the factory in 2002 and 2004. It had supplied cartridges to, in particular, the Moscow Department of the Interior. There had been no instances of cartridge theft reported. The court also referred to information provided by the Moscow Department of the Interior to the effect that the handgun used by D.E. had been reported stolen from the arms store of the North Caucasus Department of the Interior for the Rostov Region. It also referred to a judgment issued by the Proletarskiy District Court of Rostov-on-Don on 19 March 2001 convicting two officials of the theft of 128 handguns from that arms store in the period between June 1998 and April to May 2000, which included the handgun used by D.E. 33. According to the Government, on 23 March 2010 a criminal investigation into arms trafficking was instituted under Article 22 of the Criminal Code with respect to the sale of the handgun and ammunition to D.E. However, it was subsequently suspended as the culprit could not be identified. 34. On 8 June 2010 the Supreme Court of Russia upheld D.E.’s conviction and sentence on appeal. 35. On 17 September 2009 M., an investigator from the Investigative Committee at the Prosecutor’s Office of the Russian Federation, addressed the Minister of the Interior with a recommendation on measures to be taken with a view to rectifying the circumstances that had been conducive to the crime being committed. The recommendation noted that according to the forensic psychiatric examination, D.E. had been found to be of sound mind. However, since childhood he had been under the supervision of a neuropathologist on account of his psycho-emotional instability, but this had not been taken into account by the military medical panel which had found him fit to serve in the police. In the course of the psychological examination it had been established that one of the reasons for his psychologically traumatic situation had been his promotion to the position of chief of the Tsaritsino branch of the Moscow Department of the Interior. Referring to the findings of the forensic examination (see paragraph 26 above), the recommendation mentioned that D.E. had not been as interested and enthusiastic about his new duties as he had been about his previous work in the criminal police. Significant limitations on his independence and permanent accountability together with a lack of satisfaction from his work had led to emotional tension. 36. The recommendation went on to say that on 14 November 2008 D.E. had undergone an appraisal. The Appraisal Board had decided that he corresponded to the position he held and considered his promotion a possibility. However, the investigation established that D.E. had not been fit for the position of chief of the Tsaritsino branch of the Moscow Department of the Interior due to his moral and professional qualities. In particular, he had a poor knowledge of police service in the domain of public security and was irritable with his subordinates. The Appraisal Board had therefore had a very perfunctory attitude towards its duties, and the appraisal had not corresponded to the objectives set by the applicable regulations. Improper performance of duties by staff members of the human resources services of the agencies of the interior and their perfunctory attitude towards recruitment and the promotion of staff had led to persons unfit due to their personal and professional qualities being promoted to senior positions. Furthermore, the Ministry of the Interior had failed to conduct explanatory work with its staff to ensure respect for the rule of law, despite its functioning being based precisely on the principles of respect for human rights and humanism. The actions of D.E. had thus discredited the police. 37. The recommendation concluded that the above-mentioned failures on the part of the agencies of the interior had contributed to D.E committing serious crimes. It advised that measures should be taken aimed at their rectification. 38. On 19 February 2010, the date D.E. was convicted, the Moscow City Court also issued a special ruling. It stated that in the course of the trial it had been established that in his childhood D.E. had been treated for conditions related to mental disorders and disorders of the central nervous system in medical institutions of agencies of the interior. However, those circumstances had not been taken into account when D.E. had been accepted to serve in the police and subsequently promoted to chief of the Tsaritsino branch of the Moscow Department of the Interior, even though the relevant medical data had been available at the institutions that provided medical care to the staff of the agencies of the interior. There had thus been a breach of section 19 of the Police Act, sections 130 and 131 of the Order of the Ministry of the Interior of 14 July 2004 and section 9.7 of the Order of the Ministry of the Interior of 14 December 1999. 39. Furthermore, the court noted that in the course of the trial it had been established that when committing the offence D.E. had used cartridges that had been manufactured in the Tula Cartridge Factory which had supplied cartridges to, in particular, the Moscow Department of the Interior. According to information submitted by the factory, no instances of cartridge theft were reported. The court thus concluded that, while holding the position of chief of the Tsaritsino branch of the Moscow Department of the Interior, D.E. had obtained the cartridges in breach of the Instruction concerning the storage of firearms established by Order of the Ministry of the Interior no. 13 of 12 January 2009 and had later used them for committing particularly serious offences. 40. Having regard to the irregularities in the functioning of the Ministry of the Interior which had contributed to the offences committed by D.E., the court ruled that it would draw the attention of the Minister of the Interior to the said irregularities and invite him to take measures aimed at their rectification. 41. The first and second applicants sued D.E. for damages. The first applicant claimed compensation for medical expenses in the amount of 114,609 roubles (RUB), and the second applicant in the amount of RUB 27,631. Each applicant also claimed RUB 2,000,000 as compensation for non-pecuniary damage. 42. On 31 July 2012 the Nagatinskiy District Court of Moscow partially allowed the claims. The court established that D.E. had been responsible for causing injuries to the first and second applicants. The court awarded RUB 19,980 (approximately 500 euros (EUR)) to the first applicant and RUB 27,631 (approximately EUR 691) to the second applicant for pecuniary damage. It stated, in particular, that whereas the first applicant’s medical expenses in the amount of RUB 19,980 had been necessarily incurred, he had also claimed RUB 94,629 in respect of surgery he would have to undergo in order to extract a bullet from his anterior mediastinum. However, according to the forensic expert examination conducted, such surgery was not recommended since the bullet was separated from the tissue and did not pose a danger to the first applicant’s health, whereas any attempt to extract it might lead to unexpected complications. Having regard to the defendant’s financial situation and making its assessment on an equitable basis, the court also awarded RUB 350,000 (approximately EUR 8,750) to the first applicant and RUB 250,000 (approximately EUR 6,250) to the second applicant for non-pecuniary damage. 43. On 4 December 2012 the Moscow City Court upheld the judgment on appeal. 44. On an unspecified date the first and second applicants instituted proceedings against the Ministry of the Finance, the Federal Treasury and the Moscow Department of the Finance for damages, arguing that they had suffered injuries as a result of the unlawful actions of a State official. D.E. participated in the proceedings as a third party. 45. On 29 July 2009 the Nagatinskiy District Court of Moscow dismissed the first applicant’s claim. The court stated that under Articles 52 and 53 of the Constitution and Articles 1064 § 1 and 1069 of the Civil Code, the State was liable for the unlawful actions of a State official performed in the course of his duties. However, if a State official caused damage as a result of activities unrelated to exercising the duties of the State service, he was liable under Article 1064 § 1 of the Civil Code. The court found that in the case at hand D.E.’s unlawful actions that had caused damage to the first applicant had taken place between 12.30 and 1.20 a.m. at the Ostrov shopping centre, outside D.E.’s working hours and the territorial jurisdiction of the Tsaritsino branch of the Moscow Department of the Interior. They had therefore been unrelated to his duties as a State official. The fact that at the relevant time he had held the position of chief of the Tsaritsino branch of the Moscow Department of the Interior and had had the rank of major did not constitute grounds for the State’s liability under Article 1069 of the Civil Code, as it had been established that D.E. had caused damage as a result of activities unrelated to the duties of his service. The court also dismissed the first applicant’s arguments that the State should be held liable for the damage because (i) at the time of the events D.E. had been dressed in police uniform; (ii) he had used cartridges that had belonged to the Tsaritsino branch of the Moscow Department of the Interior; (iii) under Section 18 of the Police Act a police officer carried out his or her duties irrespective of the time, place or his or her position; and (iv) D.E. had been dismissed from service for discrediting the police. The court held that under section 18 of the Police Act, as a general rule a police officer carried out his or her duties taking into account his or her position, duty hours and whereabouts. Exceptions to that rule were provided in section 18(3) and (4) and concerned instances where a police officer had to take urgent measures to provide assistance to victims of offences, save lives, prevent a crime being committed or apprehend a person suspected of committing an offence. In such cases a police officer had to perform his or her duties irrespective of his or her position, duty hours and whereabouts. However, this was not the situation at hand and therefore D.E. had not been acting in the exercise of his State duties and there were no grounds to hold the State liable for his actions. The fact that he had been wearing police uniform and had used cartridges that had belonged to the Tsaritsino branch of the Moscow Department of the Interior had no bearing. The fact that D.E. had been dismissed for discrediting the police meant that his actions had been incompatible with the status of a police officer, but not that he had performed the actions that had caused damage to the first applicant in the course of his duties. 46. On 6 October 2009 the Moscow City Court upheld the judgment. It noted that there was no evidence that would unequivocally confirm that the actions in question had been performed by D.E. in the course of his duties as a civil servant. 47. On 23 September 2009 the Nagatinskiy District Court of Moscow dismissed the second applicant’s claim. The court’s reasoning was identical to that in its judgment of 29 July 2009 in respect of the first applicant’s claim. 48. On 1 December 2009 the Moscow City Court upheld the judgment. As in its decision of 6 October 2009, it noted that there was no evidence that would unequivocally confirm that the actions in question had been performed by D.E. in the course of his duties as a civil servant. 49. Subsequently, having regard to the special ruling of the Moscow City Court of 19 February 2010, the first and second applicants applied for the civil proceedings to be reopened in the light of newly discovered circumstances. 50. On 9 April 2010 the Nagatinskiy District Court of Moscow dismissed their requests in two separate rulings. It held that there were no significant new circumstances that would warrant reopening the proceedings. 51. On 15 November 2010 the third applicant underwent a polygraph test to assess her perception of the police officers after the events of 27 April 2009. According to the results of the test, on 27 April 2009 she had taken D.E. for a police officer and, as a result of the events, had developed feelings of fear and apprehension towards police officers. 52. Between 19 November and 5 December 2010 an expert psychological examination was conducted with a view to establishing how the fact that at the time of the events D.E. had been wearing police uniform had affected the third applicant’s psychological state. According to the results of the examination, police uniform affects a person’s behaviour as in general people tend to display loyalty and obedience towards symbols of authority due to the latter’s legitimacy and conventionality and their fear of reprisal in the event of their refusal to obey. The fact that the perpetrator had been wearing police uniform had undoubtedly affected the third applicant’s behaviour and psychological state and had limited her ability to choose a behavioural pattern aimed at protecting her life and health. At the time of the examination the third applicant felt an uncontrollable fear of officials wearing police uniform. When she saw one she felt anxiety, apprehension and panic. There was a direct connection between the events and the third applicant’s psychological state characterised by depression, emotional tension and instability, negative feelings, the tendency to avoid new experiences, a pessimistic outlook on life and a change in moral values. 53. On 29 September 2011 the third applicant instituted proceedings against the Ministry of Finance for damages. She argued that damage had been caused as a result of a police officer’s unlawful exercise of his powers. She argued, in particular, that (i) D.E. had used firearms that he had obtained in the course of his service in the police; (ii) any judicial decision recovering damages from D.E. would remain unenforced since, being convicted to life imprisonment, he would have no sources of income and therefore no assets to recover the judgment debt from; (iii) the polygraph test had proven that on the night of the events the third applicant had taken D.E. for a police officer; and (iv) according to the results of the expert psychological examination, the fact that D.E. had been wearing police uniform had affected the third applicant, rendering her defence difficult. 54. On 7 December 2012 the Tverskoy District Court of Moscow dismissed the claim. Relying on Articles 150, 151, 1064 § 1 and 1069 of the Civil Code and referring to D.E.’s conviction, the court found no evidence that damage had been caused to the third applicant by the unlawful actions of a law-enforcement officer. The court found that the claim had been brought against the wrong defendant and that it should have been brought against D.E. It dismissed the argument that any judgment against D.E. would remain unenforced as speculative. The third applicant’s reference to the fact that D.E. had used cartridges that had belonged to the Moscow Department of the Interior was also dismissed as “being based on a wrong assessment of the facts established by the court”. The court also stated that the third applicant’s personal perception of the perpetrator dressed in police uniform did not constitute grounds for allowing the claim. It further noted that the reference to the Court’s case-law in the statement of claim constituted an arbitrary interpretation of judicial decisions irrelevant to the case. 55. On 16 April 2012 the Moscow City Court upheld the judgment on appeal.
| 1 |
test
|
001-182855
|
ENG
|
TUR
|
COMMITTEE
| 2,018 |
CASE OF TAŞARSU v. TURKEY
| 4 |
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
|
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić
|
5. The applicant was born in 1979 and lives in Adana. 6. On 8 March 2002 the applicant was arrested and taken into custody on suspicion of membership of an illegal organisation. 7. On 9 March 2002 the applicant’s statements were taken by the police in the absence of a lawyer. During the interrogation, the applicant gave a detailed account of her acts within the illegal organisation PKK (the Kurdistan Workers’ Party). 8. On 11 March 2002 the applicant was heard by the public prosecutor and the investigating judge at the Istanbul State Security Court, again in the absence of a lawyer. Before the public prosecutor and the investigating judge, the applicant partially retracted her previous statements maintaining that she had given statements to the police under duress. On the same day, upon the order of the investigating judge, the applicant was placed in pretrial detention. 9. On 18 March 2002 the public prosecutor at the Istanbul State Security Court filed an indictment accusing the applicant of membership of an illegal terrorist organisation under Article 168 of the former Criminal Code. 10. At a hearing held on 31 May 2002, the applicant gave evidence in person in the presence of her lawyer. She stated that she had left Turkey through her own means and that she went to Romania, Bulgaria, Greece and Iran with the help of the people whose names she could not remember anymore. She further stated that she had stayed in camps in Greece and Iran. While she was at the camp in Iran she was not involved in many activities owing to her young age. She further maintained that she had wanted to return to Turkey due to her health condition and for family reasons. She further stated that she had turned back to Turkey through the mountains with the help of people who knew the area well. While the applicant was staying at her elder sister’s house, she was arrested by the police. The applicant also claimed that she did not know any of the other accused in the case and that she had not received any training in the camps. Lastly, she stated that she had been called the code name “Ariel” at the camp in Iran. When asked about her statements to the police, the applicant denied them, claiming that they had been taken under duress. When asked about her statements to the public prosecutor, she denied them except for the parts concerning her travel. When asked about her statements to the investigating judge, she denied them claiming once again that the police had put pressure on her. 11. On 16 April 2008, relying on, inter alia, the applicant’s statements to the police, the Istanbul Assize Court convicted the applicant under Article 314 § 2 of the new Turkish Criminal Code and sentenced her to six years and three months’ imprisonment. 12. On 23 December 2010 the Court of Cassation upheld the judgment of the Istanbul Assize Court.
| 1 |
test
|
001-182168
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF NAUMOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
|
Alena Poláčková;Dmitry Dedov
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-177937
|
ENG
|
TUR
|
COMMITTEE
| 2,017 |
CASE OF DURMUŞ v. TURKEY
| 4 |
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)
|
Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström
|
4. The applicant was born in 1958 and lives in Antalya. 5. The applicant is a teacher in a high school. At the material time he was a member of the local branch of the trade union of Education and Science Workers (Eğitim ve Bilim Emekçileri Sendikası). 6. In May 2009, disciplinary proceedings were instituted against the applicant for putting up a notice encouraging the participation in a press statement published by his Union on the notice board that was set aside for that particular purpose in their office, and for distributing it in one of the common areas at school. 7. On 30 September 2009 the District Directorate of National Education imposed a disciplinary sanction in the form of a reprimand on him, for putting up and distributing notices produced by the trade union, of which he was a member, under Article 125 of the Law no. 657 on Civil Servants. 8. On 6 October 2009 the applicant objected to this decision and requested its annulment. 9. On 15 October 2009 the Disciplinary Board of the Kepez district governor dismissed the applicant’s objection considering that the contested decision was in accordance with law and there were no grounds for its annulment.
| 1 |
test
|
001-156245
|
ENG
|
GRC
|
CHAMBER
| 2,015 |
CASE OF MARTZAKLIS AND OTHERS v. GREECE
| 3 |
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Inhuman punishment;Inhuman treatment;Prohibition of torture);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
5. The applicants are HIV-positive, with a minimum degree of disability of 67%. They are, or were, detained in Aghios Pavlos Hospital (psychiatric section) at Korydallos Prison. 6. Andreas Martzaklis: imprisoned on 7 May 2011 and detained pursuant to a judgment delivered by the Athens Criminal Court, a decision given by the Indictments Division of the Khalkida Criminal Court in 2010 ordering the execution of a sentence passed by the Athens Criminal Court of Appeal which had been stayed, and a judgment delivered by the Athens Court of Appeal sentencing him to four years’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 8 May 2013 but rearrested the same day and placed in preventive detention. 7. Christos Sarris: provisionally detained from 5 December 2011 to 14 December 2012, and detained by judgment of 14 December 2012 sentencing him to 6 years’ imprisonment and then by judgment of 19 March 2014 sentencing him to 6 years and 4 months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 9 May 2014 pursuant to section 19 of Act No. 4242/2014. 8. Christos Efstathiou: imprisoned on 14 February 2011. Detained pursuant to a decision given by the Indictments Division of the Khalkida Criminal Court on 22 December 2008, ordering the execution of the remainder of a sentence with suspensive effect, and pursuant to a judgment delivered by Athens Criminal Court, which merged the sentences into a total of 25 months. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 26 June 2014 pursuant to Article 105 of the Criminal Code. 9. Efthymios Karatzoglou: imprisoned on 18 July 2011. Detained pursuant to a judgment delivered by the Piraeus Criminal Court of Appel on 12 April 2013 sentencing him to two years and eight months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 15 May 2013 pursuant to section 1 of Act No. 4043/2012. 10. Achilleas Papadiotis: imprisoned on 17 February 2011. Detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 10 June 2013 sentencing him to 10 years and 4 months’ imprisonment (starting date for serving the sentence: 8 December 2012). Detained as a convicted prisoner at the time of the application to the Court. Transferred to Patras Prison on 6 October 2014. 11. Dimitrios Nikolopoulos: imprisoned on 20 August 2012 and detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 9 February 2012 sentencing him to 10 years’ imprisonment, and a judgment delivered by the Athens Criminal Court on 1 December 2010 sentencing him to three months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Placed in Aghios Pavlos Hospital. 12. Spyridon Petrenitis: detained since 18 April 2012 pursuant to a judgment delivered by the Larissa Court of Appeal on 1 April 2013 sentencing him to two years’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 23 May 2013 under section 1 of Act No. 4043/2012. 13. Chrysafis Chatzikos: imprisoned on 13 July 2012 and detained ever since under the following decisions: 17 March 2010 judgment of the Athens Criminal Court sentencing him to ten months imprisonment; 23 February 2012 judgment of the Athens Criminal Court sentencing him to seven months’ imprisonment; 24 February 2012 judgment of the Athens Criminal Court sentencing him to ten months’ imprisonment; 8 June 2012 decision of the Indictments Division of the Chios Criminal Court ordering the execution of the remainder of a sentence with suspensive effect which had been passed by the Athens Criminal Court on 31 August 2011; and 5 April 2013 judgment of the Athens Criminal Court of Appeal sentencing him to 18 years’ imprisonment (in provisional detention from 16 August 2012 to 5 April 2013). 14. Christos Dorizas: imprisoned on 21 September 2012 and detained pursuant to a judgment delivered by the Piraeus Criminal Court of Appeal on 11 November 2011, sentencing him to ten years’ imprisonment, followed by a judgment delivered by the same court on 14 December 2012 sentencing him to fifteen months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court and constantly since then. 15. Panagiotis Kormalis: imprisoned on 25 July 2012 and detained pursuant to a judgment delivered by the Crete Criminal Court of Appeal on 10 June 2013 sentencing him to five years and three months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 17 March 2014 under section 19 of Act No. 4242/2014. His release warrant mentioned that he had contracted AIDS. 16. Aimilianos Chamitoglou: imprisoned on 5 April 2012 and detained: first of all, under a provisional detention order of 1 October 2013 (on charges of armed robbery); and secondly, pursuant to a judgment delivered by the Athens Court of Appeal on 25 February 2014 sentencing him to six years’ imprisonment (beginning on 27 March 2012). On 10 February 2014 the Athens Criminal Court of Appeal acquitted him of the armed robbery charge. Released on licence on 17 March 2014 under section 19 of Act No. 4242/2014. 17. Antonios Poulopoulos: imprisoned on 19 August 2011 and detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 20 June 2012 sentencing him to six years’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 13 September 2013 under Article 105 of the Penal Code. 18. Nikolaos Drosakis: imprisoned on 24 April 2012. Detained pursuant to a decision given by the Indictments Division of the Nafplio Criminal Court on 17 October 2012, and to the judgments of the Nafplio Criminal Court of Appeal and the Athens Criminal Court of Appeal of February and 24 April 2013 respectively, sentencing him to various prison terms. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 26 March 2014 under section 1 of Act No. 4043/2012. Has since returned to prison. 19. According to the information supplied by the applicants who had been convicted under court judgments, which information was not disputed by the Government, the courts had not granted suspensive effect to their appeals (see Article 497 § 4 of the Code of Criminal Procedure). 20. In a petition transmitted on 5 October 2012 under Article 572 of the Code of Criminal Procedure to the supervising public prosecutor responsible for Korydallos Prison, forty-five HIV-positive persons detained in the Aghios Pavlos Hospital, including the applicants, complained of their conditions of detention on the second floor of that hospital. They drew attention to the overcrowded premises, the uncontrolled admission of new patients, and the fact that they were held with other detainees suffering from cancer, asthma, hepatitis, venereal diseases, bronchitis, scabies, psoriasis and even tuberculosis, which diseases necessitated confinement to individual cells because several of them were transmissible. A small quantity of cream had been distributed to some of the HIV-positive detainees who were also affected with scabies. They had been advised to change their sheets and underwear every day and to wash them at high temperatures, even though the washing machine was out of order. When they had gone to fetch their medication the nurses had told them not to touch the bars through which they handed over the medicines in order to prevent the risk of infection. The administrative and medical staff had not given the detainees any official information in order to minimise the seriousness of the epidemic. 21. On 12 October 2012 the supervising public prosecutor had informed the detainees that “only 15 persons” were suffering from scabies. Relying on Article 6 of the Prison Code the HIV-positive detainees, including the applicants, had also complained to the Prison Hospital Board, but had received no reply. 22. A delegation of HIV-positive detainees had been received by the supervising public prosecutor to draw attention to the constantly increasing numbers of persons detained in the Aghios Pavlos Hospital and the intolerable conditions of detention. 23. The applicants submitted that the cells were so overcrowded that the personal space available for each detainee was less than 2 m², including beds and sanitary facilities. 24. The bathrooms fell short of minimum hygiene standards and cleaning in the premises was left to the discretion of the few HIV-positive persons in receipt of an allowance enabling them to purchase cleaning products. 25. The food was so poor in nutritional value that HIV-positive detainees risked developing AIDS owing to physical debilitation. 26. The premises were under-heated, and detainees were exposed to low temperatures, particularly at night. 27. Nor had the problem of smoking been resolved. Several detainees smoked in the communal areas, the cells and the dormitories, and the non-smokers, especially those with respiratory problems, became passive smokers. 28. The hospital staff did not include any infectious disease specialists, which placed HIV-positive detainees at risk because they were diagnosed by non-specialists. 29. During the distribution of medicines the nurse, wearing gloves, left the boxes on the floor outside the cell bars, and the HIV-positive persons had to stretch through the bars to retrieve them, avoiding touching the others, as recommended by the nurse. 30. The applicants also complained about the fact that diagnoses were conducted automatically and that the doctors always prescribed the same medicines without individually examining each patient. Any requisite transfers to outside hospitals were always carried out after long delays. Distribution of medication prescribed for some of the applicants was often interrupted without explanation for periods of between one week and one month. Other applicants had not yet begun their treatment, which delay the doctors explained by claiming that “the limit [regarding the presence of the virus in the blood] necessitating the initiation of treatment has increased”. 31. The applicants also complained of a lack of access to the outside world, news programmes and even use of the telephone, and the fact that the detainees were not held separately from the convicted prisoners. 32. Lastly, the applicants stated that a video on conditions of detention had been leaked in November 2014 and had induced the prosecutor with the Court of Cassation to order an inquiry, which was currently under way. ...
| 1 |
test
|
001-159917
|
ENG
|
POL
|
CHAMBER
| 2,016 |
CASE OF ROMANIUK v. POLAND
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
|
5. The applicant was born in 1985 and lives in Sokołów Podlaski. 6. On 8 April 2009 the applicant was arrested and remanded in custody. He was charged with, inter alia, murder, attempted murder, and illegal possession of firearms. 7. On 2 December 2011 the Ostrołęka Regional Court convicted the applicant of battery and attempted murder and sentenced him to twelve years’ imprisonment. 8. On 25 October 2012 the Białystok Court of Appeal upheld the firstinstance judgment. 9. On 8 November 2013 the Supreme Court dismissed the applicant’s cassation appeal. 10. On 10 April 2009 the Czerwony Bór Prison Penitentiary Commission (“the commission”) classified the applicant as a “dangerous detainee”. It considered that it was necessary to place him in a cell for dangerous detainees as he had been charged with murder committed with the use of firearms. The commission referred to the applicant’s “personal circumstances and serious lack of moral character”. The applicant did not appeal against the decision. 11. Between 7 July 2009 and 7 January 2010, the commission reviewed its decision every three months. In renewing its decision to classify the applicant as a “dangerous detainee”, the commission reiterated the same reasoning, which read as follows: “His characteristics, personal circumstances, serious lack of moral character and [the fact of] being charged with offences committed with the use of a firearm, pose a serious danger to society and to the security of the remand centre.” 12. The reasoning given on 5 April, 30 June and 30 September 2011 differed slightly in that gave a detailed description of the offences with which the applicant had been charged as the grounds for extending the regime. The commission referred to the offences of murder and three attempts to commit murder with the use of a firearm. 13. The applicant lodged an appeal against the decision of 30 September 2011. 14. On 13 December 2011 the Białystok Regional Court dismissed the applicant’s appeal, holding that the decision had been lawful. 15. On 29 December 2011 the commission extended the application of the “dangerous detainee” regime to the applicant for the eleventh time. The reasoning given was the same as in the decisions of 2009. 16. On 29 March 2012 the commission lifted the “dangerous detainee” regime in respect of the applicant. It considered that, on the basis of the relevant documentation and the assessment of the applicant’s behaviour, he no longer posed a danger to society or to the security of the remand centre.
| 1 |
test
|
001-140006
|
ENG
|
ROU
|
CHAMBER
| 2,014 |
CASE OF LAVRIC v. ROMANIA
| 4 |
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)
|
Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
|
5. The applicant was born in 1951 and lives in Piatra-Neamț. 6. The applicant (also referred to herein as prosecutor L.), in her capacity as a prosecutor at the prosecutor’s office attached to the Neamț County Court, initiated criminal proceedings against A.B. on two occasions. She filed an indictment proposing A.B.’s conviction in both sets of proceedings. 7. The first indictment, filed by the applicant on 17 January 2000, sought the conviction of A.B. for the offences of making false declarations and destruction. On 20 September 2001 the Ploiești District Court found A.B. guilty as charged and sentenced her to six months’ imprisonment in respect of each offence. The judgment was upheld by the Prahova County Court, which dismissed an appeal lodged by A.B. on 7 January 2002. On 22 March 2002 the Ploiești Court of Appeal allowed an appeal on points of law lodged by A.B. in part, noting that the limitation period had expired in respect of the offence of destruction. 8. The second indictment of 25 July 2001 was not approved by the chief prosecutor, who ordered the discontinuance of the criminal proceedings against A.B. 9. On 7 February 2002 disciplinary proceedings were initiated against the applicant following a complaint being lodged by A.B. On 6 March 2002 the prosecutor’s office attached to the Supreme Court of Justice found that the applicant had not committed any disciplinary offence and closed the investigation. 10. A.S., a journalist at the national newspaper Romania Liberă, wrote two articles concerning the applicant’s professional activity in connection with the criminal proceedings against A.B. 11. The first article published on 13 February 2002 was entitled “Judicial corruption. Prosecutor L. falsified two indictments! An innocent person was sentenced to prison” and had six sections. The first section, entitled “Professional dross, confirmed by her superiors” (“Rebut professional, confirmat de șefi”), referred to an allegedly “falsified” indictment filed by the applicant on 25 July 2001. It concerned A.B., who according to the journalist had been innocent and a victim of the applicant’s corrupt actions. In the journalist’s opinion the fact that this indictment had been invalidated by the chief prosecutor proved that it had been the result of falsification and could be considered professional dross (“rebut professional”). 12. In the second section, entitled “Exclusion from the magistracy” (“Excludere din magistratură”), the journalist referred to “the cheating prosecutor L.” (“procurorul măsluitor”) who “did not manage to send A.B. before a court on the basis of her falsified indictment on this occasion. However she had already managed to send A.B. before a court of justice on the basis of another indictment, the product of scandalous falsification”. It was stated that an examination of the applicant’s conduct in connection with the first indictment “could result, besides criminal charges against her for abuse of position, in her rapid exclusion from the magistracy by the disciplinary board of the public prosecutor’s office. By misleading her superiors, cheating prosecutor L. managed to send the defendant A.B. before a court on 17 January 2000 for criminal damage and making false declarations. The lies and the wilfully erroneous interpretation contained in the ten pages of the second falsified indictment could fill a whole chapter in ‘a real handbook of judicial corruption’”. 13. The third and the fourth sections of the article concerned civil proceedings brought by A.B., without making any reference to the applicant. The fifth section concerned a complaint of criminal damage lodged by “the mafia of crooked businessmen” against A.B. and allocated to “cheating prosecutor L.” In the last section, the journalist accused the applicant, “the cheating prosecutor”, of causing A.B. to be sentenced to prison by lying to the courts with her “falsified indictment”. 14. The second article, published on 22 February 2002, was entitled “E.L., the prosecutor who falsifies indictments”. It referred to the conviction of A.B. on the basis of an indictment drafted by the applicant. The journalist claimed to have exposed the alleged influence exercised over the applicant by S.E., directly interested in the affair, which had led to A.B.’s conviction. According to the journalist, S.E. had repeatedly “brought a variety of food products to [the applicant’s] home in bags or in boot of her car (...). Once she brought a pig cut in half to [the applicant’s] home, leaving bloodstains in the building’s corridors”. 15. On 15 April 2002 the applicant lodged a criminal complaint for defamation against A.S. The applicant complained that A.S. had damaged her reputation and dignity by publishing the two above-mentioned articles in February 2002. She sought one million Romanian lei (ROL) in compensation for non-pecuniary damage. 16. By a judgment of 3 November 2003, the Călărași District Court found the journalist guilty of defamation and sentenced him to a criminal fine of 10,000,000 Romanian lei (ROL), the equivalent of EUR 270. The journalist and the newspaper were jointly ordered to pay the applicant damages of ROL 300,000,000, the equivalent of EUR 8,000. The court found that the expressions “falsifier and cheater” did not correspond to reality, as a disciplinary investigation had concluded that the applicant had conducted herself professionally and appropriately in connection with the charges she had brought against A.B. in her capacity as a prosecutor. The court noted that in February 2002, when the articles had been published, the journalist had been aware that the prosecutor’s indictment in the first set of proceedings had been upheld by the first two levels of the domestic courts and the appeal on points of law was still pending. The court also noted that the journalist had been aware that the disciplinary investigation against the applicant was pending when he had written the articles. It therefore held that this should have caused the journalist to exercise a certain amount of caution in his approach and use of language, given that he could have exposed the applicant to disciplinary and even criminal sanctions. 17. The district court examined the indictment of 17 January 2000, mentioned by A.S. in his first article, and noted that it had been upheld by final decisions of the domestic courts. As regards the second indictment, the court noted that it had not been approved by the chief prosecutor on 18 January 2002. The court also noted that at the time the articles were published the chief prosecutor’s decision was not yet final, as a complaint had been lodged against it. The court considered that the refusal of the chief prosecutor to approve the applicant’s indictment should not have led the journalist to the conclusion that the applicant had falsified the indictment. 18. The court concluded that in the two articles the journalist had overstepped the limits of acceptable speech provided by Article 10 of the Convention. 19. Journalist A.S. and the newspaper appealed against this judgment. On 28 December 2004 the Hunedoara County Court allowed the appeal, quashed the first-instance judgment and proceeded to rehear the case. It acquitted the journalist of the defamation charge and dismissed the applicant’s request for damages. The county court held that the journalist had merely provided details of A.B.’s situation as it emerged from the court records. It also held that the article published on 22 February 2002 had simply been a reproduction of the administrative complaints lodged by A.B. with the Ministry of Justice and the Public Prosecutor’s Office. The county court classified the relevant statements of the journalists as value judgments and found that the expressions used were to be examined in connection with the function of the press in a democratic society to impart information and ideas on all matters of public interest, as was the case in respect of the matter before it, which concerned the administration of justice. It referred to the judgment Dalban v. Romania ([GC], no. 28114/95, § 49, ECHR 1999VI), noting that the journalist had had recourse to a certain degree of exaggeration and provocation. 20. The relevant domestic provisions of the Civil and Criminal Codes concerning slander and defamation and liability for paying damages in force at the material time, as well as the subsequent developments in the legislation, are described in Timciuc v. Romania (no. 28999/03, §§ 95-97, 12 October 2010).
| 1 |
test
|
001-184483
|
ENG
|
ROU
|
COMMITTEE
| 2,018 |
CASE OF RUSU 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. In applications nos. 484/16 and 20974/16, the applicants also raised other complaint under the provisions of the Convention.
| 1 |
test
|
001-183556
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF A.C. AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)
|
Alena Poláčková;Dmitry Dedov
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised complaints under Article 13 of the Convention.
| 1 |
test
|
001-146008
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,014 |
GRUZDEVA 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 Yelena Vladislavovna Gruzdeva, is a Russian national, who was born in 1978 and lives in the city of Rostov-on-Don, the Rostov Region. 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 married V.G. in 1996. Two children, a boy and a girl, were born to the couple in 2002 and 2006 respectively. The family lived together in a house acquired during the marriage. 4. On 20 February 2008, due to growing tensions between the applicant and her husband, she left the house together with the children and moved into a rented apartment. Her husband continued to reside in the house. 5. On 12 March 2008 a court dissolved the marriage between the applicant and her husband. The issue of the children’s residence was not resolved in the course of the divorce proceedings. 6. According to the applicant, she reached an oral agreement with her husband that the children would stay with her. Shortly after the divorce, the applicant initiated civil proceedings for the division of marital property, including the house (see paragraphs 28-30 below). 7. On 20 March 2008 babysitter T., who was staying with the children in the applicant’s rented apartment, took them to the applicant’s former husband. According to the applicant, this was planned by her former husband and took place with his assistance. 8. On 21 March 2008, during the night, the applicant entered the house with the help of the police and took her daughter back. It appears that she could not, for some reason, take her son. 9. The applicant subsequently took her daughter to her mother’s home (her daughter’s maternal grandmother). She lived in another town. The applicant submitted that shortly after the incident her former husband sent their son with the babysitter to another town as well. 10. From 24 March until 15 April 2008 she was neither able to see nor contact her son. V.G. subsequently allowed the applicant to see her son for two hours every week. 11. On an unspecified date the applicant brought civil proceedings against her former husband, seeking a residence order in respect of her two children. The applicant’s former husband lodged a counterclaim and also asked the court to grant a residence order in respect of the children in his favour. 12. At a preliminary hearing, the Voroshilovskiy District Court, Rostov-on-Don (“the District Court”) ordered the Department of Education for the Voroshilovskiy District of Rostov-on-Don’s child welfare board (“the Department of Education”) to prepare reports on the living conditions of the applicant and her former husband. 13. On an unspecified date the Department of Education made a report on the living conditions of the applicant’s former husband. The report described the former matrimonial home in detail. The house had three floors and measured 478 sq. m. 14. On 24 April 2008 the Department of Education drew up a report on the applicant’s living conditions. The report stated that the sanitation conditions of and services supplied to the two-room rented apartment where the applicant and her daughter were living at the time were satisfactory. The applicant’s daughter had a separate room with a bed, a wardrobe and toys. 15. On 24 April 2008 K., the deputy head of the Department of Education, wrote her final remarks following the inspection of the applicant’s living conditions and those of her former husband. In the remarks K. stated that the Department considered that the children should reside with their father. The reasoning for that conclusion was as follows: “V.G. is well off and [is able to] offer very good living conditions, there is a separate furnished room for each child in his house, a gym, a swimming pool, [and] the children’s babysitter lives in the house. V.G. is very attached to the children, loves and cherishes them and wants to support and develop them. V.G. is of good character, and does not have bad habits. Gruzdev A. [the applicant’s son], currently living with his father, is tidily dressed, is [a] cheerful, well-brought-up, communicative, well-developed [child], [he] can read, [and] quickly assemble ‘Lego’ models. There is a quiet and kind atmosphere in the family. The child is surrounded with love, attention and care.” 16. During the trial the applicant lodged a motion for a repeated inspection of her living conditions to be carried out. On 27 June 2008 the Department of Education produced a second report which stated that the applicant, who worked as a senior customs inspector, earning 20,000 Russian roubles a month, and her daughter were living in a two-room flat in an apartment block. The flat measured 40 sq. m. During the summer the child’s maternal grandmother stayed with them. At the time of the inspection the applicant’s daughter had gone with her maternal grandparents to the seaside. One room of the apartment had two beds for the applicant’s children, another one had cushioned furniture. The kitchen furniture and a gas oven belonged to the landlord, whilst a table, a refrigerator and a number of other electrical appliances belonged to the applicant. There were children’s clothes, shoes and toys in the wardrobes in the corridor. 17. During the trial the District Court questioned witnesses Sh., D. and K., who gave evidence for the applicant and who stated that the applicant was considered to be of good character at work. Witness K. confirmed that the applicant’s son lived with his father and the applicant’s daughter lived with her maternal grandparents. K. also stated that the applicant’s former husband was a bad father. 18. The District Court also questioned a representative of the Department of Education, who stated that a residence order in respect of the children should be made in favour of their father. 19. Witnesses Ya., T., G. and T.K. gave oral evidence for the applicant’s former husband to the District Court to the effect that V.G. had always duly performed his paternal duties, had fully supported the family, and had established good living conditions for the children. The witnesses also noted that V.G. was the head of a business and could set his own working schedule, in order to spend more time with his children, and could also afford to employ a babysitter. The witnesses asserted that the applicant had not fully performed her parental duties and that most of the time the babysitter had taken care of the children, who had often been anxious and had cried in the applicant’s presence. 20. On 3 July 2008 the District Court granted a residence order in respect of the children to their father. The court relied on the reports and final remarks of the Department of Education and the statements made by its representative during the trial. The court also accepted the oral evidence given by witnesses Ya., T., G. and T.K. for the applicant’s former husband, as it considered that they were not concerned by the outcome of the case. At the same time, the court rejected the statements of K. that V.G. was a bad father, as they contradicted the facts of the case and the evidence led by V.G. 21. The District Court reasoned as follows: “... Having analysed all the evidence, the court concludes that V.G. can create the conditions most favourable for the upbringing and development of his children, which will [...] correspond to the children’s best interests ... Witnesses Sh. and D., questioned during the trial, who are the colleagues of Gruzdeva Ye.V. [the applicant] stated that [the applicant] is considered to be of good character at work, [is] polite, [and] has not received any reprimands from her superiors. These witnesses stated to the court that they knew that [the applicant] had a family and children ... D. stated that she knew that after the divorce the [applicant’s] son stayed with his father, and [the applicant] had taken her daughter, but [that] the girl was not living with her, as [the applicant had] sent her to [live with her] parents, and [the applicant] would visit her at the weekend. [The applicant] did not deny these facts during the trial. Witnesses for the other party Ya., T., G. and T.K., questioned during the trial, stated that V.G. ... had always duly performed his paternal duties, had fully supported the family, had established good living conditions and had constructed the house with the needs of children in mind. Moreover, these witnesses stated that V.G., being the head of a business, could set his own working schedule, which would allow him to devote more time to the upbringing, education and development of his children and to spend more time with them. V.G. can afford to employ a babysitter, who has taken care of the children from birth. At the same time the witnesses asserted that [the applicant] had not fully performed her parental duties, since the babysitter had taken care of them most of the time. [T]he children would stay with the babysitter when [the applicant] repeatedly left on her own business and went on holiday, the children had often been anxious and had cried in the presence of [the applicant], [whereas] the father had always looked after the children, had played and spent his free time [with them] ... These witnesses are not concerned by the outcome of the case and therefore the court considers their statements to be credible. Thus the court considers the [applicant’s] argument that her address should be determined as the children’s residence to be unsubstantiated, as it has been established during the trial that this dwelling does not belong [to her], but [rather] has been rented to her for the period from 20 February 2008 until 20 January 2009, [and] she is not registered at this address. Moreover, from the time of dissolution of the marriage her son has lived with his father in the house where they had all lived as a family before, while her daughter, who was taken by [the applicant], does not live with her, having been sent to [live with the applicant’s] parents, [thus] depriving the girl of the opportunity to see both her father and her brother. The court is not convinced by [the applicant’s] argument that [her former husband] is unable to provide for the proper support, upbringing and development of the children, as [the applicant] has not provided any reliable evidence in support [of this argument]. The statements of K. ... that V.G. is a bad father and that the children should reside solely with their mother cannot be taken into account, since her statements contradict the facts of the case and the evidence provided by the [defendant, V.G.]... In these circumstances the court ... basing its decision on the best interests of the children... [the] finances and family status of the parents, [and] taking into account the final remarks of the Department of Education ... rules that a residence order should be granted in favour of their father V.G. ...” 22. In July 2008 the applicant complained to the Rostov-on-Don Department of Education and the Rostov Region Ministry of Education that the final remarks made by employees R. and K. on behalf of the Department of Education had been improper and solely based on her former husband’s financial situation, without taking into account her situation, personality and relationship with the children and her role in their upbringing. 23. On 8 August 2008 the Department of Education informed the applicant that an internal investigation had confirmed some of the applicant’s allegations and R. had been subjected to a disciplinary sanction. On 20 August 2008 the Rostov Region Ministry of Education informed the applicant by letter that it had been established in the course of the internal investigation conducted by the Rostov-on-Don Department of Education that R., when preparing the final remarks concerning the official recommendation as to the residence of the applicant’s children, had not thoroughly studied the issue and had not reflected in the remarks the facts relating to the applicant’s personality and her relationship with the children. R. had been subjected to a disciplinary sanction in the form of a warning. It also noted that the final remarks of the Department of Education had not served as the sole basis for the judgment, since the court had analysed the totality of the evidence. 24. The applicant appealed against the judgment of 3 July 2008, arguing that when deciding on the issue of residence the first-instance court had only taken into account the financial situation of her former husband. The court had not assessed the evidence provided by her, namely that she was the coowner of the house the children were living in, the proceedings for division of marital property were pending and her stay in a rented apartment was only temporary. The applicant challenged the court’s conclusion that she had given her daughter to her grandparents and had not been taking part in her upbringing as unsubstantiated, submitting that the court had ignored her explanation of the reasons for the girl’s temporary stay with her grandmother. According to the applicant, she had had to leave the girl with her maternal grandparents for the fear that her husband may abduct her. In addition, the applicant pointed out that she had taken maternity leave to take care of the child from July 2008 until May 2009. The applicant complained that the first-instance court had treated the evidence led by her former husband more favourably and had not taken into account the testimony of K. The applicant argued that the first-instance court had not assessed the evidence showing that she had supported and taken care of the children, namely the evidence that she was employed at a customs office, including a salary slip, and had not taken into account the children’s minor age and their attachment to her. The applicant pointed out that the first-instance court had based its judgment on the flawed final remarks of the Department of Education. The applicant complained that the first-instance court had not explained why it had rejected the evidence concerning her former husband’s bad character and had not taken into account the fact that he had not let her come to the house to see the children. 25. On 1 September 2008 the Rostov Regional Court rejected the applicant’s appeal as unfounded. It ruled as follows: “... [T]he first-instance court correctly assessed the evidence, including the reports on the inspections of the parties’ living conditions and the Department of Education’s final remarks of 23 April 2008, which had been supported during the hearing by their representative, and considered the totality of the evidence. The court considered that all necessary conditions for the children to live with their father were satisfied, taking into account their interests, age and needs, their attachment to the father, [and] their father’s ability to establish the optimal conditions for their upbringing and psychological and social development. Moreover, the court rightly ... pointed out that [the applicant] had not proved her allegations. The court considers the appellant’s arguments that living with their father would not be in the children’s interests to be unsubstantiated... According to the Department of Education’s final remarks of 23 April 2008, V.G. is [able to provide the children with] good housing conditions, there is a separate furnished room for each child in his house, a gym, [and] a swimming pool. He loves the children and is able, in the court’s opinion, to establish the [optimal] conditions for their upbringing, development and healthy living. In these circumstances the court concluded that V.G. can ... raise the children and that living with their father would to a greater extent correspond to their best interests, as he is considered to be of good character in everyday life and at work and he has established appropriate living conditions for the children. In addition, the court established during the trial that [the son] was in fact living with his father in the house while [the daughter], who had been taken by her mother, does not live with [the applicant] in the same apartment, but stays with relatives in another town. In these circumstances the court rightly concluded that [the applicant] ... was not in fact living with the child. The appellant’s reasons for not being able to live with her daughter cannot be taken into account ... since the present dispute concerns the granting of a residence order in favour of one of the parents and not [other] relatives, especially [relatives] living in a different town. The fact that [the applicant] took maternity leave to take care of the child after the first-instance hearing does not in any way affect the legality of the first-instance judgment for the following reasons. Firstly ... at the time of examination of the case at first instance the applicant was not on maternity leave ... the girl ... was staying with relatives although [the applicant] had taken her from her father to live with her. At the same time, [the applicant] had highlighted in her claim that the child, due to her minor age, needed to stay with her mother (and not with [other] relatives). The court considers that, in view of the family situation, [namely] the parents’ divorce, the girl should have been living with one of her parents, since she needed their support and protection... In addition, the court takes into account the fact that before the first-instance judgment ... [the applicant] had not considered it necessary to take maternity leave to care for the child, or to be with the children. The court also takes into account the fact that in spite of the children’s minor age at the time, [the applicant] returned to work after the birth of her daughter. She had not considered [them] to be worthy of her attention in the period when the family had been together and had had a stable income, and [went back to work from] maternity leave [she had taken] to take care of the baby, who was only one year old at the time, and the second child, who was five years old. During the appeal hearing [the applicant] stated that she had been forced to interrupt her maternity leave because her husband had not been giving her any money, but this claim is refuted by the materials of the case, which describe the living conditions of the family ... [and by] the witness testimony, and the appellant has not provided any evidence in support of this claim at the appeal hearing. The applicant has not previously made this claim... It is also important that the children can stay together at their father’s home. In view of the above-mentioned reasons, the appellant’s argument that the court had only considered the financial situation of V.G. cannot be taken into account. The first-instance court when resolving the dispute ... and assessing the evidence in the case proceeded from [standpoint of] the best interests of the children only and considered the ... situation from the point of view of which one of the parents offered greater opportunities for raising the children, had communicated with them more often, had spent more time with them, and could take care of them better. When making its findings the court relied, among other things, on the pre-trial behaviour of the parties towards the children. The argument of [the applicant] that the house ... is part of the common marital property and that she has initiated proceedings for its division is not relevant... The marital property ... was not the subject matter of the dispute. The dwelling where the children’s mother currently resides is not her property, it has been rented to her for the period from 20 February 2008 until 20 January 2009, she is not registered [as having her permanent residence] there. At the same time the right of the children’s mother to live in the house ... has been established by a court judgment and, taking into account the fact that the children and their father live in the house, [she] will be able to see her children. Moreover, she can subsequently lodge a [further] application for a residence order if the circumstances (the basis of the claim) change. It should also be noted, that ... the maternity leave records, the records of witness statements and the other documents attached to the appeal submissions cannot be taken into account by the appeal court, since ... the appeal court can only consider new evidence in the case that could not have been submitted to the first-instance court. There is no evidence that [the applicant] could not have submitted the [relevant] documents to the first-instance court.” 26. On 11 November 2008 the Department of Education brokered an agreement between the applicant and V.G. (entitled Agreement no. 1) setting out the following contact schedule between the applicant and her children: “1. On Tuesdays from 6 p.m. to 8.30 p.m. children are with [the applicant]. 2. On Wednesday at 4 p.m. V.G. takes the boy to school. 3. At 6 p.m. [the applicant] takes the boy. 4. On Friday at 6 p.m. [the applicant] takes the boy home and until 11 a.m. on Sunday he stays [with his mother]. 5. The [children’s] toys and other such objects are to be divided. 6. The number of holidays is divided in half. With the other parent’s consent ... the children may be taken outside of the city. 7. Responsibility for the health and safety of the children is borne by both parties. 8. During their annual leave period each party has the right to spend 20 days with the children. Remarks: In case of an extraordinary situation each parent is under the obligation to warn the other two hours in advance of a change to the schedule. It is necessary to take joint and coordinated action in respect of the health of the children, both psychological and physical; [and to ensure that they] undergo medical examinations on time.” 27. Subsequently both parties on several occasions petitioned the Department of Education, citing their dissatisfaction with the established contact schedule. In particular, the applicant submitted fifteen affidavits, signed by witnesses, allegedly confirming her former husband’s refusals to let her enter the marital home in July and August 2008. 28. On 9 April 2009 the applicant brought court proceedings against V.G. for division of their marital property. 29. By a judgment of 12 May 2009 the District Court granted the applicant’s claims in part, having decided that the applicant now owned half of the marital house and a car. The first-instance judgment of 12 May 2009 was upheld on appeal by the Regional Court on 13 July 2009. 30. It appears that thereafter the applicant and V.G. commenced renovation and construction works on the former marital home with a view to residing in it as two separate families. By September 2009 all of the relevant renovation and construction works were completed. 31. On 18 May 2009 the applicant again sued her former husband V.G., seeking a residence order in respect of her two children. 32. In the applicant’s statement of claim, which she modified and updated on a number of occasions during the course of the court proceedings, she raised her previous arguments again and also referred to various changes in the relevant circumstances. 33. The applicant argued, in particular, that she now owned half of the former matrimonial home, a car, a flat and a plot of land, had a steady monthly income of some 24,990 Russian roubles (RUB) (573 euros), whilst the financial situation of her former husband had deteriorated, in that he had lost the business premises he had formerly owned, was no longer self-employed and was now in receipt of a modest salary at a private company and, lastly, had issues with honouring his personal debts. 34. The applicant also alleged that V.G. had repeatedly breached the agreement of 11 November 2008, had hurt the children, could not handle them on his own and had to have recourse to nannies, which he frequently changed, and that the applicant’s views in this respect were ignored. Furthermore, after the divorce proceedings V.G. had started living with a young woman, marrying her on 20 November 2009 and moving out of the matrimonial home. 35. In his response to the applicant’s claims, V.G. explained that he had moved out pending the renovation of the house, that he was still well off, as he earned between RUB 30,000 and 50,000 each month (688 to 1,146 euros) and that the applicant’s maintenance payments were not spent on the children, but rather were put aside. He also referred to expert reports (see below) confirming that he was a good father and that his relationship with the children was good. 36. On 3 June 2009 the Department of Education produced a report on an inspection of the applicant’s living conditions. It stated that at the time the applicant was living in a rented apartment consisting of two rooms with an overall surface area of 40 square metres and a living area of 25 square metres. One of the two rooms was used a room for children, with many books and toys. It was clean and at the time of the inspection the applicant’s son A. was there, clean and neatly dressed. 37. On 26 June 2009 the Department of Education produced a report on an inspection of V.G.’s living conditions. At the time V.G. was living in a rented three-room apartment with his then partner and future wife, A.S., and the two children, A. and D. The apartment was well-equipped and had a room for the children. 38. On 30 June 2009 a child welfare centre run by the local council produced a report on a psychological examination of the applicant, V.G. and their children that it had conducted. The report concluded that both children felt love and emotional attachment to both parents, and that both children needed to be able to properly communicate with both parents. The report stated that there were no concerns as regards the parenting styles of either their mother or their father. 39. At the same time, it noted some concerns in terms of the applicant’s behaviour in that she had dragged the children into the conflict between the parents, had a generally heightened level of protectiveness towards the children and a somewhat inconsistent parenting style. As regards their father, the report noted that he was also excessively protective of the children. 40. The report also concluded that the conflict had affected negatively the psychological state of the children, especially their son A., and that the level of conflict might lead to the children developing physical health problems. It was also noted that a conflict-free relationship between the parents was a significant factor in the psychological health of both children. 41. Overall, the report concluded that at this point a change of residence for the children was not recommended, because their adaptation to new conditions might worsen the effect of the stress factors on them. 42. On 28 April 2009 psychologist B. examined the children and compiled a report, which concluded that the boy A. did not present any significant mental health problems but that he had minor personality problems in the form of a heightened level of anxiety, which could be a reaction to a traumatising family situation. As regards the girl D., the doctor did not detect any problems at all. 43. In a report of 22 July 2009 the Department of Education stated that it favoured the children residing with their mother, given that she owned a three-room apartment in the town of Belaya Kalitva in the Rostov Region and a one-half share of the former matrimonial home in the city of Rostov-on-Don. 44. After the renovation of the former matrimonial home was over, the applicant and her former husband (together with his new family) moved back into the building, each of them occupying one half of the house, in accordance with the property split provided for in the previous court decisions (see paragraphs 28-30 above). Shortly afterwards the Department of Education inspected their respective homes. 45. In its report of 17 September 2009 the applicant’s home was said to contain two living rooms, a shower, two WCs and a swimming pool. Each child had a separate room and was provided all necessary home comforts. The report stated that the applicant “did not create obstacles to communication between the children and their father”. Both children lived with their father, but “missed their mother, wanted to see her more often and loved her”. The living and parenting conditions were “good and comfortable”, her relationship with the children was “generally good, based on trust and [was] open [in nature]”. 46. On the same date the Department of Education issued a report on the living conditions offered by V.G.’s family. His part of the house was similar in size and had three living rooms. The relationship between father and children was described as “good, taking their interests into account”. The children loved him, and respected, supported and loved each other. The living and parenting conditions established by V.G. for the children were described as being “very good, regard being had to the age and gender of the children”, the relationship between the children being “good and based on trust”. 47. Basing themselves on the results of the inspections of 17 September 2009, the Department of Education took the view that regard being had to all relevant factors it would be advisable for the children to reside with their mother. 48. On 2 November 2009 the Department of Education again inspected the applicant’s living conditions and on 16 November 2009 her former husband’s living conditions, concluding that they were equally good in both homes. 49. The applicant’s action for a residence order was examined by the District Court at court hearings which took place between 9 and 15 October and on 25 November 2009. The court questioned twenty one witnesses, including officials of the Department of Education, the doctors who had been involved in the expert reports detailed above and expert witnesses from various authorities. Expert E.V., in charge of the report of 30 June 2009, gave evidence in court in the presence of the parties, speaking in favour of not changing the residence arrangements and confirming the reasons given in the report of 30 June 2009. 50. On 4 December 2009 the District Court delivered a judgment, dismissing the applicant’s claim in full. The court relied on the evidence presented by the parties to the court and examined during the hearings and concluded that it would be equally beneficial for the children to live with either parent. Having regard to the home environment offered by V.G. to date, the court considered that it was more favourable for the children’s upbringing and development. At the same time, the applicant’s submissions to the effect that her former husband was deficient in supervising the health of the children were refuted and rejected as unfounded. 51. The court reasoned as follows: “... The court, examining the report of the Department of Education on the need to change the residence of the children, comes to the opinion that [the Department’s] findings were made only on the basis of the amelioration of the [applicant’s] housing and finances. [The applicant’s] claims that [her former husband’s] situation has worsened are not confirmed by the materials of the case... Apart from that, [the applicant] is a State official and being busy at work is [thus] unable to give the children due attention, whilst [her former husband] is a director of a firm, choosing his work schedule for himself, which is confirmed by the case-file materials. He can spend more time educating and developing [the children], whilst [they] are also given constant care and attention by [V.G.’s] family, namely their grandfather, uncle and V.G.’s wife, the atmosphere in the family being positive. The children love their family members and meet with them frequently. [The applicant] in court confirmed that she has contact with her children five times a week, which refutes her arguments that [V.G.] has been blocking contact with the children. The respondent has created a new family, which is confirmed by his marriage certificate, but this fact has no negative bearing on his relationship with the children, he cares about them and loves them just as much. Moreover, the witnesses questioned in court confirmed that [V.G.’s new] wife had a positive and caring relationship with the children. V.G. does not affect his children in a negative way, and this has never been mentioned in any of the [expert reports]. The time to date has demonstrated that the children growing up with V.G. has not [impacted on them] negatively and that, quite the contrary, they are growing up in a loving and caring [environment]. Overall, the court has not established any relevant and sufficient grounds for changing the residence arrangements. The court, in taking this decision, has had regard to the best interests of the children and their age, their attachments to all members of their extended family, their parents’ capacity to create the optimal conditions for the children’s education and development...” 52. The first-instance judgment of 4 December 2009 was upheld on appeal by the Regional Court on 4 March 2010, which stated that: “...The judicial panel is unable to agree with [the applicant], who sought to have the first-instance judgment quashed on the grounds that [her finances and living conditions had considerably improved, whilst those of her husband had deteriorated]. Under [applicable domestic law] the mere fact that a parent has an advantage in [terms of] finances and living conditions cannot in itself be viewed as grounds compelling [the court] to grant the claim. Moreover, [the applicant] failed to present any evidence which could confirm that V.G. has been evading his duty to maintain and educate his children or is unable to provide for them... [The applicant] has not substantiated her claims about the deterioration of V.G.’s relationship with the children, that his new wife has a conflict of interests vis-à-vis the children or the existence of any threats to their physical or mental well-being... Apart from that, the judicial panel takes into account the proximity at which the respective parents reside from each other and the absence of any impediments to contact between [the applicant] and the children...” 53. Article 65 (on the exercise of parental rights) of the Family Code of the Russian Federation of 29 December 1995 provides as follows: “3. The place of the children’s residence, if the parents live apart, shall be established by an agreement between the parents. In the absence of an agreement, a dispute between the parents shall be resolved in court, proceeding from the [standpoint of the] children’s best interests and taking into account the children’s opinions. In doing so, the court shall take into account the child’s affection for each of his parents and for his brothers and sisters, the child’s age, the moral and other personal characteristics of the parents, the existing relationships between each of the parents and the child, and [each parent’s] ability to create optimal conditions for the child’s upbringing and development (the parent’s kind of activity and work schedule, their financial situation and family status, etc.).” 54. Article 66 (on the exercise of parental rights by the parent residing separately from the child) of the Code provides as follows: “1. The parent residing separately from the child shall have the right to communicate with the child and to take part in his upbringing and education. The parent with whom the child lives shall not prevent the child communicating with the other parent, unless such communication would damage the child’s physical and mental health or his moral development. 2. The parents shall have the right to enter into a written agreement concerning the way in which the parent residing apart from the child may exercise his or her parental rights. If the parents cannot reach an agreement, upon an action being brought by one (or both) of the parents the dispute shall be resolved in court with the participation of the [competent] guardianship or trusteeship authority. 3. In the event of failure to abide by the court’s decision, the measures stipulated by civil procedure legislation shall be applied to the respective parent. In the case of persistent failure to comply with the court’s decision, the court shall have the right, upon the claim of the parent residing separately from the child. to take a decision ordering that the child be handed over to that parent, proceeding from the [standpoint of the] child’s best interests and taking into account the child’s opinion. 4. The parent residing separately from the child shall have the right to obtain information on his or her child from educational establishments and medical centres, from social welfare institutions and from other similar institutions. Such information may only be refused if the parent presents a threat to the child’s life and health. Refusal to provide information may be disputed in court.”
| 0 |
test
|
001-184061
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF KRYUTCHENKO v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
|
Alena Poláčková;Dmitry Dedov
|
4. The applicant was born in 1960 and lives in Orsk. 5. On 28 May 2005 the applicant, who was walking home after an evening drinking, was stopped on the street by police officers from the patrol and inspection service and driven to the Sovetskiy district police station of Orsk (Советское РОВД г. Орска). He attempted to run away, but was stopped and assaulted by the police officers, who kicked him in the stomach. He felt unwell and lost consciousness. The police officers placed him in a cell and did not react when he demanded that they call an ambulance. 6. The applicant was released the next morning. On the evening of 29 May 2005 he was admitted to hospital with internal bleeding. He spent six weeks in hospital. 7. According to forensic medical expert report no. 3634 of 25 July 2005, the applicant had blunt abdominal trauma with a ruptured intestine, which had provoked the development of serofibrinous peritonitis. This injury had been caused by impact with a hard, blunt object, possibly one to two days before the applicant’s hospitalisation, and had caused him “serious health damage”. The applicant also had abrasions on his back and forearms, and circular abrasions on his wrist joints, which had originated from impact with hard, blunt objects during the same period, and had not caused him any “health damage”. 8. Forensic medical expert report no. 5684 of 14 December 2011 contained similar information concerning the applicant’s injuries. The expert considered that the injuries had been caused several hours to several days before the applicant’s hospitalisation. The expert excluded the possibility that they had been caused as a result of him falling over. 9. On 29 May 2005 the Orsk police received information about the applicant’s hospitalisation in Town Hospital no. 2 with blunt abdominal trauma and abrasions on his body. 10. On 14 June 2005 an investigator from the Orsk Sovetskiy district prosecutor’s office opened a criminal case under Article 111 § 3 of the Criminal Code (physical assault causing “serious health damage”). 11. On 11 July 2005 the applicant was granted victim status and questioned. 12. On 14 October 2005 the preliminary investigation into the criminal case was suspended under Article 208 § 1 (1) of the Code of Criminal Procedure, owing to the inability to identify the individuals to be charged. 13. On 31 January and 25 April 2012 the preliminary investigation into the criminal case was restarted, in view of the need to take additional investigative measures. 14. On 1 March and 18 July 2012 the preliminary investigation into the criminal case was suspended again, on the same grounds as before. 15. In 2012 the applicant brought a civil claim against various State authorities, including the Russian Ministry of Finance, seeking 6,000,000 Russian roubles (RUB) in compensation for his illtreatment at the police station and the lack of an effective investigation into his complaint. 16. On 24 July 2012 the Leninskiy District Court of Orsk allowed the applicant’s claim in part and awarded him RUB 150,000 (the equivalent of about 3,800 euros) in compensation. It established that the applicant had been taken into police custody in good health and that his injuries had been caused at the police station, since the State authorities had failed to provide a plausible explanation for the injuries or any evidence showing that he could have sustained them elsewhere. 17. On 9 October 2012 the Orenburg Regional Court upheld the judgment on appeal.
| 1 |
test
|
001-154024
|
ENG
|
UKR
|
COMMITTEE
| 2,015 |
CASE OF BUCHYNSKA v. UKRAINE
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
André Potocki;Ganna Yudkivska;Vincent A. De Gaetano
|
4. The applicant was born in 1980 and lives in Zhytomyr. 5. At about 9 a.m. on 7 August 2002 two men, one of them wearing a mask, entered the applicant’s house, tied the applicant and took the valuables belonging to her and other household members. Subsequently, the unmasked man put a revolver in the applicant’s ear and fired a shot. The applicant survived, having sustained a permanent disability. To this day the bullet remains in her head. 6. On the day of the assault, the Zhytomyr police instituted criminal proceedings into the incident, examined the crime scene, collected fingerprints and other evidence, questioned the applicant’s household members and neighbors and ordered several expert assessments. 7. On 9 August 2002 the applicant was admitted in the proceedings as an injured party. 8. On several occasions the applicant identified the photos of various persons presented by the police as those of the unmasked offender. Among them, on 24 September 2002 she identified a certain V.P. 9. On an unspecified date I. K., V.P.’s partner, acknowledged to the police that she had seen a revolver in his possession. She also noted that at about 8 a.m. on 7 August 2002 V.P. had left their home for an appointment with his friend S.K. On that date he had returned home at about 1 p.m., wearing a new suit and carrying some money, which, according to him, had been entrusted to him by S.K. for safekeeping. 10. On 25 September 2002 A.V., V.P.’s neighbor, identified S.K. on a photograph, as V.P.’s friend. 11. On 8 October 2002 I.K. also identified S.K. on a photograph as V.P.’s friend. 12. On several occasions in October 2002 the authorities questioned S.K. as a witness. 13. On 18 October 2002 the investigation was suspended on the ground that all possible measures to locate the perpetrators had been exhausted. 14. On 5 November 2002 the Zhytomyr City Prosecutor’s Office revoked this decision, having found that additional measures were warranted. 15. Two further decisions to suspend the proceedings taken on 26 November and 16 December 2002, respectively, were, in turn, revoked by the prosecutor’s office on 4 December 2002 and 8 January 2003. 16. According to the applicant, in January 2003 she informed the investigator in charge of her case that she suspected that O.M., her cousin, had been the masked offender. Having assured her that he would conduct the necessary inquiries, the investigator left this information without any follow-up. 17. On 31 March 2003 the proceedings were suspended on the ground that all possible measures to locate the perpetrators had been exhausted. According to the applicant, she was not informed of this decision and kept soliciting the authorities to investigate her suspicions in respect of O.M. 18. On 24 June 2003 the applicant and several other members of her family complained to the Zhytomyr Regional Prosecutor’s Office of the length of the proceedings and the failure of the investigator to react to the applicant’s suspicions with respect to O.M. 19. On 25 July 2003 the prosecutor’s office informed the complainants that the proceedings had been suspended since 31 March 2003. On the same date it revoked the suspension decision, noting that the measures taken to identify the perpetrators had not been comprehensive, and transferred the case to the Korolyovskiy District Prosecutor’s Office in Zhytomyr for supervising further investigative activities. 20. On 4 September 2003 O.M. was arrested and remanded in custody. On the same date he confessed to his participation in the crime and identified S.T. as his accomplice. 21. On 5 September 2003 S.T. was arrested. He denied his involvement in the crime and presented various pieces of evidence that he had been in Moscow, Russia, on the date of the incident. 22. On 6 September 2003 the applicant identified S.T. as the second offender during an identification parade. 23. On 12 September 2003 O.M. retracted his confession alleging that it had been given under duress. Since that time he pleaded innocent and presented various pieces of evidence that he had been at his job as a vendor of ice-cream at the time of the incident. 24. On 3 February 2004 the criminal proceedings in respect of O.M. and S.T. were discontinued for want of evidence of their involvement in the incriminated offence. The applicant appealed, insisting that O.M. and S.T. had been the perpetrators. 25. On 28 April 2004 the prosecutor’s office revoked the decision to discontinue the proceedings and ordered further investigative measures to verify the applicant’s allegations as well as O.M.’s and S.T.’s alibis. 26. On five further occasions between 2004 and 2006 (in particular, on 1 and 23 June 2004, 23 February, 30 May and 10 November 2005) the proceedings against O.M. and S.T. were discontinued, these decisions having been subsequently quashed with reference to insufficiency of the measures taken to verify the relevant facts. Eventually, on 25 April 2006 the proceedings against S.T. and O.M. were again closed for want of evidence that they had committed the incriminated offence. The decision referred, in particular, to testimonies by several witnesses and various sources of corporeal and forensic evidence in support of the defendants’ alibis and cited various reasons, why they considered the applicant’s submissions to be inconsistent and improbable. 27. On 6 July 2005 the General Prosecutor’s Office informed the applicant that following her complaints of inactivity on the part of the investigative authorities, the case had been transferred to the Vinnytsya Regional Prosecutor’s Office for further investigation. 28. On numerous occasions throughout the course of the investigation (in particular, on 14 July 2004, 15 August 2005, 25 April and 26 July 2006, 25 July 2008, 5 March 2009, 21 January and 20 August 2010, 11 March and 22 June 2011) the investigator in charge of the case requested the police to locate and question S.K. and V.P. as witnesses in connection with the proceedings at issue. A request to this end was also submitted to the Interpol and to the Polish police authorities. The parties did not inform the Court concerning any follow-up on these requests. 29. On eleven occasions between August 2005 and April 2012 (in particular, on 30 May, 19 August, 17 September 2005, 9 January, 8 February, 7 March, 27 April 2006, 31 March 2008, 20 July 2009, 11 October 2010 and 13 December 2011) the criminal proceedings in the applicant’s case were suspended on the ground that the measures available to the investigation had been exhausted without the perpetrators having been identified. These decisions were revoked by various branches of the prosecutor’s office, which found that the measures taken had not been exhaustive. 30. On 27 August 2007 the General Prosecutor’s Office acknowledged, in response to the applicant’s complaint, that the case had been protracted. 31. On 22 October 2007 the Vinnytsya Prosecutor’s Office reprimanded the Vinnytsya Police for inactivity in the investigation and ordered the officers responsible to speed it up. 32. On 1 July 2012 the K. family from Zhytomyr was robbed, several of its members having been shot. 33. On 7 July 2012 S.K. was arrested in Zhytomyr on suspicion of having committed the crime in respect of the K. family and remanded in custody. 34. By August 2012 S.K. confessed of having been involved in the above crime, as well as in a series of other robberies, assaults and murders, including the one in respect of the applicant. He further divulged that some of these crimes, including the one in the applicant’s respect, had been committed by him together with V.P. 35. The proceedings concerning V.P. were closed with reference to his death. 36. On 7 November 2012 the Deputy Zhytomyr Regional Prosecutor signed the bill of indictment accusing S.K. of numerous episodes of criminal activity. The evidence cited in respect of his assault on the applicant consisted, primarily, of S.K.’s own confessions and the sources collected in 2002 (see paragraphs 8-11 above). 37. On 9 November 2012 S.K. was committed to stand trial before the Korolyovskiy District Court in Zhytomyr. 38. As of June 2014 the case was pending before the first-instance court.
| 1 |
test
|
001-140237
|
ENG
|
SVK
|
CHAMBER
| 2,014 |
CASE OF AKHADOV v. SLOVAKIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
|
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
5. The applicant was born in 1965 and, at the material time, lived in Žilina. 6. On 26 June 2009 the applicant went to the offices of the Asylum Authority in Gbely with the intention of applying for asylum in Slovakia. From there, he was escorted to the Foreigners Police Department in Bratislava, where he arrived at about 3 p.m. 7. Following questioning on the same day, that is to say on 26 June 2009, the Foreigners Police Department decided to detain (zaistenie) the applicant, finding, inter alia, that he was staying in Slovakia without a valid travel document or any legal entitlement, and in spite of a previous decision expelling him from Slovakia and banning him from returning there for five years. 8. Under the detention order of 26 June 2009, the applicant was detained in the Alien Detention Centre in Medveďov. 9. On 16 July 2009 the Trnava Regional Court (Krajský súd) received a submission dated 13 July 2009 in which the applicant applied for judicial review of the order of 26 June 2009, challenging the assessment of the facts and the interpretation and application of the law by the police. 10. On 13 August 2009 the Regional Court held a hearing at which the applicant was not present in person but was represented by his lawyer. At the conclusion of the hearing, on the same day and in the presence of the applicants’ lawyer, the Regional Court dismissed the claim. 11. The written version of the judgment of 13 August 2009 was sent out on 27 August 2009 and served on the applicant on 7 September 2009. 12. On 2 November 2009 the applicant lodged a complaint with the Constitutional Court (Ústavný súd), relying on Article 127 of the Constitution (individual complaint) and Article 5 § 4 of the Convention (speedy review of the lawfulness of detention), and complaining about the length of the proceedings in respect of his application dated 13 July 2009. 13. On 16 December 2009 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It observed, on the one hand, that the Regional Court had granted the police as long as fifteen days to submit observations in reply to the applicant’s claim, which the Constitutional Court held to have been disproportionately long. However, overall, the decision-making process in respect of the applicant’s claim had lasted only twenty-nine days, and not thirty-one days, as argued by the applicant. On that account, the Constitutional Court observed that the period under consideration had not commenced until 16 July 2009 – when the applicant’s submission had reached the Regional Court – and that it ended on 13 August 2009, when the applicant had learned of the Regional Court’s judgment through his lawyer. The written version of the Constitutional Court’s decision was served on the applicant on 21 January 2010. 14. Meanwhile, at an unspecified time in November 2009, the applicant had been expelled to Russia. 15. In his observations in reply to those of the Government on the admissibility and merits of the present application, the applicant informed the Court that he had challenged the judgment of 13 August 2009 by means of an appeal to the Supreme Court (Najvyšší súd). 16. On 3 November 2009 the Supreme Court quashed the impugned judgment and remitted the matter to the Regional Court for re-examination, having found that the latter had neither established all the relevant facts nor dealt properly with some of the applicant’s material objections. 17. On 19 January 2010 the Regional Court ruled anew on the applicant’s application dated 13 July 2009 by quashing the order of 26 June 2009 and remitting the matter to the Foreigners Police Department for a new decision on the grounds that they had failed both to establish and properly to assess all the relevant facts. The decision was served on the applicant on 19 February 2013.
| 1 |
test
|
001-142306
|
ENG
|
AZE
|
CHAMBER
| 2,014 |
CASE OF LAYIJOV v. AZERBAIJAN
| 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);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
|
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
5. The applicant was born in 1959 and lives in Balakan. 6. On 16 March 2005 an operation was planned for the applicant’s arrest following allegations made by N.V. and H.M. to the police that he was a drug dealer and had tried to sell them narcotic substances. 7. At around 4 p.m. on 17 March 2005 the applicant stopped for petrol at a petrol station in Balakan. At that moment he was approached by several plain-clothes police officers. According to the applicant, they dragged him out of his car and began beating, punching and kicking him, and hitting him with a truncheon. He then fainted. 8. When he regained consciousness, he found himself in the back seat of a moving car with the abovementioned police officers. According to the applicant, one of the two officers sitting on either side of him in the back seat slipped something into his right side trouser pocket. The applicant tried to stop him, but was punched and hit in the head with the butt of a handgun and fainted again. He was taken to the Zagatala District Police Station. 9. According to the applicant, he was repeatedly beaten after his arrival at the Zagatala District Police Station. 10. A search of the applicant and his car was conducted at the police station. According to the search record, the search was carried out at 4.30 p.m. on 17 March 2005 in the presence of the applicant, police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, narcotic (cannabis-based) substances were found both on his person and in his car. The applicant claimed that the drugs did not belong to him and had been planted. He refused to sign the search record. According to him, the search had been filmed and the recording would have shown signs of ill-treatment on his body. 11. At 7 p.m. on 18 March 2005 a police investigator drew up a record of the applicant’s arrest (tutma protokolu). It indicated that the applicant was arrested on 18 March 2005, not 17 March 2005. The applicant refused to sign the record. 12. At an unspecified time on 18 March 2005 the investigator gave the applicant details of four defence lawyers registered with the Zagatala Bar Association who could represent him. The applicant did not choose any of them, and stated that he would be defending himself. However, he refused to sign a waiver of legal assistance. 13. On 20 March 2005 the Zagatala District Court ordered the applicant’s detention for three months, calculating the period of detention from 18 March 2005. 14. On the same day the applicant was examined by a forensic expert from the Zagatala District Forensic Medicine and Pathological Anatomy Department. According to the forensic report, the applicant complained of having been ill-treated by the police on 17 March 2005. The expert noticed an oval-shaped bruise on his neck. The conclusion of the expert reads as follows: "The oval-shaped bruise on Layijov’s neck, caused by a hard blunt object, its time of infliction corresponds to 17 March 2005, the time initially indicated. The degree of the injury was not determined because it was not an injury causing harm to health. The injury found would not have caused Layijov to lose consciousness.” 15. On an unspecified date during his interrogation, the applicant informed the investigator that there was a knife in his car. In this connection, he submitted that the police had not carried out a “real” search of his car on 17 March 2005, and had only found narcotic substances they had planted there themselves, otherwise they would have found the knife. Following the applicant’s questioning, on 25 March 2005 a new search of the car was conducted and a knife was recovered. 16. On 14 June 2005 the investigator at the Zagatala District Police Station delivered a decision on assessment of the evidence. It appears from the decision that the applicant was also examined by a forensic narcotics expert who established that he had not been using narcotic substances and was not a drug user. By the same decision, the investigator also refused to launch a criminal inquiry in respect of the applicant’s allegation of ill-treatment. The relevant part of the decision reads as follows: “T. Layijov alleged in his testimony that he had been beaten up by police officers and had even fainted. It appears from the case file that T. Layijov tried to escape when he was being taken to the district police station and that police officers dragged him upstairs. In that case, there should have been contusions and bruises on his body. It was established in the forensic report that there was an oval-shaped bruise on Layijov’s neck, but no injuries were found on other parts of his body. The degree of the injury was not determined because it was not an injury causing harm to health and it was established that the injury [found] would not have caused [him] to lose consciousness. Nevertheless, the procedural legislation allows causing harm to a person who has committed a crime, if he tries to escape during arrest. As the extent of T. Layijov’s injuries was much less serious than the crime he had committed, a criminal inquiry in respect of the fact that he sustained injuries should be rejected.” 17. According to the indictment issued on 25 June 2005, the applicant was charged with offences under Articles 234.1 (illegal possession of narcotic substances in an amount exceeding that necessary for personal use, without intention to sell), 234.2 (illegal sale or illegal possession of narcotic substances with intention to sell), and 228.4 (illegal possession of a cold steel weapon) of the Criminal Code. 18. On 22 July 2005 the Zagatala District Court convicted the applicant of all the offences as charged and sentenced him to six years’ imprisonment. The applicant complained in the course of the proceedings that he had been illtreated by the police during his arrest and in police custody. He also complained that the criminal case against him had been fabricated by the police because of a pre-existing dispute he had with some officers from the Zagatala District Police Station. In this connection, he claimed that the drugs had been planted by the police officers and that despite his request, the search of his person and car had not been carried out immediately after his arrest. However, his complaints were not addressed in the judgment. The part of the judgment concerning the applicant’s conviction reads as follows: “The criminal offence committed by the accused T. Layijov was not only proved by witness testimonies, but also other materials in the case file... In total 181.62 grams of cannabis-based narcotic substances, 19.75 grams of opium, one hunting knife and one “Nokia” mobile phone taken within the framework of the case had been recognised as real evidence... Therefore, the fact that the accused T. Layijov committed the criminal offences provided for by Articles 234.1, 234.2 and 228.4 of the Criminal Code was again proved in the court investigation by witness testimonies, expert opinions, records of face-to-face questioning and other official information in the case file. The preliminary investigating authority had rightly qualified the criminal offences of the accused T. Layijov under Articles 234.1, 234.2 and 228.4 of the Criminal Code. He should be found guilty under these Articles and be punished.” According to the judgment, the period of imprisonment was to be calculated from 18 March 2005. 19. On 7 March 2006 the Court of Appeal upheld the Zagatala District Court’s judgment of 22 July 2005. In the course of the proceedings, the applicant reiterated his complaints, but the Court of Appeal did not consider them. 20. On 10 August 2006 the Supreme Court quashed that judgment and remitted the case for fresh examination. The Supreme Court found that there had been flaws in the assessment of the admissibility and probative value of evidence serving as a basis for the applicant’s convictions, and that the lower courts had failed to properly determine the date of the applicant’s arrest and to examine the issue of the applicant’s alleged illtreatment in police custody and the compliance with procedural requirements of the search of the applicant and his car. The Supreme Court also noted that the lower courts had not examined why a search of the applicant and his car had not been carried out immediately at the place of his arrest. The relevant part of the decision reads as follows: “According to forensic report no. 53 of 20 March 2005, the injuries on T. Layijov’s body are characteristic of a beating. The documents and statements signed by police officers were drafted by G. I. at the same time, using the same pen. The content of the attesting witnesses’ statements, as well as those of N.V. and H.M., was dictated by a professional police officer and they say the same thing. During the investigation and in the proceedings before the courts, these facts were not examined and no action was taken in this respect. Under Article 125 of the Code of Criminal Procedure of the Republic of Azerbaijan, evidence and facts, if there are doubts as to their source or the circumstances in which they were obtained, cannot be used in order to determine the charge correctly. All the documents and statements on which the court relied as evidence in the present case are contradictory, and do not disprove T. Layijov’s allegations. It follows that, when the case is re-examined at appellate court level, it should be considered whether N.V. and H.M. cooperated with the police and participated in the procedural measures in other cases and were for this reason interested in the outcome of the case, the reason why the first operation aimed at arresting T. Layijov on 16 March was not carried out, the reason why a search of T. Layijov and his car was not immediately conducted when he was arrested at the petrol station in Balakan as required by the operational search and criminal procedural legislation, the cause and perpetrators of T. Layijov’s injuries, as well as the reason why the knife, which was considered to be a cold steel weapon, was not found in the car during the first search on 17 March, but was found eight days later. As it appears from T. Layijov’s statements, his allegation, that the narcotic substances were not taken from his car otherwise the knife would also have been found during the search, must be assessed from a logical point of view.” 21. On 22 December 2006 the Court of Appeal quashed the Zagatala District Court’s judgment of 22 July 2005 in the part relating to the charges under Articles 234.2 and 228.4 of the Criminal Code and terminated the corresponding part of the criminal proceedings. The court held that the evidence concerning the charge under Article 234.2 of the Criminal Code had been obtained in breach of the relevant procedural requirements and failed to prove the applicant’s guilt. In particular, N.V. and H.M.’s statements were inconsistent and had been drafted by the investigator. The court also noted that the testimony of N.V. and H.M. at the hearings before the Court of Appeal had differed from their statements. The court further noted that the evidence in connection with the charge under Article 228.4 of the Criminal Code, namely the knife found in the applicant’s car, did not qualify as a weapon for the purposes of that provision. The court also found that the applicant had actually been arrested on 17 March 2005 and for a day had been unlawfully detained in police custody. As to his allegation of ill-treatment, the court noted that he had been ill-treated by the police during his arrest and in police custody, as certified by the forensic report of 20 March 2005. The relevant part of the judgment reads as follows: “It was established following the investigation carried out by the panel of the court that during T. Layijov’s arrest the requirements of criminal procedural law were violated by the investigating authorities; his arrest was not immediately documented, he was not provided with a lawyer, he was not informed of his rights and obligations and he was unlawfully detained at the Zagatala District Police Station for a day... Taking into consideration the fact that the video-recording of the investigative steps taken during the preliminary investigation was not added to the case file as evidence, and the fact that T. Layijov’s allegation of being beaten by police officers was not rebutted by any plausible evidence by the party defending the charge, the court considers that the injuries on T. Layijov’s body were inflicted by the police during the preliminary investigation.” 22. However, the Court of Appeal upheld the applicant’s conviction under Article 234.1. The relevant part of the judgment reads as follows: “... The panel of the court considers that the accused T. Layijov had committed the crime under Article 234.1 of the Criminal Code and that he had been correctly found guilty and convicted by the first-instance court.” 23. The Court of Appeal was silent as to the applicant’s particular complaints concerning the drugs being planted on him by the police, the conditions in which the search had been carried out, and the lawfulness of the use of the evidence obtained in those circumstances against him. 24. The Court of Appeal reduced the applicant’s sentence to two years’ imprisonment and decided to calculate the beginning of the corresponding sentence from 17 March 2005. 25. On 17 March 2007 the applicant was released after having served his sentence. 26. On 19 June 2007 the Supreme Court upheld the Court of Appeal’s judgment of 22 December 2006.
| 1 |
test
|
001-183865
|
ENG
|
TUR
|
COMMITTEE
| 2,018 |
CASE OF TALU v. TURKEY
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
|
Paul Lemmens;Stéphanie Mourou-Vikström
|
4. The applicant was born in 1959 and lives in Siirt. 5. On 9 January 2009 the applicant was taken into custody on suspicion of membership of a terrorist organisation and disseminating its propaganda. 6. On 13 January 2009 the applicant was brought before the Siirt Magistrates’ Court, who ordered his detention on remand taking into account the strong suspicion that he had committed the alleged offences. 7. On 3 August 2009 the applicant’s lawyer filed an objection against the above decision on the applicant’s detention and requested his release. 8. On 6 August 2009 the Diyarbakır public prosecutor filed a bill of indictment, charging the applicant with disseminating terrorist propaganda, and aiding and abetting a terrorist organisation. 9. On 10 August 2009, at the end of the preparatory hearing, the Diyarbakır Assize Court decided to prolong the applicant’s detention on the basis of the case-file. 10. On 8 September 2009 the Diyarbakır Assize Court ex officio examined the applicant’s detention on remand on the basis of the case-file and decided to extend it. 11. On 1 October 2009, at the end of the first hearing before the Diyarbakır Assize Court, the applicant was released pending trial. 12. On 31 December 2009 the Diyarbakır Assize Court acquitted the applicant of the charges against him. No appeal was filed and the judgment became final on 8 January 2010.
| 1 |
test
|
001-168867
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF MUMZHIYEV v. RUSSIA
| 4 |
Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
3. The relevant details of the application are set out in the appended table. 4. The applicant complained of the inadequate conditions of his detention. He also raised a complaint under Article 13 of the Convention.
| 1 |
test
|
001-162018
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF DOLBIN 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);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 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)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
5. The applicant was born in 1952 and lives in Rostov region. He took part in the clean-up operation at the Chernobyl nuclear disaster site. He was subsequently registered disabled, and became entitled to various social benefits. 6. In February 2003 the applicant brought proceedings claiming that his benefits should be increased in accordance with a particular method. The adjustment method suggested by the applicant was approved by the domestic courts, which in addition increased the social benefits to which he was entitled to in 2002 in accordance with this same method (judgment of 25 February 2003). 7. In June 2003 the applicant brought a similar set of proceedings in respect of social benefits to which he was entitled to during the first six months of 2003. Relying on their previous judgment by which they approved the adjustment method suggested by the applicant, the domestic courts increased his social benefits for the new period accordingly (judgment of 18 June 2003). 8. In October 2003 the judgment of 25 February 2003 approving the adjustment method suggested by the applicant was quashed by a supervisory review court. 9. In March 2004 the domestic courts quashed on the basis of newly discovered circumstances the judgment delivered on 18 June 2003 on the ground that it was based on the judgment delivered in February 2003 but quashed since then by way of supervisory review. 10. Both judgments, of February and June 2003, remained unenforced prior to their quashing. 11. In 2006 the applicant brought proceedings against welfare authorities claiming arrears for various benefits as well as indexation of those benefits. The Zernogradskiy District Court of the Rostov Region granted the applicant’s claims (judgment of 19 June 2006, upheld on 18 July 2006). This judgment remained unenforced for fourteen months.
| 1 |
test
|
001-178359
|
ENG
|
BIH
|
COMMITTEE
| 2,017 |
CASE OF DORIĆ v. BOSNIA AND HERZEGOVINA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Carlo Ranzoni
|
4. The applicant was born in 1952 and lives in Sarajevo. 5. In 1999 the applicant instituted civil proceedings against his employer, the local police, seeking his reinstatement and damages. His claim was eventually rejected. 6. The first-instance judgment was rendered by the Sarajevo Municipal Court on 17 April 2006. 7. The second-instance judgment was rendered by the Sarajevo Cantonal Court on 27 March 2008. 8. The third-instance judgment was rendered by the Supreme Court of the Federation of Bosnia and Herzegovina on 26 January 2010. 9. On 19 April 2010 the applicant filed a constitutional appeal with the Constitutional Court of Bosnia and Herzegovina complaining under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the outcome and length of his labour dispute. 10. On 10 April 2013 the Constitutional Court found a breach of the applicant’s right to a trial within a reasonable time and rejected the remainder of the case. It did not award any damages.
| 1 |
test
|
001-179428
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF NOVINSKIY AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)
|
Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-141174
|
ENG
|
LVA
|
CHAMBER
| 2,014 |
CASE OF BĒRZIŅŠ v. LATVIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
5. The applicant was born in 1976 and lives in Riga. 6. The Department for the Combat of Organised Crime (Organizētās noziedzības apkarošanas pārvalde) received information regarding the applicant’s alleged involvement in the sale of drugs. The department initiated a covert investigative measure, namely a test purchase of drugs. This measure was carried out on 24 and 26 March 2004. 7. After the test purchase on 26 March 2004 a police patrol unit working with officers from the Department for the Combat of Organised Crime stopped a vehicle being driven by S.I. in which the applicant was a passenger, at about 10 p.m. near Riga city centre. The applicant was apprehended and taken to State Police premises. 8. The applicant submitted that he had been repeatedly hit on the head, hit several times on the back, knocked down on to the pavement and pushed, which had resulted in bodily injuries. He had not offered any resistance. 9. In the Government’s version of events V.V., a police officer, opened the front passenger door and pulled the applicant out of the vehicle by his clothing. The applicant fell on to the edge of the pavement. He was then placed face down on the pavement and handcuffed. 10. The Government noted that while on State Police premises the applicant had complained of chest pain, saying he had heart disease. 11. At around 1.30 a.m. the applicant was transported from the premises of the State Police by the emergency medical service to the hospital. Head of the emergency medical service unit made an entry in form no. 573, as follows: “Abdominal contusion (sasitums). Acute gastritis? Facial contusion with skin abrasions (nobrāzumi).” 12. The applicant was admitted to Riga no. 1 Hospital at 1.33 a.m. The applicant’s medical record indicated the following diagnosis on admission: “Head, thorax and abdominal contusion.” 13. The entry made following the applicant’s examination by a surgeon at 1.35 a.m. indicated the same diagnosis and the applicant’s complaint: “The patient was beaten up during the arrest approximately one and a half hours ago.” 14. Further, at 2.20 a.m. a neurosurgeon recorded that the applicant had an eyelid haematoma around his left eye. The doctor also noted that the applicant had said that during his arrest he had fallen and hit his head in the area of the right eyebrow. 15. At 2.55 a.m. the applicant was referred to be tested for narcotic and psychotropic substances. The applicant was found not to be under the influence of alcohol, narcotic drugs or psychotropic substances. 16. On the same day, between 4.35 a.m. and 5.00 a.m., I.K., a chief specialist from the Department for the Combat of Organised Crime questioned the applicant as a suspect. The applicant indicated that he wished to make a statement in the presence of a lawyer. 17. At 5.51 a.m. the applicant was transferred to a temporary detention facility, where he stayed until 30 March 2004, during which time he did not seek any medical assistance. 18. On 29 March 2004 between 1.30 p.m. and 1.55 p.m. I.K. questioned the applicant in the presence of a lawyer. The applicant made a statement, the record of the relevant part of which is as follows: “... While being arrested on 26 March 2004 [the applicant] was pulled out of the vehicle, a jacket was pulled over [his] head and [he] was pushed on to the ground. [He] then received one to three blows to the head and one blow to the abdomen. [The applicant] does not recall the precise number of blows he received. [He] did not lose consciousness. The blows were [inflicted] with a hard, blunt object.” 19. In the context of the interrogation of the applicant described above, the Government put to the Court that no complaints or requests had been raised by the applicant or his lawyer. Notwithstanding, a forensic examination of the applicant had been arranged. 20. Accordingly, on 29 March 2004 I.K. ordered an expert report to ascertain what injuries had been sustained by the applicant, in view of the applicant’s statement that while being arrested he had been kicked on the body and head. The order stated that it had been issued as part of a criminal investigation of unauthorised acquisition, possession and sale of psychotropic substances. 21. On the same day an expert examined the applicant. In the expert’s report the following information the applicant had provided was recorded: “On 26 March 2004 during the arrest police officers in uniforms placed a jacket over [his] head, hit [him] on the head [and] abdomen with something [and he] fell down. It is impossible to tell with accuracy whether the abrasions on [his] legs were caused by the fall or a blow. [He] had nausea [but] did not vomit. [He] did not lose consciousness ...” The expert’s report of 29 March 2004 described the applicant’s condition as follows: “A haematoma 4 cm x 2.5 cm on the upper eyelid of the left eye ... an abrasion 0.2 cm x 0.1 cm in the middle area of the right cheek ... no visible injuries on the body found ... seven abrasions from 0.2 cm x 0.2 cm to 1.5 cm x 0.8 cm on the front surface of the left knee joint and on the front surface of the left lower leg ... a haematoma 5 cm x 4 cm on the front surface of the left lower leg.” 22. On 29 March 2004 the expert recorded in her report that the applicant’s medical records should be requested from Riga no. 1 Hospital. On 30 March 2004 the Department for the Combat of Organised Crime issued a request to Riga no. 1 Hospital for the applicant’s medical records. 23. On 2 April 2004 the expert added in the same report her conclusions based on the applicant’s examination and the data contained in his medical documentation. In particular: “[The applicant] has the following injuries – a contusion on the head with subdermal haematoma and skin abrasion, and a contusion on the left leg with subdermal haematoma and skin abrasions. These injuries could have been caused by hard, blunt objects. The possibility cannot be ruled out that the injuries were caused in the circumstances indicated in the decision and by [the applicant], and on 26 March 2004. The injuries ... are light injuries, which do not cause short-term health impairment for a period of time of more than six days. The diagnosis of ‘head, thorax and abdominal contusion’ cannot be taken into account in the assessment of the gravity of the injuries, because it has not been affirmed by impartial clinical data, in-patient (stacionārā) inspection and examination (visible injuries are not described in the medical history and were not found in the course of the forensic examination).” 24. The applicant stated in his appeal of 2 April 2004 to the Riga Regional Court (Rīgas apgabaltiesa) against his pre-trial detention that physical force had been applied to him during his arrest, following which he had requested medical assistance at Riga no. 1 Hospital. 25. On 13 April 2004 officer A.Ž. gave a statement in the criminal investigation regarding the test purchase of drugs carried out on 24 and 26 March 2004, and stated that the applicant had been apprehended on 26 March 2004. A.Ž. gave evidence that the applicant had not been apprehended immediately after the purchase, because it was necessary to ascertain whether the applicant had been working with anyone else. 26. On 30 April 2004 the Riga Regional Court rejected the applicant’s appeal against the pre-trial detention and decided to keep the applicant in custody. The Regional Court in the decision referred to the applicant’s argument contained in his appeal, including the following: “... police employees beat up [the applicant] when they arrested him; as a result he needed hospital treatment ... In court [the applicant] and his lawyer ... maintained the appeal ...” 27. On 9 May 2005 the Vidzeme Regional Court (Vidzemes apgabaltiesa) found the applicant guilty of unauthorised acquisition, possession and transport of narcotic and psychotropic substances on a large scale, with intent to sell. He was sentenced to eight years and six months’ imprisonment, as an aggregated term, with confiscation of property and police control for two years. 28. On 16 December 2006 the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) upheld the applicant’s conviction on appeal. Further, on 19 February 2007 the Senate of the Supreme Court (Augstākās tiesas Senāts) rejected the applicant’s appeal on points of law. 29. On 12 March 2007 the applicant made representation to the Vidzeme Regional Court about ill-treatment during his arrest on 26 March 2004. The Regional Court transmitted the request to the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs). 30. The applicant submitted to the Court a copy of a letter from the Internal Security Office of the State Police, dated 25 April 2007. It was sent in response to the applicant’s submission of 12 March 2007, mentioned above. The letter stated that the human resources inspection division had requested information from the emergency medical service about the call made to them on 27 March 2004. However, the applicable regulations required records of emergency calls to be kept for a period of one year. It followed from the applicant’s medical records at Riga no. 1 Hospital that on 27 March 2004 the applicant had been diagnosed with head and thorax contusions and that he had told medical staff that he had fallen and hit his head while being arrested. While in the temporary detention facility between 27 and 30 March 2004 the applicant had not asked for medical assistance. 31. The letter indicated as follows: “... in accordance with section 22(2) of the Law on the Police a police employee could not be held responsible for pecuniary or physical harm, caused within the official authority, to an offender who did not comply or who resisted during arrest.” The answer concluded that State Police employees had not violated the relevant statutes. 32. In April 2007 the Internal Security Office collected reports (ziņojumi) from D.M., A.Ž. and A.K., officers of the Department for the Combat of Organised Crime. 33. D.M., in a report of 24 April 2007, indicated that on the day in question he had been working with a team of traffic police officers. Their task had been to intercept the applicant’s vehicle after the test purchase of drugs. Once they had received information about the vehicle with the applicant as a passenger inside, a traffic police employee had stopped the vehicle and invited the driver to step out. At this time other department officers arrived and arrested the applicant. D.M. could not remember the arresting officer or subsequent proceedings with respect to the applicant. 34. The department officer A.Ž. stated in his report of 11 April 2007 that the applicant’s arrest had been carried out by V.V. He also indicated that the applicant had not been ill-treated. The applicant had complained of heart problems while on department premises and an ambulance had been called. An examination by a doctor revealed no health problems and the applicant was then questioned. 35. In his report of 27 April 2007 department officer A.K. declared that he had arrived at the scene after the applicant had been arrested. A.K. could not remember who the arresting officer was. According to A.K. the applicant had been transported to department premises. Police officers had not ill-treated the applicant in A.K.’s presence and he had not seen any injuries. 36. In addition to these reports, the Internal Security Office of the State Police obtained on 17 April 2007 evidence from the temporary detention unit. This indicated that the applicant had not requested medical assistance between 27 and 30 March 2004. On the same day that office also requested the applicant’s medical file from Riga no. 1 Hospital. 37. Following the applicant’s request of 13 April 2007 to the Prosecutor General to submit information about ill-treatment, a prosecutor took a statement from him on 8 June 2007. The applicant indicated that he wished to provide more details about what had happened on 26 March 2004. The statement included the following: “Late in the evening of 26 March 2004 ... [the applicant] was in the vehicle ... as a passenger ... The vehicle was stopped by traffic police ... [The applicant’s] colleague was invited to the police vehicle ... the passenger door on [the applicant’s] side opened and [he] received a hard blow to the head ... the blow pushed him towards the driver’s seat and [he] heard shouts not to move and received several blows on the back ... the same person who had hit [him then] grabbed [him] by [his] jacket and pulled [him] out of the vehicle. The jacket was placed over [his] head ... One of the blows knocked [him] off his feet, as a result of which [he] fell face down with his abdomen on the edge of the pavement. Thereafter a couple of blows followed on [his] body. Everything happened very fast ... [The applicant] heard people passing by saying ‘What are you doing?’ ... [he] was handcuffed ... in the police vehicle [he] was hit on the body ... [The applicant] would be able to recognise the police officer who inflicted the blows ... No physical ill-treatment was inflicted on him at the police station ... After some time ... [the applicant] felt ill ... [he] even lost consciousness in the police station ...” 38. In the statement the applicant requested that an investigation be conducted and criminal proceedings initiated in respect of the infliction of the injuries, because there had been no reason to resort to violence during the arrest. 39. The statement was sent for decision to the Internal Security Office of the State Police. 40. On 18 June 2007 L.L., a senior inspector of the pre-trial investigation division of the Internal Security Office of the State Police, refused to initiate criminal proceedings. This decision, referred to by the Government, did not elaborate reasons for the refusal. 41. The applicant appealed against the refusal to the Office of the Prosecutor General (Latvijas Republikas Prokuratūras Ģenerālprokuratūra). 42. On 18 July 2007 V.Č., acting as chief prosecutor of the pre-trial investigation and oversight division, quashed the decision as ungrounded and ordered that the Internal Security Office of the State Police conduct an additional inquiry. His finding read: “The decision has been adopted on the basis of an incomplete examination ... without requesting the expert’s report and without clarifying the possible circumstances in which the injuries observed on [the applicant] had been sustained.” 43. On 7 August 2007 the Internal Security Office of the State Police requested information on the identities of the traffic police employees who had been on duty on 26 March 2004 around 10 p.m. and whether they had participated in the applicant’s arrest. It also asked those officers to attend the Internal Security Office. In response, the Internal Security Office was provided on 14 August 2007 with the information that officers B.M. and L.V. had carried out the arrest and that they had been advised to attend the Internal Security Office. 44. During August 2007 the Internal Security Office of the State Police collected explanations (paskaidrojumi) from five officers, A.Ž., D.M. and V.V., officers of the Department for the Combat of Organised Crime, and B.M. and L.V., officers of the police patrol unit. 45. In particular, further statements were taken from A.Ž. and D.M. on 20 August 2007. Their explanations were broadly the same as those they had made previously, on 11 and 24 April 2007 respectively. A.Ž. repeated, inter alia, that the applicant’s arrest had been made by V.V. and that the applicant had not been ill-treated. D.M. again gave evidence that he had no recollection of the identity of the arresting officer or of further proceedings with regard to the applicant. On 24 August 2007 V.V. gave his explanation as follows: “On 26 March 2004 a covert measure of investigation was implemented ... Following the experiment [V.V.] received an instruction to apprehend [the applicant] ... when the traffic police officers stopped the vehicle ... [V.V.] approached the vehicle ... and opened the front passenger door. [The applicant] was just then reaching to close the driver’s door, which had been left open. A traffic police employee was at the driver’s door. [V.V.] identified himself as a police employee and invited [the applicant] to step out of the vehicle. [V.V.] does not remember exactly whether [the applicant] was handcuffed and which of the colleagues assisted in [the applicant’s] arrest. Following [his] arrest [he] was taken to the State Police ... but [V.V.] does not remember who took him there. [The applicant] was not subjected to any physical violence when he was arrested, because there was no need to apply physical force.” 46. B.M. and L.V., officers of the police patrol unit gave explanations on 20 and 27 August 2007 respectively. They both stated that on 26 March 2004 they had been on duty and had been asked to drive to the State Police and work with officers of the Department for the Combat of Organised Crime. L.V. in his explanation of 27 August 2007 specified that department employees had briefed them that it was necessary to intercept a vehicle which might contain a person whose arrest was being sought. After receiving these instructions they had left the department, with department officers. Two of them had been in their own vehicle. At around 10 p.m. on the instruction of the department officers they had stopped a vehicle with a driver and a passenger inside. Both B.M. and L.V. stated that B.M. had approached the driver of the vehicle and asked him to present the necessary documents. The arrest had been made by department employees and no physical force had been used, either on the applicant or the driver of the vehicle. L.V. indicated that he had stayed inside the patrol vehicle while this was going on. B.M. declared that he had not seen the applicant since the arrest. The driver of the vehicle had been taken to the State Police and an administrative report that he had been driving without a licence was drawn up. L.V.’s account stated that both the applicant and the driver had been taken to the State Police. 47. On 3 September 2007 a senior inspector of the Internal Security Office of the State Police human resources inspection division issued a report on the results of the inquiry into the circumstances of the applicant’s arrest on 26 March 2004. 48. The report stated that information from the emergency medical service and Riga no. 1 Hospital, and explanations from the officers A.Ž., D.M., V.V., B.M. and L.V. had been collected. An explanation could not be obtained from A.K., because he did not attend the Internal Security Office as agreed and later went on holiday and was unreachable by telephone. The Internal Security Office had requested S.I., the driver of the vehicle in which the applicant had been a passenger when he was arrested on 26 March 2004, to attend the office. S.I. had informed the office by telephone that he was unable to attend because of the expected birth of a child and because he was too busy. S.I. also said on the telephone that he had been questioned about the incident on several occasions, and that time had passed and he could not remember the precise circumstances of the applicant’s arrest. S.I. did not know whether physical force had been used on the applicant, because he had stepped out of the vehicle. No physical force had been used against S.I. 49. The report further stated: “Likewise, during the inquiry which was conducted no unequivocal and impartial evidence was obtained that police employees had used unjustified physical force on [the applicant] during his arrest. In this regard the police employees categorically deny any use of physical force on [the applicant], whereas [the applicant] alleges to the contrary. Therefore, the question whether the police officers used physical force on [the applicant] and to what extent (during arrest, transport for questioning, or questioning itself) is to be examined in the pre-trial investigation division of the Internal Security Office of the State Police (VP IDP Pirmstiesas izmeklēšanas nodaļa), by taking the necessary actions in criminal procedure (questioning and subsequent confrontation between the police employees concerned).” 50. With regard to disciplinary liability the report indicated that in any event this would be barred by a period of statutory limitation. 51. On 11 September 2007 the pre-trial investigation division of the Internal Security Office of the State Police refused to initiate criminal proceedings. 52. That decision established: “... on 26 March 2004 [the applicant] was justifiably arrested for a criminal offence ... All the police officers who carried out the arrest on 26 March 2004 indicated that more than three years had passed since the event and they could not remember precisely what had happened. The applicant did not, immediately after the arrest, express any complaints about the police employees’ conduct against him. [The applicant] could obtain the established light injuries, which do not cause short-term health impairment for more than six days, before or during the apprehension, when special measures were applied to him. It may not be asserted unequivocally that during [the applicant’s] arrest the police employees exceeded their authority by intentionally using unjustified force, thus committing a criminal offence as set out in section 317(2) of the Criminal Law.” 53. On 21 September 2007 the applicant appealed to the Office of the Prosecutor General against the aforementioned refusal to initiate criminal proceedings. He argued that the existence of his injuries had not been disputed and had been confirmed by the expert’s report. He could not have sustained the injuries prior to the arrest because he had been arrested at 10 p.m. on 26 March 2004 and admitted to Riga no. 1 Hospital at 1.33 a.m. the next day. The applicant pointed out that a surgeon had noted on his record “was beaten up one and a half hours ago”. Further, the fact that police officers could not remember the circumstances of the arrest did not prove anything, and was not a justification. He also stressed that no one who could have given impartial information had been questioned. 54. On 7 November 2007 J.K., a prosecutor responsible for the criminal case against the applicant in respect of drug sale, gave a report that the applicant had never complained of ill-treatment by police officers during the investigation or court hearings. 55. On 8 November 2007 V.O., as chief prosecutor of the pre-trial investigation and oversight division, confirmed the decision of the Internal Security Office of the State Police of 11 September 2007. She noted that that office had questioned the police officers and had obtained the expert’s report and information from S.I. However, no unequivocal and impartial evidence had been obtained that the injuries had been caused during the arrest. V.O. added the following words to her decision: “... [the applicant’s] account of 8 June 2007 that police officers on 26 March 2004 had hit [him] several times on the back has not been confirmed, because the expert’s report did not establish any injuries on the back ... [the applicant] gave a contradictory account of how the abdominal contusion had been acquired (not taken into account in the expert’s report as not affirmed by impartial clinical data). On 29 March 2004 [the applicant] stated that police officers had hit [him] on the abdomen during [his] arrest but [he] had not lost consciousness, however on 8 June 2007 [the applicant] stated that the abdominal contusion had been caused by a fall on asphalt and that [he] had lost consciousness on the State Police premises ... It has also been established that, after being taken to Riga no. 1 Hospital at 1.33 a.m. on 27 March 2004 and examined there by doctors, [the applicant] was taken to a temporary detention facility at 5.51 a.m. ... from which a medical report has been received that between 27 and 30 March 2004 [he] did not request medical assistance.” 56. V.O. also indicated that there were no grounds to initiate disciplinary proceedings because no evidence had been obtained that State Police employees had exceeded their authority or abused their official position during the arrest. She also explained the period of statutory limitation for disciplinary proceedings. 57. V.O. stated that this decision was final.
| 1 |
test
|
001-158886
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF NENAD KOVAČEVIĆ v. CROATIA
| 4 |
No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
|
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
|
6. The applicant was born in 1976 and is currently serving a prison sentence in Croatia. 7. In 1997 an investigation was opened in respect of the applicant on suspicion of murder. He was remanded in custody during the investigation from 5 February to 21 May 1997. 8. Following his release from custody, the applicant became unavailable to the Croatian authorities, and on 18 December 1998 the Osijek County Court (Županijski sud u Osijeku), as the competent trial court, ordered his trial in absentia. 9. On 8 February 1999 the Osijek County Court found the applicant guilty as charged and sentenced him in absentia to nine years’ imprisonment. The judgment became final on 22 February 1999. 10. On 27 September 2005 a judge responsible for the execution of sentences at the Osijek County Court ordered that the applicant should start to serve his prison sentence. Given that at the time the applicant was still at large, the judge ordered that a warrant be issued for his arrest. 11. On the basis of the arrest warrant, the applicant was arrested in Bosnia and Herzegovina and on 21 July 2011 he was extradited to Croatia, where he immediately started to serve his prison sentence. 12. The day following his extradition, the applicant requested the Osijek County Court to reopen the proceedings conducted in his absence (see paragraph 30 below). He relied on the Code of Criminal Procedure, which provided for the automatic reopening of proceedings conducted in absentia at the request of the convicted person. 13. A three-judge panel of the Osijek County Court granted the applicant’s request for reopening of the proceedings on 26 August 2011. The decision became final on 6 September 2011. 14. On 4 October 2011 the Osijek County Court discontinued the applicant’s prison sentence on the ground that the reopening of the proceedings had been granted and that therefore the execution of the sentence had to be stayed, as required under Article 507 § 5 of the Code of Criminal Procedure (see paragraph 31 below). 15. In the meantime, on 27 September 2011 the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku) had requested the Osijek County Court to order that the applicant be remanded in custody under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding) pending the retrial. 16. In connection with that request, on 5 October 2011 a three-judge panel of the Osijek County Court heard the applicant and his lawyer. They argued, in particular, that the applicant had not sought to avoid trial and that his detention should be replaced by the application of a less restrictive measure, such as bail, which could be effected by the seizure of his mother’s house and of documents. 17. On the same day the Osijek County Court accepted the request of the State Attorney’s Office and ordered the applicant’s pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding). The relevant part of the decision reads: “Having considered the [available] evidence, this panel has found that the accused Nenad Kovačević received an indictment [from the competent prosecutor] on 24 June 1997 ..., that the Osijek-baranja Police Department informed the Osijek County Court that the accused Nenad Kovačević was absent from his place of residence [in Croatia] as he had gone away in March 1998 and was [at the time] allegedly in Bosnia and Herzegovina, as stated by his mother. Furthermore, it was established that the accused Nenad Kovačević had been found guilty by the above-mentioned final judgment of the Osijek County Court of the offence of murder ... for which he had been sentenced to nine years’ imprisonment. It was also established that the accused Nenad Kovačević ... had been arrested [in Bosnia and Herzegovina] because a sentence-execution judge of this court ordered that he should start to serve his prison sentence, and therefore the objection that the general conditions for ordering detention under Article 123 of the Code of Criminal Procedure have not been met is unfounded. The final judgment adopted in the criminal proceedings conducted in the absence of the accused, by which he was found guilty on charges of murder and sentenced to nine years’ imprisonment, represents a reasonable suspicion that the accused Nenad Kovačević committed the offence of murder ... The fact that he fled, given that the order for his pre-trial detention and the arrest warrant remained futile and there was no possibility for the police to bring him [before the court] for a hearing, and that he was arrested only on the basis of [an arrest warrant] for the execution of the prison term to which he had been sentenced, suggests the existence of grounds for ordering pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure; that is to say, special grounds justifying a risk that, if at large, the accused might abscond and thus hinder the proper conduct of these criminal proceedings. ... As already stated above, the accused Nenad Kovačević received the mentioned indictment by which he is charged with murder ... It follows [from the case file] that he was also detained. This suggests that the accused knew that the criminal proceedings at issue had been pending against him and that he had been charged with a serious criminal offence. He [nevertheless] left his residence and the territory of Croatia and was arrested on the territory of a country where he did not have residence, namely Bosnia and Herzegovina, while he himself stated that he had residence in Serbia. All these circumstances as well suggest that there is a risk that the accused might again abscond and thereby hinder the termination of the reopened proceedings at issue. In addition, as the panel of this court has found that the conditions for ordering detention in respect of the accused Nenad Kovačević under Article 123 § 1(1) of the Code of Criminal Procedure have been met, [it considers that] the measure of detention is necessary in order to avert the risk of absconding, which could not be achieved by bail or the alternative measures suggested by the accused and his defence lawyer. This is particularly true given the circumstances and severity of the offence at issue, and the fact that [the accused] is also a national of Serbia and that he himself stated that he had no residence in Croatia, which means that he could very easily leave the territory of Croatia.” 18. The applicant appealed to the Supreme Court (Vrhovni sud Republike Hrvatske), arguing that the indictment had not been served on him but on his brother, who had been a minor at the time, and that he had left Croatia for personal reasons. He offered his Croatian and Serbian passports and his mother’s house in Croatia as bail to guarantee that he would not abscond. The applicant also contended that the decision of the Osijek County Court lacked the relevant reasoning concerning the possibility of his conditional release. 19. The Supreme Court dismissed the applicant’s appeal as ill-founded on 4 November 2011. The relevant part of the decision reads: “Contrary to the appeal arguments, the Supreme Court as the second-instance court finds that the first-instance court correctly established that the defendant should be remanded in custody under Article 123 § 1(1) of the Code of Criminal Procedure. Reasonable suspicion that the defendant committed the offence [of murder] follows from the final judgment by which he was found guilty and sentenced to nine years’ imprisonment, which had been adopted after a trial in absentia and in respect of which a retrial was granted. The general requirement for detention has therefore been met. Furthermore, it should be noted that the defendant, although aware that criminal proceedings were pending against him (he was questioned by an investigating judge, he was detained from 5 February to 21 May 1997, and he received the indictment), left the territory of Croatia and thereby became unavailable during the proceedings conducted before the Osijek County Court. He was arrested only after a sentence-execution judge issued an order for his arrest for the execution of the prison sentence, and [the arrest] was effected on the basis of an international arrest warrant in Bosnia and Herzegovina, although he stated that his residence was in Serbia. All these circumstances, in the view of the Supreme Court as the second-instance court, suggest that there is a fear that the defendant, who is also a national of Serbia, if at large, could abscond and thereby hinder the course of the criminal proceedings. This in particular follows from his previous behaviour, the fact that he was unavailable to the judicial authorities for fourteen years and that he is again being tried for a serious criminal offence for which he had been found guilty in absentia and sentenced to nine years’ imprisonment ... The appeal arguments of the defendant that he did not know that the criminal proceedings at issue were pending as he had not received the indictment are unfounded because the material from the case file suggests the opposite. The case file contains signed delivery notices which demonstrate that he duly received the indictment. He was also questioned before an investigating judge concerning the offence of which he was later found guilty, and for which he had also spent some time in pre-trial detention. There is therefore no doubt that he knew about the criminal proceedings pending against him. Moreover, the appellant is wrong in contending that a fundamental procedural omission occurred in that the impugned decision is not sufficiently reasoned in respect of the possibility of applying bail or some other alternative measure. The first-instance court provided sufficient and clear reasons for considering it necessary to order pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure and why the same purpose could not be achieved by bail or any other alternative measure; and this second-instance court fully endorses those reasons.” 20. On 9 December 2011 the applicant again requested that his pre-trial detention be replaced by bail or an alternative less restrictive measure. At the hearing held on 16 January 2012 he reiterated his request. 21. The Osijek County Court dismissed the applicant’s request on 16 January 2012 and extended his detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding), reiterating its previous reasoning. 22. On 2 February 2012, following a retrial, the Osijek County Court upheld the applicant’s conviction in absentia, finding him guilty of the offence of murder and sentencing him to nine years’ imprisonment. It was also decided on the same day that the applicant should remain in detention pending a final judgment. 23. The applicant appealed against that judgment to the Supreme Court. On 23 October 2012 the Supreme Court quashed the judgment and remitted the case to the Osijek County Court for re-examination on the grounds of the existence of procedural flaws. 24. At the same time, the Supreme Court extended the applicant’s detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding), reiterating its previous reasons. 25. On 7 December 2012 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decision on his pre-trial detention. He argued in particular , his detention was disproportionate and should be replaced by bail or an alternative less restrictive preventive measure. 26. On 13 December 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. That decision was served on the applicant’s representative on 17 December 2012. 27. On 18 December 2012, having reheard the case, the Osijek County Court upheld the applicant’s conviction in absentia, finding him guilty of the offence of murder and sentencing him to nine years’ imprisonment. The applicant was remanded in custody pending a final judgment. 28. That judgment was upheld by the Supreme Court on 18 June 2013 and it thereby became final. On 18 October 2013 the applicant challenged it before the Constitutional Court and the proceedings before that court are still pending.
| 0 |
test
|
001-147614
|
ENG
|
SVN
|
COMMITTEE
| 2,014 |
CASE OF BRLEK v. SLOVENIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Angelika Nußberger;Vincent A. De Gaetano
|
5. The applicant was born in 1986 and lives in Ljubljana. 6. The applicant served his prison sentence in the closed section of Ljubljana prison in the period between 5 August 2009 and 5 October 2009. He was held in cell 119 which measured 17.51 square metres (including a separate 1.74 square metre sanitary facility), with four or five other prisoners, having between 2.63 and 3.15 square metres of personal space. From 5 August 2009 to 15 September 2009 and from 24 September 2009 to 5 October 2009 six prisoners were held therein, from 15 September 2009 to 24 September 2009 five prisoners were held therein. 7. As regards the general characteristics of the cells, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011. 8. As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86). 9. As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (55.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.
| 1 |
test
|
001-157764
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF V.R. v. CROATIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
|
Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano;Ksenija Turković
|
5. The applicant was born in 1992. 6. On 8 May 2013 he was arrested on suspicion of sexual abuse and indecent behaviour towards two children. 7. On 10 May 2013 an investigating judge of the Z. County Court (Županijski sud u Z. –“the County Court”) ordered his pre-trial detention under Article 123 § 1(2) and (3) of the Code of Criminal Procedure (risk of collusion and reoffending). 8. On 17 May 2013 the applicant appealed. On 21 May 2013 a three-judge panel of the County Court dismissed his appeal as ill-founded, upholding the decision of the investigating judge. 9. On 6 June 2013 the investigating judge extended the applicant’s detention under Article 123 § 1(3) of the Code of Criminal Procedure (risk of reoffending) on the grounds that he might commit the same offences against the victims again if at large. 10. The applicant appealed on 12 June 2013, arguing that there was no reason to suspect that he had committed the offences at issue and alleging numerous procedural flaws when his pre-trial detention was extended. 11. On 14 June 2013 a three-judge panel of the County Court dismissed the appeal as ill-founded, endorsing the view of the investigating judge. The decision was served on the applicant’s representative on 26 June 2013. 12. On 5 July 2013 the applicant lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the decision of 14 June 2013, challenging the decisions on his pre-trial detention. He argued, in particular, that they lacked the relevant reasoning, and that the procedure for ordering and extending pre-trial detention had not been duly complied with. 13. On 8 July 2013 the applicant was indicted in the Z. Municipal Criminal Court (Općinski kazneni sud u Z. –“the Municipal Court”) on charges of sexual abuse and indecent behaviour towards two children. 14. On the same day a three-judge panel of that court extended his pre-trial detention under Article 123 § 1(3) of the Code of Criminal Procedure (risk of reoffending). The decision was served on the applicant’s representative on 15 July 2013. 15. On 10 July 2013 the applicant challenged the decision by lodging an appeal with the County Court, arguing that it lacked the relevant reasoning and alleging procedural flaws in the Municipal Court’s conduct. 16. On the same day the Constitutional Court declared the applicant’s complaint of 5 July 2013 (see paragraph 12 above) inadmissible, on the grounds that a new decision on his detention had since been adopted (see paragraph 14 above) and he was no longer being detained in connection with the decision complained about. 17. The Constitutional Court’s decision was served on the applicant’s representative on 18 July 2013. 18. On 19 July 2013 a three-judge panel of the County Court, in its examination of the applicant’s appeal of 10 July 2013 (see paragraph 15 above), quashed the decision of 8 July 2013 extending the applicant’s pre-trial detention and remitted the case to the Municipal Court for re-examination. 19. On 22 July 2013 a three-judge panel of that court released the applicant from detention, imposing a number of conditions on his release.
| 1 |
test
|
001-180558
|
ENG
|
BIH
|
COMMITTEE
| 2,018 |
CASE OF SALIHIĆ v. BOSNIA AND HERZEGOVINA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law)
|
Carlo Ranzoni
|
4. The applicant was born in 1951 and lived in Sarajevo. 5. By its decision of 3 August 2004, and at the recommendation of the Sarajevo Psychiatric Clinic (the “Psychiatric Clinic”), the Sarajevo Municipal Court instituted proceedings for the applicant’s placement in a psychiatric facility. 6. On 18 August 2004, the Sarajevo Municipal Court decided to keep the applicant in the Psychiatric Clinic for a maximum of 45 days (counting from the date of his placement, that is 1 August 2004). 7. On 22 September 2004 the Sarajevo Canton Social Care Centre (the “Social Care Centre”) placed the applicant in the Drin Social Care Home (the “Drin Home”). 8. On 7 January 2005, the Sarajevo Municipal Court deprived the applicant of his legal capacity. 9. On 10 March 2005 the Social Care Centre placed the applicant under the guardianship of D.M., one of its employees. Several other employees were subsequently appointed as the applicant’s successive guardians. 10. By its decisions of 25 February 2010 and 25 December 2014, the Social Care Centre decided that the applicant should remain in the Drin Home. 11. On 16 September 2015 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of a competent civil court. It also found that Article 5 § 4 of the Convention had been breached because of the lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Social Care Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention. 12. On 7 December 2015, the Sarajevo Municipal Court restored the applicant’s legal capacity. 13. The applicant was released from the Drin Home on 14 December 2015. 14. At the applicant’s request, the Social Care Centre again admitted him to the Drin Home, between 1 January 2016 and 31 March 2016. 15. The applicant requested an extension of his stay in social care, which request was granted on 1 April 2016. The applicant was thus placed in the Social and Health Care Home for Persons with Disabilities and Other Persons (the “Social and Health Care Home”). 16. The applicant died on 26 September 2016, while in the Social and Health Care Home.
| 1 |
test
|
001-142504
|
ENG
|
ITA
|
CHAMBER
| 2,014 |
CASE OF DHAHBI v. ITALY
| 3 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award
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Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Peer Lorenzen
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5. The applicant was born in 1960 and lives in Marsala (Trapani). 6. The applicant, who subsequently acquired Italian nationality, was at the relevant time a Tunisian national who had entered Italy on the basis of a lawful residence and work permit. He was employed by company A. and insured with the National Social Security Agency (Istituto Nazionale della Previdenza Sociale – “the INPS”). His family was made up of his wife and their four minor children. His income for the year 1999 totalled 30,655,000 Italian lira (ITL – approximately 15,832 euros (EUR)). 7. On 24 May 2001 the applicant lodged an application with the Marsala District Court, acting as an employment tribunal, seeking payment of the family allowance (assegno per nucleo familiare) provided for by section 65 of Law no. 448 of 1998. Under the terms of that provision, the allowance in question was paid by the INPS to families made up of Italian nationals living in Italy with at least three minor children, whose annual income was below the amounts set out in the table appended to Legislative Decree no. 109 of 31 March 1998 (in this instance, the amount applicable to families with five members, namely ITL 36 million (approximately EUR 18,592)). 8. The applicant submitted that even though he did not have Italian nationality as required by Law no. 448 of 1998, the allowance was nevertheless due to him under the association agreement between the European Union and Tunisia – known as the Euro-Mediterranean Agreement – which had been ratified by Italy (Law no. 35 of 3 February 1997). Article 65 of the Agreement provides as follows: “1. Subject to the provisions of the following paragraphs, workers of Tunisian nationality and any members of their families living with them shall enjoy, in the field of social security, treatment free from any discrimination based on nationality relative to nationals of the Member States in which they are employed. The concept of social security shall cover the branches of social security dealing with sickness and maternity benefits, invalidity, old-age and survivors’ benefits, industrial accident and occupational disease benefits and death, unemployment and family benefits. These provisions shall not, however, cause the other coordination rules provided for in Community legislation based on Article 51 of the EC Treaty to apply, except under the conditions set out in Article 67 of this Agreement. 2. All periods of insurance, employment or residence completed by such workers in the various Member States shall be added together for the purpose of pensions and annuities in respect of old age, invalidity and survivors’ benefits and family, sickness and maternity benefits and also for that of medical care for the workers and for members of their families resident in the Community. 3. The workers in question shall receive family allowances for members of their families who are resident in the Community. 4. The workers in question shall be able to transfer freely to Tunisia, at the rates applied by virtue of the legislation of the debtor Member State or States, any pensions or annuities in respect of old age, survivor status, industrial accident or occupational disease, or of invalidity resulting from industrial accident or occupational disease, except in the case of special non-contributory benefits. 5. Tunisia shall accord to workers who are nationals of a Member State and employed in its territory, and to the members of their families, treatment similar to that specified in paragraphs 1, 3 and 4.” 9. In a judgment of 10 April 2002 the Marsala District Court rejected the applicant’s application. 10. The applicant appealed. He requested, among other things, that a question be referred to the Court of Justice of the European Union (“the CJEU”) for a preliminary ruling as to whether, under Article 65 of the EuroMediterranean Agreement, a Tunisian worker could be refused the family allowance provided for by section 65 of Law no. 448 of 1998. 11. In a judgment of 21 October 2004 the Palermo Court of Appeal dismissed the applicant’s appeal. It observed that, as the allowance in question was based solely on the income and family situation of the recipients, it fell within the sphere of social assistance (assistenza sociale). The allowance had initially been intended only for Italian citizens and had subsequently been extended to all European Union nationals. However, the Euro-Mediterranean Agreement related only to social-security benefits (prestazioni previdenziali) and was therefore not applicable to the family allowance provided for by section 65 of Law no. 448 of 1998. 12. The applicant lodged an appeal on points of law, reiterating his request for a preliminary ruling to be sought from the CJEU. 13. In a judgment of 15 April 2008 which was deposited with the registry on 29 September 2008, the Court of Cassation dismissed the appeal. 14. In its reasons, the Court of Cassation observed first of all that Article 64(1) and (2) of the Euro-Mediterranean Agreement provided, inter alia, as follows: “1. The treatment accorded by each Member State to workers of Tunisian nationality employed in its territory shall be free from any discrimination based on nationality, as regards working conditions, remuneration and dismissal, relative to its own nationals. 2. All Tunisian workers allowed to undertake paid employment in the territory of a Member State on a temporary basis shall be covered by the provisions of paragraph 1 with regard to working conditions and remuneration.” 15. Noting that the text in question referred explicitly to employment relationships and the elements that comprised them, the Court of Cassation inferred from this that it applied only to social-security benefits and not to social-assistance benefits of the kind claimed by the applicant, to which Tunisian citizens resident in Italy were not entitled. According to the Court of Cassation, this interpretation was confirmed by Article 65(1) and (2) of the Euro-Mediterranean Agreement, which referred in particular to “sickness and maternity benefits, invalidity, old-age and survivors’ benefits, industrial accident and occupational disease benefits and death, unemployment and family benefits”. The Court of Cassation stressed that its interpretation was not based solely on the reference in the text to “social security” (previdenza sociale) but, as indicated by the CJEU, on the elements comprising each benefit. 16. This judgment was served on the applicant on 2 October 2008.
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test
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001-150229
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ENG
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TUR
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CHAMBER
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CASE OF UĞUR v. TURKEY
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Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
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András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
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5. The applicants were born in 1985 and 1987 respectively and live in Istanbul. They are brothers. As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicants are set out in Section B below (paragraphs 6-17). The Government’s submissions concerning the facts are summarised in Section C (paragraphs 18-20). The documentary evidence submitted by the applicants and the Government is summarised in Section D (paragraphs 2174). 6. On 23 November 2002 at about 2.30 a.m. the applicants’ neighbour, B.S., was shot in the street. The applicants, who were at their aunt’s house at the time, and a number of their friends, took the injured neighbour to hospital, where he died on arrival. 7. A police chief and a number of police officers arrived at the hospital at 3 a.m. and asked the applicants and their friends to accompany them to Beyoğlu police station, where they could be questioned as witnesses in relation to the incident. By the time they arrived, however, the police officers had already established that the applicants’ neighbour had been shot by a police officer. They then decided to detain the applicants at the station. Although the applicants had been taken to the station at 3 a.m., the time of their arrival was stated as 5.30 a.m. in the relevant police report (see paragraph 24 below). 8. The necessary formalities concerning their detention at the police station were not complied with. For example, their names were not entered in the custody ledgers, and although they were minors and should have been taken to a special police station for minors, this was not done. Furthermore, they were not informed of their rights or allowed to contact a lawyer, nor were their next of kin informed. 9. On 24 November 2002 two police officers working at the special police station for minors went to Beyoğlu police station and questioned the applicants in the absence of a lawyer and thus in contravention of the applicable procedure, which stipulates that the presence of a lawyer is compulsory during the questioning of minors. Furthermore, although the applicants were questioned there, it was written in the statements taken from them that they had been questioned at the special police station for minors. 10. While detained at the police station, the applicants were stripped naked, doused with cold water, kicked, punched and beaten with truncheons. The reason for the ill-treatment was to force them to implicate themselves in the incident. As they were illiterate and unrepresented by a lawyer, they had no way of verifying the statements before they were forced to sign them. As a result of those incriminatory statements the prosecutor instigated an investigation against the second applicant, but it was subsequently closed for lack of evidence (see paragraph 35 below). 11. At around 4 or 5 p.m. on 25 November 2002 the police officers hit the applicants with their truncheons and told them to leave the police station. 12. The following day the applicants went to the Istanbul branch of the Human Rights Association and were referred to the Human Rights Foundation, also in Istanbul, where they were examined by a number of doctors the same day. The reports pertaining to their medical examination were drawn up on 8 April 2003. 13. With the assistance of their lawyer, Bülent Kurt, the applicants made an official complaint against the police officers on 29 November 2002. The prosecutor referred them to doctors, who examined them and described their injuries in medical reports. During the prosecutor’s investigation, police chief K.Ş.S., one of the police officers who had been responsible for the applicants’ ill-treatment, continued to serve as the chief of Beyoğlu police station and made numerous attempts to stall the investigation. It was not until he was posted elsewhere and another police chief was appointed to replace him that the necessary information could be handed over to the prosecutor to enable him to start the investigation (see paragraph 42 below). 14. When the prosecutor subsequently started taking meaningful steps to investigate their allegations of ill-treatment, the police officers started putting pressure on the applicants and their family. The applicants were unable to withstand the pressure and were forced to dismiss Bülent Kurt. At the behest of the police officers, they appointed Ali Tufan as their new legal representative and informed the Beyoğlu Assize Court on 8 June 2004 that they were withdrawing their complaints. They were also forced to tell the authorities that their allegations of ill-treatment had been fabricated. Mr Tufan made submissions against them during the first hearing, held on 7 October 2004 (see paragraph 53 below). 15. Although during that hearing the Assize Court decided to hold its next hearing on 28 December 2004, it held an unscheduled hearing on 15 December 2004 without informing the applicants or their legal representative. Police chief K.Ş.S. was thus heard by the Beyoğlu Assize Court in the absence of their lawyers and in breach of the applicable rules of criminal procedure (see paragraph 54 below). This deprived them and their lawyers of the opportunity to formally identify the police chief and put questions to him. 16. Although they subsequently dismissed Mr Tufan, reappointed Mr Kurt and informed the Beyoğlu Assize Court of the change of representation on 28 December 2004, the Assize Court did not entertain the new power of attorney until 12 October 2005. It thus attempted to prevent their lawyer from representing them. 17. As a result of the indifference of the national authorities to their allegations of ill-treatment and the collusion between the police authorities and the judiciary, the criminal proceedings against the police officers were not conducted diligently and were intentionally allowed to become timebarred. The investigation into their allegations of ill-treatment showed that the judiciary did not have the courage to prosecute people responsible for ill-treating children as young as 15 and 17 years old. 18. In their observations, the Government summarised the investigation documents (also summarised below in paragraphs 21 to 74), and submitted that the applicants had been taken to Beyoğlu police station with a view to being questioned as witnesses of a serious crime, namely the killing of B.S. The applicants, who were minors at the time, were taken to the station at 6.30 a.m. with a view to being referred to a special police station for minors. No custody reports were drawn up because the applicants had not been arrested, just taken in as witnesses. They were questioned at the special police station for minors. 19. On 29 November 2002 the applicants lodged a formal complaint with the Beyoğlu prosecutor against the police officers. According to the medical reports drawn up at the request of the prosecutor, both applicants had a number of injuries. 20. The information provided by the national authorities showed that the applicants were substance users and had regular problems with the police. During the trial, the applicants gave conflicting versions of events, and withdrew their complaints. 21. The following information appears from the documents submitted by the parties. 22. According to a report signed by three police officers, at 2.55 a.m. on 23 November 2002 a number of police officers arrived at Tarlabaşı Boulevard in the centre of Istanbul, where they saw an off-duty police officer, A.Ö., lying on the ground with various injuries to his head. Next to him was his pistol loaded with thirteen bullets and a spent bullet case. The officers also noted in their report that the applicants’ neighbour, B.S., had been shot some seventy-five metres from where A.Ö. was lying, and had since been taken to a hospital in Taksim. 23. The report also stated that hand swabs had been taken from four individuals with a view to establishing whether or not they had gunpowder residue on their hands. The four individuals included the first applicant who, according to the report, “had been taken in by the police in connection with the incident”. 24. According to another police report drawn up the same morning, six teenagers, including the two applicants, “who had been apprehended in connection with the incident” were “placed in the custody of the police” and taken to Beyoğlu police station at 5.30 a.m. with a view to being transferred to a special police station for minors. 25. Some twenty four hours later, at 5.15 a.m. on 24 November 2002, K.Ş.S., the chief of Beyoğlu police station, wrote in a report that he had contacted a prosecutor by telephone, who had given him permission to question the applicants and the four other teenagers as “statement makers” (ifade sahibi) in relation to the death of B.S. and the injuries caused to A.Ö. 26. The same day, between 9.30 and 11.30 a.m., statements were taken from the applicants and the remaining four teenagers by police officers S.Ö. and N.K., who worked at the special police station for minors. It is written in the statements that they were taken at the special police station for minors. 27. In the statements, the applicants were reported to have told the two police officers that they had been walking along the street with a number of their friends when they had seen A.Ö. They had noticed that he was drunk, and had attempted to rob him. However, he had produced a pistol and they had unsuccessfully tried to take it from him. During the scuffle, the pistol had gone off and their friend B.S. had been shot. 28. One of their friends had then pursued the armed man and started hitting him. When his pistol had fallen to the ground, their friend had taken it and shot him in the head. They had then taken B.S. to hospital and had been arrested there by the police. 29. There are no documents in the Court’s possession showing the time and date of the applicants’ release from the police station. 30. According to two medical reports, on 26 November 2002 the applicants were examined by doctors at the Human Rights Foundation. The first applicant told them that he had been beaten up at the police station, doused with cold water, hit on the back and the torso with a police truncheon, and grabbed by the throat by a police officer. The second applicant told them that a police officer had grabbed him by the throat, while another had held his hands behind his back, and the two officers had then pulled at his legs. 31. The doctors observed that the first applicant had a number of injuries. These included a scratch on the upper right side of his torso measuring 4 centimetres, as well as bruising on the back of his body in four places, measuring 14 x 1.5, 14 x 1, 10 x 1 and 7 x 1 centimetres. The doctors concluded that his description of the ill-treatment was compatible with their findings. 32. The second applicant did not appear to have any external injuries, but his description of the ill-treatment was deemed by the doctors to be compatible with his unsettled and nervous state of mind. They concluded that further medical examinations, including a bone scintigraphy and a psychological assessment, were necessary in order to reach a definitive conclusion. 33. On 29 November 2002 the applicants, assisted by their lawyer Bülent Kurt, lodged a formal complaint with the Beyoğlu prosecutor against the police officers. They informed him that their statements had been taken in the absence of the necessary safeguards, and contained things they had never said. They alleged that during their time in police custody, they had been subjected to ill-treatment. At the end of their detention they had not been taken to see a doctor, but had been hit with truncheons and told to “leave and never be seen again”. The applicants referred to their rights guaranteed by the European Convention on Human Rights and the Convention on the Rights of the Child, and asked the prosecutor to investigate their allegations. 34. The same day, the prosecutor referred the applicants to a doctor, who noted in his report that they had no visible signs of ill-treatment. He considered it necessary, however, that the applicants be examined more thoroughly at a hospital. 35. An investigation which had been started by a prosecutor against the second applicant and his neighbour B.S. for the “attempted robbery” of A.Ö. was discontinued on 3 December 2002, because the prosecutor observed that the applicants’ neighbour had been killed by the police officer, and there was no evidence implicating the second applicant in the incident. 36. On 11 December 2002 the Beyoğlu prosecutor questioned the applicants in relation to their allegations of ill-treatment, and opened a criminal investigation file. The first applicant told the prosecutor that he and his brother, the second applicant, had been beaten up by the chief of Beyoğlu police station, whose first name was “Kenan”. The ill-treatment to which they had been subjected included having been stripped naked and doused with cold water. During their time at the station, they had not been given any food or allowed to inform their family or a lawyer. They had been released “at 4 or 5” in the afternoon. 37. The same day, the prosecutor referred the applicants to Haseki Research Hospital, where further medical examinations were carried out on them on 12 December 2002. According to the reports drawn up at that hospital, both applicants had a number of injuries. 38. On 31 December 2002 the Beyoğlu branch of the Forensic Medical Institute drew up two reports, concluding that the first applicant’s injuries were of a nature to render him unfit for a period of three days. The second applicant’s injuries, which included a number of cuts and grazes on his lip, arms and the backs of his legs, rendered him unfit for a period of five days. 39. On 15 January 2003 the Beyoğlu prosecutor questioned police officers S.Ö. and N.K., who worked at the special police station for minors and had questioned the applicants on 24 November 2002 (see paragraph 26 above). They told the prosecutor that on 24 November 2002 they had been asked to go to Beyoğlu police station to take statements from a number of children. When they had arrived, they had been presented with four statements allegedly taken from the children and had been asked to sign them as if they had prepared them. They had refused to do so and insisted on questioning the children themselves before returning to their own police station at around 1 p.m. the same day. 40. In a letter of 24 February 2003 addressed to the Beyoğlu prosecutor, the chief of Beyoğlu police station, K.Ş.S., stated that no records existed at his station to show that the applicants had been detained there from 23 to 24 November 2002. 41. Between 20 March 2003 and 14 October 2003 the Beyoğlu prosecutor sent four letters to K.Ş.S., unsuccessfully requesting him to ensure that twelve police officers working at Beyoğlu police station attended his office. On 13 January 2004 the Beyoğlu prosecutor wrote to him for a fifth time, repeating his previous requests. In the same letter he also warned that a criminal investigation would be opened against him if he failed to comply with the request. 42. On 15 January 2004 the new chief of Beyoğlu police station replied to the prosecutor’s letter and gave him the names of the twelve police officers. He also informed him that he had been unable to contact eleven of them because they were working at different police stations around the country. 43. On 11 March 2004 the Beyoğlu prosecutor filed an indictment with the Beyoğlu Criminal Court of First Instance charging a total of twenty police officers with ill-treatment, an offence defined in section 245 of the Criminal Code in force at the time of the events. Those indicted included the former Beyoğlu police chief K.Ş.S. 44. The applicants joined as interveners in the criminal proceedings before the Istanbul Criminal Court of First Instance, which decided on 20 April 2004 that the police officers should have instead been charged with the offence of torture, an offence defined in section 243 of the Criminal Code which fell within the jurisdiction of the Assize Courts. The file was thus forwarded to the Beyoğlu Assize Court. 45. On 18 May 2004 the first applicant was shown photographs of the twenty defendant police officers. He identified K.Ş.S. and three other police officers, R.E., H.Y. and M.A. 46. In the meantime, a police chief was appointed to carry out a disciplinary investigation and questioned the applicants at Şişli police station on 8 June 2004. They were accompanied by their father, Mahmut Uğur, and Ali Tufan, a lawyer. In two almost identical statements drawn up by the investigating police officer the applicants were reported to have stated that on the day of the incident they had been taken to the special police station for minors and not Beyoğlu police station. Furthermore, they had never been beaten up there by officers. They added that a couple of days after they had left the police station, they had been sniffing glue and had been high when one of their friends had suggested they go to the Human Rights Association and make a complaint against the police. That way, their friend had told them, the police would never bother them ever again. That was how they had come to make the official complaint against the police officers. The injuries detailed in the medical reports had in fact been caused in a fight they had been involved in on the street that day. The lawyers and the Human Rights Association had then manipulated everything on their behalf. 47. The same day, the applicants gave two petitions to the Beyoğlu Assize Court stating that they wanted to withdraw their complaints “which, in any event, had been made as a result of a misunderstanding”. Also that day, the applicants officially dismissed Bülent Kurt, the lawyer who had been representing them since the lodging of their official complaint against the police officers. 48. On 14 June 2004 K.Ş.S. also made a statement at Şişli police station in the course of the same disciplinary investigation. He stated that when he had found out on the day of the incident that the applicants and their friends had been taken to his station, he had had them transferred to the special police station for minors. He had never beaten them up. In his opinion, the Human Rights Association had been interested in the incident because it concerned the killing of a civilian by a police officer, and it had then manipulated the incident with the assistance of a number of lawyers. 49. On 25 June 2004, at the end of the disciplinary investigation, the investigating police officer recommended that no disciplinary punishment should be imposed on the defendant police officers. In line with that recommendation, the police disciplinary committee decided on 20 August 2004 not to impose any such punishment. 50. On 30 June 2004 the applicants made a complaint to the Beyoğlu prosecutor, complaining that the police officers who had ill-treated them had also been responsible for, inter alia, their unlawful detention. They informed the prosecutor that they had been treated and questioned as suspects at the police station, and had had swabs taken from their hands. Nevertheless, no official records had been kept by the police officers in relation to their arrest, detention or release. This, in their opinion, meant that the police officers had committed an offence, the unlawful deprivation of their liberty. Moreover, although they had been detained for over twenty-four hours, no authorisation had been sought or obtained from the prosecutor for the period exceeding that time. They argued that although they had been under the age of 18 at the time, and should have been questioned directly by a prosecutor and in the presence of their lawyer, they had been questioned by police officers and in the absence of a lawyer. 51. These complaints were rejected by the prosecutor on 6 January 2005, who considered that the applicants had been questioned as “statement makers”, and that in an investigation into an unlawful killing there was nothing unusual about questioning people who had been seen in the vicinity of the incident. The applicants filed an objection against the prosecutor’s decision, submitting that in the Turkish legal system there was no such concept as a “statement maker”. They referred to the applicable legislation setting out the procedure to be followed when persons are deprived of their liberty, and argued that none of those formalities had been observed in their case. The objection was rejected by the Istanbul Assize Court on 4 March 2005 and the decision served on the applicants on 1 April 2005. 52. In the meantime, Bülent Kurt, who had initially represented the applicants but had been dismissed by them on 8 June 2004, sent a letter to the Istanbul Bar Association on 28 September 2004 stating that the applicants and the other children who had been arrested and ill-treated between 23 and 24 November 2002 were being threatened by the defendant police officers. For example, police chief K.Ş.S. had personally gone to court with the second applicant and a lawyer, and had made the second applicant sign certain documents there. He and other police officers had then threatened the applicants and their father, and had forced them to withdraw their complaints. Mr Kurt added that when he had suggested to the applicants and their father that they inform the prosecutor about the pressure being exerted on them by the police officers, they had declined to do so because they had been very scared. Mr Kurt further stated in his letter that K.Ş.S. had given the applicants’ father the business card of a lawyer and had asked him to appoint him to represent the applicants. 53. The trial of the police officers began before the Beyoğlu Assize Court. During the first hearing on 7 October 2004, the newly appointed lawyer, Ali Tufan, told the court that the applicants were known to the police because of their past criminal activities. Their initial lawyer Bülent Kurt also attended the hearing, and informed the court of the pressure being exerted on the applicants by the defendant police officers. In the official court transcript, Mr Kurt was referred to as the lawyer on record for the applicants. The court decided to hold a second hearing on 28 December 2004. 54. On 15 December 2004 the court held an unscheduled hearing and heard the defendant police chief K.Ş.S. The following entry features in the transcript of the hearing: “Although a second hearing in this case had been scheduled for 28 December 2004, the defendant K.Ş.S. and his lawyer came to court and told us that he was now working in the town of Halfeti and had come to Istanbul on other business. As it would be difficult for him to come back to Istanbul for the next scheduled hearing, he informed us that he would like to give his testimony now”. According to the transcript, apart from the three judges on the bench, a prosecutor, a court clerk and K.Ş.S., no one else was present. The defendant police chief told the court that the applicants and the other teenagers had been taken to his police station to be questioned as witnesses, but had subsequently been transferred to the special police station for minors. Neither he nor any of his colleagues had ill-treated them. 55. The applicants submitted their written observations to the trial court, complaining that the hearing held on 15 December 2004 had been unlawful. They argued that the court’s failure to ensure their attendance had deprived them of the opportunity to confront the police chief. 56. On 27 December 2004 the first applicant went to the Istanbul Bar Association and informed the lawyers there that pressure was being exerted on him and his brother by K.Ş.S. to dismiss their lawyers and withdraw their complaints. He further stated that the police chief had accompanied them to see a notary public, where they had signed a power of attorney giving their new lawyer authority. He informed the Bar Association of his wish to be represented by his previous lawyer Bülent Kurt. 57. According to a report drawn up on 28 December 2004 by Mr Kurt and signed by one of his colleagues, when he and the applicants arrived at court for the second hearing, which had been scheduled for that day, Ali Tufan was waiting there with some of the defendant police officers. When he asked the applicants what they were doing at court, the applicants told him that they wanted to attend the hearing and continue to press charges against the police officers. Mr Tufan then unsuccessfully tried to dissuade the applicants and urged them not to attend the hearing. When they insisted on attending, all but one of the defendant police officers waiting for the hearing left the building and did not attend. 58. During the hearing that took place later that day, the applicants repeated their allegations of ill-treatment. Mr Tufan, who claimed to be representing them, told the court that he had been unaware of any allegations of ill-treatment made by his clients against the police officers. The applicants then informed the court that their lawyer was Mr Kurt and not Mr Tufan. 59. On 28 February 2005 the applicants officially reappointed their previous lawyers, including Mr Kurt, dismissed Mr Tufan, and informed the court of the change of representation. At a hearing on 12 October 2005 the court decided to accept the applicants as “participants” (katılan) in the proceedings. In all subsequent hearings they were referred to as such. 60. On subsequent dates the lawyers representing the applicants continued to inform the Istanbul Bar Association and the court about the pressure being exerted on them and the applicants by the defendant police officers. They also submitted official documentation to the court showing that neither applicant had a criminal record, criticising the submissions made by Mr Tufan, who had told the court that “the applicants were known to the police because of their past criminal activities” (see paragraph 53 above). 61. The two police officers who worked at the special police station and had questioned the applicants on 24 November 2002 (see paragraph 39 above) attended one of the hearings, and told the court that when they had arrived at Beyoğlu police station they had been presented with two statements prepared by the police officers working there, and had been asked to sign them as if they themselves had taken them. However, they had refused to do so and had questioned the applicants personally. They also told the court that when they had urged the police officers at Beyoğlu police station to release the applicants because they were being kept there unlawfully, they had been told to mind their own business. 62. During the proceedings, the court was informed that the special police station for minors did not have in its possession the custody records pertaining to the relevant period. As a result, it was not known whether or not the applicants had been detained there in November 2002. 63. A large number of defendants failed to attend the majority of the hearings held by the trial court. On each occasion the court urged them in writing to attend. 64. The lawyers representing the applicants drew the court’s attention to a number of shortcomings in its handling of the case, and the defendant police officers’ failure to attend the hearings. They asked the court to ensure the officers’ participation by, if necessary, ordering their remand in custody. The other teenagers who were taken to Beyoğlu police station with the applicants (see paragraph 24 above) also gave evidence during the trial, describing how the defendant police officers had beaten them up and tried to force them to admit that they had killed B.S. who, as it later turned out, had in fact been killed by a police officer (see paragraph 35 above). 65. In the course of a hearing held on 22 May 2007 the applicants’ father gave evidence. He told the court that his two children had not come home for three days. When they had finally come home, they had told him that they had been detained at Beyoğlu police station and beaten up there by officers. Mr Uğur explained to the court how his two sons’ mental state had deteriorated after the incident. In his testimony he also detailed the threats made to him and his family by the defendant police officers, and explained how, as a result of those threats, he and his sons had had to withdraw their complaints. 66. On 21 July 2009 the applicants submitted their written submissions to the trial court, urging it to conduct its proceedings effectively and fairly. They warned the court that the proceedings had been continuing for such a long period of time that they could soon risk becoming time-barred. 67. During one of the hearings a lawyer representing the defendant police officers complained about the press coverage given to the trial, and criticised suggestions published in various newspapers that his clients’ continued failure to attend the hearings would cause delays, which would cause the proceedings to become time-barred. 68. In a hearing held that day, the prosecutor made his final submissions to the trial court. He argued that police chief K.Ş.S. had ill-treated the applicants and caused them minor injuries, which had necessitated minor medical treatment. The prosecutor requested the court to conclude that the offence the police chief had been charged with should be changed to illtreatment, as defined in section 245 of the Criminal Code. In his opinion, the police chief had not committed torture, an offence defined in section 243 of the Code, because he had not ill-treated the applicants in order to obtain information from them. In any event, they had not been detained as suspects at Beyoğlu police station. The prosecutor also recommended that the remaining police officers be acquitted. 69. In the course of a hearing held on 19 November 2009 the lawyers representing the police officers were due to present their final defence arguments to the trial court. Nevertheless, they informed the court that they were unable to attend the hearing that day, and it was thus postponed until 29 December 2009. According to the transcript of the hearing, the court also decided to remind the lawyers representing the police officers that attending hearings in which they were scheduled to submit their final defence submissions was a legal requirement. 70. During the twenty-first hearing, held on 29 December 2009, the court decided that there was insufficient evidence to prove that ten of the defendant police officers had subjected the applicants to “torture” within the meaning of section 243 of the Criminal Code, and acquitted them. It also considered that the actions of the remaining ten police officers, including police chief K.Ş.S., had amounted to “ill-treatment” within the meaning of section 245 of the Criminal Code and not “torture”, because there was no evidence to show that the applicants had been ill-treated in order to force them to confess to a crime or give evidence. Nevertheless, as the end of the prescription period for the offence had been reached, the court discontinued the criminal proceedings against the ten police officers. 71. In support of its conclusion that the ten police officers had ill-treated the applicants, the court stated that they had been “unnecessarily kept at the police station for hours, and that their injuries had been caused when they had been pushed and jostled for no apparent reason”. 72. The applicants appealed and drew the Court of Cassation’s attention to the statements taken from them by the police officers, in which they argued they had been forced to incriminate themselves for offences they had never committed (see paragraphs 26-28 above). They argued that in the light of those statements, the police officers should have been found guilty of torture and not ill-treatment, because the statements had been obtained from them under ill-treatment. By finding them guilty of ill-treatment, for which the prescription period was shorter, the police officers had been allowed to go with impunity. 73. On 2 May 2011 the Court of Cassation held that the applicants had withdrawn their complaints against the police officers on 8 April [sic] 2004 (see paragraph 47 above), and that they did not, therefore, have the requisite standing to appeal against their acquittals. It upheld the trial court’s judgment of 29 December 2009. 74. In the meantime, a disciplinary investigation was conducted by the Istanbul Bar Association into the complaints made by Bülent Kurt. In a decision of 16 October 2007 its Disciplinary Council decided to reprimand Ali Tufan for failing to inform Mr Kurt of his appointment to take over representation of the applicants.
| 1 |
test
|
001-168540
|
ENG
|
SVN
|
ADMISSIBILITY
| 2,016 |
ŠTRLEKAR v. SLOVENIA
| 4 |
Inadmissible
|
András Sajó;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
1. The applicant, Mr Gregor Štrlekar, is a Slovenian national who was born in 1986 and lives in Ljubljana. He is represented before the Court by Mr M. Verce, a lawyer practising in Ljubljana. 2. The Slovenian Government (“the Government”) are represented by their Agent, Mrs J. Morela, State Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant has suffered from a psychotic disorder since 2008. He has mainly received outpatient psychiatric treatment; however, in 2010, he spent a week in a psychiatric hospital because of a delusional disorder and suicidal thoughts. 5. On 9 August 2013 the applicant was arrested by the police on suspicion of aggravated theft. The next day he was brought before the investigating judge of the Ljubljana District Court who opened a judicial investigation against him and ordered his detention. 6. From 10 August until 21 October 2013 the applicant was detained in the remand section of Ljubljana Prison. During this time, he was hospitalised in Ljubljana Psychiatric Hospital from 15 until 20 August 2013. 7. On 30 August 2013 the applicant’s court-appointed counsel wrote a letter to the remand section of Ljubljana Prison, informing the authorities that the applicant had written a number of letters to her in which he mentioned having had suicidal thoughts. Accordingly, the counsel asked the prison authorities to provide her with a copy of the applicant’s medical documents and to inform her of his mental condition. 8. On 16 September 2013 the investigating judge of the Ljubljana District Court appointed an expert in psychiatry to give his opinion on whether the applicant had been capable of understanding the nature and effect of his actions at the time of the events in issue and whether he was capable of participating in the proceedings. 9. At the expert’s recommendation, the court ordered, on 21 October 2013, that the applicant be transferred to the forensic psychiatric unit of Maribor University Medical Centre (hereinafter “the Psychiatric Unit”) for the purpose of further observation and diagnosis. On his admission to the Psychiatric Unit, on 22 October 2013, he was placed in the most secure area, a three-bed room which could be monitored through a glass window. He had access to a large hallway shared by twelve patients which led to, inter alia, bathrooms, a living room, a doctor’s office and a smoking room. On his first day in the Psychiatric Unit he was assessed by Dr. M.P. On 25 and 29 October 2013 he was assessed by Dr. T.C.S. and Dr. A.F.C. respectively. The doctors noted that the applicant had reported occasional hallucinations and had mentioned a previous suicide attempt, but they considered that he was not acutely psychotic and did not at that time have suicidal tendencies. On 30 October 2013 Dr. A.F.C. noted that the applicant had, according to the Psychiatric Unit’s guards, been testing the fence and windows in the yard. Citing attempts he had previously made to abscond, the doctor noted that the applicant would no longer be allowed to access the yard. 10. On 3 November 2013, at around 9 p.m. the applicant jumped through the window in the smoking room and landed on the concrete staircase leading to the basement. On 3 November 2013, following the incident, a report was prepared by the special security officer, Mrs B.V.V. Another report was prepared by four staff members on 4 November 2013. The reports were based on the observations of the staff, an inspection of the premises and interviews with patients. The reports found that the applicant, with the help of some of the patients, had displaced the bars on the window by loosening the screws. The applicant had then used a sheet to lower himself from the second to the first floor. One of the patients had then untied the sheet from the second-floor window so that the applicant was able to tie it to the first-floor window in order to climb down from the first floor. During the latter attempt he had landed on the staircase, which had not been visible from the window and could therefore not have been anticipated by the applicant. According to the above-mentioned reports, as well as the medical report drawn up by Dr. A.F.C., following the jump the applicant had been found lying on the concrete floor under the window, unable to move, and complaining that he was in pain. Two medical officers had come to his assistance and had shortly thereafter been joined by Dr. A.F.C. and other health professionals from the Psychiatric Unit who had administered first aid to him and called for an ambulance. As the paramedics had been positioning the applicant on the stretcher and cutting through his pajamas, they had found that he had been wearing civilian clothes underneath. The applicant, accompanied by a security officer, had been taken to hospital. Furthermore, upon an inspection of the smoking room, it had been found that the bar covering the window had shifted (one of the screws holding it in place having been removed) and a sheet was hanging from the window (which is clearly visible in the photos attached to the reports and submitted to the Court). According to the reports, a patient, Mr D.T., had told the staff that the applicant had earlier asked him for a hex key and that another patient, Mr. Z.H., had helped the applicant with his escape; Mr Z.H. denied this. The special security officer who drew up the report of 3 November 2013 also noted in that report that immediately after the incident she had seen a car with four young men waiting next to the Psychiatric Unit building. According to her report, the men had driven off after being approached by her. 11. The applicant denied that he had attempted to escape and alleged that the incident of 3 November 2013 was in reality a suicide attempt. In a letter of 11 March 2014, which he sent to his lawyer for the purposes of the legal proceedings, he explained that he had put on pajamas over his sweatshirt and sweatpants because he had been feeling cold. In that letter he further denied that there had been any sheets hanging from the window and accused the police officers and the medical staff of the Psychiatric Unit of lying in order to avoid their responsibility for the incident. He also alleged that he had been maltreated, strapped to the bed, and forcibly medicated and that because of this he had attempted to kill himself. 12. As a result of the above-mentioned fall, the applicant sustained a number of injuries, including a fracture of a lumbar vertebra and fractures of both heel bones (calcanei), and suffered temporary paralysis. His lumbar vertebra was operated on immediately after the fall. On 5 November 2013 he was transferred from the intensive care unit to the traumatology unit, where he stayed until 23 December 2013. 13. In the meantime, on 18 December 2013, the applicant lodged an application (no. 256/14) with the Court complaining about the overcrowding, inadequate ventilation and limited out-of-cell time allowed to inmates in Ljubljana Prison during the period from 10 August 2013 to 21 October 2013. On 28 January 2015 he further complained to the Court about inadequate conditions in the Psychiatric Unit during the period from 22 October 2012 until 16 January 2014. 14. Meanwhile, on 23 December 2013 the applicant was examined by an expert psychiatrist, who judged that he was able to participate in the trial. On the same day he was again detained in the Psychiatric Unit, from where he was released on 16 January 2014. The medical discharge letter noted that the applicant was not psychotic and was not at risk of suicide. 15. According to the Government’s submissions, Mrs B.S.H., the mother of a detainee who had spent one day in the Psychiatric Unit, complained to the police in February 2014 in general terms about the “torture and overdosing” of the patients by the Psychiatric Unit’s staff. Mrs B.S.H. also mentioned that one of the patients, identified as the applicant, had – according to her son – jumped through a window after undergoing two days of torture. On 9 March 2015 the Maribor district prosecutor’s office issued a decision dismissing the complaint, a copy of which was sent to the applicant. The prosecutor’s office noted that on the basis of her allegations the Medical Chamber of Slovenia had reviewed the medical files of the relevant patients, including the applicant, on 24 June 2004. It reiterated the findings of the above-mentioned reports of 3 and 4 November 2013 (see paragraph 10 above), as summarised by the Medical Chamber, noting that they showed that the applicant had undoubtedly attempted to escape and not to commit suicide. 16. From 17 February 2014 until 4 April 2014 the applicant underwent rehabilitation in the Soča University Rehabilitation Institute. When discharged he was able to walk with aid of crutches.
| 0 |
test
|
001-142519
|
ENG
|
RUS
|
COMMITTEE
| 2,014 |
CASE OF LI v. RUSSIA
| 4 |
No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Dmitry Dedov;Erik Møse;Khanlar Hajiyev
|
4. The applicant was born in 1966 and lives in Magadan. 5. On 28 January 2003 the Magadan City Court awarded 30,000 Russian roubles as compensation for unlawful conviction of the applicant. The decision of the court came into force on 16 February 2003. 6. The applicant obtained the respective writ of execution on 5 March 2003. In September 2007 the applicant sought in domestic courts issuance of a duplicate of the writ of execution which according to him had been stolen in 2004 from his office. On 13 September 2007 a national court refused to issue the duplicate because the term for submission of this document for the execution had expired under Article 14 of the Russian Federal Law on Enforcement Proceedings. 7. On 27 September 2007 the applicant addressed the Ministry of Finance of the Russian Federation with a request to execute the judgment of 2003. The Ministry of Finance replied that the execution is not possible without submission of the writ of execution.
| 0 |
test
|
001-164672
|
ENG
|
SRB
|
CHAMBER
| 2,016 |
CASE OF CUPARA v. SERBIA
| 4 |
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1950 and lives in Sevojno. 6. On 30 May 2001 the Užice department of the Central Employment Office (Republicki zavod za tržiste rada – Nacionalna služba za zapošljavanje – Organizaciona jedinica Užice, hereinafter “the Employment Office”) granted unemployment benefits to the applicant until he found a new job or became eligible for retirement (novčana naknada do zaposlenja ili ispunjavanja uslova za starosnu penziju). 7. On 1 June 2001 the Law on Changes and Amendments to the Law on Employment and Rights of Unemployed Persons (“the 2001 Law”) came into force. The law provided for different coefficients and a different methodology for calculating such benefits. It also provided, in Article 20, that any administrative proceedings which had not been concluded by the date on which the new law came into force were to be finalised in accordance with the new law (Article 17 of the 2001 Law provided that Article 20 was applicable as of 1 September 2001). 8. The applicant was receiving the full amount of the benefits he was entitled to until October 2001. From that date the benefits were decreased to 70-80% of the amount he had initially been awarded, although the decision of 30 May 2001 had not been amended or superseded by a new decision. 9. Consequently, on 12 November 2007 the applicant brought a civil claim against the Employment Office in the Užice Municipal Court (Opštinski sud u Užicu), seeking payment of the difference between the benefits he had received and those he had been granted by the Employment Office and which had been due from 1 November 2004 (a claim for any earlier sum was statute-barred), plus statutory interest and legal costs. 10. On 26 December 2007 the Municipal Court rejected the applicant’s claim. It found that his benefits had been correctly calculated, in accordance with the 2001 Law, as the Employment Office’s decision in his case had not yet been final on the date on which the relevant law had come into force. 11. On 18 March 2008 the Užice District Court (Okružni sud u Užicu) upheld that judgment following an appeal by the applicant. 12. The applicant’s lawyer brought separate claims on behalf of numerous individuals (hereinafter “the plaintiffs”), seeking outstanding benefits. 13. On 22 November 2007 the same Municipal Court ruled in favour of M.Ð., one of the plaintiffs, whose claim was factually and legally identical to that of the applicant (M.Ð.’s administrative decision had also been delivered on 30 May 2001). That judgment became final on 19 December 2007. 14. The Municipal Court ruled in favour of several of the plaintiffs in nine judgments delivered between 24 August 2007 and 17 April 2008, although it appears that the dates on which the respective administrative decisions had come into force differed. 15. On 26 February 2008 and 19 May 2008 the Arilje Municipal Court delivered two judgments in which it ruled against plaintiffs whose claims were identical to the applicant’s. The Užice District Court upheld those two judgments on 20 March 2008 and 15 September 2008 respectively. 16. A number of plaintiffs who were in an identical situation to that of the applicant lodged constitutional appeals with the Constitutional Court of Serbia. Between 4 November 2010 and 1 March 2012 the Constitutional Court adopted a number of decisions in those cases, finding a violation of the right to a fair trial. It quashed the civil judgments and ordered the reopening of the civil proceedings. 17. Acting upon the decisions of the Constitutional Court, the Kragujevac Court of Appeal (which became the competent court of second instance for the applicant’s case after a reorganisation of courts in Serbia in 2010, instead of the Užice District Court) and the Belgrade Court of Appeal reopened proceedings in cases in which the Constitutional Court had made such an order and ruled in favour of the plaintiffs. 18. On 1 April 2014 the Supreme Court of Cassation adopted a detailed action plan aimed at ensuring the general harmonisation of case-law throughout the Serbian judicial system. The plan contained a series of measures to be taken at various levels of jurisdiction, and, inter alia, included the following: (i) the adoption of guiding legal opinions based on the principles developed in the case-law of the European Court of Human Rights; (ii) the dissemination of such opinions; (iii) regular information sharing between the courts; (iv) an increased number of thematic discussions and training programmes; (v) the adoption of specific action plans by the courts at various levels; and (vi) the development of various IT tools and related intranet databases.
| 0 |
test
|
001-164928
|
ENG
|
MDA
|
GRANDCHAMBER
| 2,016 |
CASE OF BUZADJI v. THE REPUBLIC OF MOLDOVA
| 1 |
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;Angelika Nußberger;Branko Lubarda;Dean Spielmann;Dmitry Dedov;Erik Møse;George Nicolaou;Guido Raimondi;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Nebojša Vučinić;Nona Tsotsoria;Paul Mahoney;Robert Spano;Vincent A. De Gaetano;Yonko Grozev
|
8. The applicant was born in 1947 and lives in Comrat, Republic of Moldova. 9. The applicant was a minority shareholder in and the CEO of a liquefied gas supply company from southern Moldova in which the State owned 82% of the shares. In July 2006 a criminal investigation was initiated in respect of an alleged unsuccessful attempt by the applicant to commit a fraud in connection with his activity at the company. In particular, he was accused of having, between 2000 and 2006, devised a scheme involving the importation of liquefied gas from Kazakhstan and Ukraine, as a result of which the company had sustained major financial losses. According to the accusation, instead of purchasing gas directly from the producers, he had called on the services of intermediary companies, resulting in a significant increase in the price of the gas. Those intermediary companies also had ties with his sons. Later, when his company was faced with a court claim from the intermediary companies amounting to 594,067 United States dollars plus penalties, he had acknowledged that debt in court proceedings. 10. In this connection, in July 2006 the investigating authorities summoned the applicant to appear before them and to make a statement. In his defence the applicant argued that his company could not purchase gas directly from the producers, because the minimum quantity which the producers agreed to sell exceeded his company’s needs for a period of five years. Therefore, it was impossible for his company to purchase the amounts of gas needed directly from the producers. Moreover, the producers only accepted 100% pre-payment and his company did not have the available funds. He submitted that all national gas importers used the same method of importing gas and that the price of the gas purchased by his company was lower than that on the free national market. He further argued that the difference in price between that of the producers and that paid by his company was explained by transportation costs, certification, handling, insurance and other factors. He also denied that his sons were in any way involved in the intermediary companies. 11. The applicant was summoned on several occasions and in each case appeared before the investigating authorities and cooperated with them. In October 2006 the applicant’s house was searched, his personal computer was seized and various documents were extracted from it. It does not transpire from the case file that there were any instances when the applicant did not comply with the instructions of the investigators and/or that he was ever accused of obstructing the investigation. 12. The applicant’s sons, who were also suspects in the criminal proceedings and were subsequently charged, were summoned to appear before the investigating authorities without being arrested. Later, fourteen different investigations were initiated in respect of the applicant and all of them were joined in a single procedure. 13. On 2 May 2007 the applicant was arrested and on 5 May 2007 he was formally charged with the attempted large-scale misappropriation of goods belonging to the company where he worked, namely with the facts described in paragraph 9 above. On the same date, the prosecutor in charge of the case applied to the Buiucani District Court for a thirty-day detention warrant on the following grounds: the seriousness of the offence, the risk of influencing witnesses and the risk of reoffending. 14. The applicant objected and argued that there was no reasonable suspicion that he had committed an offence. In particular, he submitted that the criminal proceedings against him were nothing but a means of influencing the outcome of pending civil proceedings concerning the debt owned by the State-owned company and the intermediary companies. In any event, the grounds relied upon by the prosecutor were stereotyped and the prosecutor had failed to explain the reasons for his belief that the applicant would attempt to influence witnesses and reoffend. He submitted that he was a well-known person in the region and that he had worked at his company for over thirty years. He had a permanent residence, had been cooperating with the investigation since July 2006 and had never attempted to abscond or hinder the investigation. Moreover, he relied on his age and on his poor state of health, submitting that he had suffered a heart attack and a stroke. 15. On 5 May 2007 the Buiucani District Court partly upheld the prosecutor’s application and ordered the applicant’s detention pending trial for a period of fifteen days. The court found that: “... the deed with which [the applicant] is charged is considered to be an exceptionally serious offence, which allows for detention pending trial. [The court] takes into account the nature and seriousness of the offence and the complexity of the case, and considers that at this incipient stage of the investigation there are reasonable grounds to believe that the accused could collude with others (his sons, who have not been questioned) in order to take a common position. The other reasons relied upon by the prosecutor, namely the risk of absconding and influencing witnesses or that of destroying evidence, are not substantiated and are not very probable.” 16. The applicant appealed, contending that there was no reasonable suspicion that he had committed an offence. He reiterated his previous statement to the effect that the criminal proceedings pursued the ulterior motive of influencing the outcome of pending civil proceedings between the company at which he worked and a third company. He further argued that the ground relied upon by the court to order his detention on remand, namely the risk of his colluding with his sons, had not been invoked by the prosecutor. Moreover, his two sons had not been formally charged and, in any case, all of them had had plenty of time to collude between July 2006, when they first learned of the investigation, and May 2007 had they been so inclined. The applicant also relied on his serious medical condition and submitted that he was a well-known individual with a family, a residence and a job in Moldova, who had appeared before the investigating authorities whenever he had been summoned during the period from July 2006 to May 2007. 17. On 8 May 2007 the Chişinău Court of Appeal upheld the decision of 5 May 2007, essentially repeating the grounds given by the lower court without giving any reasons for dismissing the arguments put forward by the applicant. 18. On 11 May 2007 the prosecutor in charge of the case applied to the court for the prolongation of the applicant’s detention on remand by thirty days. He relied on such reasons as the gravity of the offence, the risk of influencing witnesses, the risk of reoffending and the risk of absconding. 19. The applicant objected, submitting that there was no reasonable suspicion that he had committed an offence and no reason to believe that he would influence witnesses who had already been questioned. He also emphasised that he had cooperated irreproachably with the investigation before his arrest and that he had a permanent residence. He therefore asked the court to order the replacement of the measure of detention with another less severe measure. One of his lawyers asked the court to order a less severe measure such as, for instance, house arrest, in place of the detention. 20. On 16 May 2007 the Buiucani District Court extended the applicant’s detention on remand by twenty days. After recapitulating the parties’ positions and citing the applicable provisions of the law, the court found that: “... the grounds relied on when applying the preventive measure [of detention] remain valid, the majority of the investigative actions have been carried out, but a number of additional measures requiring [the applicant’s] participation are still necessary in order to send the case to the trial court. The court considers that the application on the part of the defence to replace the preventive measure is premature, taking into account the seriousness and complexity of the case and the need to protect public order and the public interest, as well as to ensure the smooth and objective course of the investigation.” 21. The applicant appealed, relying on essentially the same arguments as he had done previously. 22. On 22 May 2007 the Chişinău Court of Appeal upheld the decision of 16 May 2007. The court gave essentially the same reasons as it had done in its decision of 8 May 2007, namely the gravity and the complexity of the case, the risk of absconding or influencing witnesses and the risk of destroying documentary evidence which have not yet been collected by the prosecutors. 23. On 1 June 2007 the prosecutor in charge of the case applied for a further prolongation of the applicant’s detention on remand of another thirty days. He argued that the case was complex and that new charges had been brought against the applicant in the context of the same proceedings: he had now been charged also with abusing his position and overstepping his duties. As on previous occasions, the prosecutor argued that the extension of the detention was necessary in order to avoid the risk of the applicant’s influencing witnesses and reoffending. 24. The applicant objected and asked the court to replace the measure of detention with another measure. He submitted the same reasons as before and added that his health had considerably deteriorated during detention and that he needed medical care. 25. On 5 June 2007 the Buiucani District Court extended the applicant’s detention on remand by another twenty days, stating that the reasons for his continued detention remained valid. 26. The applicant appealed, submitting inter alia that the complexity of the case invoked by the prosecutor had been deliberately generated by the latter’s refusal to conduct an audit of the company or to question the witnesses cited by the applicant. He also challenged the allegation concerning the gravity of the offence imputed to him, pointing out that he was only being accused of attempting to commit an offence, not of committing it. He claimed that no actual loss had been caused to the company and that the court had failed to take into consideration the accused’s individual circumstances. 27. On 11 June 2007 the Chişinău Court of Appeal upheld the lower court’s decision, finding that it had been adopted in compliance with the law. The court also noted that the applicant was accused of a particularly serious offence punishable by imprisonment from ten to twenty-five years and that the investigation was still ongoing. The court held that if released the applicant might be able to abscond or to influence witnesses. 28. On 21 June 2007 the prosecutor in charge of the case applied again for a further thirty-day extension of the applicant’s detention. 29. The applicant objected on the basis that there were no reasons to believe that he would abscond or influence witnesses. He stressed that the prosecutor had not conducted any investigative measures for a long time and that the investigation was virtually completed. He reiterated that he had a permanent residence and that he had agreed to appear before the investigators whenever necessary. He presented a medical report dated 18 June 2007, according to which it was established inter alia that he had arterial hypertension and a slight paralysis of his right leg as a result of a stroke. The doctor recommended treatment in a neurological clinic. The applicant asked the court to dismiss the prosecutor’s application and to apply a less severe measure such as conditional release or house arrest. 30. On 26 June 2007 the Buiucani District Court rejected the prosecutor’s application and accepted the applicant’s request, ordering that he be placed under house arrest for thirty days. The court found that: “... the applicant has been detained for fifty-five days and has participated in all the necessary investigative actions; ... Article 5 § 3 of the Convention imposes a presumption that an accused be freed while he awaits his trial; ... certain evidence, which may have been sufficient earlier to justify [detention] or to render alternative preventive measures inadequate, could become less convincing with the passage of time; ... it is for the prosecutor to prove the existence of a risk of absconding, and such a risk cannot be proved only by reference to the severity of the potential punishment; [the court referred to the applicant’s medical problems and his age, the lack of a criminal record, his permanent residence and married status]; the [European Court’s] case-law provides that detention pending trial should be exceptional, always objectively reasoned and must correspond to the public interest; the court finds that it is implausible that [the applicant] will abscond, influence witnesses or destroy evidence, and that the normal course of the criminal investigation is possible while the accused is under house arrest.” The court set the following conditions for the applicant’s house arrest: prohibition from leaving his house; prohibition of using the telephone; prohibition from discussing his case with any other person. 31. The applicant was immediately taken home, where he remained for three days. However, the prosecutor lodged an appeal against the above-mentioned decision and invoked as one of the reasons for the applicant’s continued detention in custody the fact that the applicant refused to confess to having committed the offence imputed to him. 32. On 29 June 2007 the Chişinău Court of Appeal quashed the decision of 26 June 2007 and adopted a new one, ordering the applicant’s detention pending trial for twenty days. The court found that: “... the lower court did not take into account the complexity of the case and the seriousness of the offence with which [the applicant] is charged; the court considers that while under house arrest [the applicant] could communicate with the other accomplices, who are not under arrest and who are, moreover, his sons; he could abscond by fleeing to the [self-proclaimed and unrecognised “Moldovan Republic of Transdniestria”], which is not under the control of the Moldovan authorities; he could influence witnesses, in order to make them change their statements; the applicant has received visits from doctors and can obtain medical assistance in prison.” 33. On 11 July 2007 the prosecutor in charge of the case applied again to the court for an extension of the applicant’s detention on remand. He relied on the same reasons as before. 34. On 16 July 2007 the Buiucani District Court extended the applicant’s detention pending trial by another twenty days. It argued again that the applicant was accused of a serious offence and that he could abscond or hinder the investigation. 35. The applicant appealed, advancing essentially the same arguments as he had done earlier. 36. On 20 July 2007 the Chişinău Court of Appeal quashed the lower court’s decision and adopted a new one, changing the preventive measure to house arrest. The court found that: “the prosecutor did not provide any evidence confirming the continued need to detain [the applicant], did not submit additional materials confirming the probability that he could exert influence on witnesses who have already been heard; [the applicant] promises to appear before the investigating authorities whenever summoned; there is no specific information concerning any risk of absconding”. The court also prohibited the applicant from communicating with persons who had any link with the criminal case against him and from leaving his house, and obliged him to phone the prosecutor’s office every day. 37. On 14 September 2007 the Comrat District Court examined the prosecutor’s application to prolong the applicant’s house arrest by ninety days. The applicant did not object to the prolongation of the house arrest provided that the measures concerning the limitation on his communication with relatives were discontinued. The court upheld the prosecutor’s request and ordered the prolongation of the house arrest for ninety days. It also upheld the applicant’s request and discontinued the limitation on his communication with his relatives. The only reason invoked by the court was the seriousness of the offence imputed to the applicant. 38. On 14 December 2007 the Comrat District Court again prolonged the applicant’s house arrest for ninety days. The only reason given by the court was the seriousness of the offence imputed to the applicant. The applicant did not object provided that he was allowed to visit the hospital and the court in order to study the case file. 39. On an unspecified date the applicant lodged a habeas corpus request with the Comrat District Court asking for the measure of house arrest to be changed for that of provisional release or release on bail. He argued that he had never breached the rules of the house arrest and that he undertook to further comply with all the instructions issued by the investigation organs. 40. On 12 March 2008 the Comrat District Court decided to release the applicant on bail, observing that he had been detained for over ten months and had never breached any of the restrictions imposed on him. 41. On 9 June 2011 the applicant was acquitted of the charges for which he had been detained between 2 May 2007 and 12 March 2008. The court found that no offence had taken place in regard to the facts imputed to him. At the same time he was acquitted of thirteen other charges brought against him and was found guilty on one count, namely that of having illegally sold liquefied gas which had been seized by a bailiff, for which he was sentenced to a fine of 20,000 Moldovan lei (approximately 1,000 euros). Neither the applicant nor the prosecutor appealed against that judgment, which became final. The applicant’s sons were acquitted.
| 1 |
test
|
001-182860
|
ENG
|
RUS
|
CHAMBER
| 2,018 |
CASE OF LUTSKEVICH v. RUSSIA
| 4 |
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
|
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Pere Pastor Vilanova
|
5. The applicant was born in 1992 and lives in Lobnya, Moscow Region. 6. The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below. 7. On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it transpired that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd, a police cordon forced the protestors to remain within the barriers, and there were numerous clashes between the police and protesters. At 5.30 p.m. the police ordered that the meeting finish early and began to disperse the participants. It took them about two hours to clear the protestors from the square. 8. On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day. 9. At the time of the events the applicant was a first-year student at the faculty of culture studies of the State Academic University for the Humanities. On 6 May 2012 he took part in the demonstration at Bolotnaya Square. According to him, he was beaten up by the police as they were dispersing the demonstration. 10. At 4 a.m. on 7 May 2012 the applicant was admitted to the emergency ward of Sklifosovskiy hospital where he was examined by a trauma doctor and a neurosurgeon. The examination revealed multiple bruises on the applicant’s chest, spine, shoulders, knees and head. 11. After the events of 6 May 2012 the applicant continued to live at his usual address and pursue his studies. On 9 June 2012 he was arrested on suspicion of having participated in acts of mass disorder and of using violence against the police during the demonstration of 6 May 2012. On the same day the Basmannyy District Court of Moscow ordered the applicant’s pre-trial detention until 9 August 2012. It referred to the gravity of the charges and information about the applicant’s personality. The District Court noted, in particular, that the applicant’s father was a Ukrainian national living in Ukraine, and that the applicant might therefore flee to avoid the investigation and trial. It concluded that those circumstances gave sufficient reasons to believe that the applicant, if he were at liberty, was likely to continue his criminal activity, influence witnesses, destroy evidence or otherwise obstruct the investigation of the criminal case, which was at an initial stage. 12. On 18 June 2012 charges were brought against the applicant under Articles 212 § 2 (participation in acts of mass disorder accompanied by violence) and 318 § 1 of the Criminal Code (use of violence against a public official). He was accused, in particular, of having torn a protection helmet off a police officer’s head. 13. On 11 July 2012 the Moscow City Court upheld the detention order of 9 June 2012. 14. On 7 August 2012 the Basmannyy District Court of Moscow examined an investigator’s request for an extension of the applicant’s pretrial detention. The applicant requested that an alternative preventive measure be applied pending trial, such as house arrest or a written undertaking not to leave a specified place. On the same day the District Court found that the circumstances that had justified the detention order had not changed and extended the applicant’s detention until 6 November 2012. On 5 September 2012 the Moscow City Court upheld that decision. 15. On 2 November 2012 the Basmannyy District Court authorised a further extension of the applicant’s detention until 6 March 2013. It reiterated the grounds given in the previous extension orders and stated that the circumstances justifying the detention order had not changed. On 3 December 2012 the Moscow City Court upheld that decision. 16. On 21 November 2012 the charges against the applicant were reformulated. It was additionally stated that the applicant had shouted insulting slogans and used metal barriers to obstruct the police; that at least three times he had thrown stones and pieces of tarmac at police officers and had once punched a policeman; and that he had also grabbed a police officer’s uniform and had snatched a protection helmet from his hands. 17. On 29 November 2012 Police Officer P. identified the applicant during an identification parade as a participant in the mass disorder and the person who had twice thrown pieces of tarmac at the police and tried to snatch the protection helmet from a policeman’s hands. He specified that he had not seen whether the applicant had in fact succeeded in snatching the helmet or not. 18. On 7 December 2012 the investigator of the Zamoskvoretskiy Interdistrict Investigation Committee of Moscow refused to open a criminal case into allegations made by the applicant that he had been subjected to illtreatment by the police during his arrest. The investigator considered that the use of force by the police had been justified by the behaviour of the protesters, including the applicant, who had actively resisted their arrest and thrown various objects at the police officers. 19. On 27 February 2013 the Basmannyy District Court granted an extension of the applicant’s detention until 9 June 2013, essentially on the same grounds as earlier, noting that the applicant’s state of health was satisfactory and did not warrant his release. That decision was upheld by the Moscow City Court on 27 March 2013. 20. On 22 April 2013 the Moscow City Court authorised a further extension of the applicant’s pre-trial detention until 6 July 2013. The court noted that even though the applicant and his lawyer had already finished reading the case file, other defendants had not. It reiterated the grounds given in the previous extension orders and stated that the circumstances justifying the detention order had not changed. 21. On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges. 22. On 6 June 2013 that court granted another extension of the applicant’s detention until 24 November 2013. The decision concerned eleven defendants. Along with the gravity of the charges, the court based its decision on the findings that “the reasons which initially warranted the detention have not changed” and that “no other measures of restraint would secure the aims and goals of the judicial proceedings”. The Moscow City Court upheld that extension order on 2 July 2013. 23. On 19 November 2013 the Zamoskvoretskiy District Court examined an investigator’s request for an extension of detention in respect of nine defendants, including the applicant. The applicant presented a personal guarantee from a member of the State Duma in support of an undertaking by him to appear before the investigating authorities and the courts for the examination of his case. However, the District Court did not consider that guarantee and ordered that the applicant and his co-defendants be detained until 24 February 2014 on the grounds of gravity of the charges and the nature of the offences imputable to them. On 17 December 2013 the Moscow City Court upheld that extension order. 24. From 20 June 2012 until his conviction the applicant was held in remand prison IZ-77/5 in Moscow. There he was detained in cells no. 403 (until 20 May 2013, then from 27 May 2013 to 19 June 2013, and from 29 June 2013 to January 2014), no. 12 (until 25 May 2013), no. 317 (until 27 May 2013), and no. 4 (until 29 June 2013). 25. The cells had the following characteristics: - cell no. 403: 40 sq. m. and ten sleeping places; - cell no. 12: 6.1 sq. m. and one sleeping place; - cell no. 317: 32.9 sq. m. and eight sleeping places; - cell no. 4: 48 sq. m. and twelve sleeping places. 26. The parties agreed that the number of inmates in the cells had not exceeded the design capacity. They also agreed that the size of the cells and the number of detainees had allowed the applicant four square metres of personal space and that the applicant had had an individual sleeping place in every cell. 27. The parties provided the following accounts of the conditions in the cells. According to the applicant, prison cell no. 403 measured approximately 7 by 5 metres and housed ten inmates, including himself. The cell was inadequately lit and ventilated, was excessively hot in the summer and cold in the winter. The windows were too high to give sufficient light for reading or working with documents. A shower was allowed once a week and the lavatory pan was separated from the living space only by a plastic partition. The bed linen was old, and the beds were small for a man of his height. Outdoor exercise was limited to one hour per day. 28. According to the Government, all of the cells had sanitary units with wash stands and the necessary furniture. The cells were equipped with ventilation, heating and lighting; the state of the sanitary facilities had been satisfactory; the bedding had been changed once a week; and the cells had been disinfected and subjected to pest control regularly. The applicant had been able to shower once a week and entitled to one hour of outdoor exercise per day. 29. The applicant’s description of the conditions of detention during his transfer from the remand prison to court and back, and the Government’s submissions in that regard, were identical to those in the case of Yaroslav Belousov (cited above, §§ 69-73). 30. As regards the conditions of detention in the holding room of the Moscow City Court, the applicant submitted that the room had been poorly lit and that access to a toilet had been limited to once an hour. In addition, he had been required to strip naked and to perform sit-ups during the body search conducted in the holding room. 31. The court proceedings began on 6 June 2013 in hearing room no. 338 at the Moscow City Court, moving at the end of July 2013 to hearing room no. 635. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued in hearing room no. 303 at the Nikulinskiy District Court of Moscow. In January and February 2014 they took place in hearing room no. 410 at the Zamoskvoretskiy District Court. Those hearing rooms were equipped with metal cages in which nine defendants (eight from 19 December 2013), including the applicant, sat during the hearings. 32. For a detailed description of the conditions in those hearing rooms, see Yaroslav Belousov (cited above, §§ 74-77). 33. On 6 June 2013 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing in a criminal case against ten participants in the demonstration at Bolotnaya Square, who were charged with participating in acts of mass disorder and committing acts of violence against police officers. On 18 June 2013 the same court began the trial on the merits. 34. On an unspecified date Police Officer T., the alleged victim of the applicant’s assault, was examined as a witness. He testified that at some point he had been surrounded by the crowd and subjected to violence. T. stated that the applicant had tried to snatch the protection helmet from his hands. Another officer, M., also questioned as a witness, stated that the applicant had shouted something and thrown a stone or a piece of tarmac at a policeman. 35. On 21 February 2014 the Zamoskvoretskiy District Court found the applicant guilty as charged. It held, in particular, as follows: “Between 4 p.m. and 8 p.m. on 6 May 2012 ... at Bolotnaya Square ... unidentified persons ... called those present [at the venue] to move outside the agreed meeting venue, to defy the lawful orders of the police ..., to use violence ... which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [and] the destruction of property. On the same day at 5 p.m. at the latest [the defendants] acquired the criminal intent to participate in mass disorder and to use violence against ... police officers ... Moreover ... the participants of the acts of mass disorder threw pieces of tarmac, stones, sticks and other objects at the police ... which hit them on various parts of their body, and [the defendants] ... [who] participated in the acts of mass disorder ... implemented their criminal intent to use violence against public officials ... applied physical force which was not a danger to the life or health of those [officials] ... Between 5.05 p.m. and 10 p.m. [the applicant] ... shouted insulting slogans and used metal barriers to block the police’s movement ... thus preventing the arrest of the participants in the acts of mass disorder ... [The applicant], acting intentionally, at least three times threw stones and pieces of tarmac at police officers in a targeted manner ... and used violence against an unidentified police officer which did not endanger his life or health ... unidentified participants in the acts of mass disorder, acting intentionally, tore a protection helmet off an unidentified police officer’s head and punched and kicked him several times in the head and body, meanwhile [the applicant] ... punched this police officer at least once. [The applicant] ... used violence against Police Officer T. which did not endanger his life or health ... ... unidentified participants of the acts of mass disorder intentionally tore off [T.’s] protection helmet, which [T.] continued to hold in his hands, and punched him in the head and body, whereupon [the applicant] intentionally grabbed [T.’s] uniform and ... snatched the helmet from his hands. [The applicant] pleaded not guilty and testified that ... he had decided to attend the public gathering on 6 May 2012 ... When leaving the Malyy Kamennyy Bridge [the applicant] saw a lot of police officers equipped with bullet-proof vests, helmets and truncheons, which filled him with indignation. As nothing was happening on the stage, [the applicant] decided to return ... when leaving the venue he saw the police officers randomly arresting people while hitting them with truncheons ... [The applicant] was hit in the back three times with a truncheon. When he saw these violent acts by the police, [the applicant] approached the barriers where other protestors were standing and expressed his indignation ... Then ... he tried to leave the venue ... when somebody tore off his shirt. ... At some point [the applicant] came across police officer [T.] ... who was not wearing any helmet. [The applicant] tried to leave, but suddenly police officers ran up to him and started to beat him in the head and body, then they arrested him and ... took him to a police vehicle. [The applicant] insisted that he had committed no acts in respect of police officer [T.], had not seen his helmet and had snatched nothing from his hands. ... the court considers the [defendants’] arguments that they were protecting somebody from police officers or happened to be victims of the police’s use of force as farfetched and aimed at mitigating their responsibility ...” 36. The applicant was sentenced to three years and six months’ imprisonment, calculated on the basis of a three-year prison term under Article 212 § 2 of the Criminal Code, partly concurrent with a term of one year under Article 318 § 1. The applicant’s pre-trial detention counted towards the prison sentence. 37. The applicant appealed. He complained, in particular, that he had not used metal barriers to block the police’s movement and insisted that he had been standing close to those barriers before the protestors had started to be arrested. The applicant also pointed out that the video records proved that he had not taken T.’s helmet and had not used violence against him. In his opinion, the first-instance court had not assessed his statements about illtreatment by the police. 38. On 20 June 2014 the Moscow City Court upheld the first-instance judgment. 39. The applicant was represented by a lawyer, Mr D., throughout the criminal proceedings at domestic level. On 11 January 2013 Mr D. sent the Court an introductory letter containing the outline of the applicant’s complaints of ill-treatment by the police on 6 May 2012 and of unjustified pre-trial detention. 40. On 24 January 2013 the Registry of the Court acknowledged receipt of the introductory letter, registered under application no. 6312/13. The applicant was invited to return the completed application form within eight weeks of receipt of the Court’s letter but no later than 21 March 2013. As no further correspondence had been received from the applicant, on 28 August 2013 the Registry of the Court asked him whether he was still being represented by Mr D. and reminded him to return the completed application form. 41. On 18 September 2013 the Court received the completed application form, signed by a different lawyer, Mr Agranovskiy. It contained complaints about the conditions of detention in the remand prison, in the courtroom and during transfers to and from the prison, and of unjustified pre-trial detention.
| 1 |
test
|
001-171972
|
ENG
|
BGR
|
COMMITTEE
| 2,017 |
CASE OF KOSTOV v. BULGARIA
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Carlo Ranzoni
|
4. The applicant was born in 1956 and lives in Sofia. 5. The applicant’s father co-owned a plot of land and a house in Sofia. 6. By a decision of the mayor of 15 July 1981 the property was expropriated with a view to constructing residential buildings. The decision, based on section 98 (1) of the Territorial and Urban Planning Act of 1973 (Закон за териториалното и селищно устройство), provided that the applicant’s father and the applicant were to receive a three-room flat in compensation. 7. By a supplementary decision of 25 March 1987, based on section 100 of the Territorial and Urban Planning Act, the mayor determined the exact location, size and other details in respect of the future flat offered in compensation. It was to have a surface of 109 square metres and was identified as flat no. 17 on the fifth floor of a residential building which was to be constructed by a State-owned enterprise. Lastly, it was decided that the flat would be given directly to the applicant. 8. In 1989 the applicant paid to the authorities the part of the value of the future flat which had not been covered by the value of the expropriated property. In 1990 the Sofia municipality settled him temporarily in a flat which was property of the State-owned enterprise B. 9. On an unspecified date the construction of the building where the flat was to be located was commenced. In 1996 the Sofia municipality concluded a contract with the company B., successor of the State-owned enterprise, delegating to it the construction works. The company was under an obligation to build, at its own expense, and deliver to the municipality, within twenty-four months, the flats earmarked for compensation of the expropriated owners; in exchange of that it was to become the owner of the remainder of the building. 10. However, the construction was not completed within the deadline set. In 2005, in the context of the winding-up of the company B., the building, still unfinished, was sold to another company. The latter apparently resold the property to a third company, which in 2006 obtained a notary deed declaring it the owner of the building and the flats in it, including one half of flat no. 17 on the fifth floor; however, unlike what was indicated in the decision of 25 March 1987 (see paragraph 7 above), that flat was described as having a surface of 91, and not 109, square metres. The applicant submitted a certificate of occupancy of the building at issue, dated 5 October 2007, but claimed that it only concerned “certain construction activities” and that the building was not in use. 11. In the meantime, the applicant filed several requests with the municipal authorities in Sofia asking them to complete the compensation procedure and deliver the flat due to him. In a letter of 25 July 2000 the municipality informed him that the company B. had reassured the authorities that it was making effort to fulfill its obligations. In another letter of 13 August 2004 the municipality informed the applicant that it was the company that was responsible to deliver the flat to him. Lastly, in a letter of 8 November 2011 the Sofia municipality informed the applicant that he should have raised his claims in the winding-up procedure of the company B., or should contact the current owner of the building to claim the flat due to him. 12. In 2007 the applicant was evicted from the flat where he had been temporarily settled, after it had been sold to a private party in the context of the winding-up of the company B. In the ensuing judicial proceedings whereby he challenged unsuccessfully the eviction it was established that at that time the applicant was not living in the flat, and that it was uninhabitable and in a very poor state of repair.
| 1 |
test
|
001-156260
|
ENG
|
TUR
|
CHAMBER
| 2,015 |
CASE OF REISNER v. TURKEY
| 3 |
Remainder inadmissible;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 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court);Just satisfaction reserved (Article 41 - Just satisfaction)
|
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
|
5. The applicant was born in 1961 and lives in Schrobenhausen, Germany. Through the German stock market, he purchased six hundred and fifty German Certificates in Demirbank, which at the time was identified as the fifth largest private bank in Turkey. 6. By a decision dated 6 December 2000 (no. 123), the Banking Regulation and Supervision Board (Bankalar Düzenleme ve Denetleme Kurulu, hereinafter referred to as “the Board”) decided to transfer the management and control of Demirbank to the Savings Deposit Insurance Fund (Tassarruf Mevduat Sigorta Fonu – hereinafter “the Fund”), pursuant to section 14 (3) of the Banking Activities Act (Law no. 4389). In its decision the Board held that the assets of Demirbank were insufficient to cover its liabilities and that the continuation of its activities would threaten the security and stability of the financial system. Accordingly, Demirbank’s management and control, and the privileges of its shareholders except for dividends, were transferred to the Fund. The Fund also confiscated all properties belonging to Demirbank. 7. On 31 January 2001 all equities of the bank were removed from its account at the Istanbul Stock Exchange and were transferred to the account of the Fund. Subsequently, on 20 September 2001 the Fund entered into an agreement with the HSBC bank, and sold Demirbank to the latter for 350,000,000 United States dollars (USD). As a result, on 14 December 2001 Demirbank’s legal personality was extinguished and it was struck off the commercial register. 8. On 2 February 2001, the main shareholder of Demirbank, namely Cıngıllı Holding A.Ş., brought administrative proceedings against the Banking Regulation and Supervision Agency (Bankalar Düzenleme ve Denetleme Kurumu – hereinafter referred to as “the Agency”) before the Ankara Administrative Court, seeking the annulment of the decision of 6 December 2000 regarding the transfer of Demirbank to the Fund. 9. The Ankara Administrative Court found that it lacked jurisdiction, and transferred the case to the Supreme Administrative Court. 10. In its submissions before the Supreme Administrative Court, the plaintiff claimed that its property rights had been violated. It also raised a plea of unconstitutionality under section 14 of the Banking Activities Act. The company further stated that prior to November 2000 Demirbank had never encountered major financial problems. It was pointed out that pursuant to section 14 (2) of the Act, a bank with financial difficulties should first be given a warning to strengthen its financial structure and be allowed time to take specific measures. However, no such warning had been given in the instant case. Secondly, the Board had not claimed that Demirbank’s financial situation was so weak that it could not be strengthened even if specific measures were taken. Lastly, the company stated that following the transfer of the bank to the Fund, a General Assembly composed of the Fund’s officials had exonerated the former managers of Demirbank, holding that they had not been at fault in the incident leading to the bank’s transfer. 11. After examining the file, on 3 June 2003 the Supreme Administrative Court dismissed the case. It held that the takeover of the bank by the Fund had been in accordance with section 14 (3) of the Banking Activities Act. 12. On 18 December 2003 the Joint Administrative Chambers of the Supreme Administrative Court decided to quash the decision of 3 June 2003. In its judgment, the court held that prior to ordering the transfer of Demirbank to the Fund, the Board should have carried out an objective evaluation of the bank’s financial situation. The court also concluded that the Board should first have ordered Demirbank to take specific measures in accordance with section 14 (2) of the Banking Activities Act before applying section 14 (3) of the Act. 13. On 29 April 2004 a request for rectification lodged by the Agency was refused. 14. The case was remitted to the Supreme Administrative Court, which delivered its decision on 5 November 2004, upholding the decision of the Joint Administrative Chambers of the Supreme Administrative Court. It accordingly annulled the Board’s decision of 6 December 2000 ordering the transfer of Demirbank to the Fund, holding that the takeover had been illegal. A further appeal and a request for rectification lodged by the Agency were rejected on 14 April 2005 and 15 December 2005 respectively. 15. On 20 September 2001 Ms S. Cıngıllıoğlu, the main shareholder of Cıngıllı Holding A.Ş., brought administrative proceedings against the Fund before the Ankara Administrative Court, seeking the annulment of the agreement to sell Demirbank to HSBC. 16. Given that the transfer of Demirbank to the Fund had been found to be illegal by the Joint Administrative Chambers of the Supreme Administrative Court, on 21 April 2004 the Ankara Administrative Court annulled the agreement entered into by the Fund and HSBC on 20 September 2001. An appeal and a request for rectification lodged by the Fund were rejected on 3 June 2005 and 24 February 2006 respectively. 17. Following the transfer of Demirbank to the Fund, the applicant applied to the Board and claimed compensation. He did not receive any reply. 18. Subsequently, on 31 May 2002, the applicant brought compensation proceedings against the Agency before the Supreme Administrative Court. He argued that he had lost his shares in Demirbank as a result of its transfer to the Fund, and requested the annulment of the Board’s implied rejection of his compensation claim. 19. On 24 June 2003 the Supreme Administrative Court dismissed the applicant’s case. On the basis of a previous judgment it had rendered on 3 June 2003 (see paragraph 11 above), the court found that the takeover of the bank by the Fund had been in accordance with section 14 § 3 of the Banking Act. 20. The applicant lodged an appeal. 21. On 21 October 2004 the Joint Administrative Chambers of the Supreme Administrative Court decided to quash the judgment. It indicated that the previous judgment dated 3 June 2003, which had constituted the basis of the latter, had been quashed on 18 December 2003 (see paragraph 12 above). 22. The Agency’s rectification request was rejected on 26 May 2005. 23. On 20 September 2005 the Supreme Administrative Court held that it lacked jurisdiction ratione materiae, as the applicant’s case merely concerned an implied rejection by the Board, which should be assessed by the Ankara Administrative Court. 24. On 30 December 2005 the Ankara Administrative Court dismissed the case as out of time. The court held that the applicant should have initiated proceedings within sixty days following 31 January 2001, the date on which Demirbank’s equities had been transferred to the Fund’s account at the Stock Exchange (see paragraph 7 above). 25. The Supreme Administrative Court upheld the first-instance court’s judgment on 12 September 2006. 26. Following the annulment of the decision regarding the transfer of Demirbank to the Fund by the domestic courts (see paragraphs 8-14 above), on an unspecified date in 2006 the applicant initiated another set of administrative proceedings. Relying on the restitutio in integrum principle, he claimed that the Agency should enforce the above-mentioned judgment of the Supreme Administrative Court, and that his rights as a shareholder of Demirbank should be reinstated. 27. On 27 September 2007, after indicating the administration’s obligation to execute judgments which are enforceable, the Ankara Administrative Court held that the enforcement of the Supreme Administrative Court judgment in the instant case was legally impossible as, following its sale to HSBC, Demirbank had been struck off the commercial register. 28. On 16 March 2009 the Supreme Administrative Court upheld that judgment. The court indicated that the execution of the judgment dated 5 November 2004 could be secured by the return of the supervisory and executive rights to Demirbank’s shareholders, and did not require the restitution of the actual shares. It maintained that even if that was the case, the judgment could not be executed, as Demirbank’s shares had ceased to exist as a result of the loss of its legal personality following its merger with HSBC. 29. The Supreme Administrative Court rejected the applicant’s request for rectification of the judgment on 17 September 2009. 30. Following the annulment of the agreement to sell Demirbank to HSBC (see paragraphs 15-16 above), on 30 April 2006 the applicant applied to the Fund for compensation for the loss of his shares resulting from the bank’s unlawful sale to HSBC. The Fund rejected that request on 15 June 2006. 31. On an unspecified date in 2006, the applicant accordingly brought a third set of proceedings against the Fund, claiming compensation for his lost shares on the basis of the annulment of Demirbank’s sale to HSBC. 32. On 15 April 2008 the Istanbul Administrative Court dismissed the case as out of time, indicating that the sixty-day time-limit for the initiation of administrative proceedings had started running on 31 January 2001, the date on which Demirbank’s equities had been transferred to the Fund’s account at the Stock Exchange. 33. The judgment of the first-instance court was upheld by the Istanbul Regional Administrative Court on 21 January 2009. The decision is final under national law.
| 1 |
test
|
001-159050
|
ENG
|
CHE
|
CHAMBER
| 2,015 |
CASE OF Z.H. AND R.H. v. SWITZERLAND
| 3 |
No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Positive obligations;Article 8-1 - Respect for family life)
|
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra
|
5. The applicants were born on 22 April 1996 and 13 June 1992 respectively and live in Geneva. 6. On 17 September 2010, the applicants, who are cousins, contracted a religious marriage in Iran, where they were residing illegally. At the time, the first applicant was 14 years old and the second applicant 18 years old. Their religious marriage was not registered in Iran. 7. On 18 September 2011 the applicants applied for asylum in Switzerland, which they had entered from Italy on an unspecified date. Both applicants had been already registered as asylum seekers in Italy. 8. On 8 December 2011 and 26 March 2012 the Federal Office of Migration (the “FOM”) rejected the applicants’ asylum request, considering that Italy was the responsible State by virtue of Regulation no. 343/2003/EC (the “Dublin Regulation”). 9. On 19 December 2011, the first applicant had a legal guardian appointed by the Guardianship Court (Tribunal tutélaire, now Tribunal de protection de l’adulte et de l’enfant). 10. On 20 March 2012 the Federal Administrative Court (the “FAC”) rejected the second applicant’s appeal against the FOM’s decision. The FAC noted that the applicants had failed to submit a certificate of marriage and that in any event their alleged religious marriage could not be validly recognised in Switzerland, pursuant to Article 45 of the Federal Act on Civil International Law, because it was illegal under the relevant provision of the Afghan Civil Code, which contained an absolute prohibition on marriage for women under 15 years of age, while the first applicant was 14 years old. In any case, independently of the applicable Afghan law, the applicant’s marriage was manifestly incompatible with Swiss ordre public, since having sexual intercourse with a child under the age of 16 was a crime under Article 187-1 of the Swiss Criminal Code. The first applicant could therefore not be qualified as a member of the second applicant’s family under the Dublin Regulation and the applicants could not claim any right to family life under Article 8 of the Convention. The decision against the first applicant entered into force on 5 April 2012, as the second applicant had not appealed against it. 11. On 3 May 2012 the FOM decided to reexamine the first applicant’s asylum request in Switzerland. Following this decision, the second applicant requested that his own asylum request be also reexamined in order to preserve the family unity. The second applicant’s request was rejected by the FOM on procedural grounds: as the applicant’s claim was deemed without prospects of success, he had been asked an advance judicial fee of 600 Swiss Francs (“CHF”), which he had failed to pay. 12. The second applicant was expelled to Italy on 4 September 2012. However, on 7 September 2012 he returned illegally to Switzerland, where he could see the first applicant “intermittently”, in the applicants’ own words. 13. On 18 September 2012 the applicants lodged the present application before this Court. 14. On 21 December 2012 the second applicant again requested the reexamination of his asylum request, which was rejected by the FOM on 10 January 2013 because the second applicant had again failed to pay the CHF 600 advance judicial fee. 15. On 18 March 2013, the applicants requested the recognition of their religious marriage in Switzerland. The first applicant was then 16 years and 11 months old. 16. On 28 November 2013, the FAC examined the second applicant’s appeal against the FOM’s decision of 10 January 2013 and ruled in favour of the second applicant. The FAC considered that the FOM had wrongly imposed on the second applicant the payment of an advance judicial fee because by then the first applicant was 17 years old and the applicants could therefore claim to be a family within the meaning of Article 8 of the Convention as interpreted by this Court and by the Swiss Federal Tribunal. 17. On 20 February 2014, the Government requested that the application be struck out of the list of cases pursuant to Article 37 § 1 (c) of the Convention. 18. On 1 April 2014, in reply to the Government’s request, the applicants submitted that their application included a complaint about a past violation, not only a prospective one, namely that on 4 September 2012 the second applicant had been expelled to Italy and thus separated from the first applicant. Such forcible separation constituted a violation of the applicants’ right to respect for their family life. 19. On 2 June 2014, the Court of First Instance of the Canton of Geneva recognised the validity of the applicants’ religious marriage contracted in Iran. 20. On 9 January 2015 the applicants informed the Court that they had been granted asylum in Switzerland by a decision of 17 October 2014. 21. On 23 June 2015, referring to their submissions of 1st April 2014, the applicants informed the Court that they wished to maintain their application, considering that as the alleged past violation of their right to respect for family life had neither been acknowledged nor remedied they had not lost victim status even if they had now obtained asylum in Switzerland.
| 0 |
test
|
001-158492
|
ENG
|
DEU
|
CHAMBER
| 2,015 |
CASE OF EL KAADA v. GERMANY
| 3 |
Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
|
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary
|
5. The applicant was born in 1988 and lives in Gladbeck (Germany). When lodging his application, he was detained in Essen Prison. 6. On 9 October 2008 the Gladbeck District Court convicted the applicant of several counts of extortion, robbery, burglary, embezzlement and assault. Applying the criminal law relating to young offenders, it sentenced him to two years’ imprisonment. The District Court suspended the execution of the sentence and granted probation. In a separate decision of the same day, the District Court imposed conditions on the applicant during the probation period, which was to run until 16 October 2010. The applicant was not to reoffend; in addition, he was ordered, inter alia, to complete at least 200 hours of unpaid social work. 7. On 11 December 2008 the applicant’s counsel informed the District Court that he represented the applicant in the proceedings concerning the applicant’s probation. 8. On 15 June 2009 the Gladbeck District Court issued a detention order against the applicant, which was confirmed on appeal. The courts found that there was a strong suspicion that the applicant had committed a burglary on 31 May/1 June 2009 in a hotel in Gladbeck. The suspicion was based on the witness statement made by the applicant’s former girl-friend S. to the police. 9. By a letter dated 5 October 2009 the applicant’s counsel notified the Essen Public Prosecutor’s Office, which received the letter on 8 October 2009, that he represented the applicant also in the investigation proceedings concerning the burglary on 31 May/1 June 2009. 10. On 7 October 2009 the applicant was arrested. He was heard on 8 October 2009 by the investigating judge at the Herford District Court, without his counsel being present, on suspicion of having committed the burglary in a hotel on 31 May/1 June 2009 in Gladbeck. The applicant, who had been informed of his rights to remain silent and to consult a defence counsel at any time, admitted having committed the offence described in the detention order of 15 June 2009. 11. On 20 October 2009, in a hearing before the Gladbeck District Court for review of the necessity of his further detention on remand, the applicant, in the presence of his counsel, revoked his confession of 8 October 2009. He submitted that he had only admitted having committed the burglary on 31 May/1 June 2009 as a police officer had told him at the time of his arrest that he had good chances of being released from detention on remand if he did so. 12. Subsequently, on 23 October 2009, the Essen Public Prosecutor’s Office charged the applicant with the burglary committed in Gladbeck. 13. On 22 October 2009 the Gladbeck District Court, relying on section 26 § 1 of the Juvenile Courts Act (see paragraph 28 below), revoked the suspension on probation of the applicant’s prison sentence granted in that court’s judgment of 9 October 2008. 14. The District Court noted that in its decision of 9 October 2008 to suspend the sentence on probation, the applicant had been imposed the condition not to reoffend during the probation period. He had breached that condition as he had confessed having committed a burglary on 31 May/1 June 2009 in Gladbeck. His new offence was similarly serious as the offences he had been convicted of on 9 October 2008. 15. The District Court further observed that the applicant had failed to comply with additional conditions imposed in the probation order. In particular, he had not completed the unpaid social work he had been obliged to carry out and had not contacted his probation officer without having a valid excuse. 16. On 27 October 2009 the applicant lodged an appeal against the District Court’s decision. He contested the court’s finding that he had reoffended. He stressed, in particular, that he had revoked his confession of 8 October 2009. Moreover, a confession alone, the credibility of which had not been tested, was not sufficient to be proved guilty of an offence. In any event, under the standards of European law, the revocation of the suspension of a sentence on probation could only be based on a final conviction of a new offence. He had to be presumed innocent until proved guilty according to law. 17. On 16 November 2009 the Essen Regional Court dismissed the applicant’s appeal against the District Court’s decision. The Regional Court considered that the revocation of the suspension on probation of the applicant’s prison sentence under section 26 of the Juvenile Courts Act could not be based on the applicant’s failure to carry out the unpaid social work he had been imposed in the probation order because the District Court had failed to specify in which institution the applicant was to do that work. 18. The Regional Court further found: “However, ultimately it was nevertheless correct to revoke the suspension on probation as the convicted offender, as the District Court had correctly found, committed another offence during the probation period.” (“Der Widerruf der Bewährung ist jedoch im Ergebnis gleichwohl zu Recht erfolgt, denn der Verurteilte ist, wie das Amtsgericht zutreffend angenommen hat, innerhalb der Bewährungszeit erneut straffällig geworden.“). 19. The Regional Court confirmed that the revocation of the suspension of the applicant’s sentence did not require that the applicant had been convicted by a final judgment of the offence on which the revocation was based. It was sufficient that the court revoking the suspension of the sentence had obtained certainty by other means that the person concerned had committed the offence. The presumption of innocence laid down in Article 6 § 2 of the Convention did not warrant a different conclusion. That presumption only related to proceedings in which a decision on the charges against the accused had to be taken and not to proceedings concerning the revocation of the suspension of a sentence on probation. Referring, in particular, to a decision of the Federal Constitutional Court of 9 December 2004 (see paragraphs 30-31 below), the Regional Court found that it was therefore sufficient, in particular, that the court revoking the suspension on probation of the penalty was convinced that the person concerned was guilty of a new offence on the basis of a credible confession that person made before a judge. 20. In the case before it, the Regional Court then found that in view of the applicant’s confession on 8 October 2009 before the investigating judge, it was of the “firm conviction that the applicant had again committed an offence” (“sichere Überzeugung von einer erneuten Begehung einer Straftat durch den Verurteilten”), namely a burglary on 31 May/1 June 2009 in a hotel in Gladbeck. The applicant’s confession was credible, in particular, as it was supported by the detailed description of the applicant’s acts before and after the offence given by witness S. before the police. The subsequent revocation of the confession by the applicant, who had further contested S.’s statements, arguing that S. wanted to take revenge following the breakdown of their relationship, was not credible in the light of the results of the investigations undertaken to date. The Regional Court referred in this respect, in particular, to the reports of the witness statements made by S. and by Z., an employee of the hotel concerned, before the police. The Regional Court therefore concluded that the applicant had demonstrated by his new offence that he had not fulfilled the expectations on which the suspension of his sentence had been based. 21. On 7 December 2009, following a decision of the Gladbeck District Court, the applicant’s detention on remand was interrupted in order for him to serve the sentence imposed on him in the Gladbeck District Court’s judgment of 9 October 2008. 22. On 10 December 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Gladbeck District Court dated 22 October 2009 and of the Essen Regional Court dated 16 November 2009. He argued, in particular, that the said courts’ finding, on the basis of the case-file alone, that he had committed another burglary had disregarded the rule of law and the presumption of innocence as guaranteed by the Basic Law and by Article 6 §§ 1 and 2 of the Convention. His initial confession before the investigating judge was irrelevant as he had revoked that confession, the credibility of which had not been tested by the courts revoking the suspension of his sentence on probation. He further took the view that the question whether he had committed a new burglary had to be determined by the competent criminal courts following a trial. The domestic courts’ finding that he had committed another burglary before he had been convicted thereof by a final judgment also disregarded the European Court of Human Rights’ findings in a judgment of 3 October 2002 (Böhmer v. Germany, no. 37568/97). 23. On 23 December 2009 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2888/09). 24. On 19 January 2010 the Gladbeck District Court convicted the applicant of burglary, committed on 31 May/1 June 2009 in a hotel in Gladbeck, and sentenced him to one year’s imprisonment. The judgment became final on 2 June 2010. 25. The applicant was released from prison on 5 August 2011.
| 1 |
test
|
001-174392
|
ENG
|
TUR
|
COMMITTEE
| 2,017 |
CASE OF YAVUZ NAL AND OTHERS v. TURKEY
| 4 |
Violation of Article 14+8-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life)
|
Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens
|
4. Following their respective marriages, the applicants had to take their husbands’ surnames pursuant to the Civil Code. On various dates, they initiated proceedings before the first instance courts seeking permission to use only their maiden names. Their requests were rejected on the ground that according to Article 187 of the Civil Code, married women had to bear their husbands’ name throughout their marriage and were not permitted to use their maiden name alone. The details of the applications appear in the attached table.
| 1 |
test
|
001-157536
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF VUJICA v. CROATIA
| 3 |
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
7. The applicant was born in 1974 and lives in Graz. 8. On 7 March 1997 she married Mr S.V. in Vienna (Austria). They lived in Vienna until January 2006, when they decided to move to Komletinci (Croatia). 9. Meanwhile, on 3 January 1999 the applicant gave birth to their daughter, E.V, on 6 June 2001 to their son, F.V., and on 21 January 2006 to their second daughter, L.V. 10. On 6 January 2009 the applicant and S.V. separated. He remained in Croatia, whereas the applicant returned to Austria. 11. Following her arrival in Austria the applicant collected the children from her husband’s parents, who lived in Vienna and with whom the children had been spending the Christmas holidays, and took the children with her to Graz. 12. When the applicant did not return to Croatia, S.V. went to Austria with a view to taking the children back to Croatia. However, the applicant opposed that. The children therefore remained in Graz where the applicant enrolled the two older children in school and the youngest child in kindergarten. S.V. maintained contact with the children by talking to them over the phone and by visiting them occasionally. It would appear that the applicant and S.V. eventually agreed that the children would remain in Austria but would spend holidays with their father in Croatia. 13. In August 2010, after the summer holidays, which the children spent with their father and paternal grandparents in Croatia, the father refused to return them to the applicant, claiming that the children had refused to go back to Austria. 14. In September 2010, relying on the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter: “the Hague Convention”, see paragraph 54 below), the applicant asked the Austrian Ministry of Justice, as the Austrian Central Authority within the meaning of that Convention, to return her children. The Ministry of Justice immediately contacted the Croatian Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi) as the Croatian Central Authority. 15. By a letter of 23 September 2010 the Ministry of Health and Social Welfare forwarded the applicant’s request to the Vinkovci Municipal Court (Općinski sud u Vinkovcima). 16. A copy of the Ministry’s letter of 23 September 2010 was sent to the Vinkovci Social Welfare Centre (Centar za socijalnu skrb Vinkovci). Pursuant to Article 10 of the Hague Convention (see paragraph 53 below), the latter was invited to mediate with the father the voluntary return of the children to Austria, and to inform the Vinkovci Municipal Court and the Ministry of the results thereof. 17. The Vinkovci Social Welfare Centre interviewed S.V., talked to the children without his presence and carried out an on-site inspection of his home. On 28 October 2010 it replied to the Ministry’s request. The relevant part of that reply reads as follows: “S.V. states that his actions were in accordance with the wishes of his children, who wanted to remain living with him in Croatia. He justifies his current actions by the wish to afford his children a happy life. During the interview on the [premises] of the Centre S.V. did not try to portray [the applicant] as a bad or irresponsible mother ... S.V. verbalises the wish that in the divorce proceedings the custody of the children be awarded to him primarily because he wants the children to be happy. He states that the children wish to remain living with him. He does not want to restrict his wife’s contacts with the children. ... During the conversation S.V. leaves the impression of an emotionally warm person. He does not appear to be a parent who would physically punish or behave inappropriately towards the children. ... by an on-site inspection it was established that the father had secured adequate housing and other conditions. He has a permanent source of income ... as he has a bar on the ground floor of the house [where he and the children live], where he works. [Thus] while working he stays [physically] very close to his family, which gives the children [a sense of] security. It was further established that E.V. and F.V. had frequently changed school and that they had started the new school year by going to an elementary school in Komletinci where, according to the father, they had adapted well. It is not in the children’s interest to frequently change school, schoolmates and teachers. The children should have stability. Every removal of the children from their habitual environment (family or school setting) is stressful and leaves consequences on the children. It requires them to make additional efforts to adapt to the new environment and the school and to make new friends. Given that the children’s mother had in the meantime lodged an application for the return of her wrongfully retained children from Croatia, the Centre conducted an interview with the children on its premises without the presence of the father. Their wish is that their parents live together, as most children in their situation do. They are aware that the parents are divorcing. They are not taking the side of [either] the father or the mother. E.V. and F.V. understand the family situation whereas L.V. is at an age when her parents’ situation is still not clear to her. The children express the wish to live with their father. They see their relationship with the father as closer and [consider that] they are more emotionally attached [to him]. They like the life in the countryside, in Komletinci. The life in Austria is very different from the life in Komletinci. In Komletinci they have more free time, and meet and play with other children of their age. The pace of life in Austria makes that impossible. Here they are very well accepted in school. They know their neighbours and other children of their age. In the light of the foregoing [the Centre] found that it would be in the children’s interest to continue living with their father in Komletinci. In accordance with that [view] the Centre has submitted the opinion of a psychologist and a social worker to the Vinkovci Municipal Court.” 18. Non-contentious proceedings for the return of the children were instituted on 7 October 2010, that is, on the date the Ministry’s letter of 23 September 2010 forwarding the applicant’s request under the Hague Convention to the Vinkovci Municipal Court (see paragraph 15 above) was received at that court. The Vinkovci Social Welfare Centre participated in those proceedings as an independent intervener sui generis with a view to protecting the children’s interests. 19. During the proceedings the court decided to obtain and consult the report of the social welfare centre prepared for the purposes of deciding on the custody of the children in the parallel civil proceedings for divorce and child custody (see paragraphs 33-35 below). On 4 November 2010 the report was received at the court. 20. At a hearing held at 11 a.m. on 19 November 2010 the applicant’s representative argued that the retention of the three children by their father in Croatia had been wrongful and that they should be returned forthwith. She averred that the fact that the social welfare centre had submitted a report in the parallel civil proceedings for divorce and child custody should have no bearing in the present proceedings as the Hague Convention did not provide for exceptions from the obligation to promptly return the children. She also stated that the applicant’s right to equality in the proceedings had been breached because, even though she was fluent in Croatian as her parents were of Croatian origin, she had not been invited by the Vinkovci Social Welfare Centre to participate in the family assessment procedure leading to its report. 21. S.V.’s representative invited the court to dismiss the applicant’s request. She argued that the retention of the children had not been wrongful and that in any event S.V. could not have forced the children to return to their mother against their wishes. In particular, the children had clearly communicated their wishes not to return to Austria to the employees of the social welfare centre and had even told their father that they would run away if returned, which suggested that the return would have caused them psychological trauma. Furthermore, while it was true that the report of the social welfare centre was prepared in the context of the parallel civil proceedings for the purposes of deciding on custody of the children, its findings, which had suggested that the children did not want to return to Austria, could not be ignored in the present proceedings. 22. The representative of the Vinkovci Social Welfare Centre agreed with S.V.’s representative that the applicant’s request should be dismissed and that the children’s retention had not been wrongful. She submitted that the children had been interviewed by the employees of the centre first together and then individually, and that they had stated that they did not like the life in Austria and wanted to live in Croatia. 23. In her reply the applicant’s representative stated as follows: “... especially the youngest child of the parties L.V., who is only four years old, is very attached to her mother, and has expressed a wish to return with her to Austria. As regards the two older children, what should primarily be taken into account, given their age, are their [best] interests and not just where they wish to live. In any event, this cannot have an impact on the decision making in this case having regard to Article 16 of the [Hague] Convention.” 24. At the same hearing the court heard both parties. The applicant in her testimony stated that in mid-August 2010 S.V. had called her to tell her that he would not be returning the children to Austria because they did not want that. The applicant further testified that on that occasion she had spoken with the children over the phone and that the two older children had told her that they indeed did not want to return to Austria, whereas the youngest child had expressed the wish to return. The applicant also stated that she had not seen her children from the time their father had retained them in Croatia until the day before the hearing. 25. From S.V.’s testimony it followed that the youngest child, L.V., was indecisive as to which parent she wanted to live with. In his own words: “L.V. is [still] small and at times she wants to live with her mother, and every now and then with me.” 26. At the same hearing, on 19 November 2010, the Vinkovci Municipal Court delivered a decision whereby it dismissed the applicant’s request. In so doing it relied on the report of the Vinkovci Social Welfare Centre, which included the opinions of a social worker and a psychologist employed with the centre and which had been prepared for the purposes of deciding on the custody of the children in the parallel civil proceedings for divorce and child custody (see paragraphs 19 and 33-35 below). The relevant part of that decision read as follows: “The petitioner ... maintains her request that her children be returned to Austria where they had the last domicile, that is, their habitual residence and where they went to school. The fact that the social welfare centre gave its opinion in the [parallel] civil proceedings for divorce [and child custody] is of no relevance for reaching a decision in these [return] proceedings because the Republic of Croatia, as a signatory of the Hague Convention on the Civil Aspects of International Child Abduction, is bound to honour the provisions of that Convention. The counterparty ... in his reply opposes the [petitioner’s] request, considering that the conditions prescribed in the Hague Convention had not been met in the present case. In particular, in order for the Hague Convention to apply, the children had to have been wrongfully removed or wrongfully retained and the right of custody had to have been breached. The law did not attribute the right of custody to the petitioner, nor had she been awarded that right by a judicial or administrative decision or an agreement equal to such decisions. Hence, the petitioner herself does not have the right of custody any more than the counterparty himself, given that the divorce proceedings, where [the issue of] custody is being examined, are still pending before this court. He also invokes Article 13 paragraph 1 (b) [of the Hague Convention] which provides that the court is not bound to order the return of a child if it establishes that the return would expose the child to, inter alia, psychological harm, and that it may also refuse to do so if the child objects to being returned. The representative of the Vinkovci Social Welfare Centre in her observations considers that the present case does not concern wrongful retention of children because the Centre had, even before the petitioner submitted her request, been involved in the social anamnesis of the family [i.e. family assessment]. Namely, the children’s father had addressed the Centre when in 2009, during a visit of the children to his parents in Austria, the spouses had separated, that is to say, when the petitioner had left [him], gone to Austria, taken the children, retained them and enrolled them in a school in Austria. The father, in order to protect the interests of the children, had decided not to take certain steps [to return them] but had instead visited the children in Austria as much as he could. When the children this summer had come to Croatia with his parents, they had not wanted to go back to Austria. The father had then sought advice from the Centre, which had advised him that he should not return the children to their mother by force. After that, he had filed for divorce, whereas the petitioner had lodged a request for the return of wrongfully retained children. In the proceedings conducted before the Vinkovci Social Welfare Centre, the children were heard, all three of them together and then individually, and they expressed the wish to live in Croatia. Therefore, the representative of the Social Welfare Centre considers that, in order to protect the children’s interests and well-being, it is necessary to dismiss the petitioner’s request as unfounded. ... In these proceedings, instituted following the request of the petitioner for the return of the children, the court has to apply the Ratification of the Hague Convention (Civil Aspects of International Child Abduction) Act. Section 12(2) of that Act provides that the court will refuse to order the return of a child if he or she is settled in the new environment. According to evidence taken, it was established that the parties married on 7 March 1997 in Austria, in Vienna. During the marriage, E.V. was born on 3 January 1999, F.V. on 6 June 2001 and L.V. on 21 January 2006. The parties came with their three children to live in Croatia, in Komletinci. In the acrimony during the [2008] Christmas holidays [the petitioner] verbalised the wish to end their life together. [She] left the common household and went to live in Austria. At that time the children were in Austria, visiting their paternal grandparents. Upon her arrival in Austria the petitioner immediately went to collect the children and did not allow the father to take them back to Croatia, even though the children wanted to go to Croatia and had to finish another school term [there]. [In] summer [2010] the children, together with their paternal grandparents, came to [Croatia to] spend three weeks of their summer holidays at the seaside. After returning from the seaside, the children came to live in Komletinci. According to the counterparty’s statement, which the petitioner acknowledged, the two older children had refused to return to Austria, expressing the wish to stay in Komletinci. From the enclosed certificates of domicile issued by the [police authorities] it was established that all three children have registered domicile on the territory of Croatia, at the address ... in Komletinci ... as of 17 October 2006. Therefore, the petitioner’s arguments that the children have registered domicile only in Austria are incorrect. In the present case the court has not yet rendered a final decision in the [parallel civil] proceedings [for divorce and child custody]. However, that does not affect the adoption of the decision on the request for the return of the children on the basis of the Hague Convention on the Civil Aspects of International Child Abduction. It is the opinion of this court that the father did not, without the knowledge and approval of the mother, abduct the children from the living environment in which they were settled. It is to be noted that the children have previously lived in Komletinci, that E.V. finished the second grade of the elementary school in Komletinci where she went to school until the first semester of the third grade, and that F.V. also attended the first grade in the school in Komletinci. It therefore follows that the children were retained in the place where they previously used to live. This school year E.V. and F.V. are again attending the elementary school in Komletinci. From the opinion of the psychologist at the Vinkovci Social Welfare Centre it undoubtedly follows that it is not in the children’s interests to change school again because they would have to re-adapt to [new] teachers, curriculum, schoolmates, etc. From the opinion submitted it is evident that the children have adapted to their current living environment and school setting, and that they have verbalised the wish to live with their father. Given all the aforementioned [considerations], this court, relying on Article 12 paragraph 2 and Article 13 paragraph 1 (a) and (b) of the Hague Convention on the Civil Aspects of International Child Abduction, refuses to order the return of the children, finding that the children have adapted without any problems to the environment in which they had previously lived and that, in the given circumstances, returning them to the mother in Austria would place them in an unfavourable position and expose them to psychological trauma, which certainly cannot be to their benefit. It is also to be noted that the children themselves, especially the two older children, object to being returned to Austria. Having regard to all the above, this court decides as [indicated] in the operative part.” 27. On 30 November 2010 the applicant appealed against the first-instance decision. 28. On 24 February 2011 the Vukovar County Court (Županijski sud u Vukovaru) dismissed the applicant’s appeal and upheld the first-instance decision, which thereby became final. The second-instance decision was served on the applicant’s representative on 17 March 2011. The relevant part of that decision reads as follows: “The appellant claims that the aim of the [Hague] Convention is the prompt return of children to the country of their habitual residence, and that what is protected is the last status of the children. In the appellant’s opinion it was necessary to apply exclusively Article 12 paragraph 1 of the said Convention and order the children’s return forthwith. ... The appeal is unfounded. ... It was established that all three children have registered domicile on the territory of Croatia, at the address ... in Komletinci ... as of 17 October 2006. The first-instance court correctly found that the father did not without the knowledge and approval of the mother abduct the children from the living environment where they were settled because the children have previously lived in Komletinci, [where] E.V. finished the second grade of elementary school ... and F.V. attended the first grade ... The first-instance court relied on Article 12 paragraph 2 and Article 13 paragraph 1 (a) and (b) of the [Hague] Convention. As rightly pointed out by the appellant, the first-instance court had erred in relying on Article 12 paragraph 2 of that Convention because the children had been brought to Croatia at the beginning of July 2010, whereas the proceedings [for the return of children] were instituted in September 2010, that is, before the expiration of the period of one year referred to in paragraph 1 of Article 12 of the [Hague] Convention. However, this second-instance court finds that the first-instance court correctly applied Article 13 paragraph 1 (a) and (b) of the [Hague] Convention, and, in the opinion of this court, also paragraph 2 of that Article because the two older children, whose views it is appropriate to take into account given their age, object to being returned. Since the children have already adapted to life in the environment (in which they have previously lived – before going to Austria) there is a grave risk that their return would expose them to psychological trauma. The change of school would have traumatising effects on the two older children if, during the school year, they were to be transferred to Austria, where the curriculum is completely different. For these reasons the appeal is dismissed and the first-instance decision upheld.” 29. On 15 April 2011, the applicant lodged a constitutional complaint alleging, inter alia, that her constitutional right to a fair hearing and to respect for her family life, guaranteed by Article 29 paragraph 1 and Article 35 of the Croatian Constitution (see paragraph 51 below), had been violated. On 25 January 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 15 February 2012. The relevant part of that decision reads as follows: “[The complainant] considers that the [constitutional] rights guaranteed in Articles 14 paragraph 2, 16, 26, 29 paragraph 1, 35, 62, 63 and 140 of the Constitution have been breached by the contested decision of the lower-instance courts. ... Having regard to the arguments raised in the constitutional complaint the Constitutional Court examined the contested decisions under Article 29 paragraph 1 and Article 63 of the Constitution. ... Having regard to the opinion of the Vinkovci Social Welfare Centre ... and the fact that both older children ... (E.V. and F.V.) expressed the wish as to where and with which parent they wanted to continue living after [their parents’] divorce, and that they refuse to be separated from their father, the Constitutional Court finds that the competent courts rendered the contested decisions by correctly assessing all the particular circumstances of the present case.” 30. Meanwhile, on 27 August 2010 S.V. brought a civil action against the applicant in the Vinkovci Municipal Court seeking: (a) divorce; (b) the right to have their children living with him (hereafter: “custody”); and (c) maintenance for the children. As in the above-mentioned proceedings for the return of children (see paragraph 18 above), the Vinkovci Social Welfare Centre also participated in these proceedings as an independent intervener sui generis with a view to protecting the children’s interests. 31. On 30 August 2010 the court invited the Vinkovci Social Welfare Centre to submit a report on the financial and family situation of the parties and to give its opinion on the issue of which parent the children would prefer to live with and on the contacts with the other parent. 32. On 17 December 2010 the applicant responded to S.V.’s action. In her response she agreed to the divorce, contested S.V.’s claim for custody and proposed instead that she be granted custody. 33. After having interviewed the children and S.V., and having carried out an inspection of his home on 20 October 2010, the Vinkovci Social Welfare Centre submitted its report to the court on 28 October 2010. The report consisted of the opinion of a social worker and the opinion of a psychologist, who were both employed at the centre. 34. The relevant part of the opinion of the social worker reads as follows: “[S.V.] justifies his current actions by his wish to afford his children a happy life. During the interview he repeatedly stated that after spending the summer holidays in Croatia, the children expressed the wish not to return to Austria any more. He did not stop his wife coming and seeing the children but she never came ... During the interview he did not try to portray [her] as a bad or irresponsible mother ... S.V. verbalises the wish that in the divorce proceedings the custody of the children be awarded to him primarily because he wants the children to be happy. He stated that that the children wished to remain living with him. He did not want to restrict his wife’s contacts with the children. ... During the conversation S.V. leaves the impression of an emotionally warm person. He does not appear to be a parent who would physically punish or behave inappropriately towards the children. ... by an on-site inspection it was established that the father had secured adequate housing and other conditions. He has a permanent source of income ... as he has a bar on the ground floor of the house [where he and the children live] where he works. [Thus] while working he stays [physically] very close to his family, which gives the children [a sense of] security. It is evident that E.V. and F.V. have frequently changed school and that they started the new school year by going to the elementary school in Komletinci where, according to their father, they have adapted well. It is not in the interest of the children to frequently change school, schoolmates and teachers. The children should have stability. Every removal of the children from their habitual environment (family or school setting) is stressful and has consequences on the children. That requires additional efforts from the children to adapt to the new environment, [the new] school and to make new friends. Given that the children’s mother lives in Austria ... employees of this Social Welfare Centre had no possibility to examine and establish [her] housing conditions and family situation and assess [them] and [thus] could not give an opinion on the possibility of contacts between the mother and the children at her place of residence in Austria. Having regard to the foregoing, I am of the opinion that E.V., F.V. and L.V. should continue living with their father ...” 35. The relevant part of the opinion of the centre’s psychologist reads as follows: “This opinion was prepared on the basis of a psychological interview with S.V. as well as on the basis of psychological examination of the children and the perusal of the documents available at the Centre. ... An interview with the children was conducted. Their wish is that their parents live together, as most children in their situation do. They are aware that their parents are divorcing. They are not taking the side of [either] the father or the mother. E.V. and F.V. understand the family situation whereas L.V. is at an age when her parents’ situation is still not clear to her. The children express the wish to live with their father. They see their relationship with the father as closer and [consider that] they are more emotionally attached [to him]. They especially like the life in Komletinci, that is, in a smaller community. The life in Austria differs to a significant degree from the life here. They have more free time, [and] meet with children of their age. They spend their free time playing, which is not the case in Austria, not because one of the parents would prohibit or prevent them from doing so but because the pace of life is such. The parents and the children are not at home during the day because they work and the children go to school, so they spend very little time together, which means a lot to the children. Here they are well accepted in school, they know the neighbours and generally the social network (teachers, neighbours, children of their age) works better. Moreover, it is not in the children’s interest to change school anew, which is stressful because the children have to re-adapt to teachers, the curriculum and [find new] friends. I am of the opinion that the children should remain living with their father given that S.V. adequately takes care of their needs as well as of their education and upbringing. At the same time, the children verbalise their wish to live with their father.” 36. As the applicant did not oppose the divorce, at the hearing held on 18 November 2010 the court ruled that S.V.’s civil action was to be considered a joint petition for divorce. At the same hearing the applicant and S.V. asked the court to adjourn the hearing so that they could agree on the issues of child custody, access rights of the non-custodial parent and maintenance. 37. At the hearing held at 1 p.m. the next day, 19 November 2010, that is, two hours after the hearing in the above-mentioned proceedings concerning the return of children (see paragraph 20 above), the parties informed the court that they had agreed that the two older children would live with their father but that they could not reach an agreement on custody of their youngest child, L.V. 38. The applicant’s representative stressed that it was in L.V.’s interest, as she was only four and a half years old at the time, to live with her mother, to whom she was emotionally attached and with whom she had expressed the wish to live. She added that at that age the role of the mother was very important. Lastly, the applicant’s representative reiterated that the applicant had not been involved in the family assessment procedure carried out by the Vinkovci Social Welfare Centre, resulting in its report. In particular, she had not been interviewed or otherwise examined by its staff (see paragraph 20 above). She therefore invited the court to obtain a joint expert opinion from a psychologist and a psychiatrist with a view to establishing whether it was in L.V.’s best interests to live with her mother or with her father. 39. The representative of the social welfare centre stated that the applicant had not been involved in the family assessment procedure because she was a foreign national who lived abroad. After reiterating the findings made in the centre’s report (see paragraphs 33-35 above), she added that the children were very emotionally attached to each other and it was therefore not advisable to separate them. 40. S.V.’s representative argued that the court should respect the professional opinions expressed in the social welfare centre’s report and that the children should not be separated. She added that her client was willing to allow the applicant to have longer and more frequent contacts with L.V., given that she was not burdened by school obligations. Lastly, S.V.’s representative opposed the proposal to obtain a joint expert opinion (see paragraph 38 above) as it was not disputed between the parties that they were both capable of adequately taking care of the children. 41. After hearing the representatives of the parties and of the social welfare centre as the intervener, the Municipal Court at the same hearing first rejected the proposal by the applicant’s representative to obtain a joint expert opinion, and then pronounced a judgment whereby it: (a) divorced the marriage between the applicant and S.V.; (b) decided that all three children were to live with S.V.; (c) granted the applicant access (contact) rights; and (d) ordered the applicant to regularly pay a certain amount of money as maintenance for their children. In particular, the court decided that the applicant should exercise her access rights by taking the children to her home in Austria on the last weekend of every month (or any other weekend if the parties agreed otherwise), as well as during the seven days of the winter holidays, fifteen days of the summer holidays and during other holidays interchangeably. 42. In deciding on the issue of child custody, the court relied on the report of the social welfare centre (see paragraphs 33-35). The relevant part of that judgment reads as follows: “The court rejected the second petitioner’s [the defendant’s] proposal to take evidence by obtaining a joint expert opinion from experts in psychology and psychiatry because it is undisputed between the parties that they both satisfy the conditions for assuming parental responsibility, with which the court agrees. Given that on the basis of the evidence taken it can reach a decision on the merits even without the proposed evidence, which would indicate whether the parents are fit to take care of the children, the court considered [obtaining] the opinion of an expert in psychiatry unnecessary and [thus] rejected that proposal, having regard to section 10(1) of the Civil Procedure Act which requires that [the civil] proceedings be conducted without delays and with the least cost. ... As regards their minor children, E.V. and F.V., the parties reached an agreement that they would live with their father. However, the mother argued that it was in the [best] interests of [their younger daughter] L.V., who is four years old, to live with her as she was emotionally attached to her [mother]. From the report of the social welfare centre it follows that the children wish, as do most children in their situation, the parents to live together in a harmonious relationship, that they are aware of the fact that their father and mother are divorcing, and that they are not taking the side of [either] the father or the mother. However, they expressed the wish to live with their father because they see their relationship with their father as much closer and are more emotionally attached to him. Furthermore, it follows from the report that the children like their life in Komletinci, that is, [a life] in a smaller community where they have more free time, socialise with other children of their age [and] spend their free time playing, which is not the case in Austria. It further follows from the report that the children are well accepted in school and that it is not in the children’s best interests to change school again, which is considered stressful as they would again have to adjust to [new] teachers, curriculum and schoolmates. Therefore, in the opinion of the social welfare centre, the children should remain living with their father given that he adequately takes care of their needs, their upbringing and education and that, at the same time, the children have verbalised the wish to live with their father. At the hearing ... the representative of the social welfare centre stated that she maintained the opinion provided [in the report of the social welfare centre] and reiterated that the children were very attached to each other and that it would not be advisable to separate them. The first petitioner [the plaintiff] stated at the same hearing that he did not dispute that the mother met the conditions to be awarded custody of the children but that he considered that it would be in the best interests of the children to live together, which was what the children wanted, and that he was willing to allow the second petitioner [the defendant] to maintain more extensive contact with L.V. given that she was not burdened by school obligations. When awarding custody it has to be taken into account that brothers and sisters with existing emotional connections should not be separated unless that is their wish or in their best interests. Given that according to the report of the social welfare centre the children have verbalised the wish to live together, the court, promoting the best interests of the child within the meaning of Article 3 of the International Convention on the Rights of the Child and [in accordance with] the basic principles of the European Convention on the Exercise of Children’s Rights, has decided to award custody to their father. When deciding on the mother’s access (contact) rights, the court has, having regard to the agreement of the parties that the mother shall exercise those rights in the manner proposed by the social welfare centre, but so that the mother takes the children to her home in Austria, [decided] that [she should have contact with the children] on the last weekend of every month or any other weekend if the parties agree otherwise, as well as during the seven days of the winter holidays, fifteen days of the summer holidays and during other holidays interchangeably.” 43. On the same day the applicant and S.V. signed a written agreement (hereinafter: “interim custody agreement”) regulating the applicant’s access rights in the period until the first-instance judgment became final. They agreed that in that period the applicant would exercise her access rights according to the visiting schedule set forth in the first-instance judgment. In addition, the parties agreed that the applicant would immediately take their youngest daughter, L.V., with her to Austria and return her to S.V. on 9 January 2011. However, on 9 January 2011 the applicant did not return their youngest child to S.V., but retained her in Austria. 44. Meanwhile, on 17 December 2010 the applicant appealed against the first-instance judgment. She argued that: (a) under Article 16 of the Hague Convention (see paragraph 54 below) the first-instance court was not allowed to proceed until the adoption of the final decision in the proceedings for the return of children; (b) the first-instance court had not referred S.V. and her to the mandatory mediation procedure before divorce, contrary to section 44 of the Family Act (see paragraph 52 below); and (c) she had not participated in the family assessment procedure carried out by the social welfare centre. The applicant also reiterated her earlier argument that her younger daughter, L.V., was emotionally attached to her and was at an age when it was in her best interests to live with her mother, as her separation from the mother would be more detrimental than separation from her siblings. As regards her two older children, the applicant emphasised that if they really wanted to remain living with their father in Croatia, she was prepared to respect that wish. However, the decision on their custody should not have been made before the decision in the return proceedings. 45. By a judgment of 23 February 2011 the Vukovar County Court dismissed an appeal lodged by the applicant and upheld the first-instance judgment, which thereby became final. The second-instance judgment was served on the applicant’s representative on 16 March 2011. The relevant part of that judgment reads as follows: “In her appeal the appellant argues that ... the [first-instance] court was not allowed to proceed in these [civil] proceedings until the final resolution of the [non-contentious] proceedings for the return of wrongfully retained children pending before the same court, in accordance with Article 16 of the Hague Convention on the Civil Aspects of International Child Abduction. The purpose of that Convention was that children were returned to the State from which they had been abducted. Only then should proceedings for custody have been conducted, given that the children had been uprooted from the milieu in which they had lived hitherto. [The appellant] also argues that she did not participate in the [family assessment] carried out by the Vinkovci Social Welfare centre. She considers that the youngest child L.V. was very emotionally attached to her and that the [first-instance] court should have taken that into account. ... As the parties, however, did not agree on custody in respect of their youngest child, L.V., the court, deferring to the opinion of the social welfare centre and respecting the wishes of the children, decided that she should remain living with her father, brother and sister in Komletinci. In particular, during an interview with the expert team of the Vinkovci Social Welfare Centre the children expressed the wish to live with their father because they considered their relationship with the father closer, they liked the life in Komletinci [that is] in a smaller community where they had more free time, spent time with children of their age, spent free time playing which was not the case in Austria, and also because they went to school here where they were well accepted. From the report of the Vinkovci Social Welfare Centre it follows that the children are very attached to each other and that it would not be wise to separate them and change their environment, which corresponds to the children’s wishes. Since the children verbalised the wish to live together and given that L.V. did not yet have school obligations – which made it possible for her to maintain more extensive contacts with her mother, if the parents agreed – the first-instance court, endorsing the best interests of the child within the meaning of Article 3 of the International Convention on the Rights of the Child and [in accordance with] the basic principles of the European Convention on the Exercise of Children’s Rights, correctly decided that the children should remain living with their father [while] leaving open the possibility that this decision could be altered if circumstances change. ... The case file also contains certificates of domicile in respect of all the parties’ children from which it is evident that their registered address is in Komletinci since 17 October 2006. In any event, the whole family previously lived together in Komletinci. Having regard to the above, the appellant’s argument that she was prevented from participating in the assessment carried out by the social welfare centre is unfounded because she participated in the proceedings before the [first-instance] court, as did the father, where the representative of the social welfare centre was present and where the parents reached an agreement on the custody [of the children] except L.V. Given that an agreement was reached as to where the children would live, even if they go to Austria on weekends to maintain contact with their mother, it could not be said that they were abducted or uprooted from the milieu in which they were living, particularly taking into account the wishes of the children and the fact that the two older children go to school in Komletinci.” 46. The applicant then, on 15 April 2011, lodged a constitutional complaint alleging, inter alia, that her constitutional rights to a fair hearing and to respect for her family life, guaranteed by Article 29 § 1 and Article 35 of the Croatian Constitution (see paragraph 51 above) had been violated. 47. On 25 January 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 15 February 2012. The relevant part of that decision reads as follows: “... the report of the Vinkovci Social Welfare Centre of 20 October 2010 and the opinion of a psychologist are enclosed with the case file of the first-instance court. Both [documents] come to the same conclusion that the children of the parties should continue living with their father after the divorce. At the main hearing held in the case on 19 November 2011 both parties proposed that the two older children (E.V. and F.V.) remain living with their father and that [the youngest child] L.V. remain living with her mother – who lodged the constitutional complaint. At that hearing the complainant as the defendant did not ask for the application of the Hague Convention on the Civil Aspects of International Child Abduction. ... The Constitutional Court considers that in every [set of] proceedings concerning custody of children the best interests of the child must be a primary consideration. ... The Constitutional Court finds that ... the Vinkovci Social Welfare Centre undertook the necessary steps before adopting the report concerning custody of the children. The proposal expressed in the report of the Social Welfare Centre that all three children should continue living with their father after the divorce is, after all, in line with the opinion of the psychologist. The proposal was based on the fact that both older children (E.L. and F.L.) had expressed the wish as to which parent they wanted to live with, whereas as regards the [youngest child] L.V. it was established that she was ‘still at an age where she does not completely understand her parents’ situation, that all three children were very emotionally attached to each other and that, [while] accepting the fact that their parents were divorcing, they wanted to continue living together, with at least one parent. ... In view of the above, the Constitutional Court considers that the constitutional rights provided for in Article 29 paragraph 1 and Article 35 of the Constitution, and the rights guaranteed by Articles 6 and 8 of the European Convention on Human Rights were not breached by the contested decisions. The Constitutional Court also notes that the legal views expressed in the contested judgments ... are primarily based on the best interests of the child and are also founded on the established principles of international law. ... As regards the complainant’s arguments that the Hague Convention on the Civil Aspects of International Child Abduction was applicable in the instant case, the Constitutional Court finds correct the ... reasoning expressed in the contested judgment of the Vukovar County Court, which ... reads: ‘... Given that an agreement was reached as to where the children would live, even if they go to Austria on weekends to maintain contacts with their mother, it could not be said that they were abducted ...’ ” 48. Given that the applicant did not respect the interim custody agreement of 19 November 2010 (see paragraph 43 above) and did not return L.V. to Croatia on 9 January 2011 but retained her in Austria, on 13 April 2011 S.V., relying on the Hague Convention, requested the Croatian Ministry of Health and Social Welfare, as the Croatian Central Authority, to contact the Austrian Ministry of Justice, as the Austrian Central Authority, with a view to returning L.V. 49. On 11 May 2011 the Graz First-Instance Court instituted proceedings relating to the applicant’s request for return of the children. 50. On 22 September 2011 the Graz First-Instance Court, relying on Article 13 paragraph 1 (b) of the Hague Convention (see paragraph 54 below), dismissed S.V.’s request. It held that returning L.V. to Croatia would expose her to psychological harm or otherwise place her in an intolerable situation. In so deciding it relied on the opinion of an expert in psychology which suggested that separating L.V. from her mother would have devastating consequences. The court added, obiter dictum, that the Vinkovci Municipal Court had breached the Hague Convention when it had decided on custody of the applicant’s three children before a final decision had been delivered on her request for the return of the children.
| 1 |
test
|
001-178093
|
ENG
|
AUT
|
ADMISSIBILITY
| 2,017 |
VORBECK v. AUSTRIA
| 4 |
Inadmissible
|
André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
|
1. The applicant, Mr Friedrich Vorbeck, is an Austrian national who was born in 1964 and lives in Vienna. He is represented before the Court by Mr G. Beneder, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant and his former wife, I.M., are the parents of B.M., who was born in 2000 in wedlock. From 10 June 2002 the parents lived in separate households and B.M. lived together with her mother. The parents, however, continued to share custody. On 18 June 2003 I.M. applied for sole custody of B.M. On 22 October 2004 the applicant and I.M. concluded an agreement before the Purkersdorf District Court under which sole custody of B.M. was awarded to I.M. 5. On 27 September 2005 the applicant and I.M. divorced. 6. On 4 December 2007 the applicant and I.M. concluded a court settlement concerning the contact rights of the applicant in respect of B.M. 7. On 7 October 2010 the applicant applied for joint custody over B.M. and requested I.M. to agree to this application. However, I.M. disapproved of the applicant’s application for joint custody as there were ongoing disputes between the parents. The applicant, on the other hand, stated that he wished to be involved in B.M.’s life and to be included in decisions concerning her education, medical issues and other matters. 8. On 21 December 2010 the District Court heard the applicant, I.M. and B.M.; at the end of the hearing the applicant and I.M. confirmed that they would continue to adhere to the settlement of 22 October 2004 concerning the contact rights of the applicant. 9. On 16 February 2011 the District Court, having held a further hearing in the course of which the applicant, I.M. and B.M. were examined again, dismissed the applicant’s application for joint custody. It based this decision on Article 177a of the Civil Code, under which joint custody is only possible in the event of both parents consenting. The applicant requested the court to apply to the Constitutional Court for review of the constitutionality of this provision, but the District Court held that a court of first instance did not have the authority to lodge such an application. 10. The applicant appealed, arguing that Article 177a of the Civil Code was unconstitutional and in violation of his Convention rights; he also asked the Regional Court to request the Constitutional Court for review of the constitutionality of this provision. 11. On 27 April 2011 the St. Pölten Regional Court rejected the applicant’s request for an application to the Constitutional Court for judicial review in respect of Articles 177 and 177a of the Civil Code, as the Regional Court had no concerns regarding the constitutionality of these provisions. Referring explicitly to the Court’s judgment in the case of Sporer v. Austria (no. 35637/03, 3 February 2011), the Regional Court found that the present case must be distinguished from Sporer. Under Articles 177 and 177a of the Civil Code, which applied in the present case, parents had joint custody of their child. If after divorce one parent were to ask for sole custody then the court, taking into account the well-being of the child, had to transfer custody to one of the parents. By contrast, Article 166 of the Civil Code, which was at issue in Sporer, provided that custody of a child born out of wedlock was from the very beginning to be granted only to the mother of that child. Given that in the event of the termination of joint custody after divorce or following an agreement between the parents, the law did not grant either of the parents a privileged position as regards the award of sole custody, there was no indication that this was discriminatory. If one were to follow the reasoning of the applicant that it should be possible to simply request the re-establishment of joint custody at any moment following a final court decision lifting joint custody or an agreement of the parents to that effect, the binding force of decisions whereby joint custody had been lifted would be rendered meaningless, which was in contradiction to the principle of legal certainty (Rechtskraft). 12. The Regional Court observed furthermore that the first-instance court had not made any findings as to the ability of the parents to find compromise (Konsensfähigkeit) indispensable for the meaningful exercise of joint custody. From the content of the case file and in particular the expert reports submitted, it could, however, be deduced that at the time of the termination of joint custody, the parents lacked this ability, and there was no indication in the file that the situation had improved in the meantime. In such a situation it was not in the interest of the well-being of a child that once joint custody had been granted, every single issue on which parents did not agree – such as which school a child should attend – had to be determined by decision of the District Court. 13. On 20 May 2011 the applicant lodged an ordinary appeal (ordentlicher Revisionsrekurs) against the Regional Court’s decision of 27 April 2011 and asked the Supreme Court to apply to the Constitutional Court for review of the constitutionality of Articles 177 and 177a of the Civil Code. 14. On 30 August 2011 the Supreme Court rejected the applicant’s appeal as inadmissible. The ruling was served on the applicant’s counsel on 29 September 2011. The Supreme Court found that if custody of a child had been granted to one parent, either by a court decision or by agreement between the parents, then in the interest of consistency of education (Erziehungskontinuität) a change of the person having custody could only be granted if there existed a risk to the well-being of the child. It was not decisive whether the circumstances of one parent were better than those of the other. The Supreme Court noted that in his application for joint custody the applicant had not even made the argument that circumstances had changed since the decision on custody of the District Court of 22 October 2004 had become final, and he had not given any other reasons (as required by Article 176 of the Civil Code) to justify a different ruling. The mere presupposition that joint custody exercised by both parents might be better for the well-being of the child was not a sufficient justification for interfering with a binding decision. Furthermore, the ability and intention of both parents to share their responsibility is an indispensable precondition for joint custody. It could be clearly seen from the case file that there was no agreement between the parents regarding the issue of joint custody and that no coordinated action when exercising joint custody could therefore be expected from them. 15. Following the 2013 amendment to the Civil Code (see para. 17 below), on 18 February 2013 the applicant lodged an application for joint custody of B.M. However, on 28 January 2014, he withdrew this application. 16. Articles 177 and 177a of the Civil Code, as in force at the material time read as follows: “(1) If the marriage of the parents of a minor legitimate child is dissolved or annulled, the custodial rights of both parents remain intact. However, they may present an agreement to the court – even modifying an existing agreement – regarding custodial responsibility. In this connection it may be agreed that one parent alone or both parents shall have custody. Where both parents have custodial powers, those of one parent may be limited to specific matters. (2) Where both parents have custody, they must submit an agreement to the court regarding the parent with whom the child is to stay primarily. This parent must always be put in charge of all custodial matters. (3) The court must approve the agreement of the parents if it serves the interests of the child.” “(1) If an agreement under Article 177 on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled, or if [such an agreement] is incompatible with the interests of the child, the court must decide which parent shall henceforth have sole custody, if all attempts to reach an amicable solution fail. (2) If both parents have custody under Article 177 after their marriage has been dissolved or annulled, and if one parent applies for the withdrawal of that custody, the court must decide which parent shall have sole custody, if all attempts to reach an amicable solution fail.” 17. It is noted, however, that on 1 February 2013 the relevant provisions of the Austrian Civil Code were amended significantly. The relevant sections read as follows: “(1) If the marriage or the common household of the parents is dissolved, joint custody is maintained. They can, however, conclude an agreement before a court under which one parent is entrusted with sole custody, or the custody of one parent is limited to certain matters. (2) In the case that both parents have joint custody after the dissolution of their marriage or the common household, [the parents] have to conclude an agreement before a court regarding in whose household the child will predominantly be cared for.” “(1) Provided that it is in the best interests of the child, the court has to decide on the provisional regulation of parental responsibility (“the phase of provisional parental responsibility”), if 1. after the dissolution of the marriage or the common household the parents cannot concur on an agreement, pursuant to section 179, within a reasonable time limit, or 2. one parent applies for sole custody or his/her participation in custodial rights. ... (2) After [the phase of provisional responsibility, which lasts six months], the court has to take a final decision on custody (on the basis of what transpired during the phase of provisional parental responsibility) – including payment of statutory maintenance – [which is in the best interests of the child.] ... If the court awards joint custody, it also has to decide in whose household the child will predominantly be cared for.”
| 0 |
test
|
001-152447
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,015 |
ALASIPPOLA v. FINLAND
| 4 |
Inadmissible
|
Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
1. The applicant, Mrs Hanna Riikka Alasippola, is a Finnish national, who was born in 1972 and lives in Leppävesi. She was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was subject to a tax inspection during the years 2003 and 2004 due to an unexplained increase in her income. The tax inspection report was completed on 4 June 2004. At the same time the applicant’s husband was also subject to a tax inspection. He has lodged a separate application with the Court (no. 49509/12 Robert Alasippola v. Finland). 5. On 9 September 2004 the tax authorities imposed additional taxes and tax surcharges (veronkorotus, skatteförhöjning) on the applicant for the tax years 1999, 2000, 2001 and 2002. The amount of evaded taxes between 1999 and 2001 totalled approximately 55,290 euros. The amount of tax surcharges varied between 700 and 1,850 euros. 6. On an unspecified date the applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden), requesting it to quash the decisions of 9 September 2004. Also the Tax Ombudsman (veroasiamies, skatteombudet) sought rectification in respect of the tax year 2001, requesting that the taxable income be increased. 7. On 17 September 2004 the Tax Rectification Committee reduced the amount of additional taxes as well as tax surcharges in respect of the tax year 2000. 8. On an unspecified date the Tax Rectification Committee accepted the Tax Ombudsman’s application and increased the taxable income for the tax year 2001. However, on 26 June 2006 the Hämeenlinna Administrative Court (hallinto-oikeus, förvaltningsdomstolen) quashed that decision. 9. On 11 December 2006 the Tax Rectification Committee rejected the applicant’s applications in respect of the tax years 1999, 2000, 2001 and 2002. 10. By letter dated 23 February 2007 the applicant appealed to the Hämeenlinna Administrative Court, requesting that the additional taxes and tax surcharges be quashed or at least reduced. 11. On 2 May 2008 the Hämeenlinna Administrative Court accepted the applicant’s appeal in respect of the tax year 2002 and quashed the additional tax and the tax surcharges in that respect. The remainder of the applicant’s appeal was rejected. This decision became final on 2 July 2008 as the applicant did not appeal against it. 12. On 27 March 2009 the public prosecutor brought charges against the applicant on one count of aiding and abetting aggravated dishonesty by a debtor (törkeä velallisen epärehellisyys, grovt oredlighet som gäldenär) and on two counts of aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri), all concerning the tax years 1999 to 2002. According to the charges, the applicant was accused of aiding and abetting aggravated dishonesty by a debtor as she had received unexplained income from her husband between 1999 and 2002. She was accused of aggravated tax fraud, inter alia, as she had given false information to the tax authorities and tax had therefore been incompletely levied between 1999 and 2001. The amount of evaded taxes had been 57,252 euros. The taxation authorities joined the charges and presented a compensation claim totalling exactly the amount of avoided taxes. 13. On 26 February 2010 the Keski-Suomi District Court (käräjäoikeus, tingsrätten) convicted the applicant of aiding and abetting aggravated dishonesty by a debtor and imposed a 9-month suspended sentence. The charges of aggravated tax fraud were dismissed, as well as the tax authorities’ compensation claim. 14. By letter dated 6 April 2010 the applicant appealed to the Vaasa Appeal Court (hovioikeus, hovrätten), requesting that the District Court’s judgment be quashed and the charge on aiding and abetting aggravated dishonesty by a debtor be rejected or dismissed without examining the merits. She referred to the ne bis in idem principle and to the Court’s caselaw in that respect. 15. On 31 October 2011 the Vaasa Appeal Court, after having held an oral hearing, upheld the District Court’s judgment. The court found that the mere fact that the same issues had been assessed in the administrative proceedings did not necessary prevent the examination of the charges pressed. In the administrative proceedings, the unexplained increase in the applicant’s wealth had been considered to be income, thus that case concerned only taxes. The criminal proceedings, however, concerned the fact that the applicant had received income from her husband to the detriment of his creditors. As the proceedings did not concern the same matter, there was no impediment to the examination of the charges. 16. By letter dated 22 December 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. She emphasised that the income received from her husband was exactly the same income for which additional taxes and tax surcharges had been imposed. All the imposed additional taxes and tax surcharges had been paid. 17. On 31 January 2012 the Supreme Court refused the applicant leave to appeal but granted the applicant’s husband leave to appeal. 18. Section 57, subsection 1, of the Tax Assessment Procedure Act (laki verotusmenettelystä, lagen om beskattningsförfarande, Act no. 1558/1995, as amended by Act no. 1079/2005) provides that if a person has failed to make the required tax returns or has given incomplete, misleading or false information to the tax authorities and tax has therefore been incompletely or partially levied, the taxpayer shall be ordered to pay unpaid taxes together with additional tax and a tax surcharge. 19. According to Chapter 29, sections 1 and 2, of the Penal Code (rikoslaki, strafflagen, as amended by Acts no. 1228/1997 and no. 769/1990), a person who (1) gives a tax authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently and thereby causes or attempts to cause a tax not to be assessed, or too low a tax to be assessed or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for a period of up to two years. If by the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for a period between four months and four years. 20. According to Chapter 39, sections 1 and 1a, of the Penal Code (as amended by Acts no. 61/2003 and no. 317/1994), a debtor who (1) destroys his or her property, (2) gives away or otherwise surrenders his or her property without acceptable reason, (3) transfers his or her property abroad in order to place it beyond the reach of his or her creditors or (4) increases his or her liabilities without basis and thus causes his or her insolvency or essentially worsens his or her state of insolvency, shall be sentenced for dishonesty by a debtor to a fine or to imprisonment for at most two years. If by the dishonesty by a debtor (1) considerable benefit is sought, (2) considerable or particularly substantial damage is caused to the creditors, or (3) the offence is committed in a particularly methodical manner and the dishonesty by a debtor is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated dishonesty by a debtor to imprisonment for at least four months and at most four years. 21. The Supreme Court has taken a stand on the ne bis in idem principle in its precedent case KKO 2010:46 which concerned tax surcharges and aggravated tax fraud. In that case it found, inter alia, that even though a final judgment in a taxation case, in which tax surcharges had been imposed, prevented criminal charges being brought about the same matter, such preventive effect could not be applied to pending cases (lis pendens) crossing from administrative proceedings to criminal proceedings or vice versa. However, in July 2013 the Supreme Court reversed its line of interpretation, finding that charges for tax fraud could no longer be brought if there was already a decision to order or not to order tax surcharges in the same matter (KKO 2013:59). 22. The Act on Tax Surcharges and Customs Duty Surcharges Imposed by a Separate Decision (laki erillisellä päätöksellä määrättävästä veron- tai tullinkorotuksesta, lagen om skatteförhöjning och tullhöjning som påförs genom ett särskilt beslut, Act no. 781/2013) entered into force on 1 December 2013. According to the Act, the tax authorities can, when making a tax decision, assess whether to impose a tax surcharge or to report the matter to the police. The tax authorities can decide not to impose a tax surcharge. If they have not reported the matter to the police, a tax surcharge can be imposed by a separate decision by the end of the calendar year following the actual tax decision. If the tax authorities have imposed tax surcharges, they can no longer report the same matter to the police unless, after imposing the tax surcharges, they have received evidence of new or recently revealed facts. If the tax authorities have reported the matter to the police, tax surcharges can, as a rule, no longer be imposed. The purpose of the Act is thus to ensure that a tax or a customs duty matter is processed, and possibly punished, in only one set of proceedings. The Act does not, however, contain any transitional provisions extending its scope retroactively.
| 0 |
test
|
001-145019
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF EGAMBERDIYEV v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion)
|
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
|
6. The applicant was born in 1975 in the Andijan Region of Uzbekistan. 7. The applicant first arrived in Russia in November 2008. In summer 2009 he applied for Russian nationality using a false name and a forged Kyrgyz passport. His application was granted on 16 March 2010. 8. On 31 July 2009 an investigator from the National Security Service of Uzbekistan issued a decision to charge the applicant with membership of the extremist organisation Nurchilar (also spelled Nurcilar) and possession and dissemination of extremist literature, offences under Articles 244-1(3) and 244-2(1) of the Uzbek Criminal Code. A search warrant was issued on the same date. On 5 August 2009 the Unus-Abad District Court ordered the applicant’s arrest. 9. On 22 February 2013 the applicant was arrested in Omsk and charged with using a false identity document to cross the Russian border. Once his real identity had been established, he was detained pending extradition proceedings. On 26 February 2013 the Isilkul Town Court of the Omsk Region imposed a custodial preventive measure, which was subsequently extended on 22 March and 22 April 2013 until 22 June 2013. 10. On 22 March 2013 the Russian Prosecutor General’s office received an extradition request from his Uzbek counterpart. The request stated that the applicant was wanted in Uzbekistan in connection with his membership of an extremist organisation, an offence under Article 244-1(1) of the Uzbek Criminal Code. 11. On 23 May 2013 the Isilkul town prosecutor lifted the custodial measure that had been imposed in the extradition proceedings. The extradition was adjourned until such time as the criminal proceedings against the applicant on the charge of using a false document had been completed. 12. As of the date of the applicant’s most recent submission of 6 March 2014, he was not aware of the outcome of the extradition proceedings. 13. On 23 May 2013, immediately after the applicant’s release from custody, the Isilkul Town Court heard an administrative case against him on the charge of illegal residence in Russia, an offence under Article 18.8 § 1 of the Code of Administrative Offences. The Town Court found the applicant guilty and sentenced him to a fine and administrative removal from Russia (“expulsion order”). Pending removal, he was to be held in the Centre for Social Adaptation for foreign nationals. 14. On 29 May 2013 the applicant asked the Court to apply interim measures under Rule 39 of the Rules of Court to prevent his expulsion to Uzbekistan. The Court granted his request on 31 May 2013. 15. On 11 June 2013 the Omsk Regional Court summarily rejected the appeal against the Town Court’s expulsion order of 23 May 2013. 16. In the meantime, on 6 June 2013 an investigator with the border control department of the Federal Security Service for the Kurgan and Tyumen Regions had the applicant transferred from the Centre for Social Adaptation to the Kazanskoye police ward in the Tyumen Region pending the criminal proceedings against him on the charge of using a false passport. 17. On the following day the Kazanskiy District Court of the Tyumen Region issued a detention order against the applicant and he was placed in remand prison IZ-72/2 in the Tyumen Region. 18. On 17 September 2013 the Kazanskiy District Court found the applicant guilty of using two false passports and of illegally crossing the Russian border, and sentenced him to a fine. He was released in the courtroom. 19. On 27 March 2013, while in custody awaiting a decision on the extradition request, the applicant applied for refugee status in Russia, claiming that he feared persecution on account of his religious beliefs. 20. By a decision of 20 June 2013, the Omsk division of the Federal Migration Service (“the FMS”) refused the application, finding that the applicant had waited for about five years after his first entry to Russia before asking for asylum, that he had used false names and documents in order to stay in Russia, and that he had no credible claim of a risk of persecution. 21. The applicant lodged a hierarchical appeal, which was rejected by the central office of the FMS on 11 September 2013. The decision was notified to his lawyer by letter of 16 September 2013. 22. Unaware of the refusal, on 18 September 2013 the applicant went to the Omsk office of the FMS for a certificate of pending refugee-status proceedings, which would have allowed him to reside legally in Russia. He was arrested in the office and placed into custody pending expulsion under the expulsion order of 23 May 2013 (see paragraph 13 above). 23. On 22 January 2014 the Basmannyi District Court of Moscow rejected an appeal lodged by the applicant against the FMS’s decision of 11 September 2013. The District Court found that the applicant had failed to prove that he risked persecution in Uzbekistan. 24. An appeal against the District Court’s judgment is pending. The applicant is now in custody in the Omsk Centre for Social Adaptation.
| 1 |
test
|
001-167112
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF CHUGUNOV v. RUSSIA
| 4 |
Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
4. The applicant was born in 1982 and is serving a prison sentence in Donskoy, Tula Region. 5. On 27 June 2005 the Zhukov District Court of the Kaluga Region found the applicant guilty of battery and manslaughter and sentenced him to eleven years and one month’s imprisonment. On 6 September 2005 the Kaluga Regional Court upheld the applicant’s conviction on appeal. 6. On 20 December 2005 the applicant started serving a prison sentence in correctional colony no. IK-1 in the Tula Region. Prior to the applicant’s arrest and conviction, he suffered from duodenal ulcer, chronic bronchitis and high blood pressure. In detention he developed chronic gastritis, hernia of a diaphragm, chronic cholecystitis, lipomas and pilonidal cysts. 7. On 23 January 2012 the applicant was placed in a disciplinary cell. During the day time, the pull-down beds were folded up during the day. The inmates were able either to stand or sit on a metal stool fastened to the floor. The cell was cold and damp. There was no ventilation system. Because of the cracks in the door and windows, there was constant draught. The toilet was separated with a 80-centimetre high partition from the living area of the cell. There was no hot water supply. The applicant was allowed 1.5 hours’ daily exercise and one 30 minutes’ shower per week. 8. On 21 March 2012 the applicant started having a fever resulting from an inflamed pilonidal cyst in the coccyx area. 9. On 22 March 2012 a prison doctor examined the applicant, prescribed him a treatment by antibiotics and pain killers. The doctor also recommended that the applicant consult a surgeon. 10. On 23 March 2012 the head of the correctional colony extended the applicant’s detention in a disciplinary cell for another fifteen days. The prison doctor examined the applicant and concluded that he was fit for detention in the disciplinary cell. He continued the prescribed treatment. 11. On 28 March 2012 the applicant was admitted to a prison hospital at correctional colony no. IK-5. According to the applicant, he was able to consult a surgeon only on 5 April 2012. The applicant’s surgery was scheduled on 10 April 2012. 12. On 8-9 April 2012 the applicant’s cyst opened up and the inflammation stopped. 13. On 18 April 2012 the applicant was released from hospital and transferred back to the correctional colony. 14. On 25 April 2012 the applicant consulted a surgeon and a neurologist at the hospital of correctional colony no. IK-2. He was prescribed medication for high blood pressure. The surgeon recommended that the applicant undergo a surgery in connection with the pilonidal cyst. 15. From 14 to 30 August 2012 the applicant underwent additional examination and treatment at the surgical division of the hospital at correctional colony no. IK-5. According to the doctors who treated the applicant, no surgery was required. 16. According to the applicant, on 5 June 2012 the applicant was summoned by the head of the operations division of the colony. There were several officers present in the office. They advised the applicant to withdraw his application before the Court. They threatened him that, should he choose to pursue his application, he would be serving the rest of his sentence in a disciplinary cell without family visits and he could be charged with another offence. The applicant complied. He signed a letter. It was stamped by the colony and dispatched to the Court on 6 June 2012. 17. On 14 June 2012 the applicant wrote another letter to the Court wherein he asked the Court to disregard his previous letter that he had had to write because of the pressure put on him by the administration of the colony. 18. On 25 June 2012 the Court received the applicant’s letter wherein he asked for withdrawal of his complaint. The letter bore a stamp of the correctional colony and a number attributed to by the administration.
| 1 |
test
|
001-146540
|
ENG
|
ROU
|
GRANDCHAMBER
| 2,014 |
CASE OF MOCANU AND OTHERS v. ROMANIA
| 1 |
Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period;Article 35-3 - Continuing situation);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
|
Aleš Pejchal;Alvina Gyulumyan;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Florin Streteanu;Guido Raimondi;Ineta Ziemele;Ján Šikuta;Johannes Silvis;Josep Casadevall;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Paulo Pinto De Albuquerque;Peer Lorenzen
|
11. Mrs Anca Mocanu and Mr Marin Stoica were born in 1970 and 1948 respectively. They live in Bucharest. 12. The Association “21 December 1989” (Asociaţia 21 Decembrie 1989) was set up on 9 February 1990 and is based in Bucharest. 13. The applicant association brings together mainly individuals who were injured during the violent suppression of the anti-totalitarian demonstrations which took place in Romania in December 1989 and the relatives of persons who died during those events. It was one of the groups which supported the anti-government demonstrations held in Bucharest between April and June 1990, at which demonstrators called, inter alia, for the identification of those responsible for the violence committed in December 1989. 14. The main facts concerning the crackdown on anti-government demonstrations from 13 to 15 June 1990 were described in the decisions of 16 September 1998 (see paragraphs 99-110 below) and 17 June 2009 (see paragraphs 152-63 below), issued by the prosecutor’s office at the Supreme Court of Justice (which in 2003 became the High Court of Cassation and Justice), and in the decisions to commit for trial (rechizitoriu) issued by the same prosecutor’s office on 18 May 2000 and 27 July 2007. 15. On 13 June 1990 the security forces’ intervention against the demonstrators who were occupying University Square and other areas of the capital resulted in several civilian casualties, including Mrs Mocanu’s husband, Mr Mocanu, who was killed by a shot fired from the headquarters of the Ministry of the Interior. 16. On the evening of 13 June 1990 Mr Stoica and other persons, some but not all of whom were demonstrators, were arrested and ill-treated by uniformed police officers and men in civilian clothing, in the area around the headquarters of the State television service and in the basement of that building. 17. On 14 June 1990 thousands of miners were transported to Bucharest, essentially from the Jiu Valley (Valea Jiului) mining region, to take part in the crackdown on the demonstrators. 18. At 6.30 a.m. on 14 June 1990 the President of Romania addressed the miners, who had arrived in the square in front of the Government building, inviting them to go to University Square, occupy it and defend it against the demonstrators; they subsequently did so. 19. The violent events of 13 and 14 June 1990 resulted in more than a thousand victims, whose names appear in a list attached to the decision issued on 29 April 2008 by the military section of the prosecutor’s office at the High Court of Cassation and Justice. 20. The headquarters of several political parties and other institutions, including those of the applicant association, were attacked and ransacked. The latter association subsequently joined the criminal proceedings as a civil party. 21. The criminal proceedings into the unlawful killing by gunfire of Mr Velicu-Valentin Mocanu are still pending. The investigation opened on 13 June 1990 into the ill-treatment allegedly inflicted on Mr Stoica was closed by a decision not to bring a prosecution, dated 17 June 2009, subsequently upheld by a judgment of the High Court of Cassation and Justice of 9 March 2011. 22. The facts as set out by the prosecutor’s office at the High Court of Cassation and Justice in its decisions of 16 September 1998 and 17 June 2009 and in the decisions to commit for trial of 18 May 2000 and 27 July 2007 may be summarised as follows. 23. University Square in Bucharest was considered a symbolic location for the fight against the totalitarian regime of Nicolae Ceauşescu, given the large number of persons who had died or were injured there as a result of the armed repression initiated by the regime on 21 December 1989. It was therefore in this square that several associations – including the applicant association – called on their members to attend protest events in the first months of 1990. 24. Thus, the first demonstrations against the provisional government formed after the fall of the Ceauşescu regime took place in University Square in Bucharest on 12 and 24 January 1990, as indicated in the decision issued on 17 June 2009 by the prosecutor’s office at the High Court of Cassation and Justice. That decision also states that a counter-demonstration was organised by the National Salvation Front (Frontul Salvării Naţionale – the FSN) on 29 January 1990. On that occasion, miners from the coal-mining regions of the Jiu Valley, Maramureş and other areas appeared in Bucharest. The headquarters of the National Liberal Party were vandalised at that time. 25. From 25 February 1990, demonstrations were held every Sunday. According to the decision to commit for trial of 27 July 2007, they were intended to denounce the non-democratic attitude of those in power, who were accused of having “betrayed the ideals of the revolution”, and sought to alert the population to the threat of a new dictatorial regime. 26. Election campaigns were subsequently launched for parliamentary elections and the office of President of the Republic, to be held on 20 May 1990. 27. It was in this context that unauthorised “marathon demonstrations” (manifestaţii maraton) began on 22 April 1990 in University Square, at the initiative of the Students’ League and other associations, including the applicant association. These demonstrations lasted fifty-two days, during which the demonstrators occupied University Square. The decisions of 16 September 1998 and 17 June 2009 indicate that the demonstrators, who had gathered in large numbers, were not violent and were essentially demanding that persons who had exercised power during the totalitarian regime be excluded from political life. They also called for a politically independent television station. 28. They called further for the identification of those responsible for the armed repression of December 1989 and demanded the resignation of the country’s leaders (particularly the Minister of the Interior), whom they considered responsible for the repression of the anti-communist demonstrations in December 1989. 29. On 22 April 1990 fourteen demonstrators were arrested by the police on the ground that the demonstration had not been authorised. Faced with the reaction of the public, who had arrived to boost the number of demonstrators in University Square, the police released the fourteen arrested demonstrators. The authorities did not use force again over the following days, although the Bucharest City Council had still not authorised the gathering. 30. Negotiations between the demonstrators and the provisional government resulted in stalemate. 31. On 20 May 1990 the presidential and parliamentary elections took place. The FSN and its leader, who was standing for President, won the elections. 32. Following those elections the protests continued in University Square, but were reduced from their original scale. Of the approximately 260 persons still present, 118 had gone on hunger strike. 33. On the evening of 11 June 1990 the new President elect of Romania and his Prime Minister convened a government meeting, attended by the Minister of the Interior and his deputy, the Minister of Defence, the director of the Romanian Intelligence Service (Serviciul Român de Informaţii – the SRI), the first deputy president of the ruling party (the FSN) and the Procurator General of Romania. This is established in the prosecution service’s decisions of 16 September 1998 and 17 June 2009. 34. At that meeting it was decided to take measures to clear University Square on 13 June 1990. In addition, it was proposed that the State organs, namely the police and army, would be assisted by some 5,000 mobilised civilians. Implementation of this measure was entrusted to the first deputy president of the FSN. Two members of that party’s steering committee opposed the measure, but without success. According to the decision of 17 June 2009, an action plan drawn up by General C. was approved by the Prime Minister. 35. On the same evening the Procurator General’s Office (Procuratura Generală) broadcast a statement on State television calling on the government to take measures so that vehicles could circulate again in University Square. 36. At a meeting held on the same evening with the participation of the Minister of the Interior, the head of the SRI and the head of police, General D.C. set out the plans for the police and gendarmerie, in collaboration with civilian forces, to clear University Square. Under this plan, the action was “to begin at 4 a.m. on 13 June 1990 by cordoning off the square, arresting the demonstrators and re-establishing public order”. 37. At about 4.30 a.m. on 13 June 1990 members of the police and gendarmerie brutally charged the demonstrators in University Square. The arrested demonstrators were driven away and locked up at the Bucharest municipal police station. The 263 arrested individuals (or 262, according to the decision to commit for trial of 18 May 2000) included students from the Architecture Institute, who had been on the premises of their establishment, located on University Square, and who had not taken part in the demonstrations. The decision of 17 June 2009 indicated that the 263 persons who had been arrested were taken to the Măgurele barracks after being held in the police cells. 38. The police operation led to protests by many people, who demanded that the arrested demonstrators be released. According to the decision of 16 September 1998, those persons launched violent attacks on the security forces, hurling projectiles and setting cars on fire. According to the decision to commit for trial of 18 May 2000, those actions were the work of a few aggressive individuals who had infiltrated groups of peaceful demonstrators. 39. At about 10 a.m., workers from the factories of a large metallurgical company in Bucharest (IMGB) headed en masse for University Square to help the police arrest the demonstrators. According to the decision of 16 September 1998, they acted in a chaotic and heavy-handed manner, hitting out blindly and making no distinction between demonstrators and mere passers-by. 40. On the afternoon of 13 June 1990, the demonstrations intensified around the television building, University Square, the Ministry of the Interior and the municipal police station, all locations where, according to the demonstrators, the persons who had been arrested could be held prisoner. 41. Following those incidents, the army intervened and several armoured vehicles were sent to the headquarters of the Ministry of the Interior. 42. According to a report by the Ministry of the Interior, referred to by the Government in their observations, at about 6 p.m. the headquarters of the Ministry of the Interior were surrounded by between 4,000 and 5,000 demonstrators; on the orders of Generals A.G. and C.M., servicemen posted inside the Ministry fired at the ceilings of the entrance halls with a view to dispersing the demonstrators. 43. Three persons were killed by the shots fired in the Ministry of the Interior. 44. It was in those circumstances that, at about 6 p.m., when he was a few metres away from one of the doors of the Ministry, the first applicant’s husband was killed by a bullet which hit the back of his head after having ricocheted. Those events are described in detail in the decisions of 18 May 2000 and 27 July 2007 committing for trial the Minister of the Interior at the relevant time, a general and three colonels. According to the first decision to commit for trial, the applicant’s husband and the other victims, who were returning from their workplaces on that day, were unarmed and had not previously taken part in the marathon demonstrations in University Square. Mere spectators of the events, they had been killed by bullets which had ricocheted. 45. The security forces shot and killed a fourth person in another district of Bucharest. Another died shortly after having been stabbed in the area around the television headquarters. 46. On 13 June 1990 no servicemen were subjected to violence by the demonstrators, as attested by the decision to commit for trial of 27 July 2007. According to that document, the army had fired 1,466 bullets from inside the Ministry of the Interior headquarters on that date. 47. In addition, other persons, including Mr Stoica, were beaten and detained by police officers and civilians in the headquarters of the State television station, in the circumstances described below. 48. The headquarters of the State television station were at that time guarded by 82 servicemen, backed by 14 armed vehicles, and subsequently reinforced by other groups of armed forces, the largest of which contained 156 servicemen (who arrived at 7 p.m.), a detachment of parachutists (7.30 p.m.), 646 servicemen (8 p.m.), 118 parachutists (11 p.m.) and 360 servicemen with 13 other armed vehicles (11 p.m.). 49. At about 1 a.m. the demonstrators were chased out of the television headquarters following this mass intervention. 50. Towards the end of the afternoon on 13 June 1990, while he was walking to his workplace along a street near the State television headquarters, the applicant was brutally arrested by a group of armed individuals and taken by force into the television building. In sight of the police officers and servicemen present, civilians struck and bound him, then took him to the basement of the building. He was then led into a television studio, where several dozen other persons were already present. They were filmed in the presence of the then director of the State television station. The recordings were broadcast during the night of 13 to 14 June 1990, accompanied by commentary which described the persons concerned as employees of foreign secret services who had threatened to destroy the television premises and equipment. 51. In the course of the same night the applicant was beaten, struck on the head with blunt objects and threatened with firearms until he lost consciousness. 52. He woke up at around 4.30 a.m. in the Floreasca Hospital in Bucharest. According to the forensic medical report drawn up on 18 October 2002, the medical certificate issued by the hospital’s emergency surgery department stated that the applicant had been admitted at about 4.30 a.m. on 14 June 1990 and diagnosed as suffering from bruising on the left side of the abdomen and ribcage, abrasions on the left side of his ribcage resulting from an assault, and craniocerebral trauma. 53. Fearing further ill-treatment, he fled from the hospital, which was surrounded by police officers, at about 6.30 a.m. 54. His identity papers had been confiscated during the night of 13 to 14 June 1990. Three months later he was invited to collect them from the Directorate of Criminal Investigations at the General Inspectorate of Police. In the meantime, he had remained shut away at home for fear of being arrested again, tortured and imprisoned. 55. According to the decision of 16 September 1998, witness M.I., an engineer, who at the relevant time was head of department at the Craiova agency of the national railway company (Regionala CFR Craiova), had stated that, on the evening of 13 June 1990, the director of that agency had ordered that the scheduled trains be cancelled and that 4 train convoys, or a total of 57 wagons, be made available to the miners at Petroşani station, in the heart of the Jiu Valley mining area. 56. M.I. had added that the order seemed to him unlawful and that he had attempted to prevent the miners’ transportation to Bucharest by cutting the electricity provision to the railway line on the journey indicated. He had stated that, faced with his insubordination, the director of the Craiova CFR agency had ordered that he be replaced and had the railway line restored to use by about 9 p.m. It appears that M.I. was subsequently dismissed and brought before the prosecution service. 57. According to the decision issued on 10 March 2009 by the prosecutor’s office at the High Court of Cassation and Justice, on 14 June 1990 11 trains – a total of 120 wagons – transporting workers, especially miners, had travelled to Bucharest from several industrial regions around the country. The first had reached Bucharest at 3.45 a.m., the last at 7.08 p.m. 58. The decision of 16 September 1998 states that the miners had been informed that they were to help the police re-establish public order in Bucharest, and that they were armed with axes, chains, sticks and metal cables. 59. The decision of 10 March 2009 indicates that the miners had been mobilised by the leaders of their trade union. Questioned as a witness, the President of the Federation of Miners’ Unions, who became mayor of Lupeni in 1998, stated that 5 trains carrying the miners had arrived at Bucharest station at about 1 a.m. on 14 June 1990, that the miners had been greeted by the deputy Minister for Mines and a Director General from that Ministry, and that these two senior government officials had led them to University Square. 60. On the morning of 14 June 1990, groups of miners first stopped at Victory Square (Piaţa Victoriei), at the government headquarters. 61. At about 6.30 a.m., the Head of State addressed the miners who were gathered in front of the government building, inviting them to cooperate with the security forces and to restore order in University Square and in other areas where incidents had occurred. In this speech, which is reproduced in full in the decision of 17 June 2009, he urged them to head towards University Square and occupy it, informing them that they would be confronted with “openly fascist elements who had committed acts of vandalism” by setting fire to the headquarters of both the Ministry of the Interior and of the police and “besieging the television building”. 62. Immediately afterwards groups of miners were led “by unidentified persons” to the headquarters of opposition parties and associations perceived as hostile to the authorities. 63. The miners were flanked by troops from the Ministry of the Interior, with whom they formed “mixed teams”, and set out to look for demonstrators. The decision of 17 June 2009 indicates that “acts of extreme cruelty [took place] on this occasion, with violence being used indiscriminately against demonstrators and Bucharest residents who were totally unconnected with the demonstrations”. The decision of 10 March 2009 indicates that the miners also attacked the homes of persons of Roma ethnicity. According to that decision, the miners had “selection criteria” for identifying those persons who, in their opinion, were suspected of taking part in the University Square demonstrations, and attacked “as a general rule, Roma, students, intellectuals, journalists and anyone who did not recognise their legitimacy”. 64. The groups of miners and the other persons accompanying them ransacked the headquarters of the National Farmers’ Party (Partidul Naţional Ţărănesc Creştin şi Democrat) and the National Liberal Party, and the headquarters of other legal entities, such as the Association of Former Political Prisoners (Asociaţia Foştilor Deţinuţi Politici), the League for the Protection of Human Rights (Liga pentru Apărarea Drepturilor Omului) and the Association “21 December 1989” (the applicant association). 65. According to the decision of 16 September 1998, no one present in the headquarters of those political parties and associations at that time was spared by the miners. All were attacked and had their possessions confiscated. Many were apprehended and handed over to the police – who were there “as though by coincidence” – and detained in an entirely unlawful manner. 66. Other groups of miners had gone to University Square. On arrival, they broke into the University premises and the Architecture Institute, located on University Square. They attacked the staff and students whom they encountered there, subjecting them to violence and humiliating acts. The miners apprehended everyone on the premises and handed them over to the police and gendarmes. The arrested persons were taken by the law-enforcement officers to police stations or to the Băneasa and Măgurele military barracks. 67. The miners then moved into the streets surrounding University Square and continued their activities there. 68. According to the decision of 17 June 2009, 1,021 individuals – including 63 who were then under age – were apprehended in those circumstances. Of those individuals, 182 of them were placed in pre-trial detention, 88 received an administrative penalty and 706 were released “after checks”. 69. The decision of 16 September 1998 states that “the miners [ended] their law-enforcement activities on 15 June 1990, after the President of Romania had thanked them publicly for what they had done in the capital, and authorised them to return to their work”. 70. That decision also indicates that some of those who were beaten and imprisoned were unlawfully detained for several days and that several of them were released on 19 and 20 June 1990. 71. The other persons in police custody were placed in pre-trial detention, on a decision by the prosecutor, for causing a breach of the peace; their number included the current president of the applicant association, who was subsequently acquitted of all the charges against him. 72. The decision of 17 June 2009 states that the miners acted in close collaboration with the security forces and on the instructions of the State’s leaders. The relevant passages read as follows: “On 14 and 15 June 1990 the miners, in groups coordinated by civilians on behalf of and with the agreement of the State’s leaders [în numele şi cu acordul conducerii de stat], committed acts in which the State’s law-enforcement forces fully collaborated [deplină cooperare] and which caused not only physical harm to the persons who were apprehended for checks, but also significant damage to the premises of the University of Bucharest, the Architecture Institute, several political parties and civilian associations, and the homes of figures from so-called ‘historical’ parties ... The investigations conducted by the military prosecutors have not permitted identification of the persons in civilian clothing who had infiltrated the miners’ groups; the victims who were questioned had distinguished between the miners and their other attackers by describing the first as ‘dirty miners’ and the second as ‘clean miners’. 73. On 13 June 1990 the applicant association publicly condemned the violent interventions of the same day. 74. At about 11 p.m. the leaders of the association decided, as a security measure, to spend the night in its headquarters. Seven of them remained there during the night. 75. At 7 a.m. on 14 June 1990, a group of miners forcibly entered the applicant association’s premises after breaking a window pane. In the first few minutes after entering they were not violent, and were rather reserved. Shortly afterwards an unidentified civilian, who was not a miner, arrived on the scene and began hitting one of the members of the association. The miners followed his lead, brutally attacking the seven members of the association, who were then arrested by the security forces. 76. During that day all of the association’s property and documents were seized, in breach of the legal formalities, under the supervision of troops from the Ministry of Defence. 77. On 22 June 1990 the leaders of the association were able to return to the association’s premises, accompanied by the police. 78. The above-cited decisions of the prosecutor’s office indicate that, instead of immediately returning to their homes, 958 miners remained in Bucharest, “ready to intervene should the protests recommence”, notably with a view to the impending swearing-in of the newly elected President. From 16 to 19 June 1990 those miners were accommodated in military barracks in Bucharest, where they received military uniforms. 79. The decision of 16 September 1998 indicates that the investigation was unable to elucidate who had given the order to house and equip the miners, but specifies that “such a measure had to have been taken at least at Ministry of Defence level”. 80. According to a press release issued by the Ministry of Health on 15 June 1990 and reproduced in the decision of 17 June 2009, during the period between 13 June and 6 a.m. on 15 June 1990, 467 persons went to hospital following the violent incidents; 112 were kept in hospital and 5 deaths were recorded. 81. According to the same decision of 17 June 2009, police officers, miners and later the military conscripts responsible for supervising the miners used excessive force against the 574 demonstrators and the other persons – including children, elderly persons and blind people – who had been arrested and detained in the Măgurele military barracks. The decision states that the detainees on those premises were subjected to violence and assaults of a “psychological, physical and sexual” nature and held in inappropriate conditions, and that they received belated and inadequate medical care. 82. The violent events of June 1990, in the course of which the husband of the applicant Anca Mocanu was killed and Mr Stoica was allegedly ill-treated, and which resulted in the ransacking of the applicant association’s headquarters, gave rise to the opening of an investigation. It was initially divided up into several hundred different case files. 83. On 29 May 2009 the military section of the prosecutor’s office at the High Court of Cassation and Justice sent a letter to the Government’s Agent, in which the facts were summarised as follows: “Over the period from 1990 to 1997, hundreds of complaints were registered on the rolls of the prosecutor’s office at the Bucharest County Court and the district prosecutor’s offices concerning the offences of theft, destruction, armed robbery, assault causing bodily harm, unlawful deprivation of liberty and other offences committed in the context of the acts of violence committed by miners in Bucharest on 14 and 15 June 1990. In the majority of those cases, it having proved impossible to identify the perpetrators, a decision was issued not to bring a prosecution.” 84. No decision to discontinue the proceedings was communicated to Mrs Mocanu or to the applicant association, which had joined the proceedings as a civil party. 85. Those case files were subsequently joined and the scope of the investigation was broadened from 1997 onwards, the events having been given a different legal classification involving aggravated criminal responsibility. Senior army officers and State officials were successively charged and the entire investigation was transferred to the military section of the prosecutor’s office at the Supreme Court of Justice (Parchetul de pe lângă Curtea Supremă de Justiţie – Secţia Parchetelor Militare) as case no. 160/P/1997. 86. Between 22 October 1997 and 27 October 1999, 183 previously opened cases were joined to case no. 160/P/1997, of which 46 were joined on 22 October 1997, 90 on 16 September 1998 and 69 on 22 October 1999. 87. On 26 June 2000 the same military prosecutor’s section was assigned 748 cases concerning the events of 13 to 15 June 1990, including, in particular, the unlawful deprivations of liberty on 13 June 1990. 88. In the decision of 17 June 2009, the state of the file as it existed after the joinder of all those cases is described as follows: “Many of the documents included in the 250 volumes of the file are photocopies which have not been stamped or have not been certified as corresponding to the original. The documents in each of those volumes are not filed by date, subject or another criterion, but in a disorderly fashion. Some of them have nothing to do with the case (for example, volume 150 contains files concerning disappearances which occurred after June 1990). ...” 89. On 16 September 1998 case no. 160/P/1997 was split into four cases and the subsequent investigation was assigned to the military section of the prosecutor’s office at the Supreme Court of Justice. 90. On 8 January 2001 three of those four cases were joined. After that date the investigation focused on two main cases. 91. The first concerned charges of incitement to or participation in aggravated unlawful killing, particularly that of Velicu-Valentin Mocanu. The persons accused of that offence were the President of Romania at the relevant time and five senior army officers, including the Minister of the Interior. 92. The decision of 19 June 2007to bring charges, and the subsequent decision of 19 July 2007 to sever the charges, state that, on orders from the then President, on the evening of 13 June and the night of 13 to 14 June 1990 the security forces and army personnel used their weapons and heavy ammunition against demonstrators, killing four persons, injuring three others and endangering the lives of other persons. 93. The charges against the former President were subsequently severed from those against the other defendants, who were high-ranking military officers, and a decision to discontinue proceedings against him was issued. 94. At 2 October 2013 this first branch of the investigation was still pending in respect of two of the officers in question, the three others having died in the meantime. 95. The other case concerning the events of June 1990, which investigated, in particular, the criminal complaint for violence lodged by Mr Stoica and the ransacking of the applicant association’s premises, concerned charges of incitement to commit or participation in acts of sedition (subminarea puterii de stat), sabotage (actele de diversiune), inhuman treatment (tratamentele neomenoase), propaganda in favour of war (propaganda pentru război) and genocide, within the meaning of Article 357 (a) to (c) of the Criminal Code. 96. The persons accused of those acts were the former President, several high-ranking officers and dozens of civilians. Proceedings were brought in respect of these charges against the former President on 9 September 2005 and against the former head of the SRI on 12 June 2006. 97. This second branch of the investigation was closed by a decision not to bring a prosecution, adopted on 17 June 2009. That decision was upheld by a judgment delivered on 9 March 2011 by the High Court of Cassation and Justice following an appeal by Mr Stoica. 98. The main stages of the investigation are described below. 99. On 16 September 1998 the military section of the prosecutor’s office at the Supreme Court of Justice issued its decision in case no. 160/P/1997, following an investigation concerning sixty-three persons who had been victims of violence and unlawful arrests, including Mrs Mocanu and three members of the applicant association, as well as the applicant association itself and eleven other legal entities whose premises had been ransacked during the events of 13 to 15 June 1990. 100. Of the sixty-three victims listed in the table contained in the decision of 16 September 1998, three had been assaulted and deprived of their liberty at the headquarters of the State television station. In the final column, indicating the stage reached in the investigations, the table notes that “the case has not been investigated” (cauza nu este cercetată) in respect of those three persons. 101. In its decision, the military section of the prosecutor’s office indicated that other complaints were pending before the civilian prosecutors’ offices. 102. It added that its decision also concerned “the presumed unlawful killing of about one hundred individuals during the events of 13 to 15 June 1990, [whose corpses] were allegedly incinerated or buried in common graves in cemeteries in villages near Bucharest (notably Străuleşti)”. 103. It also indicated that, to date, the investigation had been unable to identify the persons who had implemented in practice the executive’s decision to summon civilians to restore order in Bucharest. According to the prosecution service, this failing in the investigation was due to the “fact that none of the persons who held posts of responsibility at the relevant time [had] been questioned”, particularly the then President of Romania, the Prime Minister and his deputy, the Minister of the Interior, the head of the police, the director of the SRI and the Minister of Defence. 104. In its decision, the military section ordered that the case be split into four separate case files. 105. The first of those files was to focus on the continued investigation into the unlawful killing by gunfire of four civilians, including the first applicant’s husband. 106. The second file targeted those persons who had exercised functions pertaining to civilian and military command. The authorities decided to pursue the investigation in respect of them, in particular for abuse of power against the public interest entailing serious consequences, an offence punishable under Article 248 § 2 of the Criminal Code, and also to investigate the fact that one social group had been enlisted alongside the security forces to combat other social groups. 107. The third file concerned the continuing investigations into the possible existence of other victims who had been killed during the violent incidents of 13 to 15 June 1990 (see paragraph 102 above). 108. Lastly, considering that the prosecution was statute-barred, the military section of the prosecutor’s office decided to discontinue the proceedings against unidentified members of the security forces and groups of miners in respect of the offences of armed robbery, unlawful deprivation of liberty, abusive conduct, improper investigation, abuse of power against private interests, assault, actual bodily harm, destruction of property, theft, breaking and entering homes, malfeasance and rape, committed between 13 and 15 June 1990. 109. This part of the decision of 16 September 1998 was set aside in a decision issued on 14 October 1999 by the head of the military section of the prosecutor’s office (Şeful Secţiei Parchetelor Militare) at the Supreme Court of Justice, which ordered that the proceedings and investigations intended to identify all the victims be resumed, specifying in that respect that it had been established that the number of victims greatly exceeded that of the injured parties listed in the impugned decision. 110. In addition, the decision of 14 October 1999 noted that the investigators had so far failed to conduct investigations into the “known collusion” between the Ministry of the Interior and the leaders of the mining companies “with a view to organising a veritable apparatus of unlawful repression”, that collusion having been established, according to the decision by the evidence contained in the case file. 111. After the decision of 16 September 1998, the investigations into the unlawful killing of Mr Velicu-Valentin Mocanu continued under case no. 74/P/1998 (see paragraph 105 above). 112. Mrs Mocanu and the two children she had had with the victim joined the proceedings as civil parties. 113. Two generals – the former Minister of the Interior and his deputy – and three senior-ranking officials were charged with the unlawful killings committed on 13 June 1990, including that of the applicant’s husband, on 12, 18 and 21 January and 23 February 2000 respectively. 114. All five were committed for trial on the basis of a decision to that effect (rechizitoriu) of 18 May 2000, on the ground that they had called for – and, in the case of the two generals, ordered – the opening of fire with heavy ammunition, an act which resulted in the death of four individuals and which caused serious injury to nine other persons. 115. By a decision of 30 June 2003, the Supreme Court of Justice remitted the case to the military section of the prosecutor’s office at the Supreme Court of Justice for additional investigation intended to remedy various deficiencies, and reclassified the offence as participation in aggravated unlawful killing. It also ordered a series of investigative measures to be taken. 116. Mrs Mocanu, other civil parties and the military section of the prosecutor’s office appealed against that decision on points of law. Their appeals were dismissed by the High Court of Cassation and Justice (as the Supreme Court of Justice was renamed in 2003, see paragraph 14 above) in a judgment of 16 February 2004. 117. After the investigation was resumed, the proceedings against the five defendants were discontinued by a decision of 14 October 2005. That decision having been overturned on 10 September 2006, the proceedings were reopened. 118. After carrying out an additional investigation in line with the instructions set out in the judgment of 30 June 2003, the military section of the prosecutor’s office at the High Court of Cassation and Justice committed the former Minister of the Interior, his deputy and two other senior army officers for trial in a decision to that effect of 27 July 2007. It discontinued proceedings against the fifth officer, who had died in the meantime. According to the decision to commit for trial, “the lack of reaction by the public authorities” and the lack of an immediate effective investigation “[had] endangered the very existence of democracy and the rule of law”. 119. By a judgment of 17 December 2007, the High Court of Cassation and Justice ordered that the case be sent back to the military section of the prosecutor’s office for a breach of procedural rules, primarily on the ground that criminal proceedings against a former minister could only be brought through a special procedure requiring prior authorisation by Parliament. 120. On 15 April 2008 the military section of the prosecutor’s office at the High Court of Cassation and Justice lodged an appeal on points of law against that decision, but this was dismissed on 23 June 2008. 121. On 30 April 2009 the military section of the prosecutor’s office at the High Court of Cassation and Justice stated that it did not have jurisdiction to examine this branch of the case, mainly because members of the police force – including the Minister of the Interior – had become civil servants following a legislative amendment, and the military courts and prosecutors thus no longer had jurisdiction over their criminal acts, even where those had been committed while they were still military officers. It therefore relinquished jurisdiction to one of the ordinary criminal sections of the same prosecutor’s office, namely the Criminal Proceedings and Criminalistics Section (Secţia de urmărire penală şi criminalistică). 122. By a decision of 6 June 2013, that Section discontinued the proceedings against the former minister and his deputy, both of whom had died on 2 November 2010 and 4 February 2013 respectively. 123. By the same decision, the same Section of the prosecutor’s office declared that it did not have jurisdiction in respect of the last two surviving defendants, Colonels C.V. and C.D., and referred their cases to the military prosecutor’s office at the Bucharest regional military court. 124. This investigation was pending before that prosecutor’s office on 2 October 2013. 125. This part of the investigation concerned the charges against the former President of the Romanian Republic with regard to the victims who were killed or injured by gunshots fired by the army on 13 June 1990. 126. The former President of Romania, in office from 1989 to 1996 and from 2000 to 2004, was charged on 19 June 2007, by which date he was exercising the functions of senator and was a member of parliament. He was accused of having “deliberately incited servicemen to use force against the demonstrators in University Square and in other districts of the capital, an act which resulted in the death or injury by gunfire of several persons”. Those facts were characterised as participation lato sensu in aggravated unlawful killing, a crime punishable under Articles 174, 175 (e) and 176 (b) of the Criminal Code, taken together with Article 31 § 2 of that Code. 127. On 19 July 2007 those charges were severed from case no. 74/P/1998. The investigation continued under case no. 107/P/2007. 128. In the meantime, on 20 June 2007 the Constitutional Court, ruling in a case unrelated to the present one, had delivered a judgment ruling that the military courts did not have jurisdiction to judge or prosecute civilian defendants. In consequence, by a decision of 20 July 2007 the military section of the prosecutor’s office held that it did not have jurisdiction to examine case no. 107/P/2007 and relinquished jurisdiction to one of the ordinary criminal sections. 129. On 7 December 2007 the Procurator General of Romania set aside, for procedural errors, the indictment of 19 June 2007, and ordered that the investigation be resumed. 130. By a decision of 10 October 2008, the Criminal Proceedings and Criminalistics Section of the prosecutor’s office at the High Court of Cassation and Justice issued a decision not to bring a prosecution, on the ground that there was no causal link between the order to clear University Square issued by the former President and the decision taken by three officers, with the agreement of their superiors – General A. and General C. (Minister of the Interior) – to give the order to open fire on the demonstrators. In so ruling, the prosecutor’s office held that the objectives of the action plan drawn up on 12 June 1990 had been fulfilled by 9 a.m. on the following morning, and that the following events, including the subsequent orders to open fire, had had nothing to do with that plan and could not have been foreseen by those who prepared it. 131. On 3 November 2008 Mrs Mocanu and other injured parties challenged this decision not to bring a prosecution. 132. On 18 December 2009 a three-judge bench of the High Court of Cassation and Justice dismissed their appeals, finding them inadmissible, out of time or unfounded, depending on the case. It concluded that there was no causal link between the acts imputed to the former President and the unpredictable consequences of the demonstrations which had resulted in the deaths of several persons. Moreover, it noted that three of the injured parties – widows or relatives of the victims who died on 13 and 14 June 1990 –, including Mrs Mocanu, had stated at a hearing on 11 December 2009 that they did not intend to challenge the decision not to bring a prosecution in respect of the former President and that they wished only that those responsible for the unlawful killings be identified and that they be held liable. Following an appeal on points of law by the civil parties, that decision was upheld by a nine-judge bench of the High Court in a judgment of 25 October 2010. 133. According to the forensic autopsy report carried out on Mrs Mocanu’s husband, he died as a result of gunshot wounds inflicted by a third party. 134. The applicant made her first specific request to join the proceedings as a civil party on 11 December 2000. On the same date the applicant and the other civil parties – relatives of the three other persons who had been killed during the events of 13 and 14 June 1990 – filed joint pleadings containing their observations as to the identity of those responsible for the deaths of their relatives, and their claims for compensation. 135. On 14 February 2007 the applicant was questioned for the first time by the prosecutor’s office for the purposes of the investigation. Assisted by a lawyer of her own choice, she stated that her husband had not returned home on the evening of 13 June 1990, that this had worried her, that she had searched for him the following day without success, and that she had subsequently learned from the press that he had been killed by a shot to the head. No investigator or official representative had visited her, nor had she been summoned for the purposes of the investigation; only a few journalists had come to see her. She stated that, aged 20 and without employment at the relevant time, since her husband’s death she had raised their two children, a daughter of two months (born in April 1990) and a two-year-old son, alone. 136. The documents in the file submitted to the Court do not indicate whether Mrs Mocanu was kept informed about developments in the investigation into the aggravated unlawful killing of her husband following the High Court of Cassation and Justice’s judgment of 17 December 2007 ordering that the case be remitted to the prosecutor’s office. 137. Between 26 November 1997 and 12 June 2006, criminal proceedings were brought against 37 persons – 28 civilians and 9 servicemen – essentially for acts of sedition committed in the course of the events of June 1990. The former President of Romania was among those prosecuted. He was charged on 9 June 2005 with participation in genocide (paragraphs (a), (b) and (c) of Article 357 of the Criminal Code), propaganda in favour of war (Article 356), inhuman treatment (Article 358), sedition (Article 162) and acts of sabotage (Article 163). The vast majority of the 28 civilians charged were directors of mining companies, heads of miners’ trade unions and senior civil servants in the Ministry of Mines. 138. On 16 September 1998 this branch of the investigation was allocated the file number 75/P/1998 (see paragraph 106 above). 139. On 19 December 2007 the military section of the prosecutor’s office at the High Court of Cassation and Justice ordered that the case in file no. 75/P/1998 be split into two parts, one concerning the criminal charges against the 28 civilians, including the former President of Romania and the former head of the SRI, and the other concerning the charges against the 9 servicemen. The investigation with regard to the 28 civilians was to be pursued before the relevant civilian section of the same prosecutor’s office. 140. By a decision of 27 February 2008, the head prosecutor in the military section of the prosecutor’s office set aside the decision of 19 December 2007, finding that, given the close connection between the events, a single prosecutor’s office, namely the relevant civilian section, was to examine the entirety of the case in respect of all of the defendants, both civilians and servicemen. 141. In line with that decision, on 29 April 2008 the military section of the prosecutor’s office at the High Court of Cassation and Justice also relinquished jurisdiction to the relevant civilian section for examination of the criminal charges against the 9 servicemen – including several generals, the former head of police and the former Minister of the Interior. 142. The decision of 29 April 2008 contained a list of more than a thousand victims who had been held and subjected to ill-treatment, notably on the premises of the Băneasa Officers’ School and the Măgurele military unit. Mr Stoica was included in this list of victims. The decision also contained a list of the legal entities which had sustained damage during the crackdown of 13 to 15 June 1990, including the applicant association. 143. That decision also referred to “identification of the approximately 100 persons who died during the events of 13 to 15 June 1990”. 144. It also contained a list of the State-owned companies which had provided workers for the intervention in Bucharest. That list included, in particular, twenty mining companies from all around the country and factories in eleven towns (Călăraşi, Alexandria, Alba-Iulia, Craiova, Constanţa, Deva, Giurgiu, Galaţi, Braşov, Slatina and Buzău), as well as three factories in Bucharest. 145. Following that decision, on 5 May 2008 the military section of the prosecutor’s office sent the 209 volumes, containing a total of some 50,000 pages, from case no. 75/P/1998 to the relevant civilian section of the prosecutor’s office. 146. On 26 May 2008 the section of the prosecutor’s office at the High Court of Cassation and Justice which had received the entire file, namely the Criminal Proceedings and Criminalistics Section, stated that it did not have jurisdiction, and relinquished jurisdiction to another section of the same prosecutor’s office, namely the Directorate for Investigating Organised Crime and Terrorism (Direcţia de Investigare a Infracţiunilor de Criminalitate Organizată şi Terorism – DIICOT). 147. By a decision of 10 March 2009, the relevant directorate of the prosecutor’s office at the High Court of Cassation and Justice, namely the DIICOT, decided that no prosecution would be brought against the former head of the SRI on the charge of sedition, as that offence had become time-barred, and that no prosecution would be brought against the majority of the 27 civilian defendants – directors of mining companies, heads of miners’ trade unions, senior civil servants at the Ministry of Mines and in local government – on the ground that the constituent elements of the offence had not been made out. 148. In so ruling, the prosecutor’s office considered that, in their respective capacities as Head of State, Minister of the Interior, deputy minister or Head of Police, some of the defendants exercised State authority, and it would have been illogical to think that they could have committed acts capable of undermining their own power. As to the miners and other workers who had travelled to Bucharest on 14 June 1990, the prosecutor’s office considered that they had “turned themselves into security forces” and been persuaded that their actions served State power. In addition, it noted that their intervention had been pointless, since the operation conducted by the parachutists at the television headquarters had enabled order to be restored in the capital at about 1 a.m. on 14 June 1990. 149. The prosecution also discontinued the proceedings against three of the defendants, who had died in the meantime. 150. Lastly, the DIICOT decided to relinquish jurisdiction to the Criminal Proceedings and Criminalistics Section with regard to the remainder of the case, namely the charges of inhuman treatment, propaganda in favour of war and genocide, within the meaning of Article 357 (a) to (c) of the Criminal Code. Those facts concerned only nine of the persons who had been charged during the period 2000-06, including the former president. 151. On 17 June 2009 a decision was taken not to bring a prosecution in respect of those charges; its content is set out below. 152. On 17 June 2009 the prosecutor’s office at the High Court of Cassation and Justice issued a decision not to bring a prosecution in the case, concerning essentially charges of inhuman treatment arising from 856 complaints by persons injured as a result of the violence committed from 13 to 15 June 1990. 153. The decision in question indicated that the former Head of State had not been examined as a defendant in the course of the investigation. 154. It gave a comprehensive description of the violence – classified as extreme cruelty – inflicted on several hundred persons. 155. It was indicated that the investigations conducted over approximately nineteen years by the civilian prosecutor’s offices and, subsequently, by the military prosecuting authorities, had not made it possible to establish the identity of the perpetrators or the degree of involvement of the security forces. The relevant passage from the decision reads as follows: “The investigations carried out over a period of about nineteen years by the civilian prosecutors’ offices and, subsequently, by the military prosecuting authorities, the findings of which are contained in case file ... have not made it possible to establish the identity of the miners who committed the attack, the degree of involvement in their actions by the security forces and members and sympathisers of the FSN and their role and degree of involvement in the acts of violence carried out against the residents of the capital on 14 and 15 June 1990.” 156. This decision ordered that proceedings be discontinued against one of the defendants, who had died in the meantime, and that no prosecution would be brought (scoatere de sub urmărire penală) in respect of the eight remaining defendants for those offences which had become statute-barred, in particular harbouring a criminal. 157. With regard to the offences which had not become time-barred, especially those of inhuman treatment, the decision stated that there was no case to answer, since the constituent elements of the offences had not been made out or because the reality of the events complained of had not been proven. 158. In this connection, it was indicated that the then Head of State could not be criticised for any form of participation in the joint actions by the miners and the armed forces, as he had merely approved the actions which occurred on the morning of 13 June 1990 and the army’s intervention on the afternoon of the same date, for the stated purpose of restoring order. It was also mentioned that there was no information (date certe) to substantiate accusations against him with regard to the preparations for the miners’ arrival in Bucharest and the instructions they had been given. It was noted that his request to the miners to protect the State institutions and to restore order – following which 1,021 persons had been deprived of their liberty and subjected to physical assault – could only be classified as incitement to commit assault and that criminal liability in that respect was time-barred. 159. The prosecutor’s office considered that the demonstrators and other persons targeted by the miners belonged to various ethnic groups (Romanians, Roma, Hungarians) and social categories (intellectuals, students, school pupils, but also workers), and that they could not therefore be regarded as a single group or an identifiable community on objective geographical, historical, social or other grounds, and for that reason the events complained of could not be classified as genocide. Relying on the case-law of the International Criminal Tribunal for the former Yugoslavia, the prosecutor’s office also considered that the persons deprived of liberty had not been systematically subjected to ill-treatment. 160. The decision further indicated that the speech by which the Head of State had encouraged the miners to occupy and defend University Square against the demonstrators camping out there could not be interpreted as propaganda in favour of war, as the accused had not sought to instigate a conflict of any kind, but had, on the contrary, asked the miners “to put an end to excess and acts of bloodshed”. 161. It was also indicated that the miners had been motivated by simplistic personal convictions, developed on the basis of collective hysteria, which had led them to act as arbitrators of the political situation and zealous guardians of the political regime – the leaders of which had recognised them as such –, authorised to “correct” those who opposed its legitimacy. The prosecutor further noted the legal requirement that, to be punishable, the inhuman treatment had to target “individuals who [had] fallen into enemy hands” and considered that this criterion had not been met here, since the miners no longer had any enemy against whom to fight on 14 June 1990. 162. With regard to the accusations of torture, the prosecutor considered that Romanian law contained no provisions against torture at the material time. 163. The decision of 17 June 2009 analyses each of the charges in respect of each defendant, but refers to none of the victims by name and does not mention the individual acts of violence complained of by each of them, referring to an appendix which has not been submitted to the Court. It mentions the number of victims and their membership of such or such a category, noting, for example, the 425 persons who were arrested and held on the premises of the Băneasa Officers’ School or the 574 demonstrators who were arrested and imprisoned on the premises of the Măgurele military base. 164. The applicant association, other legal entities and individuals lodged an appeal against the decision of 17 June 2009 not to bring a prosecution, which was dismissed on 3 September 2009 by the head prosecutor of the relevant section of the prosecutor’s office at the High Court of Cassation and Justice. In so ruling, the prosecutor’s office considered that no actions which could be classified as a crime against humanity, such as inhuman treatment or genocide, had been committed. 165. Mr Stoica and four other injured parties also lodged an appeal against the same decision. It was dismissed on 6 November 2009. Mr Stoica lodged on appeal on points of law before the High Court of Cassation and Justice. 166. On 9 March 2011, having dismissed the plea of res judicata raised by the former Head of State, the High Court of Cassation and Justice ruled on the merits of the decision not to bring a prosecution, and dismissed the applicant’s appeal. 167. In its judgment, it classified the assault against the applicant as grievous bodily harm (Article 182 of the Criminal Code), unlawful arrest, ill-treatment (Article 267), torture, unjust repression and blackmail. It considered that the decision of 17 June 2009 had been correct in ruling that no prosecution was to be brought, on the ground that the offences in question had become time-barred and that torture had not been a criminal offence at the material time. 168. In contrast, it did not rule on the criminalisation of inhuman treatment (Article 358 of the Criminal Code), which had been the subject of the decision of 29 April 2008, in which the applicant was named as a victim of the inhuman treatment imputed to five generals. 169. According to the Government, the main investigative measures carried out in the period between 1990 and 2009 were as follows: more than 840 interviews with injured parties; hearing of witnesses on more than 5,724 occasions; and more than 100 forensic medical reports. The results of those measures were set out in several thousand pages of documents. 170. On 18 June 2001, when he was received by a prosecutor at the military section of the prosecutor’s office at the Supreme Court of Justice, Mr Stoica lodged an official complaint concerning the violence of which he claimed to have been victim on the night of 13 to 14 June 1990. 171. His complaint was joined to the investigation file already opened in respect of other charges, especially inhuman treatment (case file no. 75/P/1998). 172. On 18 October 2002, for the purposes of the investigation into the alleged assault against him, the applicant underwent an examination at the State Institute of Forensic Medicine, which produced a forensic medical report. That report indicated that the injuries described in the medical file opened by the emergency unit on 14 June 1990 had required three to five days of medical treatment and had not been such as to endanger the applicant’s life. 173. It was also indicated that the applicant had been hospitalised for major epileptic fits from 31 October to 28 November 1990, in February 1997, March 2002 and August 2002, and that he had been diagnosed as suffering from post-traumatic secondary epilepsy and other cerebral and vascular disorders (transient ischemic attacks – TIAs). The expert report noted that the post-traumatic epilepsy had appeared following an injury sustained in 1966. 174. On 9 and 17 May 2005 the applicant was questioned and was able to give his point of view on the events complained of and submit his claims for compensation in respect of the alleged pecuniary and non-pecuniary damage. 175. By a letter of 23 May 2005, he was informed by the military section of the prosecutor’s office at the High Court of Cassation and Justice that his complaint concerning the injuries inflicted on 13 June 1990 by unidentified servicemen, which had resulted in his hospitalisation “in a coma”, was being investigated in the context of case no. 75/P/1998. 176. A certificate issued on 26 April 2006 indicates that, according to the entries in the register held by the military section of the prosecutor’s office at the High Court of Justice and Cassation, the applicant had been received by a prosecutor in 2002, 2003, 2004, 2005 and 2006, mainly for the purposes of the investigation or to enquire about progress in the investigation. The applicant lodged two additional complaints, on 12 September and 4 October 2006 respectively. 177. On 23 April 2007 the prosecutor questioned two witnesses indicated by the applicant. 178. When questioned on 9 May 2007 as an injured party, the applicant asked the military prosecutor to order a second forensic medical report, since he considered that the 2002 report had entirely failed to emphasise the seriousness of the injuries sustained in 1990 and the continuing after-effects of those injuries. 179. The prosecutor ordered a new report. Among other things, he asked the forensic specialists to examine whether a causal link existed between the injury sustained by the applicant in June 1990 and the medical conditions from which he was suffering on the date on which the report was ordered. 180. During his questioning, the applicant was invited to watch a video recording of the events of 13 June 1990, including those at the headquarters of the State television station. He recognised himself, and asked that the video recording be added to the investigation file. 181. On 25 June 2007 the new medical report was added to the case file. It specified, again on the basis of the medical records drawn up on 14 June 1990, that the applicant’s injuries had required three to five days of medical treatment and that they had not been life-threatening. It specified that there was no causal link between the injuries sustained on the night of 13 to 14 June 1990 and the applicant’s medical problems, which had subsequently required numerous periods of hospitalisation. 182. On 30 October 2007, at the applicant’s request, the medical observation files on his condition prepared by the emergency unit of Bucharest Hospital in 1992 were added to the file. 183. The medical board at the National Social Security Fund had previously issued the applicant with a certificate, dated 24 May 2007, indicating that he was suffering from “overall accentuated impairment” resulting in total inability to work. The relevant passages of this certificate read as follows: “In view of the medical records in the patient’s file, the documents which have been added recently ... and the clinical psychiatric examination conducted on 24 May 2007, the specialist committee and the higher committee reach the following clinical diagnosis: mixed personality disorders, aggravated by organic causes. Acute traumatic brain injury 1990 (assault). Epilepsy with partial generalised secondary crises, confirmed clinically and by EEG, currently rare...., supraventricular incidents in his medical history (irregular heart rhythm (flutter) and atrioventricular block ..., with a return to sinus rhythm ... after cardioversion). Functional diagnosis: overall accentuated impairment. Fitness for work: totally lost, 2nd level invalidity. Adaptive incapacity: 72%” 184. In the meantime, on 10 May 2004 the prosecutor’s office at the Bucharest County Court had issued a decision not to bring a prosecution in another case, following a complaint of attempted murder lodged by the applicant on the basis of the same facts. 185. On 9 July 1990 Bucharest military unit no. 02515 sent the applicant association a letter informing it that “an inventory of the items found on 14 June 1990 [at the association’s headquarters] [had] been drawn up by the representatives of the Procurator General’s Office (Procuratura Generală) and placed, with an official report, at the headquarters of the Bucharest Prosecutor’s Office (Procuratura Municipiului Bucureşti)”. 186. On 22 July 1990 two police officers went to the applicant association’s headquarters. They noted that the windows had been broken and the locks destroyed, and that the items in the headquarters had “all been ransacked”. They drew up a report in the presence of the association’s leaders and a witness. 187. On 26 July 1990 the applicant association lodged a criminal complaint with the Bucharest Prosecutor’s Office, complaining about the ransacking of its headquarters and the attacks sustained by some of its members on 14 June 1990, and demanded the restitution of all the materials and documents which had been confiscated. It requested leave to join the criminal proceedings as a civil party. 188. On 22 October 1997 the General Inspectorate of Police sent the prosecutor’s office at the Supreme Court of Justice twenty-one case files, opened following criminal complaints by several individuals and legal entities with regard to the events of 13 and 14 June 1990. Those files included case file no. 1476/P/1990, which concerned the applicant association’s complaint regarding the ill-treatment inflicted on several of its members. The General Inspectorate of Police invited the prosecutor’s office to inform it of the steps to be taken with a view to conducting interviews for the purpose of the investigation. 189. The applicant association contacted the prosecutor’s office at the Supreme Court of Justice, subsequently the High Court of Cassation and Justice, on a regular basis for information concerning progress in the investigation or to request additional investigative measures, until the investigation was closed by the decision of 17 June 2009 not to bring a prosecution.
| 1 |
test
|
001-166952
|
ENG
|
ROU
|
COMMITTEE
| 2,016 |
CASE OF BARTOK AND OTHERS v. ROMANIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
|
Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings.
| 1 |
test
|
001-145744
|
ENG
|
HRV
|
CHAMBER
| 2,014 |
CASE OF DRAGIN v. CROATIA
| 4 |
No violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
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Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
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5. The applicant was born in 1968 and lives in Matulji. 6. On 8 October 2008 the applicant was arrested on suspicion of incitement to aggravated murder in that he, together with another person, had incited a person who had owed them money to kill their competitors in the security business in Rijeka, and that for that purpose they had obtained machine guns and explosive devices. 7. An investigation in respect of the applicant was opened in the Rijeka County Court (Županijski sud u Rijeci) on 10 October 2008. 8. On the same day an investigating judge of the Rijeka County Court remanded the applicant in custody under Article 102 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and seriousness of charges). The judge held that there was a risk that the applicant might suborn several witnesses who were to be questioned during the investigation, and that his clear determination to commit the offence at issue and its possible consequences justified his detention on the grounds of risk of reoffending and the seriousness of the charges. 9. The applicant’s detention was extended on 7 November 2008 under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges). The investigating judge found that the witnesses had already been questioned and that therefore there was no reason to remand the applicant in custody on the grounds of risk of collusion. However, the judge reiterated that the applicant’s clear determination to commit the offence and its possible consequences warranted the applicant’s detention on the grounds of risk of reoffending and the seriousness of the charges. 10. On 14 November 2008 the investigation in respect of the applicant was expanded to the offences of unlawful possession of firearms and explosives. 11. The investigating judge extended the applicant’s detention on 5 December 2008 under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges) using the same reasons as in his previous decision. 12. The applicant appealed on 11 December 2008, arguing that the reasons put forward by the investigating judge were not convincing justifications for his detention. 13. On 17 December 2008 a three-judge panel of the Rijeka County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the investigating judge. 14. On 31 December 2008 the Rijeka County State Attorney’s Office (Županijsko državni odvjetništvo u Rijeci) indicted the applicant in the Rijeka County Court on charges of incitement to aggravated murder and unlawful possession of firearms and explosives. Another individual, I.F., was also indicted in the same proceedings on charges of incitement to aggravated murder. Later, on 23 January 2009, criminal proceedings against another person, V.V., on charges of trafficking in firearms were joined to the proceedings against the applicant and I.F. in the Rijeka County Court. 15. A three-judge panel of the Rijeka County Court extended the applicant’s detention on 7 January 2009, relying on Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges). The relevant part of the decision reads: “There is a reasonable suspicion that the accused have committed the offences at issue. The fact that the second accused, Robert Dragin, in an agreement with the first accused, I.F., twice went to the Republic of Bosnia and Herzegovina in order to find a machine gun and an explosive device suggest determination to commit the offences they are suspected of, and the fact that a larger quantity of unlawful weapons and explosive devices have been found in the possession of the second accused, Robert Dragin, suggest that they might reoffend ... The fact that the offence of [aggravated murder] was planned to take place in Rijeka city centre near the M. bar, where a lot of young people gather, suggests to this panel that the circumstances of the offence are particularly serious ... “ 16. On 12 January 2009 the applicant lodged an appeal against the above decision with the Supreme Court (Vrhovni sud Republike Hrvatske) arguing that the alleged offences at issue had never even been attempted and thus there was nothing which suggested that he might reoffend or that there were particularly serious circumstances warranting his detention. 17. The Supreme Court allowed the applicant’s appeal and on 4 February 2009 reversed the decision of the Rijeka County Court by ordering the applicant’s detention only under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). It held that the applicant’s alleged determination to commit the offences suggested that he might reoffend but that the reasons put forward by the Rijeka County Court as to the seriousness of the charges were not relevant, because all the circumstances referred to were essentially subsumed under the risk of reoffending. It also explained that the reference to the possibility that the offence of aggravated murder would be committed in a public place was irrelevant, because the offence had never been attempted, let alone executed. 18. On 24 February 2009 a three-judge panel of the Rijeka County Court returned the indictment to the Rijeka County State Attorney’s Office and ordered it to conduct a further investigation, as not all the relevant circumstances had been established. 19. During the resumed investigation, on 3 April 2009 the investigating judge of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating that his determination to commit the offences suggested that he might reoffend. 20. On 6 April 2009 the applicant appealed against the above decision, reiterating his previous arguments. 21. The applicant’s detention was further extended by a three-judge panel of the Rijeka County Court on 8 April 2009 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) relying on the alleged determination on the applicant’s part to commit the crime, and on , which suggested that the applicant might reoffend if at liberty. 22. On 10 April 2009 a three-judge panel of the Rijeka County Court dismissed the applicant’s appeal of 6 April 2009 (see paragraph 20 above) as ill-founded. 23. On 14 April 2009 the applicant lodged an appeal against the remand in custody of 8 April 2009 (see paragraph 21 above) arguing, inter alia, that it was impossible in practice for him to reoffend, because the alleged incitement to murder was in respect of a person who later became a protected witness and was at present cooperating with the prosecuting authorities. 24. On 13 May 2009 the Supreme Court dismissed the applicant’s appeal as ill-founded, noting: “The circumstances suggesting that the accused I.F. and Robert Dragin [might reoffend] can be observed from the indictment by which they are charged with having, for the purpose of obtaining material benefit and with reprehensible motives, incited a person who owed them money to kill others who were competitors in the security business in Rijeka, and that for that purpose they had obtained machine guns and explosive devices with a remote detonator and 238 grams of plastic explosive, which they intended to plant under the vehicle of one of the putative victims. All these circumstances show particular determination on the part of the accused. Therefore, the Supreme Court, as the second-instance court, considers that they should be remanded in custody under Article 102 § 1 (3) of the Code of Criminal Procedure in order to prevent them from continuing with such activity. that they were determined to commit a murder, that argument is of no relevance. Furthermore, both accused submitted numerous complaints concerning the conduct of the proceedings, to which they wrongly attached great significance, arguing that the first-instance court had failed to follow the instruction to return the indictment to the State Attorney’s Office for a further investigation, and that consequently the investigation was never completed, while the maximum period of detention during the investigation had expired. The case file shows that the accused were arrested on 8 October 2008 ... and that by extending their detention on 8 April 2009, after the investigating judge had returned the case file to the State Attorney’s Office and the latter had submitted it to a three-judge panel [of the Rijeka County Court], the time-limit under Article 106 § 3 of the Code of Criminal Procedure had not expired. In these circumstances, and given that this court, when deciding on the appeal against the decision to extend the detention, cannot go into all the complaints submitted in the appeal, all such complaints are ill-founded ... “ 25. A three-judge panel of the Rijeka County Court on 13 July 2009 extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), holding as follows: “The accused are charged with developing a detailed plan to commit the offence of incitement to aggravated murder under Article 91(4) and (6) in conjunction with Article 37 of the Criminal Code; it was planned that the murder would be committed by another person, who owed them money. The first accused, I.F., had arranged the purchase of the firearms and explosives and the second accused, Robert Dragin, had travelled twice to Bosnia and Herzegovina to bring them to Croatia, after which he had passed them to the other person, instructing him how to use them and telling him the time and place the killing was to take place. Then he [together with the other person] damaged the vehicle which one of the victims should have driven, to ensure that the victim would use a car under which an explosive device had been planted. This court finds that the said circumstances show particular determination on the part of the accused, and suggest that the first accused I.F. and the second accused Robert Dragin might reoffend if at liberty, and therefore their detention is necessary under Article 102 § 1 (3) of the Code of Criminal Procedure.” 26. On 16 July 2009 the applicant lodged an appeal with the Supreme Court against the above decision, arguing that it was impossible in practice for him to reoffend as suggested in the reasoning of the Rijeka County Court. 27. The Supreme Court dismissed the applicant’s appeal on 10 August 2009 as ill-founded, reiterating its previous arguments. 28. On 9 October 2009 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating its previous reasoning. 29. The first hearing before the Rijeka County Court was held on 19 and 20 October 2009; the applicant and the other accused pleaded not guilty. The trial court questioned three witnesses and adjourned the hearing. 30. A further hearing was held on 30 November 2009; the trial court heard evidence from three witnesses. 31. On 30 December 2009 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating the reasoning from its previous decisions. 32. At a hearing on 21 January 2010 the trial court examined the evidence from the case file and adjourned the hearing. Another hearing was scheduled for 4 March 2010, but was adjourned because the case file was at the Supreme Court. 33. At a hearing on 15 March 2010 three expert witnesses gave oral evidence. 34. On 22 March 2010 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). The relevant part of the decision reads: “The accused are charged with developing a detailed plan to commit the offence of incitement to aggravated murder under Article 91(4) and (6) in conjunction with Article 37 of the Criminal Code; it was intended that the murder should be committed by another person, who owed them money. The first accused, I.F., had arranged the purchase of the firearms and explosives and the second accused, Robert Dragin, had travelled twice to Bosnia and Herzegovina to bring them to Croatia, after which he passed them to the other person, instructing him how to use them and telling him the time and place the killing was to take place. Then he [together with the other person] damaged the vehicle which one of the putative victims was supposed to drive in order to ensure that the victim would use a car under which an explosive device had been planted. The period of the alleged criminal activity and the planning of the offences, including the incitement and instructions given to Č.Đ., show a keen determination on the part of the accused to commit the offences, which suggests that the first accused I.F. and the second accused Robert Dragin might reoffend if at liberty, and therefore their detention under Article 102 § 1 (3) of the Code of Criminal Procedure is necessary.” 35. Further hearings were held between 12 and 14 April 2010, at which the trial court heard evidence from four witnesses and one expert witness. 36. Hearings were also held on 3 and 21 May 2010, at which the trial court questioned three witnesses and the third accused, V.V. 37. On 31 May 2010 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions. 38. At a hearing on 4 June 2010 the trial court heard evidence from one witness and the parties made their closing arguments. 39. On 8 June 2010 the Rijeka County Court found the applicant guilty on charges of incitement to aggravated murder and unlawful possession of firearms and explosives, and sentenced him to six years and three months’ imprisonment. 40. The applicant appealed to the Supreme Court against the first-instance judgment on 1 and 8 August 2010. He argued that the judgment had numerous substantive and procedural flaws. 41. On 10 May 2011 the Supreme Court quashed the first-instance judgment of the Rijeka County Court and ordered a retrial on the grounds of procedural errors in the way in which the evidence was taken during the trial. 42. The Supreme Court remanded the applicant in custody under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) referring to his determination to commit the offences and the circumstances in which the offences were allegedly committed. 43. On 8 July 2011 a three-judge panel of the Rijeka County Court extended the applicant’s pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) relying on the same reasons provided in its previous decisions. 44. The applicant’s detention was further extended by a three-judge panel of the Rijeka County Court on 14 September 2011 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions. 45. A hearing scheduled for 14 September 2011 was adjourned because the third accused failed to appear for health reasons. 46. On the same day the Rijeka County State Attorney’s Office asked the Supreme Court to extend the maximum period allowed for the applicant’s detention, relying on Article 109 § 3 of the Code of Criminal Procedure. It reiterated that the applicant should be remanded in custody on the grounds of risk of reoffending. 47. On 19 September 2011 the applicant lodged an appeal against the decision on his detention of 14 September 2011 (see paragraph 44 above), which the Supreme Court dismissed as ill-founded on 26 September 2011. 48. The Supreme Court on 26 September 2011 ordered the Rijeka County Court to examine the request of the Rijeka State Attorney’s Office of 14 September 2011 (see paragraph 46 above) on the grounds that the applicant’s detention should first be extended under Article 109 § 2 of the Code of Criminal Procedure and only after the time-limit under that provision expired should it be extended under § 3 of the same Article. 49. On 7 October 2011 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 109 § 2 of the Code of Criminal Procedure for a further nine months. The relevant part of the decision reads: “The accused, Robert Dragin, has been in custody since 8 October 2008. His detention was extended by a decision of this court ... on 14 September 2011 under Article 102 § 1 (3) of the Code of Criminal Procedure, while his appeal was dismissed by a decision of the Supreme Court ... of 26 September 2011. Therefore, in view of the fact that on 8 October 2011 the period of his detention will amount to three years, which under Article 109 § 1 (5) of the Code of Criminal Procedure is the maximum period of detention, and that the non-final judgment of this court ... of 8 June 2010 was quashed by the decision of the Supreme Court ... of 10 May 2011, [this panel] needs to examine whether his pre-trial detention should be extended under Article 109 § 2 of the Code of Criminal Procedure ... This panel finds that the detention of the accused, Robert Dragin, should be extended for one-quarter [of the general maximum period of detention], that is to say nine months. ... in view of the gravity of the offences the accused is suspected of, and the prescribed sentence, [this panel], under Article 109 § 2 in conjunction with Article 109 § 1 (5) of the Code of Criminal Procedure, extends the overall period of detention for one-quarter [of the general maximum period of detention], that is to say nine months, which should be sufficient to complete the proceedings.” 50. On 14 October 2011 the applicant lodged an appeal with the Supreme Court, arguing that Article 109 § 2 of the Code of Criminal Procedure was inapplicable in his case, since it concerned situations where an appeal against a first-instance judgment by which an accused had been found guilty was pending before the appeal court. In his case, however, the first-instance judgment had been quashed. He also contended that the extension of the time-limits for pre-trial detention was an exceptional measure applicable only where the trial court, even with maximum diligence, was unable to terminate the proceedings in time as a result of objective impediments. In his case, he saw no such circumstances and pointed out that the Rijeka County Court had provided no reasons in that respect. 51. On 25 October 2011 the Supreme Court dismissed the applicant’s appeal. The relevant part of the decision reads: “This court finds that Article 109 of the Code of Criminal Procedure allows the court, in situations where the first-instance judgment and the second-instance judgment which quashed it have been adopted within the [general] time-limit provided for in Article 109 § 1, to extend the detention first under Article 109 § 2 and then under Article 109 § 3. In such cases, the period of detention under Article 109 § 3 should be extended only when the period of detention under Article 109 § 2 has expired, irrespective of whether the judgment has been upheld in the retrial or not. Therefore, the Supreme Court considers that, contrary to the arguments in the appeal, the first-instance court lawfully and correctly extended the overall period of detention of the accused, Robert Dragin, for a quarter [of the general maximum period of detention], that is to say nine months, under Article 109 § 2 of the Code of Criminal Procedure.” 52. A hearing scheduled for 26 October 2011 was adjourned because the defence of the first accused sought the withdrawal of members of the trial panel and the prosecution, and also of the President of the Rijeka County Court. These requests were dismissed as ill-founded on 9 and 29 November 2011. 53. On 27 November 2011 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) about the decisions on his detention reiterating the complaints that he raised before the Supreme Court. 54. On 22 December 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. 55. On 22 December 2011 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions. 56. The applicant lodged an appeal against the above decision on 30 December 2011, arguing that there were no relevant or sufficient reasons for his continued detention. 57. The Supreme Court dismissed the applicant’s appeal as ill-founded on 11 January 2012, endorsing the reasoning of the Rijeka County Court. 58. A hearing scheduled for 31 January 2012 was adjourned because one of the defence lawyers was on sick leave. 59. A three-judge panel further extended the applicant’s detention on 9 March 2012 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions. 60. A hearing scheduled for 14 March 2012 was adjourned because the applicant’s defence sought the withdrawal of members of the prosecution team, on the grounds that they had abused their powers in dealing with his case. 61. On 14 March 2012 the applicant appealed against the decision on his detention of 9 March 2012 (see paragraph 59 above) reiterating his previous arguments. 62. Between 21 and 23 March 2012 the applicant’s request for the withdrawal of the prosecution team members was dismissed as ill-founded. 63. The Supreme Court allowed the applicant’s appeal against the decision on his detention (see paragraph 61 above) and on 23 March 2012 quashed the decision of the Rijeka County Court on the grounds that a member of the three-judge panel had previously been excluded from the case. It ordered the Rijeka County Court to re-examine the case speedily. 64. On 2 April 2012 a three-judge panel of the Rijeka County Court, this time in a different composition, extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating the reasons in its previous decisions. 65. On 10 April 2012 the applicant lodged an appeal with the Supreme Court which was dismissed on 20 April 2012 as ill-founded. 66. A hearing scheduled for 21 May 2012 was adjourned because the first accused was ill. 67. On 20 June 2012 a three-judge panel again extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions. 68. On 26 June 2012 the applicant lodged an appeal with the Supreme Court, arguing that ever since the first-instance judgment had been quashed there had been no activity in the proceedings. He also pointed out that, in view of the overall length of his detention and the first-instance court’s lack of diligence in its conduct of the proceedings, his detention had become a prison sentence. Therefore, it was disproportionate to its purpose. 69. On 29 June 2012 the Rijeka County State Attorney’s Office, relying on Article 109 § 3 of the Code of Criminal Procedure, asked the Supreme Court to extend further the maximum period of the applicant’s detention already extended under Article 109 § 2 of the Code of Criminal Procedure (see paragraph 51 above). 70. On 6 July 2012 the Supreme Court allowed the request and extended the applicant’s detention for a further year. The relevant part of the decision reads: “Since all [permissible] time-limits for detention under Article 109 §§ 1 (5) and 2 of the Code of Criminal Procedure have been exhausted, the conditions have been met to extend the detention of the accused, Robert Dragin, under Article 109 § 3 of the Code of Criminal Procedure. Since the proceedings at issue are now before the first-instance court, it is reasonable to expect that in order to conclude the proceedings the detention should be extended for the maximum period of a further year.” 71. On the same day the Supreme Court dismissed the applicant’s appeal against the decision on his detention of 20 June 2012 (see paragraphs 67 and 68 above) as ill-founded. 72. On 12 August 2012 the applicant lodged a constitutional complaint with the Constitutional Court, reiterating his previous arguments. He pointed out in particular that his detention could not be extended cumulatively under Article 109 §§ 2 and 3 of the Code of Criminal Procedure, since those provisions concerned two different situations. In any event, it was only possible to extend the detention for the maximum period in exceptional circumstances, which did not exist in his case. He also argued that the trial court had not conducted his case with due diligence. 73. On 31 August 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the Supreme Court. 74. A three-judge panel of the Rijeka County Court extended the applicant’s detention on 6 September 2012, under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating its previous arguments. 75. On 13 September 2012 the applicant lodged an appeal with the Supreme Court, reiterating his previous arguments, particularly lack of due diligence in the conduct of the proceedings. 76. Another hearing, scheduled for 25 September 2012, was adjourned because the first accused was ill. 77. On 3 October 2012 the Supreme Court allowed the applicant’s appeal of 13 September 2012 (see paragraph 75 above) and ordered his release from detention. The Supreme Court noted that the applicant had been detained since 8 October 2008 and that ever since the first-instance judgment had been quashed no hearing had been held in the proceedings at issue, and it was uncertain when a hearing would be held. It therefore considered that the applicant should be released in order to prevent the pre-trial detention from becoming a prison sentence. 78. The criminal proceedings against the applicant are still pending.
| 1 |
test
|
001-172469
|
ENG
|
SRB
|
COMMITTEE
| 2,017 |
CASE OF PAVLOVIĆ AND PANTOVIĆ v. SERBIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
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Branko Lubarda;Dmitry Dedov;Luis López Guerra
|
5. The applicants were born in 1953 and 1951 respectively and live in Čačak. 6. On 21 March 2008 the Čačak Municipal Court ordered a socially-owned company, Fabrika Reznog Alata Čačak AD and its subsidiaries (hereinafter “the debtor”) to pay the applicants specified amounts on account of salary arrears plus the costs of the civil proceedings. This judgment became final on 2 July 2008. 7. On 4 August 2008, upon the applicants’ request to that effect, the Čačak Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the enforcement costs. 8. On 30 March 2010 the Privatisation Agency ordered the restructuring of the debtor. Subsequently, the enforcement proceedings against the debtor were stayed. 9. On 8 April 2013, upon the applicants’ request to that effect, the Čačak Municipal Court resumed the enforcement proceedings. 10. On 29 July 2010 the applicants lodged an appeal with the Constitutional Court. In terms of redress, relying on the Constitutional Court Act 2007, the applicants sought, inter alia, compensation for the damage suffered due to the impugned non-enforcement. 11. On 19 and 20 March 2013 the applicants noted the adoption of the amendments to the Constitutional Court Act, and specified their compensation claims accordingly. Specifically, on account of the pecuniary damage, the applicants requested the respective amounts awarded to them by the final judgment in question, whilst as regards the nonpecuniary damage sustained they claimed 2,000 euros (EUR) each. 12. On 18 September 2013 the Constitutional Court found a violation of the applicants’ right to a hearing within a reasonable time and of their right to the peaceful enjoyment of their possessions. It further awarded the applicants EUR 1,000 and EUR 1,100 respectively as just satisfaction for non-pecuniary damage. However, it rejected their compensation claim regarding the pecuniary damage sought by the applicants. The Constitutional Court, lastly, ordered the speeding up of the impugned enforcement proceedings. 13. In its reasoning, the Constitutional Court stated that the applicants’ pecuniary damage claim had been lodged out of time. In so doing, it merely referred to Article 85 § 3 of the Constitutional Court Act, as amended in 2011, requiring that such claims be brought simultaneously with the lodging of a constitutional appeal. 14. On 10 June 2016 the Government submitted that the National Bank of Serbia informed the Čačak First Instance Court, by its letter of 19 April 2016, that the final court judgment of 21 March 2008 had been partially enforced on 14 August 2008 and that the applicants had received the sum of 143.707,89 Serbian dinars (RSD). The remainder of the judgment remained unenforced. 15. On 9 September 2016 the applicants’ representative submitted that the first applicant and she were not aware of the partial enforcement of the above judgment. Moreover, she stated that they had never received a letter from the National Bank of Serbia related to enforcement issue. Lastly, the applicants’ representative submitted that the National Bank of Serbia had informed her in its letter of 16 August 2016 that the amount of RSD 143.707,89 was paid only to the second applicant.
| 1 |
test
|
001-175142
|
ENG
|
HRV
|
CHAMBER
| 2,017 |
CASE OF Ž.B. v. CROATIA
| 4 |
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)
|
Julia Laffranque;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković
|
5. The applicant was born in 1981. 6. On 3 May 2007 the applicant lodged a criminal complaint with the police alleging that in the past two years she had been a victim of multiple acts of domestic violence by her husband, B.B. 7. A preliminary police investigation showed that there was a suspicion that the applicant had been the victim of psychological and physical violence by B.B. during the period at issue. On the basis of those findings, the police forwarded the applicant’s criminal complaint to the relevant State Attorney’s Office. The police also forwarded the applicant’s medical records showing that in April 2007 she had sustained a contusion on her back after being pushed from a chair by B.B. 8. On 3 July 2007 the P. Municipal State Attorney’s Office (Općinsko državno odvjetništvo u P.) asked an investigating judge of the S. County Court (Županijski sud u S.) to open an investigation into the matter. 9. In the course of the investigation, the investigating judge heard the applicant and B.B. The latter denied the allegations of domestic violence. The judge also heard another witness, V.K., who confirmed that the applicant had often complained of emotional and physical harassment by her husband and had twice sustained injuries as a result of the alleged harassment. 10. On the basis of the results of the investigation, on 29 January 2008 the State Attorney’s Office indicted B.B. in the P. Municipal Court (Općinski sud u P.) on charges of domestic violence punishable under Article 215a of the Criminal Code (see paragraph 20 below). The relevant part of the indictment reads: “In the period between 1 January 2004 and 26 April 2007 in P., ... [B.B.] attacked his wife Ž.B. several times, telling her to ‘go back to her scumbags in the dump from which she had come’ and that she was worthless. He raised his hand [threatening] to hit her, punched her in the face and body, and ordered her to go to the corner of the room. In December 2004 he grabbed her head and banged it against the bathroom wall and on 27 April 2007 he pushed her from a chair, as a result of which she fell to the ground. In this manner he reduced Ž.B. to a position of helplessness and debasement ...” 11. During the proceedings, the trial court heard the applicant, B.B., and several witnesses. On 21 April 2009 it found B.B. guilty as charged and sentenced him to seven months’ imprisonment, suspended for two years. 12. On 2 March 2010, following an appeal lodged by B.B., the S. County Court quashed the first-instance judgment and remitted the case to the Municipal Court on the grounds that all the relevant facts of the case had not been established. 13. In the resumed proceedings, the Municipal Court again heard the applicant, B.B. and a number of witnesses. It also examined further documents from other relevant State bodies concerning conflicts within the applicant’s family. 14. On 2 December 2010 the Municipal Court found B.B. guilty as charged and sentenced him to seven months’ imprisonment, suspended for two years. 15. B.B. challenged that judgment before the S. County Court. On 14 October 2011 the S. County Court quashed the judgment and remitted the case for further examination on the grounds that some relevant facts still needed to be established. 16. In the resumed proceedings, on 16 January 2013 the Municipal Court discontinued the proceedings on the grounds that the 2011 Criminal Code (see paragraph 21-22 below) had abolished the criminal offence of domestic violence under Article 215a of the 1997 Criminal Code, and that further proceedings against B.B. were therefore barred. 17. The State Attorney’s Office did not challenge that decision but the applicant lodged an appeal with the S. County Court. 18. On 28 February 2013 the S. County Court declared the applicant’s appeal inadmissible on the grounds that she did not have legal standing to challenge the decision on the discontinuation of the criminal proceedings.
| 1 |
test
|
001-176838
|
ENG
|
DEU
|
CHAMBER
| 2,017 |
CASE OF EROL v. GERMANY
| 4 |
No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
|
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev
|
6. The applicant was born in 1974 and lives in Aachen. 7. On 20 April 2010 the premises in which the applicant ran a café were searched, based on a search warrant of 2 March 2010 issued by the Aachen District Court. The applicant was found in a back room of the café, weighing and packaging some 400 grams of cocaine, with a sum of 2,325 euros (EUR) in the pockets of his trousers. He was arrested. 8. The following day, the Aachen District Court issued a warrant for the arrest of the applicant on the ground that he was strongly suspected (dringend verdächtig) of commercial trafficking of a substantial amount of drugs and that there was a risk of his absconding. It considered that the applicant could face a considerable prison sentence for the offences in question, that he did not have strong ties to Germany, that he was unemployed and living on social security, and that he could easily abscond to Turkey. 9. At a detention review hearing on 5 May 2010, the applicant’s counsel applied for the applicant’s release on bail, stating that the applicant’s family were able and willing to furnish the amount of bail to be determined by the court. The following day, the applicant’s counsel withdrew the application after the court indicated that bail would not be granted. 10. On 6 July 2010 the Public Prosecutor’s Office lodged a bill of indictment against the applicant, charging him with three counts of commercial trafficking of a substantial amount of drugs. 11. On 6 August 2010 the Aachen District Court decided to open the trial against the applicant. 12. On 29 September 2010 the District Court convicted the applicant on one of three counts of commercial trafficking in a substantial amount of drugs and acquitted him on the other two counts. It sentenced him to two years and six months’ imprisonment and ordered the continuation of his detention. 13. On 30 September 2010 both the applicant and the Public Prosecutor lodged appeals against the District Court’s judgment. 14. That same day, the applicant lodged an appeal against the decision ordering his continued detention and asked for the detention order to be set aside or its execution to be stayed. He argued that there was no incentive for him to abscond. The strength of his ties to Germany rendered his absconding to Turkey unlikely. He had lived in Germany for twenty years, had been married for the past thirteen years, and had two children, aged eight and one. His parents and his brother also lived in Germany. His only tie to Turkey, by contrast, was his parents’ holiday home. 15. On 1 October 2010 the Aachen District Court decided not to grant the applicant’s appeal against the continued detention order and to refer the matter to the Aachen Regional Court. It considered that it was possible that the applicant would be sentenced to a significant prison sentence on appeal. There was, hence, an incentive for him to abscond which was not counterbalanced by his existing social ties to Germany. In that regard, it noted that the applicant and his entire family had lived on social security since 2001, that his command of the German language was insufficient and that he had no prospects of employment. Considering that his wife was also a Turkish national, that his children were of a young age and that his parents owned a holiday home in Turkey, there was a risk that the applicant would abscond to Turkey with his family. This risk could not be adequately remedied by reporting requirements or payment of security. 16. On 7 October 2010 the Aachen Regional Court dismissed the applicant’s appeal. It limited the basis of the detention order to the count on which he had been convicted and annulled it for the two counts on which he had been acquitted by the District Court. Yet, referring to the reasoning of the District Court and underlining that the applicant had no legal employment whereas he had family ties to Turkey, it considered that there continued to be a risk of the applicant’s absconding. 17. On 26 October 2010 the applicant lodged a further appeal against that decision. After essentially reiterating his earlier submission as to why there was no risk of his absconding, he stated that such risk could, in any event, be remedied by imposing a less severe measure. In that regard, he proposed that his family furnish security of EUR 10,000. 18. After the Regional Court decided not to grant the applicant’s further appeal and to refer the matter to the Cologne Court of Appeal, that court informed the applicant’s counsel, in a letter dated 22 November 2010, that it was considering staying the execution of the detention order. It asked the applicant to clarify the offer made and requested that the necessary means be given to him by his family in a manner that allowed him to dispose freely of those means and to furnish the security himself. The lawful origin of those means had to be credibly demonstrated. 19. The following day, the applicant’s counsel informed the Court of Appeal that the applicant’s family was able and willing to furnish security of EUR 10,000 to the court and to demonstrate credibly the lawful origin of those means. The family was, however, unwilling to put the money at the applicant’s disposal as they were unwilling to run the risk of having the repayment claim attached for payment against future claims the authorities might have against the applicant. He added that, if the applicant had to assume that the security would be forfeited in any event, that is to say, even if he did not abscond, because the repayment claim would be attached for payment against other claims, the security could not effectively remedy a risk of his absconding. 20. On 3 December 2010 the Cologne Court of Appeal dismissed the applicant’s further appeal. It endorsed the assessments of the District Court and the Regional Court as to the risk of the applicant’s absconding and noted that the sentence the applicant risked incurring was not limited to two years and six months’ imprisonment, for the Public Prosecutor had appealed against the District Court’s judgment, seeking the applicant’s conviction on the two counts on which he had been acquitted. It stated that it would nonetheless consider staying the execution of the detention order if security were furnished. As long as the applicant’s family was not willing to put the necessary means at his own disposal it was, however, not ready to do so, arguing that this unwillingness indicated that his family lacked confidence in him and concluding that the family ties appeared not to be strong enough to prevent him from risking forfeiture of the security by absconding. The Court of Appeal furthermore found that there was a risk that the applicant would commit more drug-related offences if he were released from detention and also based the detention order, by way of subsidiarity, on a risk of reoffending. The decision was served on the applicant on 9 December 2010. 21. On 3 January 2011 the District Court’s judgment of 29 September 2010 became final, following the Regional Court’s decision to discontinue the proceedings in relation to one of the charges and the withdrawal of appeals by both the applicant and the Public Prosecutor. 22. That same day, the Aachen District Court stayed the execution of the detention order against the applicant on a number of conditions, including that either he or another person furnish security of EUR 5,000. Upon the furnishing of that amount by another person that same day, the applicant was released from detention. 23. On 14 April 2011 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint against the Court of Appeal’s decision not to stay the execution of the detention order against him, lodged on 10 January 2011, for adjudication, without providing reasons (file no. 2 BvR 155/11).
| 0 |
test
|
001-160990
|
ENG
|
DEU
|
CHAMBER
| 2,016 |
CASE OF PRADE v. GERMANY
| 3 |
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
|
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
|
5. The applicant was born in 1955 and lives in Hamburg. 6. The applicant is a civil servant working as a lawyer for the Hamburg tax authorities. In 1995, the applicant was a board member of the local branch of a registered association called “Red Aid”. In this capacity he opened a bank account for the association. He and two other members of the association were authorised to draw on the account. The account was used for the deposit of donations and membership fees. The account data was therefore published, for example in brochures. In 2000 the applicant left the board of the association. 7. In 2003, a third person reported to the police that he had bought a watch via eBay. The watch had turned out to be a fake. He had tried to rescind the purchase when he found out, but the seller – of whom he knew only the email address “[email protected]” – refused to cooperate. The police investigations showed that a certain Mr D. was registered with eBay as user of the email address “sternschnuppe756”. The bank account registered for the email address “sternschnuppe756” was the account of the “Red Aid” association. Investigations further showed that various other users, who were registered with eBay, cited the bank account of the “Red Aid” association as their bank account. The police also found out that the user of “sternschnuppe756” had traded computer programmes via eBay. An investigation of the transactions of the “Red Aid” bank account showed that there had only been one transaction connected to eBay: eBay had tried to collect fees (EUR 36.33) on 7 October 2003. The “Red Aid” association had protested against the payment, which had been returned on 27 November 2003. Mr D. was questioned by the police. He explained, convincingly, that he had nothing to do with the email address “sternschnuppe756” or the bank account of the “Red Aid” association. 8. On 21 September 2004, upon a request of the prosecutor’s office of Munich I, the Munich District Court issued a search warrant in respect of the applicant’s home (and the home of three other members of the “Red Aid” association who were authorised to draw on the association’s bank account) on suspicion that they had committed “copyright piracy” by selling fake goods such as watches and computer programmes. The search warrant authorised the search and seizure of computers and documents containing information about the sale of the fake watch and the computer programmes. 9. On 8 December 2004 the applicant’s (shared) flat in Hamburg was searched. The police found none of the items they were searching for. Instead, by coincidence, the police found 463.732 grams of hashish, which contained 39.09 grams of pure THC (tetrahydrocannabinol), and two defective weighing scales in the flat. The amount and quality of the hashish was asserted by an expert. The amount was enough for 2606 consumption units. The criminal proceedings regarding the suspected “copyright piracy” were discontinued. However, new proceedings for possession and trafficking of a substantial amount of drugs were initiated against the applicant. 10. The applicant, represented by counsel, lodged a complaint against the search warrant before the criminal courts arguing that the warrant, and consequently the search, had been unlawful and had infringed his constitutional right to respect for his home under Article 13 of the German Constitution (“the Basic Law”; see paragraph 22, below). The Munich District Court and the Munich I Regional Court dismissed the complaint. 11. The applicant subsequently lodged a constitutional complaint with the Federal Constitutional Court. 12. On 13 November 2005 the Federal Constitutional Court held that the complaint was manifestly well-founded, found a violation of Article 13 of the Basic Law, declared the house search unlawful and quashed the search warrant and the decisions of the District and the Regional Court. The court left open whether the few indications supporting the initial suspicion that the applicant might have committed “copyright piracy” justified the ordering of a search warrant. In any event, however, the Federal Constitutional Court ruled that having weighed the few indications supporting a suspicion that the applicant could have committed “copyright piracy” against the massive impact of a house search on the applicant’s constitutional right to respect for his home, the issuing of a search warrant and hence the house search had not been proportionate. It would have been possible and necessary to take other investigative measures that would have interfered less with the applicant’s right before searching the applicant’s home. 13. On 29 July 2005 the applicant was indicted by the Hamburg prosecution on charges of possession of and trafficking in a substantial amount of drugs. On 24 January 2006 the Hamburg District Court convicted the applicant of possession of a substantial amount of drugs in less serious circumstances and imposed a ten months’ suspended prison sentence. The judgment was exclusively based on the presence of hashish found during the house search of 8 December 2004. 14. The applicant lodged an appeal on points of law before the Hamburg Court of Appeal, arguing that he should have been acquitted as the evidence found during the house search could not be admitted as evidence in the criminal proceedings for drug possession. As the search warrant had been invalidated by the Federal Constitutional Court, the police had never had a right to enter the applicant’s shared flat and would therefore never have had a legal possibility of finding the drugs at the applicant’s flat. Moreover, the seizure of the hashish had not even been covered by the unlawful search warrant. The infringement of the applicant’s right to respect for his home had been so severe that the evidence which had coincidentally been found during the house search could not be admitted as evidence against the applicant. 15. On 5 September 2006 the Court of Appeal quashed the District Court’s judgment and referred the case back to the District Court because it was of the view that the District Court had not sufficiently examined whether the hashish belonged to the applicant. As he lived in a shared flat, the room, and hence the drugs, could have belonged to any of his flatmates. With regard to the admissibility of the evidence the Court of Appeal found that the hashish found during the search could be used as evidence against the applicant. The infringement of the applicant’s basic rights with regard to the criminal proceedings concerning copyright piracy had not been so serious that the applicant’s interest in respect for his home outweighed the public interest in prosecution. The Court of Appeal referred to the Federal Constitutional Court’s case-law (see paragraph 26 below), according to which unlawfully obtained evidence could be used in criminal proceedings as long as, after a thorough balancing of the different interests at stake, the public interest in prosecution did not have to stand back against the right to respect for his home of the person concerned and as long as that person’s rights had not been violated on purpose. It reiterated the Federal Constitutional Court’s finding that the applicant’s basic rights had been seriously infringed (see paragraph 12 above). Whether or not the search warrant had been sufficiently precise, and whether a sufficient initial suspicion for issuing a search warrant had been present or not, did not have to be determined because, even assuming that this had not been the case, such shortcomings did not render the obtained evidence unlawful. Because of the seriousness of the crime of drug possession, and the substantial amount of hashish found, the public interest in prosecution outweighed the applicant’s interest in respect for his home. Furthermore, the applicant’s rights had not been deliberately infringed, the house search had not been arbitrary and the amount of hashish found would theoretically have justified a house search. The Court of Appeal was hence of the view that the hashish found during the search could be used as evidence against the applicant. 16. Considering that it was legally unclear whether or not the Court of Appeal’s findings regarding the admissibility of the evidence found during the house search were binding on the lower courts, the applicant lodged a constitutional complaint with the Federal Constitutional Court. On 27 December 2006 the Federal Constitutional Court rejected the complaint as inadmissible. 17. In the resumed proceedings before the Hamburg District Court, the applicant made a statement that the room in which the hashish had been found was exclusively used by him. On 18 April 2007 the District Court acquitted the applicant, ruling that the hashish found during the house search could not be used as evidence against him. The court noted that under the well-established case law of the Federal Constitutional Court (see paragraph 26 below) an unlawful house search did not automatically mean that the evidence seized during such a house search could not be used in the trial against the person concerned. Evidence might, however, be precluded if the violation of the applicant’s right to respect for his home had been particularly serious. The court weighed the public interest in prosecuting the crime of possession of drugs against the applicant’s interest in respect for his home. It was of the view that the initial suspicion that the applicant might have committed the offence of copyright piracy had been so vague that the issuing of a search warrant had not been justified at all. Hence, the applicant’s right to respect for his home had been infringed in such a severe way that despite the seriousness of the crime of drug possession and the substantial amount of hashish found, the public interest in prosecution could not outweigh the applicant’s interest in respect for his home. 18. On 5 October 2007, on appeal by the prosecution, the Regional Court quashed the acquittal, convicted the applicant of possession of a substantial amount of drugs in less serious circumstances and sentenced him to a six months’ suspended prison sentence. As regards the question whether the applicant had been in possession of the drugs the Regional Court relied on a statement of the applicant dated 13 March 2007 according to which the room in which the hashish had been found was solely used by himself. Furthermore, the Regional Court was of the view that the Court of Appeal’s findings in its judgment of 5 September 2006 (see paragraph 15 above) on the admissibility of the hashish as the sole evidence were binding and that hence the hashish found in the applicant’s flat could be used as evidence against him. Moreover, the court made it clear that even if the Court of Appeal’s findings were not binding in this respect it was itself of the view that, weighing the applicant’s interest in respect for his home against the public interest in prosecution, the latter prevailed and that the evidence was thus admissible. 19. The applicant subsequently lodged a fresh appeal on points of law before the Court of Appeal, arguing that the Regional Court should not have admitted the evidence. On 16 September 2008 the Court of Appeal dismissed the appeal. The court weighed the public interest in prosecuting the crime of possession of drugs against the applicant’s interest in respect for his home. It took the view that, considering the seriousness of the crime of drug possession and the substantial amount of hashish found, the public interest in prosecution outweighed the applicant’s interest in respect for his home because the applicant’s rights had not been deliberately infringed, the house search had not been arbitrary and the amount of hashish found would theoretically have justified a house search. 20. The applicant lodged a fresh constitutional complaint, arguing that the admission of the evidence infringed his right to respect for his home under Article 13 of the Basic Law and his right to a fair trial under Article 2 § 1 read in conjunction with Article 20 § 3 of the Basic Law (see paragraph 23 below). On 2 July 2009 the Federal Constitutional Court dismissed the complaint (file no. 2 BvR 2225/08). The decision was served on the applicant’s counsel on 3 August 2009. The court assessed the applicant’s arguments mainly under the head of Article 13 of the Basic Law. It held that the Court of Appeal had balanced all the interests at stake in a way that was neither arbitrary nor unreasonable and that the conviction of the applicant, although exclusively based on the evidence found during the house search, did not infringe the applicant’s constitutional rights. With regard to the applicant’s claim that the use of the hashish seized as evidence against him had violated his rights under Article 2 § 1 read in conjunction with Article 20 § 3 of the Basic Law, the court held that the principle of a fair trial had been applied in a way that was neither unjustifiable nor arbitrary. Hence the applicant’s constitutional rights had not been violated. 21. As the applicant was a civil servant, disciplinary proceedings were initiated in view of the criminal charges against him. The disciplinary proceedings were adjourned during the criminal proceedings. Following the conviction of the applicant by the criminal courts, the competent authorities formally noted that the applicant had committed a disciplinary offence and discontinued the proceedings as the offence had not been of a kind or degree demanding disciplinary measures.
| 0 |
test
|
001-170347
|
ENG
|
GBR
|
GRANDCHAMBER
| 2,017 |
CASE OF HUTCHINSON v. THE UNITED KINGDOM
| 1 |
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect)
|
András Sajó;Angelika Nußberger;Branko Lubarda;Erik Møse;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Paulo Pinto De Albuquerque;Yonko Grozev;Ksenija Turković
|
9. The applicant was born in 1941 and is detained in Her Majesty’s Prison Durham. 10. In October 1983, the applicant broke into a family home, where he stabbed to death a man, his wife and their adult son. He then repeatedly raped their 18 yearold daughter, having first dragged her past her father’s body. He was arrested several weeks later and charged with these offences. At trial he pleaded not guilty, denying the killings and claiming that the sexual intercourse had been consensual. On 14 September 1984, he was convicted of three counts of murder, rape, and aggravated burglary. 11. The trial judge sentenced the applicant to a term of life imprisonment and, in accordance with the rules on sentencing then in force, recommended a minimum period (tariff) of 18 years to the Secretary of State for the Home Office. When asked to give his opinion again on 12 January 1988, the judge wrote that “for the requirements of retribution and general deterrence this is genuinely a life case”. On 15 January 1988 the Lord Chief Justice recommended that the period should be set at a whole life term stating that “I do not think that this man should ever be released, quite apart from the risk which would be involved”. On 16 December 1994, the Secretary of State informed the applicant that he had decided to impose a whole life term. 12. Following the entry into force of the Criminal Justice Act 2003, the applicant applied to the High Court for a review of his sentence, arguing that he should receive the 18-year tariff mentioned at his trial. On 16 May 2008, the High Court gave its judgment. It found that there was no reason to depart from the Secretary of State’s decision. The seriousness of the offences alone was such that the starting point was a whole life order. A number of very serious aggravating factors were present, and no mitigating factors. On 6 October 2008, the Court of Appeal dismissed the applicant’s appeal.
| 0 |
test
|
001-164166
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,016 |
M.M.R. v. THE NETHERLANDS
| 4 |
Inadmissible
|
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
1. The applicant, Ms M.M.R., stated that she is a national of the Democratic Republic of the Congo (“the DRC”) and that she was born in 1988. She is currently living in the Netherlands. The President decided not to disclose the applicant’s identity to the public (Rule 47 § 4). She was represented before the Court by Mr G. Vergouw, a lawyer practising in Arnhem. 2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On an unspecified day in July 2010 the applicant fled from her native DRC to the Netherlands. She arrived on 8 July 2010 and applied for asylum. On 26 July 2010 she was interviewed by the immigration authorities about her identity, nationality and travel route. On 27 July 2010 she submitted corrections and additions (correcties en aanvullingen) to the report drawn up of the first interview (eerste gehoor). On 28 July 2010, the applicant was interviewed about her reason for seeking asylum. On 29 July 2010 she submitted corrections and additions to the report drawn up of the second interview (nader gehoor). In the interviews she gave the following account. 5. She was of Banyamulenge (ethnic Tutsi) origin and came from Bukavo, the capital of the South Kivu province in the east of the DRC. In August 2000 her father was killed in a fight with members of an angry crowd who had entered her family home in Bukavo, screaming that the Banyamulenge should leave the country. The applicant’s mother fled into the woods, together with the applicant and one of her sisters. Her older sister Ms E. and two of her brothers also fled, but after the incident she did not see them again. After the death of her father, the applicant and her remaining family were given a house and financial aid by Papa K., a friend of her father’s. In September 2004 six or seven men entered the applicant’s home, initially looking for Banyamulenge men and boys. They did not find any. The men then raped the applicant, as well as her mother and sister. Afterwards, the applicant was taken to a house where there were other women. She was raped and ill-treated on a daily basis. After four months, in January 2005, a man acting at the request of Papa K. managed to free her and took her to Papa K.’s house. After she recovered the applicant was moved at the instigation of Papa K. to her grandparents’ house in the Nguba neighbourhood in Bukavo. In 2007 anti-Banyamulenge sentiments in the Congolese population resurfaced again. The applicant was hassled at school but eventually obtained a university diploma in 2008. For a while nothing major happened. Around the end of January or early February 2009, unknown men entered her grandparents’ home, looking for Banyamulenge men and boys. They raped her grandmother, chopped off her grandfather’s arm and leg because he had refused to rape the applicant, raped the applicant, killed both her grandparents and took the applicant with them. As before, the applicant was taken to a house where there were other women and girls. She was sexually abused and ill-treated every two to three days. On 6 July 2010 a man acting for Papa K. came to the house and took the applicant with him. 6. On 30 July 2010 the Minister of Justice (Minister van Justitie;“the Minister”) notified the applicant of his intention (voornemen) to reject her asylum application. The certificate of loss of documents (attestation de perte des pièces) submitted by her was found to be a forgery. The certificate, which concerned the applicant’s loss of her voting card (carte d’électeur), was also found to be unauthentic in that it had not been drawn up by the competent authority. As the applicant gave incorrect statements about the document and continued to claim that it was authentic, the Minister found that serious doubts had arisen as to the applicant’s claimed identity and nationality. The absence of any other travel or identity documents and her inability to give a consistent, detailed and verifiable account of her journey to the Netherlands further detracted from the credibility of her account. The Minister also considered it odd that for someone who had lived virtually her entire life in Bukavo and who had gone to university, the applicant had hardly any basic knowledge about her hometown. For instance, she did not know the former colonial name of the town, who the mayor was, and that a “khadafi” is a petrol seller. She had to think about the name of the cathedral and anthem of the DRC, and she did not know the colour of car licence plates. The Minister therefore found it unlikely that the applicant actually came from Bukavu. As she had failed to establish her identity, her asylum claim, which was based on her having lived in Bukavu, was found to lack credibility. 7. In written comments (zienswijze) made on 3 August 2010, the applicant maintained her account and gave explanations for her inability to answer certain questions about Bukavu. She further requested to have a language analysis conducted to prove her origin. 8. In a decision of the same date the Minister rejected the applicant’s asylum application, confirming the finding that as she had failed to demonstrate her identity and nationality, her asylum claim lacked credibility. The Minister further found that there was no need for a language analysis test. 9. On 5 August 2010 the applicant lodged an appeal with the Regional Court (rechtbank) of The Hague, accompanied by a request for a provisional measure (voorlopige voorziening) to stay her expulsion pending the outcome of her appeal. 10. On 20 August 2010 a hearing took place before the Regional Court of The Hague sitting in Arnhem. It was attended by the applicant’s sister Ms E. who was living in the Netherlands and had obtained Netherlands nationality. She had been tracked down by the Dutch Council for Refugees (VluchtelingenWerk Nederland). The purpose of her attendance was to prove the applicant’s identity and nationality. To this end, Ms E. submitted documents concerning her own first asylum interview in the Netherlands, during which she had mentioned the applicant as a family member who had not accompanied her on her flight there. 11. By judgment of 27 August 2010 the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Arnhem rejected the applicant’s appeal and the accompanying request for a provisional measure. The judge accepted the Minister’s decision and the underlying reasoning. The submissions of the applicant’s sister Ms E. were not taken into account by the judge. 12. The applicant’s further appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) was dismissed on 28 October 2010. The Administrative Jurisdiction Division found that there were no grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91(2) of the Aliens Act 2000, no further reasoning was required as the arguments submitted did not raise any questions requiring a determination in the interests of legal unity, legal development or legal protection in the general sense. No further appeal lay against that decision. 13. The relevant domestic law and practice as regards asylum proceedings and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012). 14. At the material time, the respondent Government’s policy on asylum seekers from particular countries was devised by the Deputy Minister of Justice (Staatssecretaris van Justitie) on the basis of official country assessment reports published by the Minister of Foreign Affairs on the countries of origin of asylum seekers. 15. On 10 July 2013, the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie) adopted a moratorium on decisions on asylum applications and expulsions (besluit- en vertrekmoratorium) for asylum seekers of Tutsi origin hailing from the east of the DRC, including the provinces of North Kivu and South Kivu. 16. The moratorium was lifted by the Deputy Minister on 3 February 2014. That policy decision, published in the Official Gazette (Staatscourant) of 12 February 2014 (no. 4196), was based on the contents of an official country assessment report (ambtsbericht) on the DRC released by the Minister of Foreign Affairs on 27 November 2013. It was found in this report that there was no systemic, structural and organised discrimination of Tutsis in the DRC, that there was no structural violence in the DRC against the Tutsi population or other Congolese with a Tutsi background and that Tutsi groups could obtain protection from the DRC authorities. Although the general situation in the provinces of North Kivu, South Kivu, Haut-Uele and Bas-Uele in the eastern part of the DRC continued to be considered to fall within the scope of Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”; see, for further details, Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, §§ 30-32, 28 June 2011), an internal protection alternative was found to be available in other parts of the DRC, including Kinshasa, for asylum seekers hailing from those provinces who did not qualify for refugee status within the meaning of the 1951 Geneva Convention relating to the Status of Refugees. 17. In December 2014 the Minister of Foreign Affairs issued a new official country assessment report on the DRC, according to which the general situation in the provinces of North Kivu and South Kivu remained unsettled and unpredictable and that the situation of the Tutsis in the rest of the DRC, including Kinshasa, remained unchanged in comparison with the last reporting period. As regards the situation of women, the report reads: “Women in the DRC occupy a subordinate position. Discrimination against women is widespread and they often have no access to decision-making, adequate healthcare, clean water, basic sanitation and legal remedies. The general position of women remained consistently bad during the reporting period. Several NGOs are active in the DRC in the area of women’s rights and the improvement of the position of women. A draft bill for equal treatment between men and women, which has been taken up for examination in parliament, has not yet been adopted during the reporting period. The Constitution stipulates that the government is to see to it that sexual violence against women is eliminated, in particular when it is used as a weapon aiming at destabilising or disrupting the family. Such forms of sexual violence are classified in the constitution as a crime against humanity. Sexual violence against women and girls is widespread throughout the entire country. Cases of sexual violence are most numerous in areas of war where rape is often used as a weapon in the conflict. The BCNUDH [United Nations Joint Human Rights Office] registered from January 2014 to June 2014 256 victims of sexual violence: 156 women in the Orientale province, 70 women and 3 men in North Kivu, 16 women in Katanga and 11 women in South Kivu. In August 2014 the BCNUDH registered 257 human rights violations, including 50 cases of sexual violence... On 9 July 2014 President Kabila appointed Jeanine Mabunda Lioko Mudiayi as special advisor in the fight against sexual violence and the recruitment of child soldiers. She declared on 20 August 2014 that remarkable progress had been made in North Kivu in the fight against sexual violence. The Ministry of Defence announced [at the] end of August 2014 a national fight against sexual violence committed by Congolese soldiers. The police have trained special units in Goma and Bukavu to combat sexual violence. ... For most women in the DRC is it difficult to call in protection against sexual violence. In theory it is indeed possible to report rape but in practice women decline to do so, due to social stigma and lack of confidence in the judicial system. When a victim decides to turn to the authorities, it remains questionable whether her case will be taken up. Police officers nearly always ask victims for a financial contribution for carrying out the investigation. ... the Congolese NGO LIZADEEL [Ligue de la Zone Afrique pour la Défense des Droits des Enfants, Etudiants et Elèves] has small centres in various towns in the DRC where victims of sexual violence are accommodated and accompanied to medical care facilities. There is a special telephone number for reporting sexual violence ... In Kinshasa, a single woman with a job and able to fend for herself has sufficient freedom ... Single women from other parts of the country can join their own ethnic community (communauté) in Kinshasa. A single woman from out of town – who has no family in town – can temporarily find shelter with someone from their own community. Single women also seek support from the Catholic Church or one of the many awakening [evangelical] churches in Kinshasa. In Kinshasa legal training is given with a view to prosecuting perpetrators of sexual violence. The NGO LIZADEEL runs a shelter for traumatised women in Kinshasa.” 18. In a letter of 27 January 2015, the Deputy Minister informed the Lower House of Parliament that on the basis of the official country assessment report on the DRC of December 2014 the provinces of North Kivu and South Kivu continued to be considered to fall within the scope of Article 15(c) of the Qualification Directive, but that this qualification no longer applied to the provinces of Haut-Uele and Bas-Uele and therefore the “15(c) policy” in respect of these regions was discontinued. 19. The summary of the report on the “Conditions for Tutsis in Kinshasa”, published on 19 January 2015 by the Norwegian Country of Origin Information Centre, reads: “The Tutsis’ share of the population of the Democratic Republic of Congo is fairly small, but they have played a political role in the country that is much more significant than their number would lead one to expect. The Tutsi population of Kinshasa has always been rather small. When the second Congo war broke out in August 1998, Tutsis were victims of large pogroms in Kinshasa after they were collectively blamed for Rwanda’s interference in Congolese politics by the country’s president and authorities. During and after the pogroms, the Tutsis who survived were either evacuated or managed to leave Kinshasa by themselves. Since the early 2000s, there have been no reports of human rights violations against Tutsis in Kinshasa. This can be explained partly by there being few Tutsis living there, and partly by political circumstances that differ from those present at the outbreak of the second Congo war in 1998.” 20. The main findings of the report “Situation des femmes seules à Kinshasa”, released on 15 January 2016 by the Swiss State Secretariat for Migration SEM (Country Analysis) states: “In a country which ranks among the lowest according to the Human development index, women are [also] subject to obvious discrimination. Already vulnerable as a woman, a single woman deprived of a family or a social network is even more vulnerable without a means of existence. However, some single women can organise [themselves] in Kinshasa and find support to improve their living conditions and attempt to secure their financial independence.”
| 0 |
test
|
001-180305
|
ENG
|
TUR
|
CHAMBER
| 2,018 |
CASE OF SEVEN v. TURKEY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
|
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström
|
5. The applicant was born in 1962 and lives in Ankara. 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. At the time of the events giving rise to the application the applicant was serving as a chief police officer in Ankara. 8. On 12 April 2002 a woman named S.K. filed a criminal complaint with officers at Demirfırka police station, alleging that she had been taken into a police car by two officers on the pretext of her being a suspect. Afterwards, they had driven her around in the car and finally had taken her to an empty plot of land where she had been raped in the car by one of the police officers. He had been wearing glasses and had held a police radio in his hand. She identified the vehicle’s licence plate. 9. The applicant and the other police officer were immediately called into the police station for questioning as they had been assigned to the vehicle which had the licence plate identified by S.K. 10. In his statement to the police, made in the presence of his lawyer, the applicant said that he had picked up S.K. around 2 a.m. while he was patrolling with his colleague, S.A., on Talatpaşa Boulevard. He submitted that S.K., who had looked intoxicated, had hailed them, stopped their car, and told them that she worked as a “konsomatris”, a bar hostess who entertains male guests by keeping them company. She had asked for their help to go to a safe place and the applicant had offered to take her to her home, which she had declined. According to the applicant they had also offered to take her to the police station, which she had also declined. Finally, they had taken her to S.A.’s home with the intention of sobering her up. The applicant stated that when S.A. was in the kitchen preparing something to eat, S.K. had started behaving strangely, taking off her clothes and acting in a sexually inviting manner. The applicant said that as a result of being aroused he had simply ejaculated in his own hand but had not touched her. He had then called S.A. and told him that they had to leave immediately. The applicant stated that they had left S.K. in front of a hotel at 3 a.m. and had continued with their patrol until they had been called into the police station for questioning. 11. S.A. confirmed the applicant’s version of events in his statement to the police on the same day. 12. In an additional statement to the police, also made on the same day, S.K. told the police that she could not remember whether the police officers had taken her to an apartment or some other place as she had been very intoxicated. 13. A forensic medical examination of S.K. was carried out on the same day, showing that she had no bruises on her body. 14. A forensic expert report drafted on 15 April 2002 stated that the underwear that the applicant had been wearing on the night in question had S.K.’s and his own DNA on it. Furthermore, napkins found in the rubbish bin on the balcony of S.A.’s apartment had traces of the applicant’s semen. 15. On 6 June 2002 the Ankara governor decided to authorise the prosecution of the applicant and S.A. for alleged rape and abuse of authority. The applicant lodged an objection with the Ankara District Administrative Court seeking annulment of the governor’s decision, but it was dismissed. 16. On 15 November 2002 the Ankara public prosecutor filed an indictment with the Ankara Criminal Court of First Instance, charging the applicant and S.A. with abuse of public authority and the unlawful use of a public vehicle under Article 240 of the former Turkish Criminal Code and section 16 of the Law on Vehicles (Law no. 237). 17. In her statement in the first-instance proceedings, S.K. said that she had flagged down a police car that day to ask for help. As she had been intoxicated, she could not remember exactly what had happened later or which officer had raped her. 18. The chief public prosecutor submitted an opinion on the merits and stated that the applicant’s conduct should be reclassified as rape and unlawful detention and that of S.A. as having aided and abetted those acts. He therefore argued that the case should be referred to the Ankara Assize Court, which has jurisdiction to hear such charges. 19. On 13 July 2004 the Ankara Criminal Court of First Instance ruled that it did not have jurisdiction to hear the case. It found that the offences committed by the applicant while performing his official duties were rape and the unlawful detention of an adult, which were governed, inter alia, by Articles 251, 416 § 1 and 429 § 1 of the former Criminal Code, and the unlawful use of a public vehicle, which came under section 16 of Law no. 237. It stated that those offences had to be tried by assize courts and it therefore referred the case to the Ankara Assize Court. 20. At a hearing held on 24 March 2005, the Ankara Assize Court heard S.K. who, contrary to her previous statements, submitted that the officers had not raped her and had not taken her anywhere without her consent. She then submitted that she wished to withdraw her complaint. 21. On 13 September 2005 the Ankara Assize Court acquitted the applicant and S.A. of all charges, holding that there was no evidence of force on S.K.’s body, one of the constituent elements of the offences of rape and unlawful detention. The court further held that despite S.K.’s statement of 24 March 2005, the forensic report of 15 April 2002 had established that the applicant had had intercourse with her. In the absence of evidence that corroborated the fact of the applicant having forced himself on S.K., it could not be established beyond doubt that the act of sexual intercourse itself had not been consensual. The court stated in that connection that even if S.K. had been drunk that night, her allegations of rape and of being held against her will needed to be supported by some sign of resistance. In the light of the conclusion that there had been no indication of a criminal offence committed by the police officers, the court then held that the applicant and S.A. could not be deemed to have committed the separate offence of the unlawful use of a public vehicle. It therefore acquitted them of all the charges. 22. On 21 September 2005 the acquittal became final as no appeals had been made. 23. In the aftermath of the events of 12 April 2002 a preliminary disciplinary investigation was launched against the applicant and S.A. on 24 April 2002. 24. On 2 and 29 May 2002 the applicant was questioned in relation to the allegations of rape against him. He submitted that he had not had sexual intercourse with S.K. He repeated his earlier statements that S.K. had seduced him to the point where he had had to ejaculate in his own hand. The applicant was also requested to submit a written defence statement. He wrote that he had taken S.K. into the police car with the intention of helping her and had not forced himself on her, as alleged by S.K. He pointed out that the forensic expert evidence had established that there had been no traces of violence, whether on S.K.’s body or in the form of any other type of evidence, such as damage to property or blood stains at S.A.’s apartment or inside the police car. 25. An investigation report dated 6 June 2002, prepared by the police investigator, concluded that the applicant had committed the offence of rape, while S.A. was guilty of the offence of conduct unbecoming and incompatible with the civil service and therefore recommended that the applicant be sanctioned with a deferral of advancement to a higher rank for a period of twenty-four months. The report further stated that a recommendation for a separate criminal investigation against the applicant and S.A. had already been submitted to the governor’s office for authorisation. 26. On 28 November 2002, the Supreme Disciplinary Council found the applicant guilty of abuse of his authority as a police officer and of sexually assaulting S.K. Noting that the applicant’s appraisal scores had only been average for the years 1999 and 2000, and taking account of the shameful nature of the act he had committed, it found that the applicant could not be given a penalty that was less severe than the one decided on. The relevant parts of the decision read as follows: “... the victim complained to the police and confirmed the event by giving the licence plate number of the vehicle and accurately describing the officer as wearing glasses and holding a police radio in his hand. The applicant, on the other hand, hid the facts by denying that he had had intercourse with S.K. [D]espite the fact that the vaginal examination of the victim did not reveal the presence of any active or passive semen, the victim’s statement that she was menstruating on the night in question and the forensic evidence finding traces of both the applicant’s and S.K.’s DNA on the applicant’s underwear and the two napkins found in S.A.’s apartment containing the applicant’s DNA, point to the conclusion that the applicant must have ejaculated prematurely before sexual intercourse. He has therefore committed the offence of ‘sexual assault’ and he furthermore used his position as a police officer by calling the victim a ‘suspect’ in order to lure her into the police car ... Criminal proceedings are pending against the applicant on charges of abuse of authority under Article 240 of the Turkish Criminal Code. ... It has been decided unanimously to dismiss the accused from the police force, in accordance with section 8(6) and (7) of the Disciplinary Regulation of the Security Forces on the grounds that it has been proven that he has committed the offence of sexual assault and of using his position as a police officer for personal ... advantage.” 27. On an unspecified date the applicant objected to the Supreme Disciplinary Council’s decision before the Ankara Administrative Court. The applicant argued that his dismissal on the basis of a finding that he had committed sexual assault, although he had not been found guilty of that offence by a criminal court, had violated his right to the presumption of innocence. 28. On 4 July 2003 the Ankara Administrative Court dismissed the applicant’s case, holding that the decision to dismiss the applicant from the police force had been in accordance with the law. The relevant parts of the judgment read as follows: “Acts, conduct and behaviour of the kind listed in section 8(6), ‘... rape, sexual assault, ... or attempting to commit any of those offences’ and in section 8 (7), ‘using his position as a police officer for his own or another person’s advantage’, are sanctioned with dismissal from the police force. After examination of the file, it appears that the case concerns the applicant’s dismissal from the police force on the basis of a disciplinary investigation which established that he had intercourse with a woman without her consent on the pretext of calling her a suspect .., by asking her to get into a police car so that he could verify her identity at the police station, although in the end he took her to a piece of empty land and had intercourse with her without her consent. On the basis of the case file, statements, the forensic report and other information, the veracity of the accusation is reinforced and therefore the decision to dismiss the applicant is in accordance with the law.” 29. On 13 March 2006 the Supreme Administrative Court dismissed the applicant’s appeal by a majority by endorsing the reasons provided by the Ankara Administrative Court. One judge out of the five expressed a dissenting opinion, reasoning that the applicant had been acquitted of the charges in the parallel criminal proceedings, including of rape, and that therefore the disciplinary decision to dismiss him from the police force on those grounds could no longer be upheld. The dissenting judge further argued that the courts should have reclassified the applicant’s conduct as conduct that was incompatible with the reputation and trust inherent in the functions of an official and sanctioned him with the corresponding penalty of the deferral of moving to a higher rank for a period of sixteen months. 30. On 23 June 2006 the applicant submitted a request to rectify the decision of 13 March 2006, arguing in the main that the fact that he had been acquitted in the criminal proceedings and had been found innocent of the allegations of rape had not been taken into account in the Supreme Administrative Court’s decision. He further argued that the contradictory conclusions of the criminal and administrative courts in relation to what had happened on the night in question had cast doubt on his innocence. 31. The Supreme Administrative Court dismissed the applicant’s request on 17 June 2008, holding that none of the reasons for rectification he had put forth fell within the exhaustive list of permissible grounds for such a decision in section 54 (1) of the Administrative Procedure Act (Law no. 2577). 32. In their observations the Government submitted that on 26 November 2008 the applicant had brought proceedings against the Ministry of the Interior and had requested that the reopening of the proceedings for his dismissal from the police force. The applicant relied on the Ankara Assize Court’s final judgment of 13 September 2005, acquitting him of the charges of, inter alia, attempted rape and abuse of authority. He argued before the Ankara Administrative Court that the establishment of his innocence should be regarded as new grounds for reopening the dismissal proceedings. On 27 May 2009 the applicant’s request was dismissed. The Court was not provided with a copy of that decision; however, the Government provided a summary of parts of it, which was not contested by the applicant. According to the Government, the administrative court held that “the decision of the Assize Court was available on the dates the Supreme Administrative Court examined the applicant’s appellate review and request for rectification of the decision, and that accordingly the court in question made an assessment of the decision rendered by the Assize Court”. 33. According to the information submitted by the Government, the applicant did not appeal against that decision.
| 1 |
test
|
001-161527
|
ENG
|
PRT
|
CHAMBER
| 2,016 |
CASE OF SOUSA GOUCHA v. PORTUGAL
| 3 |
No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 14+8-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life)
|
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
|
6. The applicant was born in 1954 and lives in Fontanelas. 7. He is one of the most well-known television hosts in Portugal and is currently the host of a morning talk show. He has worked in the media for almost forty years. 8. He publicly declared his homosexuality in 2008. 9. Between midnight and 1 a.m. on 28 December 2009, a live talk show, Five Minutes to Midnight (5 Para a Meia-Noite) was broadcast on one of the channels of the national television service, RTP2. The programme was presented by F.C. and featured two famous people from the media as guests. 10. In the course of the talk show, during a quiz, the guests were asked to answer the following question, which was identified as the most important by F.C.: “Who is the best Portuguese female TV host?” The possible answers to the question included the name of three female television hosts and the applicant’s; the latter being the “correct” one. The transcript of the quiz reads: “F.C.: Who is the best female Portuguese TV host? Option A, F.C.; option B, C.V; option C, C.P. or option D, Manuel Luís Goucha. J.M.: This is a tough one.
| 0 |
test
|
001-172463
|
ENG
|
SRB
|
COMMITTEE
| 2,017 |
CASE OF KOVIĆ AND OTHERS v. SERBIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Branko Lubarda;Dmitry Dedov;Luis López Guerra
|
5. The applicants complained of the excessive length of different administrative and civil proceedings under Article 6 § 1 of the Convention. 6. All applicants obtained decisions of the Constitutional Court of Serbia, which found a violation of their right to a hearing within reasonable time. 7. As regards the applicant Mr Nikola Ković, according to the regulations applicable at that time, the Constitutional Court established his right to seek compensation for non-pecuniary damage before the Commission for Damage Compensation. Mr Ković submitted his request for damages to the Commission on 26 December 2010, but he has not received the response to date. 8. As regards the applicants Mr Zoran Ranković and Mr Ivan Bojanić, the Constitutional Court awarded them certain sums in respect of the non-pecuniary damage suffered (see appendix to this judgment).
| 1 |
test
|
001-171093
|
ENG
|
AUT
|
COMMITTEE
| 2,017 |
CASE OF FRANZ MAIER GMBH v. AUSTRIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
|
Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
4. The applicant company is a limited liability company with its seat in Bad Gleichenberg, producing building materials of concrete and using crushed stones (Schotter) for this purpose. 5. On 29 November 2002 the applicant company requested the Steiermark Regional Governor (Landeshauptmann) to issue a licence under the Water Act (wasserrechtliche Genehmigung) for dredging (Nassbaggerung) on its plot. 6. On 20 May 2003 the Steiermark Regional Governor decided to issue the licence for dredging and imposed certain conditions. 7. On 31 July 2003 H.P., the owner of the Sicheldorfer mineral water spring appealed against this decision, claiming that the dredging had a negative impact on the spring. 8. On 8 September 2004 the Ministry for Agriculture, Forestry, Environment and Water (Bundesministerium für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft) (“the Ministry”) ordered the applicant company to submit a plan of the projected dredging area and of all the springs and wells concerned. 9. On 21 September 2004 the applicant company submitted some plans but stated that it had no knowledge about the location of the spring and H.P. refused to provide the necessary information. 10. On 13 October 2004 the applicant company submitted further plans to the authorities. 11. On 23 February 2005 the Ministry served an expert opinion on the applicant company. According to this expert opinion the information submitted by the applicant company was not sufficient to prove that there was no negative impact of dredging on the springs. The applicant company was requested to comment hereon. 12. On 19 April 2005 the Ministry quashed the decision of the Steiermark Regional Governor and remitted it back to the first instance authority on the grounds that the applicant company had failed to provide sufficient information in order to assess a possible negative impact on the spring. 13. On 17 May 2005 the Steiermark Regional Governor ordered the applicant company to submit the missing documents. 14. On 4 October 2005 the applicant company submitted a private expert opinion to the Regional Governor. 15. On 21 November 2005 an oral hearing was held. 16. On 13 February 2006 the Steiermark Regional Governor again issued the requested licence for dredging and imposed certain conditions. 17. On 1 March 2006 H.P., the Bad Radkersburg municipality and the Bad Radkersburg spring company appealed against this decision to the Ministry. 18. On 31 July 2006 the applicant company submitted written comments to the Ministry. 19. On 25 September 2006 the applicant company complained to the Administrative Court (Verwaltungsgerichtshof) about the administration’s failure to decide (Säumnisbeschwerde). 20. On 27 September 2006 the Administrative Court ordered the Ministry to decide within three months. 21. On 24 November 2006 the Ministry transmitted another expert’s opinion to the parties and requested the applicant company to submit the missing documents. 22. On 28 November 2006 the Ministry requested the Administrative Court to extend the deadline for the decision to nine months as the proceedings were not finalised. 23. On 29 December 2006 the applicant company commented on the recently obtained expert opinion (see paragraph 21 above) claiming, inter alia, that the Ministry failed to determine which missing documents were to be submitted. 24. On 26 February 2007 the Administrative Court prolonged the deadline for the Ministry until 30 April 2007. 25. On 13 March 2007 the applicant company submitted another private expert opinion to the Ministry. 26. On 17 April 2007 the Ministry rejected the requested dredging licence on the grounds that the applicant company had failed to submit all the requested documents. 27. On 26 April 2007 the Administrative Court closed the proceedings on the applicant company’s complaint about the administration’s failure to decide (see paragraph 19 above) and ordered the reimbursement of the costs related to this complaint. 28. On 29 May 2007 the applicant company lodged a complaint with the Administrative Court. 29. On 1 June 2007 the Administrative Court asked the Ministry and the other parties to submit written observations within eight weeks. 30. On 12 June 2007 H.P., the Bad Radkersburg municipality and the Bad Radkersburg spring company submitted their written observations. 31. The Ministry submitted written observations which were served on the applicant company on 11 July 2007. 32. On 19 July 2007 the applicant company put forward further submissions in reply to the Ministry’s observations; H.P., the Bad Radkersburg municipality and the Bad Radkersburg spring company replied hereto on 2 August 2007. 33. On 30 October 2008 the Administrative Court quashed the decision by the Ministry as it was not clarified which documents the applicant company had to submit. 34. On 11 December 2008 the applicant company submitted two other private expert opinions to the Ministry. 35. On 22 May 2009 the applicant company lodged another application against the administration’s failure to decide with the Administrative Court. 36. On 27 May 2009 the Administrative Court ordered the Ministry to decide within three months. 37. On 5 August 2009 the Ministry submitted another expert opinion to the parties and asked the applicant company to submit certain precisely mentioned documents within four weeks. 38. On 28 August 2009 the applicant company referred to the already submitted private expert opinions and claimed that the mentioned documents were not necessary. In addition, it requested to appoint another expert. Nonetheless, it submitted a supplementary expert opinion. 39. On 28 September 2009 the Administrative Court extended to 15 months the deadline for the Ministry to decide. 40. On 12 January 2010 the Ministry requested the Bad Radkersburg municipality and the Bad Radkersburg spring company (H. P.’s appeal had meanwhile been considered to be withdrawn) to submit written observations on the documents recently transmitted by the applicant company. 41. On 12 February 2010 the Bad Radkersburg municipality and the Bad Radkersburg spring company submitted their written observations, to which the applicant company replied on 19 February 2010. 42. On 26 July 2010 the applicant company submitted another private expert opinion to the Ministry in compliance with the Ministry’s request of 5 August 2009 (see paragraph 37 above). 43. On 10 August 2010 the Ministry communicated a further expert opinion for the applicant company’s information. 44. On 20 October 2010 the Ministry dismissed the appeals and therefore permitted the requested dredging by the applicant company. This decision, served on the applicant company on 27 October 2010, became final. 45. On 18 November 2010 the Administrative Court closed the proceedings on the applicant company’s second complaint about the administration’s failure to decide (see paragraph 35 above) and ordered the reimbursement of the costs related to this complaint.
| 1 |
test
|
001-167565
|
ENG
|
HUN
|
COMMITTEE
| 2,016 |
CASE OF MÁTHÉ AND SZABÓ v. HUNGARY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
|
Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
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 criminal proceedings.
| 1 |
test
|
001-142961
|
ENG
|
GBR
|
CHAMBER
| 2,014 |
CASE OF PAULET v. THE UNITED KINGDOM
| 3 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
|
4. The applicant was born in 1984 and lives in Leeds. 5. The facts of the case may be summarised as follows. 6. The applicant arrived in the United Kingdom on 26 January 2001 and thereafter lived illegally at an address in Bedford. 7. Whilst living in the United Kingdom the applicant successfully applied for three jobs using a false French passport. Between April 2003 and November 2004 he was employed by a recruitment agency. Between August 2004 and January 2006 he was employed in a cash and carry business and between January 2006 and February 2007 he was employed as a forklift truck driver. 8. The applicant had used the false passport to support his assertion that he was entitled to work in the United Kingdom. All of his employers subsequently stated that they would not have employed him had they known of his true immigration status. Between April 2003 and February 2007 the applicant earned a total gross salary of 73,293.17 pounds sterling (GBP) from his employment. At the end of this period he had total savings of GBP 21,649.60. 9. In January 2007 the applicant applied to the Driving and Vehicle Licensing Agency for a provisional driving licence. The application was accompanied by the same false French passport that the applicant had used to obtain employment in the United Kingdom. When the falsity of the passport was discovered, the police were informed. 10. On 4 June 2007 the applicant pleaded guilty in the Crown Court at Luton to three counts of dishonestly obtaining a pecuniary advantage by deception (counts one, two and three on the indictment). He also pleaded guilty to one count of having a false identity document with intent (count four), one count of driving whilst disqualified (count five) and one count of driving a motor vehicle without insurance (count six). On 29 June 2007 the applicant was sentenced to concurrent terms of fifteen months’ imprisonment for the first four counts together with a consecutive sentence of two months’ imprisonment for the offence of driving whilst disqualified. No separate sentence was imposed for driving without insurance. The trial judge also recommended the applicant for deportation. 11. In addition to the custodial sentence and the recommendation for deportation, the prosecution sought a confiscation order under section 6 of the Proceeds of Crime Act 2002 in respect of the applicant’s earnings (see relevant domestic law and practice below). The trial judge accepted that the applicant had paid all the tax and national insurance due on his earnings and that the money he had made from his employment had been truly earned. After deducting tax and national insurance payments, it was calculated that the benefit the applicant received from his earnings was GBP 50,000. It was agreed that of the GBP 50,000 the applicant still had assets of GBP 21,949.60. On this basis, on 29 June 2007 the trial judge imposed a confiscation order in the sum of GBP 21,949.60 upon the applicant, with a consecutive sentence of twelve months’ imprisonment to be served in default of payment. Thus, the confiscation order had the effect of depriving the applicant of all of the savings that he had accumulated during the four years of employment. 12. On 8 April 2008 the applicant sought an extension of time within which to appeal to the Court of Appeal against the imposition of the confiscation order. In his grounds of appeal, he contended that the grant of the confiscation order had not respected “European law”. That application was refused on 13 June 2008. The Single Judge noted that the applicant had failed to establish good reason for the extension of time sought and that he had no arguable grounds of appeal because he had benefited from the use of the false passport to the extent that it had enabled him to work and earn money and there had been no breach of his rights under the Convention. 13. The applicant renewed his application before the Court of Appeal which, on 14 November 2008, granted him an extension of time and leave to appeal. Leading counsel was appointed on his behalf. Counsel initially argued first; that the applicant’s earnings were not a relevant benefit from criminal conduct within the meaning of the Proceeds of Crime Act 2002; and secondly, that the prosecutor’s decision to seek a confiscation order in this case constituted an abuse of process. 14. The Court of Appeal heard part of the appeal on 18 February 2009. However, it decided to adjourn the appeal pending the publication by the Department of Public Prosecution (“the DPP”) of guidance for prosecutors on the circumstances under which a confiscation order could be sought. 15. In a supplementary skeleton argument dated 5 June 2008, counsel for the applicant accepted that in light of the decision in R v. Carter and Others [2006] EWCA Crim 416 (see relevant domestic law and practice below), the court was bound to reject the first ground of appeal, namely that the applicant’s earnings were not a relevant “benefit”. He therefore accepted that the issue on appeal was whether it was oppressive and therefore an abuse of process for the Crown to seek and the court to impose a confiscation order for what amounted to the applicant’s entire savings over nearly four years of genuine work. In this regard, counsel submitted that there would be an abuse of process where, on a correct application of the law to the facts, the resulting “benefit” figure yielded a disproportionate or oppressive result. He further noted that Parliament has intended the Proceeds of Crime Act 2002 to be applied in a manner compatible with the requirements of the Convention. Therefore, in light of Article 1 of Protocol No. 1, in order to remain proportionate the application of the confiscation regime had to remain rationally connected to the public interest aims pursued and go no further than necessary to achieve them. It was therefore submitted that to seek the imposition of a confiscation order on the basis of a benefit figure which far exceeded the value of the defendant’s crimes could properly be described as disproportionate – either in the traditional sense used in criminal sentencing (“not fitting the punishment to the crime”) or in the language of the Convention – and was therefore an abusive exercise of jurisdiction. 16. The applicant further submitted that a confiscation order could be described as oppressive where it did not pursue any of the legitimate aims of the confiscation regime and/or did not further the Parliamentary intent of stripping defendants of the proceeds of crime. He reiterated that Parliament had intended the legislation to be compatible with the Convention. 17. On 28 July 2009, after the DPP guidance had been promulgated (see relevant domestic law and practice below), the Court of Appeal held that the decision to seek a confiscation order against the applicant did not constitute an abuse of process. The court therefore dismissed the applicant’s appeal against the order. In reaching this conclusion, the Court of Appeal said that the guidance represented a fair analysis of the effect of previous Court of Appeal and House of Lords decisions on the confiscation order regime. 18. The court stated: “Abuses of the confiscation process may occur and, when they do, the appropriate remedy will normally be a stay of proceedings. However an abuse of process cannot be founded on the basis that the consequences of the proper application of the legislative structure may produce an ‘oppressive’ result with which the judge may be unhappy. Although the court may, of its own initiative, invoke the confiscation process, the responsibility for deciding whether properly to seek a confiscation order is effectively vested in the Crown. When it does so, the court lacks any corresponding discretion to interfere with that decision if it has been made in accordance with the statute. The just result of these proceedings is the result produced by the proper application of the statutory provisions as interpreted in the House of Lords and in this court. However to conclude that proceedings properly taken in accordance with statutory provisions constitute an abuse of process is tantamount to asserting a power in the court to dispense with the statute. As a matter of principle, that is impermissible, and this court has said so. This, in R v. Shabir [2009] 1 CAR (S) 497, it was observed: ‘This jurisdiction must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic.’ We repeat what was said at an earlier hearing involving Paulet. ‘The abuse of process jurisdiction is one which needs to be exercised with great circumspection. The jurisdiction cannot be converted on a case by case basis into a structure which involves, on proper analysis, something like wholesale undermining of the statutory provisions. It is not easy to conclude that it is an abuse of process for those responsible for enforcing legislation to see that it is indeed properly enforced.’” 19. The Court of Appeal found that applicant’s case could not be distinguished from its previous ruling in R v Carter and Others (see relevant domestic law and practice, paragraph 31 below). It concluded: “The reality is that throughout the period of his employment [the applicant] was relying on a continuing dishonest representation to three different employers. He deceived them into thinking that he was entitled to obtain employment with them. That was a crucial element of his criminality. His earnings, of course, reflected the fact that he had done the necessary work, as we shall assume, to the satisfaction of his various employers. But the opportunity for him to do so, that is the pecuniary advantage, was unlawfully obtained. If the employee worked to his employer’s satisfaction, and he paid his tax and National Insurance contributions on his earnings, and his deception either lacked any significant wider public interest, or, perhaps because of the passage of time, but for whatever reason, had ceased to have any meaningful effect on his employers’ decision to continue his employment, the resolution of the issue might well be different. As it is there was here a wider public interest. The appellant was deliberately circumventing the prohibition against him seeking remunerative employment in this country in any capacity. No basis for interfering with the order made in the Crown Court has been shown. In our judgment the appropriate link between the appellant’s earnings and his criminal offences, in the context of the wider public interest, was plainly established. The appeal therefore fails.” 20. On 27 October 2009 the Court of Appeal refused to certify a point of law of general public importance which ought to be considered by the Supreme Court. 21. Enforcement proceedings have since been instigated against the applicant. 22. On 28 June 2007 the applicant applied for asylum in the United Kingdom, alleging that his father had been killed in a land dispute between the Dioula and Bete community and that he would be at risk in Ivory Coast owing to his Dioula ethnicity. On 4 October 2007 his application was refused by the Secretary of State for the Home Department, who found no objective evidence that the Dioula were targeted solely on account of their ethnicity, and that the delay in claiming asylum had adversely affected the credibility of the rest of the applicant’s claim. A deportation order made by the Secretary of State was served on the applicant on 19 November 2007. On 24 April 2008 the applicant brought judicial review proceedings challenging the refusal of asylum and the decision to make a deportation order. This application was refused by the High Court on 16 May 2008 as the application had been lodged out of time and, in any event, the applicant had failed to avail himself of his statutory appeal rights by applying to the then Asylum and Immigration Tribunal. His renewed application for judicial review was rejected by the High Court on 27 June 2008. However, it appears that on 3 April 2008 the applicant submitted a notice of appeal to the Asylum and Immigration Tribunal. This was rejected by the Tribunal on 29 April 2008 as out of time.
| 1 |
test
|
001-140009
|
ENG
|
UKR
|
CHAMBER
| 2,014 |
CASE OF VALERIY FUKLEV v. UKRAINE
| 3 |
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
|
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
|
5. The applicant was born in 1951 and lives in Nova Kakhovka. 6. On 4 July 2001 the applicant’s wife, Mrs Yelena Fukleva, was admitted to the gynaecological ward of the Kherson Regional Clinical Hospital (Херсонська обласна клінична лікарня – “the hospital”) with metrofibroma. An operation was scheduled for 5 July 2001. According to the medical file, she signed a written consent to undergo the operation. On that date she underwent an unsuccessful intubation of the trachea for the purpose of anesthetisation. The operation was therefore postponed to 9 July 2001. The applicant’s wife was discharged until that date. 7. On 9 July 2001 the applicant’s wife underwent an operation for metrofibroma in the hospital. According to the medical file, she signed a written consent to undergo that operation. 8. After the operation her condition started to deteriorate rapidly. 9. On 15 July 2001 a panel of doctors found that the applicant’s wife was suffering from post-operative peritonitis. Although she was then treated for peritonitis, she died of peritonitis and sepsis on 18 July 2001. 10. An autopsy was carried out shortly after her death and confirmed that Mrs Fukleva had died of post-operative peritonitis complicated by sepsis. 11. Following the incident, the local health-care authorities set up a commission consisting of three members to investigate the quality of the medical treatment provided to the applicant’s wife by the hospital. Having examined the case, the commission found that the medical staff had committed no errors which could have aggravated the patient’s state of health or accelerated her death. The commission concluded that the patient’s death had not been caused by the medical staff. 12. On 8 August 2001 the hospital commission examined the case and found that the surgical treatment had been carried out correctly; that post-surgical treatment had been fully provided to the patient; and that, despite appropriate treatment, the fatal outcome had been inevitable. 13. Following a complaint by the applicant, on 7 September 2001 the Ministry of Health set up a commission to investigate the adequacy of Mrs Fukleva’s treatment at the hospital. 14. The ministerial commission found that (i) the applicant’s wife had not been properly prepared for the planned operation and had been operated on urgently on 9 July 2001; (ii) the antibacterial and infusion treatment for the peritonitis and sepsis had been insufficient; (iii) the peritonitis had developed due to the decline of the patient’s immune system; and (iv) the difficulties in the early diagnosis of the peritonitis had been caused by the vague clinical symptomatology (namely, subdiaphragmatic and subhepatic abscesses) and, as a result, a relaparotomy had been conducted only on the sixth day. 15. On 24 September 2001 the Health Department of the Kherson Region State Administration (“the Health Department”), having regard to the conclusions of the ministerial commission, ordered that (i) an inspection of the gynaecological ward of the hospital be carried out; (ii) the obstetrician-gynaecologist S. undergo training on the medical treatment for sepsis in obstetrics and gynaecology; and (iii) the case of the applicant’s wife be discussed at the meeting of the regional association of obstetrician-gynaecologists. 16. In a letter of 8 October 2001 the Ministry of Health recommended to the Health Department that it consider disciplinary measures in respect of the doctors involved in the treatment of the applicant’s wife, and advised an early reassessment of the doctors by the qualification commission as to their suitability for the categories that had been granted to them. The Ministry noted that the ministerial commission had found substantial errors in the treatment of the applicant’s wife. The Ministry specified that the death of the applicant’s wife had been caused by the aftereffects of the operation performed on 9 July 2001 in the hospital; the medical file suggested that on 5 July 2001 the patient had not undergone the necessary supplementary examinations and had not been provided with antianaemic treatment; after the unsuccessful anesthetisation procedure on 5 July 2001 the patient had been discharged from the hospital, a measure that had been contraindicated; on 9 July 2001 the patient had been operated upon without having been tested for the most important indicators of homeostasis and correction of anaemic status; the peritonitis had been diagnosed and treated too late; and during the post-operative period the antibacterial and infusion therapy had been insufficient and the antianaemic treatment miserable. The Ministry concluded that the medical treatment afforded to the applicant’s wife had been unsatisfactory. 17. On 30 October 2001 the Health Department informed the Ministry of Health that a thorough inspection of the gynaecological ward of the hospital had been carried out and that it had not revealed any substantial deficiencies in the functioning of the ward. However, the head of the ward had been reprimanded. As to the doctors who had treated the applicant’s wife, it was noted that they would be sent for an extraordinary assessment by the qualification commission. The Health Department further noted that the doctor who had been in charge of the applicant’s wife had resigned of his own volition. 18. On 30 November 2001 the Health Department informed the applicant that the circumstances of his wife’s death had been investigated by the health-care institutions and that it had not been found that his wife had been provided with inappropriate medical treatment. 19. On 27 July 2001 the Suvorivsky District Prosecutor’s Office of Kherson (“the District Prosecutor’s Office”) decided not to institute criminal proceedings, finding, in the light of the results of the autopsy and the medical specialists’ opinions, that there had been no element of criminal negligence in the conduct of the medical staff. 20. On 1 August 2001, at the applicant’s request, the Kherson Regional Prosecutor’s Office (“the Regional Prosecutor’s Office”) quashed that decision as unfounded and ordered further pre-investigation enquiries. 21. On 22 August 2001 the District Prosecutor’s Office decided not to institute criminal proceedings, finding that the death of the applicant’s wife had not resulted from the actions of the medical staff. 22. On 18 September 2001 the Regional Prosecutor’s Office, at the applicant’s request, quashed the decision of 22 August 2001 on the ground that the pre-investigation enquiries had been inadequate. It noted in particular that the file did not contain any final conclusions with regard to the cause of the applicant’s wife’s death, the reasons for the development of the peritonitis or the adequacy of the medical treatment. The Regional Prosecutor’s Office further noted that the impugned decision had been based essentially on the statements of the medical staff whose actions had been complained of, while the other specialists, as well as the applicant and his relatives, had not been questioned. It therefore instituted criminal proceedings for medical malpractice and remitted the case to the District Prosecutor’s Office for the investigation. 23. On 24 September 2001 the investigator ordered a forensic expert opinion on the quality of the medical treatment provided to the applicant’s wife. In reply, the Bureau of Forensic Medical Examinations at the Mykolayiv Regional Health Department provided a report suggesting that the applicant’s wife had been properly treated in the hospital. 24. On 1 October 2001 the applicant was granted the status of victim in the criminal proceedings. 25. On 3 January 2002 the District Prosecutor’s Office, having obtained further evidence, decided to discontinue the criminal proceedings into the death of the applicant’s wife on the ground that there had been no corpus delicti in the conduct of the medical staff. The applicant challenged that decision in court. 26. On 31 January 2002 the Suvorovsky District Court of Kherson (“the District Court”) quashed the decision of 3 January 2002 as unfounded and ordered a further investigation. The District Court noted that it was necessary to investigate allegations of forgery in respect of the medical file and, in particular, in relation to the signature of the applicant’s wife indicating her consent to the operation of 9 July 2001. It also found it necessary to question witnesses, and to take other measures. 27. On 26 March 2002 the Kherson Regional Court of Appeal (“the Court of Appeal”) quashed the District Court’s decision of 31 January 2002 as unfounded and remitted the case to the District Court for fresh consideration. 28. On 28 August 2002 the District Court upheld the decision of 3 January 2002 discontinuing the criminal investigation. It considered that the District Prosecutor’s decision was well founded and supported by the available evidence. The applicant appealed. 29. On 12 November 2002 the Court of Appeal upheld the decision of 28 August 2002. The applicant appealed on points of law to the Supreme Court. 30. On 19 December 2002 the Supreme Court dismissed the applicant’s appeal as inadmissible. 31. On 11 March 2003, following a complaint by the applicant, the General Prosecutor’s Office quashed the District Prosecutor’s decision of 3 January 2002 and ordered a further investigation, noting that additional measures had to be taken in order to determine all the relevant circumstances in the case. In particular, it had to be determined whether or not the signatures of the applicant’s wife had been forged in her medical file, certain pieces of evidence had to be enclosed in the investigation file, and contradictions in the medical evidence had to be resolved. 32. On 29 October 2003 the Main Bureau of Forensic Medical Examinations at the Ministry of Health issued a report concluding, inter alia, that the applicant’s wife had been properly and fully diagnosed in the gynaecological ward of the hospital; it had been necessary to operate on the applicant’s wife; however, she should have undergone supplementary examinations and measures to control the bleeding should have been taken; the correct surgical method had been chosen and the operation had been conducted correctly. According to the report, the death of the applicant’s wife had been caused by several factors: (i) a weak immune system which had led to the development of post-operative peritonitis; (ii) the failure by the gynaecologists to use all possible means to control the bleeding without resorting to urgent surgical intervention; and (iii) belated treatment for the peritonitis. It was specified that if the peritonitis had been diagnosed and treated in time it was possible that the patient’s life would have been saved. 33. On 3 January 2004 the investigator ordered an additional forensic medical examination, finding that the report of 29 October 2003 was incomplete and contradictory. 34. On 31 March 2005 the Main Bureau of Forensic Medical Examinations at the Ministry of Health issued another report concluding, inter alia, that the applicant’s wife’s death had been caused by several factors, including the gravity of the pathology, the patient’s obesity, which had diminished her immunity and contributed to the development of post-operative complications, and the shortcomings in the medical treatment of the patient. It concluded that there was an “indirect relationship” between the shortcomings in the medical treatment in the gynaecological ward of the hospital and the death of the patient. 35. On 11 July 2005 the senior investigator of the Regional Prosecutor’s Office discontinued the criminal proceedings for lack of corpus delicti in the conduct of the medical staff. He found that the death of the applicant’s wife had been caused by the cumulative effect of several factors and it could not be argued that there was a direct relationship between the shortcomings in the medical treatment and the fatal outcome. 36. On 5 August 2005 the Deputy Prosecutor of the Kherson Region quashed the decision of 11 July 2005 as unfounded and ordered a further investigation. He specified that additional measures were necessary to investigate the cause of the applicant’s wife’s death and the alleged forgery of her signatures in the medical file. 37. In the course of the subsequent proceedings, the investigator ordered further expert inquiries on various aspects of the treatment of applicant’s wife. Apart from these issues, the experts concluded that the signatures in the medical file were indeed those of the applicant’s wife. 38. On 11 October 2007 the Regional Prosecutor’s Office decided to discontinue the criminal proceedings into the death of the applicant’s wife on the ground that there had been no corpus delicti in the conduct of the medical staff. On the basis of the expert examination reports and other evidence, the investigator found that the death of the applicant’s wife had been caused by the cumulative effect of several factors, including shortcomings in the medical treatment in the gynaecological ward of the hospital; however, there was no direct causal link between those shortcomings and the death of the patient. 39. At the material time the applicant owned a shop in Nova Kakhovka. 40. On 2 October 2003 a tax police squad visited the applicant’s shop in order to carry out an unscheduled inspection due to the applicant’s alleged failure to submit tax returns. 41. The inspection was not conducted, as the applicant, his relatives and his employees prevented the officers from accessing the store’s tax records. It led to a fracas. 42. As was later established by the investigation, at some point the applicant switched off the light and one of the employees screamed that she had been punched in her face by tax officer K. This escalated the scuffle and K. tried to leave the scene in his car. The applicant tried to prevent K. from leaving and jumped on the bonnet of the car, then broke a side window and tried to pull officer K. out of the car. 43. According to the applicant, during the incident he was injured by the officers. 44. On 3 October 2003 the applicant lodged a complaint with the law-enforcement authorities, arguing that on 2 October 2003 he had been ill-treated by the tax police. 45. On the same day the applicant was examined by a doctor, who documented injuries on the applicant’s forearm and lip. 46. On 15 October 2003 a forensic medical expert, relying on the results of the medical examination of 3 October 2003, reported that the applicant had sustained numerous scratches to the right forearm and a bruise to the lower lip. The expert classified the injuries as light and stated that they could have been sustained on 2 October 2003. 47. On 27 October 2003 the investigator of Nova Kakhovka Prosecutor’s Office (“the Town Prosecutor’s Office”) decided not to open criminal proceedings against the officers as their conduct did not disclose any elements of a criminal offence. He found that the scratches on the applicant’s forearm had been caused by the applicant himself, when he had attempted to pull the officer out of the car through the broken window. Similarly, the bruise on his lip could have been caused by the applicant himself at any time during the incident, including the moment when he had jumped on or off the car or broken the window. No evidence had been found which suggested that the bruise had been inflicted by the officers. 48. On 11 February 2004, at the applicant’s request, the Regional Prosecutor’s Office quashed the decision of 27 October 2003, finding that further enquiries were necessary. In particular, the Regional Prosecutor’s Office instructed the investigator to question the applicant and officer K. 49. Subsequently, in the course of additional enquiries on 4 March, 7 June, 4 and 30 December 2004 and 16 December 2005, the investigator of the Town Prosecutor’s Office decided not to institute criminal proceedings for similar reasons to those set out in the decision of 27 October 2003. Those decisions were quashed by the supervising authorities and additional measures were ordered. 50. On 2 February 2006 the Deputy Prosecutor of Nova Kakhovka refused to open criminal proceedings against the officers, finding that their conduct disclosed no elements of a criminal offence. On the basis of the additional evidence gathered, he gave similar reasons for that decision to those set out in the decision of 27 October 2003.
| 1 |
test
|
001-168141
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,016 |
MIHAL v. SLOVAKIA
| 4 |
Inadmissible
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
1. The applicant, Mr Ján Mihal, is a Slovak national, who was born in 1956 and lives in Pezinok. He was represented before the Court by Černejová & Hrbek, s.r.o., a law firm with its registered office in Bratislava. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is a judge. At the relevant time he was on the criminal law bench of the Supreme Court. 5. On 2 July and 21 August 2009 the President of the Supreme Court filed two separate disciplinary charges against the applicant. 6. The applicant was accused of having negligently failed to take a decision within the prescribed time-limit which had ultimately led to the release from detention on remand of a defendant who was in the process of appealing against a previous first-instance life sentence given in a criminal case. In addition, the applicant was accused of having caused unjustified delays in two other sets of proceedings. 7. These offences were classified as “serious disciplinary offences” and the penalty of removal from judicial office was proposed. 8. Meanwhile, on 14 July 2009, the Judicial Council, which is the supreme governing body of the judiciary in Slovakia, suspended the applicant from office pending the outcome of the disciplinary proceedings. 9. The applicant’s charges fell to be determined at first instance by the Supreme Court, sitting as a disciplinary tribunal (“the first-instance tribunal”). 10. The first-instance tribunal set hearings for 6 October, 3 November, and 8 December 2010, but none of them took place because it had proven impossible to have the summons served on the applicant. 11. The summons had to be served on the applicant in person. As the summonses had repeatedly not reached him by post at home, they were deposited at the local post office and a notice to that effect was left in the applicant’s post box. However, the summonses were never collected. 12. In response, the first-instance tribunal asked that the summonses be served on the applicant by the police, by the District Court within the jurisdiction of which the applicant resided, and by the applicant’s mother. According to the police and the District Court, the applicant was not staying at his home address and their attempts to reach him had been futile. 13. In the applicant’s submission, his suspension from office led to disruption of his family life, as a result of which he was not staying at his home address but at his mother’s. 14. On 8 December 2010 the first-instance tribunal again requested that the summons for the hearing then scheduled for 26 January 2011 be served on the applicant by the police and that the police bring him to that hearing. This summons was eventually served on the applicant. 15. Meanwhile, the applicant in person (1 December 2010) and through the intermediary of his defence counsel (21 December 2010) filed written observations in reply. 16. The first-instance tribunal eventually heard the case on 26 January, 23 February and 6 April 2011. The applicant and his counsel both attended all of these hearings. The tribunal allowed them to make oral submissions and heard evidence from a representative of the complainant and two Supreme Court judges as witnesses. In addition, it examined extensive documentary evidence. 17. The applicant offered the following in his defence. The missed time limit had been subject to newly adopted rules. The interpretation of those rules had been unclear and the applicant had been consulting other Supreme Court judges in that respect. He had thus been engaged in a legitimate process of analysing the applicable rules, had ultimately concluded that the given time-limit applied but, as by that time it had already expired, the defendant had had to be released. In the applicant’s view, he was not guilty of negligence and, in addition, his workload at that time had been unmanageable. 18. Following the hearing of 6 April 2011, on the same day, the first instance tribunal found the applicant guilty as charged and ordered his transfer to a lower-instance court. It did so having dismissed his arguments and having considered that removal from office, as demanded by the complainant, was too harsh a sanction in the circumstances. 19. On 12 June 2011 the applicant appealed against the above decision and on 14 June 2011 his counsel added reasons to his appeal. The complainant subsequently filed observations in reply and the applicant submitted further written comments. 20. In sum, he argued that the first-instance tribunal had had no power to try him because its three-year mandate had expired before its decision; that the tribunal had not been impartial because it had favoured the complainant; that the complainant had systematically breached his presumption of innocence with the aim of removing him from his position as a judge; that the tribunal had erred on facts and law, and had been selective in its choice of which evidence to accept (rejecting the applicant’s proposals for evidence to be given by certain witnesses); and that it had failed to support its decision with adequate reasoning. 21. The appeal fell to be examined by another Chamber of the Supreme Court, sitting as a disciplinary tribunal of appeal (“the appeal tribunal”). 22. On 3 September 2011 the appeal tribunal scheduled a hearing for 12 October 2011. 23. On 7 September 2011 the applicant informed the appeal tribunal that he was unable to appear because he was on sick leave. He submitted a general practitioner’s certificate of 6 September 2011 to that effect, stated that he wished to attend the hearing in person, and requested that the hearing be postponed. In the certificate, the applicant’s doctor had indicated his diagnosis as “M54” and authorised him to go for a walk daily between 10 a.m. and noon and between 3 and 5 p.m. 24. On 12 September 2011 a new date was set for the hearing – 17 October 2011. As for the applicant, the appeal tribunal had the summons sent to him and his lawyer. At the same time, the appeal tribunal asked the applicant’s doctor in writing to indicate the expected period of his incapacity for work and to specify whether he would be able to attend the scheduled hearing. The doctor was further asked to authorise the applicant to leave his place of residence on 17 October 2011 for the purposes of attending the hearing, health permitting. 25. The summons was served on the applicant’s lawyer on 16 September 2011 but it twice proved impossible to have it served on the applicant in circumstances similar to those described above. 26. On 6 October 2011 the presiding judge contacted the doctor by telephone with a view to establishing whether the applicant would be able to attend the hearing. 27. In a written reply dated 3 October 2011 the doctor confirmed that the applicant had been on sick leave since 6 September 2011. Its expected duration could not be specified as the results of the applicant’s examination by specialists had not yet arrived. Lastly, the letter indicated that the applicant was being treated with medication with analgesic-spasmolytic side effects which could affect his ability to concentrate. 28. On 14 October 2011 the applicant’s counsel informed the appeal tribunal, without offering anything in support of such claims, that the applicant was still on sick leave and that his condition would not allow him to appear at the forthcoming hearing. He added that the applicant considered his presence necessary, submitted that “they” apologised for “their” absence, requested that the hearing be postponed, and pledged that “they” would inform the tribunal once the applicant’s condition had improved. 29. The appeal tribunal heard the case as scheduled on 17 October 2011 without the applicant or his counsel present. The complainant’s representative was present but submitted that, in the applicant’s absence, he had no comment to make in respect of the applicant’s appeal other than to refer to the complainant’s previous written submissions. 30. Following the hearing of 17 October 2011, on the same day the appeal tribunal quashed the first-instance decision and found the applicant guilty on charges relating to the missing of the detention-related deadline and the unjustified delays in one set of proceedings; it acquitted him of the remaining charge. The appeal tribunal imposed a sanction on him, which was identical to that imposed previously by the first-instance decision, that is to say transfer to a lower court. 31. The appeal tribunal observed that the judges of the first-instance tribunal had been appointed for three years and that this term had expired before its decision in the applicant’s case. However, under the applicable statute, the tribunal had had to bring to a conclusion any proceedings that had commenced before it irrespective of the three-year period. Moreover, it considered that the first-instance tribunal had adequately established the facts and that no new evidence was called for. Nevertheless, it was true that the first-instance decision had lacked proper reasoning. Therefore, the appeal tribunal provided comprehensive reasoning of its own for the conviction in its decision. Among other things, it noted that there had been no official record of the applicant having conferred with his colleagues over any question of law that he might have considered controversial. In the circumstances, and in particular in a matter as sensitive as the detention of a notorious criminal defendant, the applicant’s inactivity could not be accepted as being an expression of legitimate judicial activity but rather manifested signs of arbitrariness. 32. As regards hearing the applicant’s appeal in his absence, the appeal tribunal considered that his and his lawyer’s refusal to attend had been “another part of the former’s efforts to obstruct and delay the proceedings”. In that connection, the appeal tribunal referred in detail to the difficulties in having the summons served on the applicant both at the first instance stage and on appeal. It observed that the applicant had been on sick leave, which presupposed that he should normally have been at home. It also noted that the applicant had been authorised to leave home for four hours a day, which should have given him ample opportunities to collect his post from the post office. In addition, the appeal court noted that the applicant’s doctor had avoided a direct response to the question concerning whether the applicant’s condition had been such as to prevent him from participating at the hearing. At the same time, it noted that there was no doubt that the summons had been properly served on the applicant’s counsel who himself had not provided any reason why he had not been able to appear at the hearing. In such circumstances, the appeal tribunal considered that the applicant’s sick leave had not been an adequate reason for adjourning the hearing and that it had been justified to have held it in his absence. 33. On 2 December 2011 the applicant lodged a complaint with the Constitutional Court. He alleged a breach of Article 6 § 1 of the Convention in that the appeal tribunal had determined the case in his absence, notwithstanding the fact that he and his lawyer had duly apologised. 34. On 14 December 2011 the Constitutional Court declared the complaint admissible; on 18 April 2012 it found that there had been no violation of the applicant’s rights under Article 6 § 1 of the Convention and its constitutional equivalents. 35. In reaching that conclusion the Constitutional Court considered relevant, in particular, that: (i) the applicant had attempted to delay the proceedings at first instance; (ii) he and his lawyer had been present at the hearings at first instance and had had the possibility of presenting their arguments; (iii) the applicant’s lawyer had indicated no relevant reason preventing him from attending the hearing on appeal; (iv) the applicant had had ample opportunity to set out his arguments in his appeal and in his comments on the complainant’s observations in reply to his appeal; (v) the applicant had been partly successful in his appeal; (vi) the appeal tribunal had accepted the applicant’s first request for the hearing of his appeal to be adjourned; and (vii) the applicant’s state of health had not prevented him from attending. The Constitutional Court further noted that the representative of the other party had made only a general statement at the hearing and that the court of appeal had not taken further evidence. The principle of equality of arms had been respected and the appeal court’s conclusion had not been arbitrary. 36. The disciplinary decisions concerning the applicant have been implemented and he is now in active service at a court of appeal.
| 0 |
test
|
001-177228
|
ENG
|
UKR
|
CHAMBER
| 2,017 |
CASE OF VILENCHIK v. UKRAINE
| 4 |
No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
|
Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
|
5. The applicant was born in 1978 and lives in Minneapolis, Minnesota, USA. 6. On 24 July 2009 the applicant and S. (a Ukrainian national) were married in Minneapolis. 7. On 28 August 2009 their son, M., was born there. The family lived in Minneapolis. A US passport was issued in M.’s name. 8. On 10 May 2010 S. obtained permanent resident status in the USA. 9. In June 2011 the family arrived in Ukraine for a holiday and to visit S.’s relatives. 10. On 13 July 2011 the applicant returned alone to the USA. The child stayed with S. in Ukraine. 11. In May 2012 S.’s US permanent resident card expired. 12. In June 2012 the applicant instituted proceedings before the Minnesota 4th Judicial District Family Court (“the Minnesota District Court”), seeking dissolution of the marriage and sole custody of M. In the course of the proceedings S. agreed to the dissolution of marriage. She argued, however, that the Minnesota District Court did not have jurisdiction with regard to the issue of M.’s custody pursuant to the Minnesota Statutes §518D.201 because the child had been in Ukraine for a period of more than six consecutive months. 13. In July 2012 the applicant spent a holiday in Ukraine with S. and M. 14. On 14 August 2012 the applicant asked the Ministry of Justice of Ukraine to order the return of M. from Ukraine to the USA in accordance with the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention” – see paragraph 37 below). 15. On 24 September 2012 the Minnesota District Court dissolved the marriage between the applicant and S. The court reserved the issue of M.’s custody, finding that it did not have jurisdiction over that issue pursuant to Minnesota Statutes §518D.201. 16. On 19 March 2013 the Chernihiv Regional Department of the State Migration Service of Ukraine issued a certificate declaring M.’s citizenship of Ukraine pursuant to section 7 § 1 of the Citizenship Act 2001. 17. On 10 April 2013 the Chernihiv Regional Chief Department of Justice, acting in the applicant’s interests, lodged a claim with the Desnyansky District Court of Chernihiv (“the Desnyansky District Court”), asserting that M. had been wrongfully retained in Ukraine and must be returned to the USA in accordance with the Hague Convention. 18. The applicant submitted that he had expected S. and M. to return from Ukraine to the USA on 16 August 2011; however, S. changed her plans and decided to stay on with M. in Ukraine after that date. During the hearings the applicant stated that he was prepared to cover travel expenses for both the child and the mother if the latter were to be ordered to accompany the child to the USA. 19. S. objected and submitted that it was the applicant who had asked her to stay in Ukraine with the child beyond 16 August 2011. In that regard S. stated that on 9 August 2011 the applicant had sent her four parcels from Minneapolis containing all her and M.’s personal belongings, including toys and clothes. The applicant also sent her M.’s vaccination certificate for his admission to a child-care centre in Ukraine. In July 2012, despite the divorce action initiated by the applicant in the USA, S. agreed to spend a holiday with him and their son in Ukraine, trying to restore good relations. She further submitted that the applicant had arrived in Ukraine in 2013 and stayed for a considerable period of time but had not attempted to meet up with the child. S. therefore alleged that there was no factual child abduction or unlawful retention which would necessitate a return order under the Hague Convention. 20. On 19 June 2013 the Desnyansky District Court found that M. had arrived in Ukraine with both parents’ agreement, but that later the mother had retained the child in Ukraine without the father’s consent. The court found that such retention was wrongful within the meaning of the Hague Convention and that the child should be returned to the country of his habitual residence, the USA. No exceptions under the Hague Convention applied. Given the applicant’s verbal assurances, the court considered that there were no objective obstacles to the mother’s accompanying the child to the USA and resolving the custody dispute before the courts of that country. In the operative part of the decision, the court ordered that M. should be returned to the USA ‒ to the father’s home address in Minneapolis ‒ specifying that the child should be accompanied on the journey by both parents. 21. On 2 July 2013 the Desnyansky District Court issued an additional decision stating that if the child were not returned voluntarily, S. would be ordered to transfer the child to the applicant at his home address in Minneapolis. 22. S. appealed against those decisions, maintaining that there was no abduction or unlawful retention of the child and that, in any event, there were grounds to apply the exception provided by Article 13 (b) of the Hague Convention (see paragraph 37 below) as regarded the risk of psychological harm to the child and his being placed in an intolerable situation. 23. On 13 August 2013 the Municipal Centre of Social Services for Family, Children and Youth of Chernihiv issued a certificate stating their psychiatrist’s opinion that M. was “well settled in Ukraine and, having regard to the strong bond between the child and the mother and the need to avoid causing the child psychological trauma, it would be inappropriate to remove the child to the other place of residence”. 24. On 14 August 2013 the Chernihiv Regional Court of Appeal (“the Court of Appeal”) quashed the decisions of 19 June and 2 July 2013 (see paragraphs 20 and 21 above) and dismissed the applicant’s claim as unsubstantiated. The court considered there was a grave risk that M.’s return to the USA would expose him to psychological harm or would otherwise place him in an intolerable situation, as provided in Article 13 (b) of the Hague Convention. In that regard the Court of Appeal stated that M. was completely settled in his new environment, as he had been living in Ukraine since June 2011. M. had always lived with the mother and there were close ties between them. There was no realistic possibility for the mother to accompany M. to the USA and stay near him in that country. In addition, the Court of Appeal noted that the applicant had not provided any information regarding his actual place of residence in the USA, his current living conditions, or his level of income. 25. On 20 November 2013 the Higher Specialised Court of Ukraine for Civil and Criminal Matters (“the Cassation Court”) quashed the decision of 14 August 2013 (see paragraph 24 above) and upheld the Desnyansky District Court’s decisions of 19 June and 2 July 2013 (see paragraphs 20 and 21 above), noting that they were well substantiated and had been adopted in compliance with the requirements of the Hague Convention. It found the submissions concerning the risk of exposing M. to psychological harm unconvincing. 26. On 26 November 2013 the Desnyanskyy District Court issued a writ of execution in respect of its decisions of 19 June and 2 July 2013. On the same date S.’s lawyer contacted the USA Embassy in Kyiv and enquired about applying for a USA visa in the specific circumstances. 27. On 27 November 2013 the Desnyanskyy District Department of State Bailiffs Service instituted enforcement proceedings, resulting in the imposition of fines on S. for failure to comply with the return order. 28. In February 2014 S. submitted a request to the Supreme Court for review of the case on the grounds that the Hague Convention had been applied divergently in the cassation proceedings, resulting in inconsistent judicial practice. On 28 April 2014 the Cassation Court declared the request admissible and referred the case to the Supreme Court. 29. On 18 June 2014 the Supreme Court considered S.’s request for review of the Cassation Court’s decision of 20 November 2013 (see paragraph 25 above) on the grounds of divergent application of the law by the cassation courts. Having examined the domestic judicial practice, the Supreme Court found that Articles 3, 12 and 13 of the Hague Convention (see paragraph 37 below) had been applied divergently. It set out the principles which had to be followed when interpreting and applying those provisions. As regards the present case, the Supreme Court found that the domestic courts had failed to apply the provisions properly. In particular, there had been no clear stance on the question of whether or not the removal or retention of the child had been wrongful, and ‒ if that were the case ‒ at what moment it started to be wrongful, nor as to whether or not the father had consented to or subsequently acquiesced as regards the child’s retention, nor whether facts existed demonstrating that the child was settled in his current environment. The Supreme Court quashed the decision of 20 November 2013 and remitted the case to the Cassation Court for fresh consideration. 30. On 30 July 2014 the Cassation Court quashed the Court of Appeal’s decision of 14 August 2013 (see paragraph 24 above), on the grounds that the Court of Appeal had breached procedural rules and had failed to establish all the relevant facts. The case was remitted to the Court of Appeal. 31. On 5 September 2014 the Court of Appeal found that there was no dispute regarding removal of the child because the father had only complained about the wrongful retention of the child in Ukraine. The Court of Appeal then considered the applicant’s updated submissions, in which he no longer argued that the retention of the child had been wrongful as from 16 August 2011 but rather as from 20 June 2012, which was the date when he had first expressed his disagreement with the child’s retention in Ukraine. It was also established that in August 2011 the applicant had sent parcels to Ukraine containing the child’s belongings. 32. As regards the period commencing on 20 June 2012, the Court of Appeal considered that the applicant had continued to consent to the child’s retention in Ukraine as there was no express objection on that point before the request was made under the Hague Convention. The Court of Appeal found that on 20 June 2012 the applicant’s divorce claim was delivered to S.’s representative. In that claim the applicant also sought to establish sole custody of the child; however, that claim did not mean that the applicant disagreed with the child’s ongoing stay in Ukraine. Moreover, in July 2012, the applicant had spent a holiday with S. and M. in Ukraine and in August 2012, after his return to the USA, he had sent M.’s vaccination certificate in order to facilitate M.’s admission to a child-care centre in Ukraine. The Court of Appeal concluded that in these circumstances the applicant enjoyed custody rights in relation to M. and that he had failed to demonstrate that those rights had been violated. For those reasons the child’s retention in that period could not be considered wrongful within the meaning of the Hague Convention. 33. The Court of Appeal next stated that, even assuming that there had been a wrongful retention of the child, the return request could be rejected under the provisions of Articles 12, 13 and 20 of the Hague Convention (see paragraph 37 below). The Court of Appeal examined the evidence relating to the child’s place of residence in Ukraine, and the social and medical care provided to him in Ukraine, and found that M. was assured of all the conditions necessary for his proper development. Based on the evidence presented and having regard to the overall period during which the child had lived in Ukraine, the Court of Appeal found that M. was entirely settled in his current environment. It also considered that M.’s return to the USA without his mother – who no longer had legal basis for entering and living in the USA – would not be in the best interests of the child. The Court of Appeal therefore quashed the Desnyansky District Court’s decisions of 19 June and 2 July 2013 (see paragraphs 20 and 21 above) and dismissed the applicant’s claim as unsubstantiated. 34. On 4 December 2014 the Cassation Court dismissed appeals on points of law brought by the applicant and the Ministry of Justice and upheld the decision of 5 September 2014 (see paragraphs 31–33 above).
| 1 |
test
|
001-150321
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF MALMBERG AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
|
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicant was born in 1957 and lives in St Petersburg. 6. She had a dispute with private individuals over a contract of sale for a flat, concluded in 1998, in which the applicant was the purchaser. According to the contract, she was to pay the equivalent of 26,500 US dollars (USD) in two instalments: half of the price on signing the contract, and the rest before 2 January 1999. The sellers were to vacate the flat before the same date. The applicant paid a sum equal to USD 13,250 on signing the contract and a further sum equal to USD 6,155 in 2001, but never paid the remaining sum. The sellers were evicted from the flat in 2004. The applicant claimed interest on the amounts paid by her for the period up to the time at which she had taken possession of the flat. 7. At a public hearing on 17 March 2004, in the presence of the applicant’s representative and the defendants, the Vasileostrovskiy District Court of St Petersburg partially found for the applicant, awarding her interest on the amount of USD 13,250 at an annual rate of 12% for the period from 2 January 1999 until the day on which she had taken possession of the flat, and dismissed the remainder of her claims. It read out the operative part of its judgment. 8. At a public hearing on 21 December 2004 the St Petersburg City Court examined the case on appeal in the presence of the applicant’s representative and the defendants. It quashed the part of the judgment in which the District Court had found for the applicant, and dismissed the applicant’s claims in view of her own failure to pay the price of the flat in full. It upheld the remainder of the judgment. The applicant’s claims were thus dismissed in their entirety. 9. At the close of the hearing the City Court read out the operative part of its judgment. 10. On 17 January 2005 the applicant’s representative received a copy of the City Court’s reasoned judgment. 11. The applicant was born in 1957 and lives in Ulyanovsk. 12. A private individual brought proceedings against the applicant seeking recovery of a debt in the amount of 1,116,619 Russian roubles (RUB). 13. At a public hearing on 13 October 2008 the Leninskiy District Court of Ulyanovsk examined the case in the presence of the claimant and the applicant’s representative. It ordered that the applicant pay the amount of the debt in full, as well as interest in the amount of RUB 10,000 and the court fee in the amount of RUB 2,861.19. 14. At the close of the hearing the District Court read out the operative part of its judgment. 15. On 16 October 2008 a copy of the District Court’s reasoned judgment was sent to the applicant by post. 16. At an open hearing on 25 November 2008 the Ulyanovsk Regional Court examined the case on appeal in the presence of the parties’ representatives. It dismissed the applicant’s appeal and upheld the judgment. At the close of the hearing the Regional Court read out the operative part of its judgment. 17. On 9 December 2008 the applicant’s representative received a copy of the Regional Court’s reasoned judgment. 18. The applicant was born in 1958 and lives in Tyumen. 19. The Tavda Town Administration brought proceedings against the applicant for recovery of “unjust enrichment” in the amount of RUB 175,276.40 resulting from the use of a plot of urban land for a period of two years and interest in the amount of RUB 17,704.57. 20. At a public hearing on 26 June 2009 the Tavda Town Court of the Sverdlovsk Region examined the case in the presence of the claimant’s representative and the applicant. It found for the claimant and ordered that the applicant repay the sum gained through unjust enrichment and interest as claimed, as well as the court fee in the amount of RUB 3,529.80. 21. At the close of the hearing the Town Court read out the operative part of its judgment. 22. On 2 July 2009 the applicant received the Town Court’s reasoned judgment. 23. The applicant appealed against the judgment. 24. On 18 August 2009 the Sverdlovsk Regional Court dismissed the applicant’s appeal and upheld the Town Court’s judgment. It rejected the applicant’s argument that the Town Court’s judgment had not been pronounced publicly as required by Article 6 § 1 of the Convention, stating that the Town Court had read out the operative part of its judgment at the hearing and prepared the reasoned judgment within five days thereafter in compliance with domestic law. 25. The applicant was born in 1946 and lives in Moscow. 26. The applicant brought proceedings against the Moscow department of the Federal Service for State Statistics, challenging its refusal to employ her for the campaign of the population census on the ground of her disability and claiming damages in the amount of RUB 356,145. The applicant argued, in particular, that despite her disability she was perfectly fit for the work and that she had successfully performed that type of work in the past. 27. At a public hearing on 30 October 2009 the Basmanniy District Court of Moscow examined the case in the presence of the applicant and the defendant’s representative. It dismissed her claims in full, having found, inter alia, that the refusal to employ her had been lawful in view of a medicosocial expert report confirming her total incapacity for any kind of work. The District Court noted that it had been open to the applicant to challenge the conclusion of the medico-social expert report, but that she had chosen not to do so. At the close of the hearing the court read out the operative part of its judgment. 28. On 17 November 2009 the applicant received a copy of the District Court’s reasoned judgment. 29. On 28 January 2010 the Moscow City Court dismissed the applicant’s appeal and upheld the District Court’s judgment. The City Court read out the operative part of its judgment at the close of its public hearing in the presence of the parties’ representatives. The applicant’s representative received a copy of its reasoned judgment in March 2010.
| 1 |
test
|
001-159839
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,015 |
VALKEAJÄRVI v. FINLAND
| 4 |
Inadmissible
|
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Robert Spano
|
1. The applicant, Mr Simo Valkeajärvi, is a Finnish national, who was born in 1957 and lives in Helsinki. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was born, went to school and grew up in the municipality of Kuru. In 2004 he inherited real estate from his parents, and he returned to live in the house situated on the property. His closest family members as well his friends live in the area. 5. In 2008 the applicant obtained a building permit allowing him to extend the house situated on the inherited property. During the works, the applicant’s application for communal aid for increasing energy-efficiency was rejected by the municipality as the real estate was marked in the detailed plan as a holiday home and not as a house destined for permanent, year-round use. 6. By letter dated 5 January 2012, the applicant requested that the municipality grant a derogation (poikkeaminen, undantag) from the planning norms and change the entry in its records from a holiday home into a house in permanent use, in order to reflect the real situation. 7. On 24 January 2012 the municipal environmental board rejected the applicant’s request. It reasoned its decision by stating that the real estate was situated in an area destined for holiday homes and that the building permit had been granted only for a holiday home. Accepting a derogation in the applicant’s case would affect the realisation of plans and be detrimental to urban development. If a derogation were made in the applicant’s case, then all other landowners would have the same right, as they all had to be treated equally. Moreover, the real estate was located a long way from the services of the municipality and was not therefore suitable for permanent residence. 8. By letter dated 1 March 2012 the applicant appealed against the decision of the municipal environmental board to the Hämeenlinna Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that his house be designated as a house for permanent residence. He pointed out that the house fulfilled the requirements for a house in permanent use. The neighbours did not object to the applicant’s request. Moreover, the house was situated only 11 km from the centre of the municipality and such a location was not in any way unusual in other villages. Accepting the applicant’s request would not create any new service obligations for the municipality. 9. On 17 December 2012 the Administrative Court rejected the applicant’s appeal. It found that the applicant’s house was located in an area which, in detailed plans, was destined for holiday use only. The same plans indicated other areas in which permanent housing should be concentrated. The equal treatment of all landowners required that they should also be able to live permanently in the area in question, which would lead to an uncontrolled increase in permanent housing in the area. The applicant’s personal circumstances and the fact that the house in question was suitable for permanent residence were not relevant in the present case. 10. By letter dated 16 January 2013 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal presented before the Administrative Court. Moreover, the applicant argued that the right to live permanently in a place of one’s choice could not be dependent on the municipality in which one lived and the will of a particular civil servant in that municipality. The question of a constitutionally-protected right to equal treatment of citizens arose, since similar requests had been accepted in other municipalities. For example in the Tampere area the municipalities had abandoned the idea that permanent housing could not be accepted in sparsely populated areas. 11. On 1 November 2013 the Supreme Administrative Court refused the applicant leave to appeal. 12. In order to avoid periodic penalty payments which were likely to be imposed, the applicant moved to a rented apartment in Helsinki. 13. On an unspecified date the applicant applied again for communal aid for increasing energy-efficiency. 14. On 27 December 2012 the applicant’s request was again rejected by the municipality. 15. By letter dated 10 February 2013 the applicant requested that the municipal environmental board rectify the decision of 27 December 2012 and state that there was no impediment to registering his house as a house for permanent use. 16. On 11 June 2013 the municipal environmental board upheld the decision of 27 December 2012 not to grant communal aid for increasing energyefficiency. No decision was made concerning the registration of the applicant’s house as a house for permanent use. It is not known whether the applicant appealed further against this decision. 17. Article 9 § 1 of the Finnish Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides the following: “Freedom of movement Finnish citizens and foreigners legally resident in Finland have the right to move freely within the country and to choose their place of residence.” 18. According to Article 6 of the Constitution: “Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person....” 19. According to Article 106 of the Constitution, if in a matter being tried by a court of law the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution. 20. Section 124, subsection 4, of the Land Use and Building Act (maankäyttö- ja rakennuslaki, markanvändnings- och bygglagen, Act no. 132/1999) provides that a building permit is required to substantially alter the intended use of a building or part thereof. When the need for the permit is considered, the impact the alteration will have on implementation of a land use plan and on other land use, and on the attributes required of the building are taken into account. Alteration of intended use requiring a permit includes altering a holiday home so that it is fit for permanent residence. Unless the area is specifically designated for this purpose in the local detailed plan, the building of a large retail unit shall be considered to have the aforementioned impact on land use. 21. According to section 171, subsection 1, of the same Act, when special cause exists, the local authority may grant a right to derogate from the provisions, regulations, prohibitions and other restrictions issued in or under this Act concerning building and other action. Section 172, subsections 1-2, of the same Act provide that “Derogation shall not: 1) impede planning, the implementation of plans or other organisation of land use; 2) hinder attainment of the goals of nature conservation; or 3) hinder attainment of goals concerning the conservation of built-up environment. A right to derogate may not be granted if it leads to building with substantial impact or if it has other substantially harmful environmental or other impact.” 22. The Supreme Administrative Court has, in its decision no. 3013/2013 of 24 September 2013, accepted in a case similar to the applicant’s case that the municipal building and environmental board could impose a periodic penalty payment to real estate owners in order to stop their unlawful use of a holiday home as a permanent residence.
| 0 |
test
|
001-181880
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF DUDIN v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
|
Dmitry Dedov;Luis López Guerra
|
4. The applicant, Mr Sergey Marksovich Dudin, is a Russian national, who was born in 1962 and lives in Parfino, Novgorod Region. He is represented before the Court by Mr K. V. Pakin, a lawyer practising in Velikiy Novgorod. 5 6. On 23 July 2007 the applicant was apprehended by police at the cargo terminal “Shushary” in Saint Petersburg under suspicion of robbery. Later that day he was transferred to Krestsy, Novgorod Region. 7. On 25 July 2007 the Krestetskiy District Court of Novgorod Region (the District Court) ordered pre-trial detention of the applicant. Subsequently the period of the applicant’s detention was extended on 20 September and 2 November 2007. 8. In the order of 2 November 2007 the District Court authorised extension of the applicant’s detention “until and including 24 December 2007”. 9. On 11 December 2007 the District Court scheduled a preliminary hearing for the applicant’s trial in order to decide on his further detention. The relevant section of the operative part of the decision read as follows: “[The court] ORDERED To schedule a preliminary hearing in the criminal case of Mr Dudin ... on 25 December 2007 at 10.00 a.m. ... To transfer [from the detention facility] the accused Mr Dudin for the hearing at the set date and time. To keep the measure of Mr Dudin’s restraint – pre-trial detention – unchanged.” 10. On 25 December 2007 between 10.00 a.m. and 11.00 a.m. the District Court held a preliminary hearing ordering the criminal case to be send to trial and the applicant’s further detention. During the hearing the applicant and his representative raised the objection regarding unlawfulness of the applicant’s detention between 24 December 2007 and the time of the hearing, but the District Court dismissed it without advancing any specific reasons in this regard. The applicant appealed. 11. On 21 February 2008 the Novgorod Regional Court upheld the lower court’s decision. In the relevant part the Regional Court’s decision read as follows: “Mr Dudin’s and his representative’s arguments regarding unlawfulness of the detention ... at the moment of the adoption of the decision [are unfounded] ... [T]he present criminal case was transferred to court on 11 December 2007, i.e. within the period of [the accused’s detention ordered during investigation] and according to section 2, Article 255 of the Criminal Procedure Code the period of the defendant’s detention is calculated from the date when the case was transferred to court and until the judgment is pronounced and may not exceed six months.” 12. On 27 May 2008 the District Court convicted the applicant of aggravated robbery and sentenced to six years’ imprisonment. On 10 July 2008 the conviction was upheld on appeal by the Novgorod Regional Court and the period of the applicant’s pre-trial detention between 23 June 2007 and the day of conviction was fully counted towards execution of his sentence. 13. On 2 March 2011 the applicant was released before serving his full sentence on probation. 14. The applicant lodged a civil action against the Ministry of Finance of the Russian Federation seeking non-pecuniary damages for his allegedly unlawful detention without a court order between 24 and 25 December 2007. 15. On 24 April 2008 the Novgorodskiy Town Court of Novgorod Region found that between midnight 24 December 2007 and 11.00 a.m. on 25 December 2007 the applicant’s detention was unlawful and violated his rights under Article 22 of the Russian Constitution and Article 5 § 1 of the Convention. The applicant was awarded non-pecuniary damages of 2000 Russian roubles (50 euros). During the hearings the representative of the Ministry of Finance acknowledged that the applicant’s detention during the abovementioned period was not secured by a court order. The representative of the Ministry of the Interior (intervening in the proceedings) admitted that the authorisation for the detention expired on 24 December 2007. The representative of the regional Prosecutor’s Office (also intervening in the proceedings) maintained that the applicant’s detention was lawful, but stated that any detention without a court order would be unlawful. 16. On 11 June 2008 the Novgorod Regional Court annulled the lower court’s judgment on appeal and adopted a new judgment dismissing the applicant’s claims. The Regional Court argued that while the order of 2 November 2007 set the period of detention “until and including 24 December 2007”, the decision of 11 December 2007 to schedule a preliminary hearing to 25 December 2007 essentially ordered the detention until that date, because it left it “unchanged” (see paragraph 6 above).
| 1 |
test
|
001-181177
|
ENG
|
DEU
|
CHAMBER
| 2,018 |
CASE OF EJIMSON v. GERMANY
| 3 |
No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
|
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
5. The applicant was born in Nigeria in 1975 and lives in Zölling. 6. In Nigeria, the applicant completed eleven years of schooling and subsequently held various jobs in Lagos. After leaving the country, he lived in Spain from 1994 to 1997, living at first on social security and later working as a day-labourer on several farms. In 1997 he arrived in Germany, where he applied for asylum under a different identity. His application was finally rejected in July 1998. He left Germany for Italy with a German national with whom he had started a relationship. In January 1999 he moved on to Spain, where he worked as a cook and waiter in various restaurants. 7. In October 2000 the applicant re-entered Germany. On 21 October 2000 his daughter, from his above-mentioned relationship, was born. The applicant’s daughter is a German national. 8. In 2000 and 2001 the applicant and the child’s mother lived together. From the outset they had, and continue to have, joint custody. On 11 December 2000, the Authority of the City of Munich issued the applicant a residence permit based on family ties, valid until 1 December 2001. 9. On 18 July 2001 the applicant was arrested on suspicion of having committed an offence under the Narcotics Act (Betäubungsmittelgesetz). 10. On 28 May 2002 the Munich Regional Court sentenced him to eight years’ imprisonment for drug trafficking on a large scale. It observed that the applicant had recruited and instructed the child’s mother as a drugs runner for two separate consignments of cocaine from South America to Europe in summer 1998 and in late 1999/early 2000. It considered, in favour of the applicant, that this was his first criminal conviction, that the first delivery had failed (the drugs did not actually enter the distribution system), and that the applicant had been detained on remand since July 2001. The Regional Court held against the applicant that he had used as drugs runners two young women who were adolescents at the time the offences were committed, and who ran the risk of a lengthy prison sentence in South America; that he had exploited the naivety of his daughter’s mother; that a large amount of cocaine was meant to be smuggled in the first case and that four kilograms of cocaine were smuggled into Europe in the second case; and that the entire undertaking had been handled very professionally. In addition, the Regional Court considered that a conviction for a third case of drug smuggling could not be envisaged for the sole reason that the precise amount of cocaine transported in a suitcase from Peru to Spain could not be determined. 11. The applicant submitted that his daughter and her mother had visited him in prison from 2001 to 2003 and that he had sought a court ruling on contact with his daughter, when the child’s mother discontinued the visits. On 4 July 2006, the applicant and the child’s mother agreed before the Munich Family Court that supervised meetings between him and his daughter would take place as soon as he was released from prison. As of 31 January 2008, the daughter visited the applicant regularly in prison – every four weeks for two hours at a time – in the company of a priest. 12. On 3 July 2009 the applicant was released, after having served his entire sentence. He was placed under supervision of conduct (Führungsaufsicht) until 3 July 2013. 13. After his release, the applicant was granted exceptional leave to remain (Duldung) under Section 60a of the Residence Act – according to the information available to the Court this was granted most recently in January 2017 and would last until July 2017. It meant that enforcement of the expulsion order was temporarily suspended, being impossible to execute as the applicant did not have a valid passport (see paragraphs 28, 29 and 3642 below). He began occupational re-training as a management assistant in marketing communication in April 2010, which he successfully completed in June 2012, but was not allowed to engage in gainful employment since his release. 14. The applicant has not lived with his daughter and her mother since his release. Since 2012 they have been living in different cities, with distances between their homes varying between thirty and seventy kilometres and the travelling time varying between forty minutes and one hour. The applicant sees his daughter on a regular basis and maintains close contact with her. It is not disputed between the parties that she spends every other weekend with him. According to a social worker’s statement, he has become an important contact person for her. Both the applicant’s daughter and her mother explicitly wish the applicant’s contact with his child to continue. 15. Since his release, the applicant was convicted of three offences by the Munich District Court, of fraud in 2011 and of theft in 2015 and 2016. He was sentenced to twenty, thirty and ninety day-fines, respectively. By being present on German territory without having a passport, he committed an ongoing offence under the Residence Act. Criminal proceedings in this connection were discontinued by the public prosecutor in November 2013 because the applicant’s guilt was considered to be of a minor nature and because prosecution was not in the public interest. The matter was referred to the administrative authority for treatment as an administrative offence. 16. On 21 March 2003 the Authority of the City of Munich refused to renew the applicant’s residence permit and ordered his expulsion. It held that the applicant’s expulsion was mandatory pursuant to Section 47 § 1 of the Aliens Act (Ausländergesetz; since 2004: Section 53 of the Residence Act) which foresaw the mandatory expulsion of an alien if he or she were sentenced to either at least three years’ imprisonment for a criminal offence, or to any period of imprisonment (not on probation) for an offence under the Narcotics Act. The authority examined whether the applicant enjoyed special protection against expulsion because he was the father of a German child. It found that the applicant had lived with his daughter only for a short time prior to his imprisonment, she had thus experienced separation from the applicant and that, in the light of the applicant’s very serious criminal offences, the State’s interest in removing the applicant prevailed over his interest in enjoying family life with his daughter. He could remain in contact with her by letter or telephone and could apply for permission to enter Germany for specific periods of time (Betretenserlaubnis). It considered that the applicant’s expulsion was in conformity with Article 8 § 2 of the Convention. This decision, which also contained an unlimited re-entry ban and notice that he would be deported to Nigeria if he did not leave Germany voluntarily within four weeks after being released from prison, became final on 26 August 2003. 17. On 15 November 2006, after the applicant had served more than two thirds of his prison sentence, the authorities envisaged his expulsion as of 1 November 2007. 18. On 3 December 2007 the applicant introduced another asylum application (see paragraph 6 above). On 8 February 2008, the Federal Office for Migration and Refugees dismissed his application as manifestly illfounded under Section 30 § 3 of the Asylum Procedure Act (see paragraph 33 below) and, finding that there were no impediments to his return to his country of origin, ordered his expulsion. The decision again contained notice that he would be deported to Nigeria if he did not leave Germany voluntarily within one week after the decision became final. On 6 March 2008, the Munich Administrative Court granted suspensive effect to the applicant’s appeal in the asylum procedure. On 8 September 2009 it dismissed his appeal in the main procedure, also finding, inter alia, that the applicant’s ties to his daughter could not be taken into account in the asylum procedure. This decision became final on 1 December 2009. 19. On 10 September 2009 the applicant applied for a residence permit based on family ties. 20. On 9 February 2010 the Authority of the City of Munich rejected his application, holding that there was a final expulsion decision (of 21 March 2003) against the applicant, which precluded granting him a residence permit. No impediments arose from the fact that his daughter was a German national. The applicant could maintain contact with her through letters, telephone calls and occasional visits. His daughter was accustomed to a long-distance relationship with him. He was responsible for the renewed separation and the purpose of the expulsion order had not yet been achieved. At the same time, it reduced the re-entry ban to five years and ruled that the applicant could, starting one year after his actual expulsion, apply for permission to enter Germany twice a year for a total of four weeks. 21. On 14 April 2010 the Munich Administrative Court quashed that decision and ordered the administrative authority to issue a residence permit. It noted that the applicant met the requirements for a residence permit based on family ties, but that granting such a permit was precluded by the final expulsion decision. However, the applicant was entitled to a residence permit on humanitarian grounds in accordance with Section 25 § 5 of the Residence Act, with the margin of appreciation inherent in this provision being reduced to zero. Section 11 § 1 of the Residence Act was not applicable to this provision and the applicant’s departure was impossible in law due to his family life with his daughter, which was protected, inter alia, by Article 8 of the Convention. 22. The Administrative Court found that, despite the serious nature of the criminal offences the applicant had committed, there was no public interest that outweighed the child’s best interests and the applicant’s interest in having contact with his daughter. The relationship between the applicant and his daughter had the quality of a “family” and their ties were of benefit to the child. It considered that they could only live together in Germany, as the child could not be expected to relocate to Nigeria; that the applicant had committed the criminal offences prior to the birth of his daughter; that he had made considerable efforts as a father, as was also evidenced by his choice to remain imprisoned in Germany and to have supervised meetings with his daughter as of January 2008 rather than having his sentence suspended and being expelled as of 1 November 2007; that the latter event marked a turning point, which occurred after the expulsion order had become final in 2003 and which had not been taken into account by the administrative authorities; that the child had already been deprived of a relationship with her father for many years during his imprisonment; that the material assessment with a view to the applicant’s expulsion had been conducted on 21 March 2003, years before the developments in the fatherdaughter relationship and the moment the expulsion order would be enforced; and that the enforcement of the expulsion order in connection with a re-entry ban would deprive the child of the possibility of a normal father-daughter relationship for the remainder of her childhood. 23. On 27 June 2011 the Bavarian Administrative Court of Appeal overturned that judgment and denied the applicant’s right to a residence permit. It considered that his asylum application had been rejected as manifestly ill-founded under Section 30 § 3 of the Asylum Procedure Act and that, therefore, in accordance with Section 10 § 3, second sentence, of the Residence Act, he could not be granted a residence permit prior to leaving Germany (see paragraph 33 below). The exception to this rule, foreseen in the third sentence of this paragraph, was not applicable because the applicant did not have a claim to a residence permit within the meaning of that provision (see paragraph 34 below). 24. First, a claim to a residence permit based on family ties under Sections 27 et seq. of the Residence Act was precluded by Section 11 of the Residence Act due to the final expulsion order of 21 March 2003 (see paragraph 35 below). Second, a claim to a residence permit on humanitarian grounds under Section 25 § 5 of the Residence Act was proscribed because the applicant did not have a valid passport, which was a general requirement for the granting of a residence permit (see paragraph 32 below). As the decision to waive this requirement in cases concerning residence permits on humanitarian grounds was a discretionary one, the applicant did not have a claim to a residence permit within the meaning of Section 10 § 3, third sentence, of the Residence Act, not even if the margin of appreciation were reduced to zero (see paragraph 34 below). Third, the court found that the applicant could not base a claim to a residence permit on impediments to his return to his country of origin either, referring to the outcome of the asylum proceedings in 2008 and 2009 (see paragraph 18 above). The Court of Appeal concluded that, under these circumstances, it was not decisive whether the ties between the applicant and his daughter were such that the requirements for a residence permit on humanitarian grounds under Section 25 § 5 of the Residence Act were met, if the applicant’s asylum application had not been dismissed, and refrained from elaborating on this aspect. 25. On 12 September 2011 the applicant lodged an action to be granted leave to appeal on points of law, arguing that his case raised a matter of fundamental importance. He submitted that he should be granted a residence permit under Section 25 § 5 of the Residence Act because, as the father of a minor child of German nationality for whom he had joint custody, he did, in principle, have a claim to a residence permit based on family ties. The purpose of Section 10 § 3 of the Residence Act was to sanction abuse of the asylum procedure, but an abusive asylum application should not bear negative consequences where the foreigner had a claim, within the meaning of that provision, to a residence permit. In that regard, it should be decisive whether or not the substantive requirements of the respective provision for a residence permit were met, as in his case with regard to the permit based on family ties, and that the reason for the claim not being realised, in his case the final expulsion order against him, should not be relevant. 26. On 16 February 2012 the Federal Administrative Court rejected the applicant’s action. It noted that, according to the case-law of the domestic courts, the exception foreseen in Section 10 § 3, third sentence, of the Residence Act only applied to claims that followed directly from legislative provisions and in respect of which all requirements, general and specific, were met. A residence permit based on family ties was precluded because of the final expulsion order against the applicant. Under these circumstances, granting a residence permit on humanitarian grounds was to be considered. However, as the applicant did not have a valid passport, which was a general requirement for the granting of a residence permit from which derogations were, in cases concerning Section 25 § 5 of the Residence Act, possible only by way of a discretionary decision, the exception foreseen in Section 10 § 3, third sentence, of the Residence Act was not applicable. The decision was served on the applicant on 22 February 2012. 27. On 22 March 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging that the decisions of the Administrative Court of Appeal and of the Federal Administrative Court violated his right to respect for his family life with his daughter. On 18 July 2012 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint without providing reasons (no. 2 BvR 657/12). 28. After the Authority of the City of Munich, on 12 June 2012, had ordered the applicant to present himself to the Embassy of Nigeria in Germany so that a passport for the upcoming expulsion could be issued, the applicant refused to do so and filed an action against this order with the Munich Administrative Court. During the court hearing on 1 August 2012, the applicant and the immigration authorities agreed to the following: “- The effect of the re-entry ban will be limited to two and a half years after leaving Germany. - The immigration authorities will give their consent for a visa to enter Germany based on family reunion. If the applicant by then still has joint custody with the child’s mother, a residence permit on the grounds of family ties will be issued. If the applicant no longer has joint custody for his daughter, the immigration authority will use its discretion regarding the issue of a residence permit in favour of the applicant. - All of this applies only if the applicant can show that he has not committed further criminal offences and if no other reasons for his expulsion emerge. - A timelimit for leaving the country is set at 1 November 2012.” In the light of this agreement, the applicant withdrew his action, and the proceedings before the Munich Administrative Court were discontinued. 29. On 25 September 2012 the Embassy of Nigeria in Germany declared that it would not issue a passport to the applicant as long as the proceedings before this Court were pending. On 6 November 2012 the applicant informed the immigration authorities that he would not leave Germany, contrary to his initial plans and to his declaration before the Munich Administrative Court. As a result, the agreement concluded before that court became void.
| 0 |
test
|
001-168160
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,016 |
MINTKEN AND AYDIN v. GERMANY
| 4 |
Inadmissible
|
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
1. The applicant in the first case, Mr Markus Mintken, is a German national who was born in 1967 and lives in Mülheim/Ruhr. He was represented before the Court by Mr N. Noch, a lawyer practising in Duisburg. The applicant in the second case, Mr Oktay Aydin, is a Turkish national who was born in 1973 and lives in Bielefeld. He was represented before the Court by Mr E. Ceylan, a lawyer practising in Duisburg. 3. The applicants and another coaccused were involved in call centre businesses. They were arrested on 13 April 2010 and remained in detention until 27 October 2011 when their detention was suspended. On 6 August 2010 both applicants and the other accused were indicted on 47,713 counts of commercial fraud as members of a gang. The Essen Regional Court allowed the charges in a modified form and heard the applicants’ case over 116 days as from 4 October 2010, hearing over 40 witnesses and experts. During the trial, the first applicant filed 82 and the second applicant 24 requests concerning the taking of evidence. 4. In July 2011 the first applicant and his counsel requested the appointment of another counsel. However, the domestic courts dismissed the request and upheld the appointment of counsel for the first applicant. 5. On 18 July 2013 the applicants were convicted. The first applicant was sentenced to three years and nine months’ imprisonment; the second applicant received a five-year prison sentence. All three accused lodged an appeal on points of law. 6. The minutes of the hearing comprised over 3,521 pages. 7. On 12 February 2014 the judgment, which ran to more than 1,243 pages, including 1,019 pages specifying the details of the victims of the alleged fraud, was served on the defence. The Regional Court held that it had been impossible to speed up the proceedings as the three accused and counsel for the accused had made numerous applications, inter alia, 368 requests to hear additional evidence, including applications to call several thousand witnesses. More frequent hearings had not been possible because the court had been confronted on almost every single day of the trial by new applications from the defence requesting termination and adjournment of proceedings, rectification of the transcript, consideration of new documents or other objections to the court’s handling of the case. As a result, the Regional Court saw no unreasonable delay attributable to the court, and no reason to reduce the sentences on that ground. However, in the sentencing of the applicants it took into account, in their favour, that the proceedings had been long. 8. On 12 March 2014 counsel for the three accused submitted their joint grounds for appeal on points of law to the Federal Court of Justice, comprising 411 pages, thus observing the onemonth timelimit prescribed by Article 345 § 1 of the Code of Criminal Procedures (CCP) (Strafprozessordnung) (see domestic law, paragraph 12 below). Their submission included, among others, a complaint that the time to supply the reasons for their appeals on points of law was insufficient. 9. On 14 July 2014 the Federal Prosecutor General made observations on the first applicant’s appeal on points of law to which the first applicant responded on 6 August 2014. The relevant dates in the second applicant’s case were not submitted. 10. On 6 November 2014 the Federal Court of Justice dismissed the applicants’ appeals on points of law as far as conviction and sentencing were concerned, finding them manifestly illfounded without providing further reasons. 11. On 5 February 2015 and 18 February 2015 the Federal Constitutional Court declined to consider the applicants’ constitutional complaints without providing reasons (file nos. 2 BvR 3069/14 and 2 BvR 10/15). 12. The relevant provisions of the CCP concerning reinstatement of proceedings and appeals on points of law, as in force at the relevant time provided: “If a person was prevented from observing a timelimit through no fault of his own, he shall be granted a reinstatement of the proceedings upon application.” “(1) The complainant shall make a statement concerning the extent to which he contests the judgment and is applying for it to be quashed (notices of appeal on law) and shall specify the grounds. (2) The grounds must show whether the judgment is being contested because of violation of a legal norm concerning the proceedings or because of violation of another legal norm. In the former case the facts containing the defect must be indicated.” “Notices of appeal on points of law including the grounds for the appeal shall be submitted to the court whose judgment is being contested no later than one month after expiry of the timelimit for seeking the appellate remedy. If the judgment has not been served by expiry of that timelimit, the timelimit shall start to run upon service thereof.” “The notice of appeal on points of law including the grounds therefor shall be served on the complainant’s opponent if the appeal on points of law and the notices of appeal on points of law were submitted in time and in the prescribed form. The opponent may submit a written response within one week. ...” It is well-established case-law of the criminal courts that the timelimit pursuant to Article 345 § 1 CCP is nonextendable, with the exception of cases in which an admissible request to rectify the judgment is lodged before the end of the timelimit (compare judgment of the Federal Court of Justice of 14 November 1990, file no. 3 StR 310/90). 13. Section 198 of the Court Organisation Act (Gerichtsverfassungsgesetz) provides a remedy for unreasonably long proceedings and reads, as far as relevant, as follows: “(1) Whoever as the result of the unreasonable length of a set of court proceedings experiences a disadvantage as a participant in those proceedings shall be given reasonable compensation. The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case concerned, in particular the complexity thereof, the importance of what was at stake in the case, and the conduct of the participants and of third persons therein. ... (3) A participant in proceedings shall obtain compensation only if he has complained about the length of the proceedings to the court seized of the case (censure of delay). ... (5) A court action to enforce a claim under subsection (1) can be brought at the earliest six months after the filing of the censure of delay. The court action must be brought no later than six months following entry into final and binding force of the decision ending the proceedings, or following another manner of disposal of the proceedings. ...” Section 199 § 3, second sentence, of the Court Organisation Act, however, limits the leeway for the compensation court regarding unreasonably long criminal proceedings and reads, as far as relevant, as follows: “(3) ... Where the accused in criminal proceedings seeks compensation for excessive length of proceedings, the court of compensation shall be bound, in respect of the assessment of the reasonableness of the length of the proceedings, by a decision given by the criminal court.” 14. On 19 February 1998 the Federal Constitutional Court, in the case of an accused who had unsuccessfully requested the extension of the timelimit under Article 345 § 1 CCP, decided by a panel of three judges not to accept the constitutional complaint for adjudication (file no. 2 BvR 1888/97). It held that, in general, the statutory onemonth timelimit laid down in Article 345 § 1 of the CCP allowed ample time to supply the reasons for an appeal on points of law, even in difficult cases involving economic offences or Nazi crimes. The complainant in that case had not substantiated why, in his individual case, the time available had not been sufficient. The Federal Constitutional Court further found that the complainant had not sufficiently discussed in his complaint whether, in a case in which the reasons for the appeal cannot be drawn up within the statutory timelimit for reasons not attributable to the accused, redress might be found under the provisions governing the reinstatement of proceedings (see Article 44 CCP, paragraph 12 above).
| 0 |
test
|
001-158883
|
ENG
|
LTU
|
CHAMBER
| 2,015 |
CASE OF NOREIKIENĖ AND NOREIKA v. LITHUANIA
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
|
András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
|
5. The applicants were born in 1965 and 1961 respectively and live in Ramučiai, Kaunas Region. They are wife and husband. 6. In 1993 the Karmėlava Circuit Council of the Kaunas Region (Kauno rajono Karmėlavos apylinkės tarnyba) assigned a plot of land measuring 1.97 hectares to the first applicant (hereinafter “the land”), Ms Noreikienė (hereinafter “the first applicant”), for individual farming. In 1996 the Kaunas County Administration authorised her to buy the land for a nominal price of 123 “single-use investment vouchers” (investiciniai čekiai) and 6 Lithuanian litai (LTL – approximately 1.7 euro (EUR)). 7. On 2 August 2004 the first applicant signed a land purchase agreement with the Kaunas County Administration to acquire the land from the State. The plot was subsequently registered in the Land Registry in the joint names of both applicants. 8. In 2005 a third party, V.A., brought a civil claim against the Kaunas County Administration and the both applicants, seeking restoration of his ownership rights to the land. He argued that a request for restitution of property had already been submitted in 1991, so the land had been assigned and later sold to the first applicant unlawfully. 9. On 14 April 2006 the Kaunas District Court (Kauno rajono apylinkės teismas) allowed V.A.’s claim. It held that the first applicant had been assigned the land unlawfully because the local authorities had an obligation to resolve restitution claims before assigning plots to new owners, and because she did not fulfil the legal criteria for being assigned land. Applying the principle of priority of former owners’ rights, the court annulled the administrative decisions assigning the land to the first applicant and the land purchase agreement, and ordered the Kaunas County Administration to return LTL 129 (EUR 37) to the applicants. 10. On 31 October 2006 the Kaunas Regional Court quashed the lower court’s decision and dismissed the civil claim. V.A. lodged a cassation appeal. On 15 May 2007 the Supreme Court quashed the disputed decision and remitted the case to the Kaunas Regional Court for re-examination. 11. On 24 September 2007 the Kaunas Regional Court upheld the firstinstance decision of 14 April 2006 and allowed V.A.’s claim. 12. On 30 November 2007 the Supreme Court refused to examine the applicants’ cassation appeal, on the grounds that it did not raise any important legal issues.
| 1 |
test
|
001-182450
|
ENG
|
NOR
|
CHAMBER
| 2,018 |
CASE OF MOHAMED HASAN v. NORWAY
| 3 |
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
|
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer
|
5. In 2006 the applicant moved to Norway after marrying C, an Iraqi national who had come to Norway in 1999. The couple’s first daughter, A, was born in February 2008. Their second daughter, B, was born in June 2010. 6. On 7 April 2009 the emergency unit at the child welfare authorities in F. municipality received a request to assist the police with an incident in which the applicant and C were having a heated argument in the presence of their child. A few days later, on 10 April, the police were called again. The applicant then said that C had hit her and tried to strangle her and A on the same day. C was arrested and placed in custody. The applicant and A were taken to a crisis centre. 7. The next day, on 11 April, the applicant was admitted to hospital with pain and bleeding. She then consented to A being placed in an emergency foster home while she was in hospital. The applicant asked the hospital for protection during her stay, because she was afraid that C’s family would come to the hospital to kill her. 8. The applicant was discharged from hospital on 12 April 2009. She withdrew her consent to the emergency placement of A and they moved into a crisis centre. The child welfare authorities made a decision on assistance measures on 14 April 2009 and informed the applicant that they would be concerned about A’s welfare if the applicant were to move back in with C. The applicant then stated that she did not wish to move back in with him. She wanted to have a domestic abuse alarm device if she moved back. 9. On 16 April 2009 the applicant moved back home with A. She did not want to give evidence in the criminal proceedings against C, A’s father, and refused to release her doctor from the duty of confidentiality. On 24 April 2009 C was released from custody and moved back home. A restraining order that had been imposed on him in relation to the applicant was lifted at her request. 10. Taking into account that C had tried to strangle the applicant and A with an electrical cord (see paragraph 6 above), the child welfare authorities gave the applicant a choice between moving into a crisis centre with A or having her forcibly taken into care. On 29 April 2009 the applicant moved back into the crisis centre in F. with A. 11. While at the crisis centre the applicant had a lot of contact with C by telephone. She expressed a wish to move back in with him with A, but also stated that he should not be at home at the same time as them. After she let C into the crisis centre on 6 May 2009, the centre no more wanted her to stay there. As the applicant expressed a wish to move back home to C, the child welfare authorities decided on 7 May 2009 to place A in an emergency foster home for the second time because they were of the opinion that the mother was unable to protect A from violence from her father. 12. In a consultation at the emergency clinic that day, the mother denied that C represented a risk to her or the child and that he had previously hurt them. 13. On 18 May 2009 the applicant moved into a crisis centre in O. This crisis centre was of the opinion that A should be returned to her. The child welfare authorities disagreed, and cooperation between the crisis centre and the authorities became difficult. In the end, A was returned to the applicant on 24 June 2009 and they then stayed together at the crisis centre. 14. On 17 July 2009 the applicant and A moved back in with C. The child welfare authorities closed the case, but reopened it after the applicant’s lawyer raised concerns (“bekymringsmelding”) and stated that mother and child still had great need of the authorities’ help. On 29 July 2009 the authorities initiated assistance measures, including parenting guidance, couple therapy, a Norwegian language course for the applicant, and aggression management therapy for C. An application was also submitted for a kindergarten place for A. After a while the kindergarten raised concerns owing to A’s high absence rate and the fact that many verbal expressions of anger were being directed at the staff by C. 15. On 15 October 2009 the police raised additional concerns with the child welfare authorities after they had been called out to the hospital in F. The mother had been admitted the day before with a suspected ectopic pregnancy. C had taken A to the hospital and the police had regarded his behaviour as so aggressive and threatening towards the hospital staff that they had thought it appropriate to notify the child welfare authorities. C had influenced the applicant to discharge herself from hospital against medical advice. However, she had suffered heavy bleeding and had been readmitted. C had been banned from visiting her at the hospital. He was at home with A, about whom the police were concerned, as the father was aggressive and threatening towards the applicant and their daughter. 16. On the following day, 16 October 2009, the child welfare emergency unit visited the family. C was very upset and angry, as he claimed that he had not consented to such a visit. 17. In May 2010 the applicant attended an appointment at a crisis centre in O. According to the child welfare authorities’ records, C had been “aggressive and out of control” because of this meeting. 18. In June 2010 the couple’s second daughter, B, was born. 19. On 2 September 2010 the City Court (tingrett) gave a judgment in which C was acquitted of violating Article 219 of the Penal Code on the maltreatment of family members, but convicted of some other offences. The counts in the indictment under Article 219 concerned the incidents in April 2009 (see paragraph 6 above). In the course of the criminal case, the applicant had withdrawn her previous statements concerning violence by C. 20. On 17 November 2010 the child welfare authorities received a call from a crisis centre in S. informing them that the applicant and her two children had arrived there after C had been violent towards them and had threatened to kill the applicant. C had been arrested, but had then been released. The applicant had withdrawn her statement about his acts of violence and was preparing to go home. Based on this and previous incidents, the authorities decided to issue an emergency care order that day to place the children in an emergency foster home at a secret address. This was A’s third emergency placement (see paragraphs 7 and 11 above). The order was approved by the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker – hereinafter also “the Board”) the following day. 21. On the same day, 18 November 2010, the applicant went to the crisis centre in O. At a meeting held there on 23 November 2010 she stated that she never wanted to return to C. The child welfare authorities emphasised that she could not have any contact with him once the children were returned to her. Initially, the authorities’ intention was to return the children to the applicant at the crisis centre in S., where they would all stay. The specialist team in S. expressed concern about this solution, and the authorities decided that the children could not be returned until the applicant was settled in her own flat. They thought it would be unfortunate to return the children only to put them through another emergency placement if the mother moved back to C. 22. On 25 November 2010 a restraining order was imposed on C in relation to the applicant. 23. The parents appealed against the emergency care order of 17 November 2010 to the Board, which granted the appeal in part in a decision of 15 December 2010. The decision regarding the emergency placement was upheld, but the amount of contact with the children was increased and the decision not to inform the parents of the children’s whereabouts was set aside. 24. On 21 December 2010 the applicant moved from the crisis centre in O. to the crisis centre in S. She subsequently stayed at a crisis centre in G. from 5 January to 29 May 2011. 25. An application for the children to be taken into care was first submitted to the Board by F. municipality on 23 December 2010. The municipality wanted consideration of the case to be postponed so that an expert assessment could be prepared, but the parents were opposed to this. The Board considered the case at a meeting from 8 to 10 March 2011. On 18 March 2011 the Board nevertheless decided to adjourn the case in order to appoint experts to carry out an assessment of it. The appointed experts were a specialist in educational and psychological counselling, L.M., and a specialist in clinical psychology, B.S. The experts’ joint statement was submitted on 31 May 2011. 26. The child welfare authorities wanted the contact sessions to be supervised and engaged trained personnel from a company to do so. The supervisers started their work on 8 April 2011 and submitted a report on 3 June 2011. 27. C was dissatisfied with the work of the appointed experts (see paragraph 25 above), and therefore hired G.H., a specialist in child and adolescent psychology, as a private expert to observe contact sessions between the applicant and the children. G.H. submitted his report on 11 June 2011. 28. The care order case was considered by the Board on 14 and 15 June 2011. 29. The applicant stayed at the crisis centre in G. again from 14 to 30 June 2011, after which time she moved into her own flat in G. 30. Before the Board reached a decision, the two children were abducted from a contact session with the applicant. The incident took place on 21 June 2011 at G. Volunteer Centre (“frivillighetssentral”) in B. Two people wearing balaclavas and sunglasses forced their way in during the contact session, used an electroshock weapon on the applicant and abducted the children. The contact session was being supervised by a member of the company’s staff (see paragraph 26 above). The staff member managed to escape through the veranda door and summon help. The applicant was injured and unconscious and was taken away to hospital by air ambulance. The children were found in a flat in H. the next day. C later admitted that he had been behind the abduction and that he had been in the vicinity when it had happened. 31. The Board found out about the abduction before it made its decision, and it was therefore decided that there should be no contact between the children and the parents. The operative part of the Board’s decision of 24 June 2011 read as follows: “1. F. municipality, represented by the child welfare authorities, shall take A, born ... February 2008, into care. 2. F. municipality, represented by the child welfare authorities, shall take B, born ... June 2010, into care. 3. A and B shall be placed in separate foster homes at secret addresses. A shall be placed in enhanced foster care [where foster parents have extensive support from the child welfare authorities]. 4. No minimum level of contact between the mother and the girls is set out. If contact sessions are to take place, the child welfare authorities are authorised to supervise them. 5. No minimum level of contact between the father and the girls is set out. If contact sessions are to take place, the child welfare authorities are authorised to supervise them.” 32. The decision was brought before the City Court (tingrett). When the hearing started, on 9 November 2011, the applicant was not present. Her counsel was there and argued that the case should be postponed. After the City Court had decided not to do so, the applicant’s counsel left as he was of the opinion that he could not attend to the interests of his client. However, C informed the court that he was in touch with the applicant. She arrived later the same day at the court and stated that she had spoken to her counsel. She also argued that the case should be adjourned. When told that it had already been decided to continue the hearing, the applicant left the court. 33. On 21 November 2011 the City Court upheld the Board’s decision. As to the applicant and her counsel leaving the hearing, the court noted that it found it difficult to view this as anything but an attempt to force the court into postponing the case, although it did not find it clear why they wanted the case to be postponed. Based on the evidence presented to it, the City Court found it highly likely that C would attempt to abduct the children. Moreover, it was found to be the case that C was in control of the applicant and that she followed his orders. Among other things, the City Court referred to the fact that the applicant under the hearing had made herself unavailable to her counsel, but not to C. The City Court stated that the abduction risk might possibly be regarded differently when the criminal case against C had been heard by the court. At present, however, it took account of how C had declared that the abduction had been in the children’s best interests and concluded that there should be no visiting rights. 34. Instructed by the applicant’s lawyer on 5 December 2011, a specialist psychologist, J.W., submitted an expert report in the case on 16 December 2011. 35. The parents appealed to the High Court (lagmannsrett) against the City Court’s judgment. 36. On 8 March 2012 the applicant submitted an official complaint to the police against C in relation to rape, deprivation of liberty, and threats made in her flat. The applicant went to the crisis centre in G., but moved back to her own flat a few days later. C also contacted the applicant in G. later in March. A restraining order was imposed on him, and the applicant was moved to a secret address. 37. The High Court appointed the clinical psychologist B.S. as expert (see paragraph 25 above). He submitted his report on 12 August 2012. The High Court then heard the case from 25 to 27 September 2012. The parents were present together with their counsel and gave evidence. Eight witnesses were heard, including two expert witnesses. B.S., the court-appointed expert, gave testimony. 38. On 22 October 2012 the High Court rejected the appeal. It noted that a care order presupposed serious deficits in the applicant’s caring abilities and though the applicant, if viewed in isolation, would have sufficient capacity to take care of the children with assistance of the child welfare authorities, the question was whether the children would be sufficiently protected from C. The applicant did not want further dealings with him. C’s behaviour showed, however, that he was unwilling to respect her wish. As to contact rights, the High Court did not take a stance on whether a secure regime for visits could be established. At that time, there was in any event an obvious risk that C would again try to kidnap the children. 39. Leave to appeal to the Supreme Court (Høyesterett) was denied by the Supreme Court’s Committee on Leave to Appeal (Høyesteretts ankeutvalg) on 19 December 2012. 40. During the summer of 2013, the applicant was subject to threats from her half-brother, on paid assignment from C, in order to make her move back to Iraq. On 12 August 2013 she was granted divorce. The hearing of the criminal charges against C took place in September 2013. 41. On 1 October 2013 the child welfare authorities applied to the Board for an order that the applicant and C have their parental responsibility in respect of A and B removed; parental responsibility would then be transferred to the authorities. The authorities also applied for the Board’s authorisation of the foster parents’ adoption of the children. The applicant applied to the Board for an order that A and B’s placement in care be discontinued. 42. On 3 October 2013 the District Court convicted C of abducting the children (see paragraph 30 above) and sentenced him to one year and seven months’ imprisonment, of which six months were suspended. C appealed against the judgment. 43. On 29 November 2013 the Board appointed B.S., the psychologist, as its expert. He submitted a report on 31 January 2014 (see paragraph 53 below). 44. The case was heard on 10 and 11 February 2014. The Board sat with a chairperson who was qualified to act as a professional judge, a psychologist and a layperson, in accordance with the first paragraphs of sections 7-2 and 7-5 of the Child Welfare Act (see paragraph 114 below). The applicant was present with her legal aid counsel and gave evidence. C was in Iraq, but testified by telephone as a party to the case and was represented by his counsel. The appointed expert attended the proceedings and testified. One other witness was heard. 45. In its decision of 25 February 2014, the Board noted that the previous care order case had been considered as directed against the applicant, as C had accepted that she had day-to-day care and control of the children. This situation had not changed, and C now supported the applicant’s claim for revocation of the care order. 46. The Board first reiterated the following from the High Court’s judgment of 22 October 2012 concerning the children’s placement in care (see paragraph 38 above): “In the High Court’s opinion, seen in isolation, the mother will be capable of providing adequate care for the children, provided that adequate assistance measures are offered. The High Court understands that this opinion is shared – although to a varying extent – by all the experts who have appeared before [it].” 47. There was limited updated information about the applicant’s situation at the time of the Board’s decision, but it was clear that she had been granted a divorce from C. She had also passed a Norwegian language course and established a small social network in G. Seen in isolation, her ability to provide care thus appeared to have improved somewhat since the High Court hearing. 48. On the other hand, the High Court had concluded that there were serious deficiencies in the applicant’s ability to provide care because of the threat that C represented to her and the children. The Board made reference to the following passages from High Court’s judgment: “... the question at issue in this case is whether the children will be sufficiently protected against violence from their father if they are returned. It is very important to the father that the children grow up in accordance with their Kurdish background, and he is clearly willing to go to great lengths to achieve this, possibly also by using violent methods. He has stated that the purpose of the abduction was to take them to Iraq. ... After the presentation of the evidence, the High Court is in no doubt that the father is violent and represents a threat to the mother. ... Based on the facts described above, the High Court finds that there is a strong preponderance of likelihood of the father having committed violent acts against the mother, and that it is probable that he, or someone acting on his behalf, will be violent to the mother again. Among other things, [the court] points out that the expert witness J.W., who has assessed the violence described in the case in a cultural context, believes that the mother’s ‘life probably was [or] is in serious danger’. The mother and father are divorced, and the mother wants no further contact with the father. His behaviour as recently as in March this year in G. shows that he is not willing to respect the mother’s wish to break off contact [with him]. In the High Court’s opinion, there can be little doubt that the father’s further contact with the mother will be harmful to the children and constitute a significant deficiency in relation to the children’s safety if the care order is revoked.” 49. However, the High Court had stated in its judgment that the question of contact for the applicant could be seen in a different light if C were expelled from the country. This was because the security concerns described in the judgment would then not apply to the same extent. 50. The expert appointed by the Board, B.S., had not carried out a new assessment of the applicant’s ability to provide care in his report of 31 January 2014 (see paragraph 43 above). In a statement dated 11 February 2014 from the Child Welfare Expert’s Commission (barnesakkyndig kommisjon), one of the two commission members had remarked that it would have been preferable for the mother to have been given an opportunity to comment on such a serious matter. It was also stated that it was expected that this would form part of the Board’s consideration of the case. 51. In his testimony before the Board, psychologist B.S. upheld his assessment given in the report of 31 January 2014 that, seen in isolation, the applicant’s ability to provide care was sufficient for her to have care and control of the children with assistance measures in place. The Board agreed, and also made reference to the High Court’s assessment of this issue (see paragraphs 38 and 46 above). Nothing in the case indicated that the applicant’s ability to provide care had deteriorated since the High Court’s hearing in 2012. If anything, it had to be deemed to have slightly improved. The applicant had testified before the Board and the Board considered that the issue had been adequately clarified. 52. The children’s father had been in Iraq for months, and had stated in his testimony as a party to the case that he was building a house and was engaged to be married to a new woman. He had no plans to return to Norway, and he planned to settle permanently in Iraq. The father had last been in Norway during the criminal proceedings against him in September 2013. His counsel stated that the conviction had not been formally served on C, but he had nonetheless appealed against it, and he added that he expected C to sign the letter accompanying the appeal soon, so that the High Court could consider it. 53. In his expert report of 31 January 2014 to the Board, B.S. had given the following assessment of the situation: “According to information received, the father is currently in Iraq. If he returns to [Norway], he must expect to be arrested to serve the prison term he was sentenced to for the abduction. [I do] not know if he would then be expelled from the country. The present situation resembles the situation that the High Court deemed to be associated with less risk for the children [(see paragraph 49 above)]. [I do] not necessarily agree with the High Court’s assessment. This is a complex issue, and to the extent that the question of risk can be clarified with a sufficient degree of certainty, that would require extensive investigation which would also involve the parents’ relatives and other networks in countries other than Norway. That is far beyond the remit of the expert examination. Nevertheless, it is possible to make some general reflections based partly on knowledge about what is common in the parents’ culture, and partly on information provided by the parents themselves. The children belong to the father’s family. Not just to the father, but to his family. The mother has main responsibility for bringing up the children as long as they are regarded as children. It is therefore unproblematic for the father to accept that the children be returned to the mother to grow up with her. Once they are grown up, however, they will still belong to their father’s family. They will be considered ‘adult’ long before the Norwegian age of majority; age of sexual maturity is a more relevant criterion than chronological age. For a family that is concerned with the honour code, the actions of an adult daughter have a bearing on the whole family’s honour. If she leads a life in conflict with the family’s norms, particularly as regards her sexual life, this affects the whole family, which will lose all prestige in the eyes of the surrounding world. In extreme cases, the family may feel forced to track down the woman and kill her to restore the family’s honour and prestige. This does not necessarily diminish with time and distance. Nor does this only apply in conservative religious families; it is more a question of culture than of religion. There are several examples of relatives tracking down women living in Western countries and committing so-called honour killings despite the family having lived in the West for many years and appearing to be modern and well-integrated. If such mechanisms are at play in the father’s family, the father’s whereabouts are less important in relation to the risk. Nor will the risk diminish with time. The opposite may even be true. A and B are young children, and children are not in a position to disgrace their family. As they become older, keeping them under control may become much more important for the family than it is today. Preferably, they should be ‘saved’ before they have the opportunity to do anything wrong. The family could achieve this by organising another abduction and taking them to Iraq. If the children were nevertheless to bring dishonour on the family, or if the family assumed that to be the case because they lived outside the family’s control, there is a possibility that A and B would risk being hunted for years and maybe even killed if their family found them. On the basis of the above, [I am] of the opinion that the risk associated with disclosing A and B’s whereabouts has not decreased, even though the father is abroad. This means that returning them to their mother would still entail a serious threat to their care situation, even if the mother, seen in isolation, may be able to provide proper care. Based on what is known about the mother from before, [I am] highly uncertain whether the mother would keep her and her children’s identities secret from the father’s family in the event that she was given a new identity and a secret address. In order for such an arrangement to be safe, the mother would probably have to break off all contact with her own family as well. It is neither realistic nor ethically justifiable to make this a condition.” 54. In the Child Welfare Expert’s Commission’s statement of 11 February 2014 (see paragraph 50 above), one of the two commission members had pointed out that the expert’s conclusions as quoted above were not based on concrete knowledge about the situation in this family. The member had also stated that, when so much time was devoted to considerations on the family and situation in Iraq, this could easily give a wrong impression, even if doubts were also included in the report. This could easily lead to incorrect or false premises being established for the assessment of the risk associated with the mother’s contact with the children in a situation where their biological father was not in the country. The other commission member had had no comments on the expert’s report. 55. The Board agreed that assessing the risk with a sufficient degree of certainty would require extensive investigation. This had not been done in this case, and the Board had no option but to base its assessment on the known facts. Based on the presentation of evidence, the Board agreed with the expert that his concerns regarding the risk had not been assuaged during the hearing before the Board. 56. Firstly, the police still considered the children to be at high risk of being kidnapped. The police had not testified about this before the Board, but the Board had no reason to doubt the police’s assessment. The Board had been informed that the foster families had to clear all visits outside the municipality with the police. At a time when the police’s use of resources was under continuous evaluation, the Board saw no reason to believe that the level of protection was seen as excessive. 57. Secondly, C had tracked down and raped the applicant in March 2012, and had also approached her later that month. In the summer of 2013 the applicant had received death threats from her half-brother, among other things, and she herself had stated that the threats had been made because C had paid her half-brother to do this. The applicant had informed the Board that she had been kept under surveillance for a prolonged period by her half-brother, who had come to Norway under an alias. She had reported this to the police, and the police had allegedly told her that her brother might possibly be expelled from Norway. However, she did not know his whereabouts. Since C had on two occasions and until quite recently used accomplices to put the applicant and/or the children in great danger, the Board considered C’s actual location of less importance. There was also good reason to question whether he would stay away from Norway, given that he had appealed against the District Court’s judgment in the criminal case (see paragraph 42 above). An appeal on the question of his guilt would be dismissed if he did not appear. 58. Thirdly, C’s mother in Iraq had stated that she would come to Norway if the children were not returned to the applicant. She had also said that her husband, A and B’s paternal grandfather, was very ill and had been hospitalised as a result of the stress of the children being taken away from the family. These statements showed that the stress on the family as a result of the case did not seem to have diminished, but in fact still seemed to have a strong presence. The paternal grandmother’s statement gave the impression that the children’s fate was the family’s responsibility, and not a matter that just concerned C. 59. Fourthly, the Board considered it unlikely (“lite sannsynlig”) that the applicant would be able to protect the children from their father if they were returned to her. When the children were younger, the applicant had repeatedly demonstrated that she was unable to protect herself and the children from C. She had moved back to C several times, despite having reported him to the police for violence against both herself and the children. He could not be prosecuted for these offences because the applicant either withdrew her previous statements or refused to make statements to the police. Since the abduction in 2011, C had contacted the applicant several times, and he had also been violent again. Despite knowing that C was behind the death threats and surveillance of her in the summer of 2013, she now believed that he did not represent a risk. It was difficult to say whether this was what the applicant actually believed or whether it had to do with her wish for the children to be returned to her. In any case, the applicant’s statement indicated that she failed to realise how serious the situation was. 60. The expert’s assessment was that if the applicant were to have care and control of the children then she would probably have to break off all contact with her own family. The Board concurred with the expert’s view. The applicant and C had reportedly grown up in the same neighbourhood, and the families knew each other. At least one member of the applicant’s family had demonstrated that he was willing to carry out unlawful acts on behalf of C. The applicant’s contact with her own family would therefore entail a significant risk of her and the children’s whereabouts becoming known to C. The applicant had stated that she would be willing to break off all contact with her family if the children were returned to her. However, when at the same time she said that C was no longer a threat, it was difficult for the Board to envisage that she would be sufficiently motivated to make such a sacrifice. In the Board’s assessment, C represented such a significant threat that the children would probably be at risk, even if the applicant managed to break off contact with her family. The Board referred to how C had over a period of several years demonstrated that he had both the means and the will to carry out his wishes. His rape of the applicant in March 2012, and the surveillance and death threats against her via an accomplice in the summer of 2013 showed that he had learnt nothing from the abduction in 2011. On the basis of the factors set out above, the Board assumed that, for the foreseeable future, C appeared to be prepared to use unlawful means to gain control over the applicant and the children. 61. It had been argued before the Board, particularly by C’s counsel, that the risk to the children would be lesser if they were with their applicant rather than placed in a foster family. The reasons given for this were that C and his family wanted the children to be returned to the applicant, and they would then be satisfied with the situation. The Board did not rule out the possibility that C and his family would be satisfied for a while and thus not represent any immediate threat if the children were returned. However, this had to be regarded as highly uncertain, and it would in any case depend entirely on how the applicant chose to live her life with the children. If she were to deviate from what was expected of her regarding how the children were raised, the children would again be at risk. Reference was made to the comment in the expert report that the children in a Kurdish family belonged to the father’s family, and that, for example, the actions of an adult or sexually mature daughter would have a bearing on the whole family’s honour. 62. Overall, the Board found that it had been substantiated that the risk of the children and/or the applicant being subjected to criminal offences by C had remained virtually unchanged since the High Court had considered this issue in October 2012 (see paragraph 38 above). This meant that the risk associated with disclosing A and B’s whereabouts had not decreased, even if C was currently in Iraq. The parents had argued that no attempts to abduct the children had been made since 2011, and this showed that the risk was significantly reduced. The Board did not share this view. According to the Board’s assessment, this was because the children’s whereabouts had not been disclosed and there had been a comprehensive security regime in place since July 2011. 63. On the basis of the above, the Board concluded that the applicant had to be deemed permanently unable to provide the children with proper care, and falling within the scope of section 4-20 of the Child Welfare Act (see paragraph 114 below). This assessment also meant that her application for revocation of the care order pursuant to section 4-21 could not be granted. 64. Since the Board concluded that the applicant was unable to provide proper care, it was not necessary to discuss whether the attachment criterion in section 4-20 of the Child Welfare Act (see paragraph 114 below) was also satisfied. Considering how serious the case was and its profound importance to the parties involved, the Board nevertheless found grounds to discuss this issue, and started its assessment by seeking to clarify the children’s functioning and care needs. 65. The Board noted that A, the oldest daughter, had shown a lot of anger and had acted out during her initial period in foster care. She had been insecure, had not wanted her foster parents to leave her, and had slept next to her foster mother at night. She had wanted constant reassurance that she was to live in the foster home forever. This had improved considerably from approximately March 2013. Most of the anxiety had now gone, and the foster home interpreted this to mean that A now felt certain that she would not have to leave the foster home. A disliked events involving big crowds, such as end-of-term events. She had taken part in a leisure activity, but had stopped because she preferred to stay at home. The appointed psychologist, B.S., had stated before the Board that A had spontaneously told him during his visits that thieves had tried to steal her. The foster parents had told him later that A had not talked about this for a long time, and that they never talked about the abduction with A. The expert’s interpretation was that A still appeared to have memories of her abduction. He also assumed that she had memories of her parents’ turbulent marriage, since she was nearly three years old at the time of her emergency placement. 66. Furthermore, the Board took into account that A had had several temporary placements, and psychologist B.S. had found her to be highly vulnerable with regard to new broken relationships. In his opinion, losing her foster parents would be a traumatic experience for A. 67. The other daughter, B, had been six months old when placed in emergency care. She had arrived in the foster home when she was about a year old. The foster parents described her as a timid girl who only wanted to sit on her foster mother’s lap. She would not let anyone get close to her except her foster mother, who could never leave a room without B following her. Gradually, the foster father had been allowed to get closer to her, first by sitting next to them while B sat on her foster mother’s lap. Even at the time of the Board’s decision, B had an extreme fear of losing her foster parents. In the autumn of 2013 the foster parents had gone away for the weekend. B had been to stay with an aunt who had children of the same age and whom B knew well and was fond of. The foster parents had prepared her thoroughly, telling her that they were going away for a few days, but that they would come back. When they had come to collect her, B had reacted with hysterical laughter that had turned into sobbing and crying. She had clung to her foster mother and repeated over and over again that they must never leave her again. Even now, four months later, B was still back at the stage where both the foster parents could not leave the room at once. She woke up two or three times during the night and said “mummy”, quietly at first. If she did not get a response immediately, she would stand up and shout “mummy” in a frightened voice. 68. In his report, B.S. had concluded that A and B basically had normal abilities and were resourceful children who had developed well cognitively, socially and in terms of their motor skills. However, the children’s previous experiences of their violent father, their dramatic abduction and broken relationships had made them particularly vulnerable with regard to new broken relationships. 69. The expert had described to the Board a strong, secure and good attachment between the children and their foster parents. B had been living in the foster home since she was one year old, and she saw the foster parents as her mother and father. The same applied to A, even though she was three years old when placed in the foster home. She knew that she had another mother who loved her, but her strong attachment was to her foster home. The Board concurred with the expert’s assessment, and found that the children had become strongly attached to the people with whom they were living and the environment in which they were living. In the Board’s view, removing the children from their foster homes would constitute a serious trauma with the potential to do great harm. Both alternative conditions in the third paragraph of section 4-20 of the Child Welfare Act (see paragraph 114 below) were thus deemed to be fulfilled. 70. As to adoption, the Board initially observed that the central question in the case was whether adoption would be in the children’s best interests. Adoption was a highly invasive measure and, pursuant to case-law, particularly compelling reasons were required for consent to adoption to be granted against the biological parents’ wishes. The decision had to be based on a concrete assessment, but also on general experience, as set out by the Supreme Court in a judgment reported in Norsk Retstidende (Rt.) 2007 page 561 (later brought before the Court, see Aune v. Norway, no. 52502/07, 28 October 2010 and paragraph 117 below): “In my opinion, a clear distinction cannot be drawn between general experience and individual considerations; general experience can be expressed with varying degrees of nuance, for example, based on the child’s age when it was placed in the foster home and how long the placement has lasted and will last. The expert witness in this case has stated that, in his general experience, a foster home relationship is not the preferable option for the long-term placement of children who go to the foster home before forming an attachment to a biological parent; in such cases, adoption is in the child’s best interests. In my opinion, considerable importance must be attached to such general, but nuanced experience. However, individual circumstances – which could weigh for or against adoption – must also be assessed in relation to general experience.” 71. The Board found the strict conditions set out by the Supreme Court fulfilled in this case. 72. Research showed that adoption would generally give a stronger sense of security and belonging in a family situation than a foster placement. An adoption removed all doubts about where a child would grow up, and normally strengthened the attachment between the child and the adoptive parents. It was the Board’s assessment that this general experience also applied in the present case. 73. It was normally beneficial for children to have contact with their parents, even in cases where children had to live outside the home for various reasons. In principle, an adoption broke all legal ties between a child and his or her parents, and any continued contact with the biological family would normally be dependent on the adoptive parents’ ability and wish to maintain such contact. 74. Since the abduction, and following the Board’s decision of 24 June 2011 (see paragraph 31 above), there had been no contact sessions between A and B and their parents for nearly three years at the time of the Board’s decision of 25 February 2014. The Board therefore found that it had to be deemed that there was little attachment between the applicant and the children. This was particularly so in B’s case, who was only six months old at the time of her placement in care on an emergency basis. After the emergency placement, B had had contact sessions with the applicant for about six months, but they had ended following the abduction. Therefore, no attachment could be said to exist between the applicant and B in a psychological sense. A, who had lived with the applicant for nearly three years, would probably have an attachment to her. However, this attachment also had to be deemed considerably weakened as a result of the prolonged interruption of contact. In addition, the attachment between the applicant and A probably had to be deemed tinged by a certain amount of insecurity as a result of the family situation with the violent father. 75. In addition to the significantly weakened attachment, authorities that had previously considered the case had concluded that the high risk involved meant that contact between the children and their parents was not an option. The Board concurred with this assessment and found that it still applied. Stopping contact would therefore not have any major immediate consequences for the children, and such consequences, seen in isolation, did not constitute a strong argument against adoption. The security situation meant that the children’s cultural background could not be maintained without a risk of their identities being exposed, and therefore cultural considerations could not be a strong argument against adoption either. 76. The Board also found that the general arguments in favour of adoption applied to both A and B. In the Board’s opinion, the extraordinary circumstances of their placement and the security situation gave added weight to these arguments. Adoption had clear advantages with regard to security. The children would be able to use their new names, which would mean that the risk of their identities being exposed would be significantly reduced. The foster families currently lived under a fairly strict security regime under which, for example, they could not leave the municipality without informing the police. The police’s assessment was that the risk of another kidnapping remained high, and it was unavoidable that this would have a big impact on A and B’s lives. Although adoption would not remove the risk entirely, the reduced risk of the children’s identities being exposed would be highly beneficial. 77. Based on the above factors, the Board found that adoption would be in A and B’s best interests and that consent for adoption should be granted. 78. The foster parents’ identities were not known to the Board, and owing to security concerns they had not testified before it. This was largely why the Board had appointed expert B.S. to assess the foster parents’ suitability. 79. The foster parents had had daily care and control of A and B for nearly three years, which had to be considered a sufficient period in terms of assessing their suitability. 80. B.S., the psychologist, had spoken very highly of the way the foster parents cared for A and B. He had described both foster homes of the two daughters as characterised by warmth, generosity and sensitivity to the children’s needs. A’s foster parents’ counsellor had told B.S. that she considered the foster parents well suited as adoptive parents. Both children had developed a strong and secure attachment to their foster parents. They received the daily care, personal contact and security that they needed. The foster parents’ suitability for the task had not been contested either – either by the applicant or by C. The Board saw no reason to doubt that the foster parents would also continue to take good care of A and B in the future, and that they were fit to bring up the children as their own. Owing to the children’s age and development, obtaining their opinion was not an option. 81. Based on the above, the Board found that the conditions set out in the Child Welfare Act were satisfied. 82. In order to grant consent to the children’s adoption, the Board also had to make a formal decision to remove the parents’ parental responsibility. The Board endorsed the municipal child welfare authorities’ proposal on this point, since removal of parental responsibility was necessary and in the children’s best interests. On this basis, the Board consented to adoption in the parents’ stead. 83. The Board observed that the child welfare authorities had not proposed that there be an order on contact visits following the children’s adoption, because of the security situation, and the applicant had argued that failing to ask the foster parents whether they would consent to her having contact constituted a procedural error. 84. However, the Board found that even if the foster parents had given their consent for contact visits, that would be irrelevant, because such contact would entail too great a security risk. It had been clearly substantiated that there was a risk that C would try to find the children if there was provision for contact visits. Even if the applicant was prepared not to disclose information, the children could easily disclose information that would reveal their whereabouts and new names during contact with the mother. In the Board’s opinion, the applicant would be at great risk of violence and threats from the father, in order for her to disclose such information. Contact visits could therefore not be considered in the children’s best interests. 85. Both parents requested that the case be reviewed by the City Court. 86. The City Court reappointed B.S. as an expert. He delivered an updated report on 14 August 2014. Composed of one professional judge, one psychologist and one layperson, in accordance with section 36-4 of the Dispute Act (see paragraph 121 below), the City Court heard the case on 26 and 27 August 2014. The applicant attended with her legal aid counsel and testified. C’s counsel attended, whilst C gave evidence by telephone from Iraq. The court-appointed expert was present on the second day of the hearing, and gave evidence. 87. In its judgment of 9 September 2014, the City Court stated that removal of parental responsibility and adoption against the parents’ wishes under section 4-20 of the Child Welfare Act were very serious and invasive measures that required compelling reasons. The best interests of the children were the most important aspect, and the decision had to take account of this. 88. The City Court agreed with the Board that removal of parental responsibility and adoption was nevertheless necessary in this case, and referred to the thorough grounds given by the Board for its decision. 89. In addition, the City Court noted that the applicant’s situation had improved since the Board’s hearing. She had shown steady positive development and established an independent life for herself after the final breakdown of her relationship with C. The applicant was taking Norwegian language classes and undergoing training in order to improve her employment prospects. There was general agreement that, with assistance measures, she had the ability to care for children, but not two children with so traumatic a background as A and B. 90. The girls had had many traumatic experiences. There was no doubt that C had committed serious violence against the applicant in the presence of the girls on a number of occasions. They had had to flee to different crisis centres together with the applicant. They had also moved back to a violent father with her. This had clearly been frightening for them and they were both marked by the experience, even today. 91. The girls had been abducted by masked men during a contact session with the applicant. The men had injured the applicant, who had been hospitalised. The abduction had been planned by C, and the girls had been found with him in a flat in H. The plan had been to take the girls to Iraq. The abduction that their own father had put them through must have been a very frightening experience for them, one whose after-effects they were still struggling with. 92. The abduction had resulted in broken relationships with their emergency foster parents when the girls had been placed in new emergency foster homes. That had necessarily been followed by another rupture when they had been placed in foster homes. As a result of their background, both girls had suffered from separation anxiety but had now become strongly attached to their foster parents. They clung to them and were afraid of losing their foster parents. 93. The City Court reiterated the following from B.S.’s report of 14 August 2014: “The ability to provide care must always be assessed in relation to the children’s care needs. A and B have a history and display behaviour that means that they can no longer be assumed to just have the same ordinary care needs as other children their age. If the mother were to have care and control of the children, she would have to deal with the extensive additional challenges that returning them [to her] would entail. The mother’s ability to reflect on the children’s history and special needs seems to be limited. The expert has strong doubts as to whether the mother’s ability to provide care is sufficient to meet A and B’s needs in the short and long term. Returning them [to her] is therefore not assumed to be a realistic alternative if consideration for the children’s best interests is to be the deciding factor.” 94. Before the City Court, expert B.S. upheld the recommendations he had made to the Board in his report of 31 January 2014 (see paragraphs 43 and 53 above). 95. After visiting the children in their foster homes in January 2014, he had made the following statement in that respect about the children’s attachment to their foster parents: “When [I] last visited the foster homes, the children had started to form an attachment to their foster parents. This process has now progressed much further. [My] observations, the foster parents’ statements and the foster home counsellor’s assessments all point in the same direction: A and B have established strong attachments to their foster parents and perceive them as their psychological parents [(“sine psykologiske foreldre”)]. The interaction between A and her foster parents was characterised by a calm, warm and intimate atmosphere. [She] related to the foster parents in the way you would expect of a child with a secure attachment to her parents. The foster parents were attentive and responded to her input, but were also clear about their expectations of her. B primarily related to the foster mother as her secure base for exploration. She was verbally active and spoke well, using varied language. She gave clear signals of what she wanted. The atmosphere in B’s home and the interaction between her and her foster parents were the same as for A: calm, pleasant and characterised by warmth and closeness. The children basically have normal abilities and are resourceful children who have developed well cognitively, linguistically, socially and with regard to their motor skills. At the same time, they have had experiences of an unusually frightening nature. They have experienced violence committed by the father against the mother, which is today considered to be as harmful to children as their being victims of violence themselves. The children may also have suffered violence at the hands of their father. Then came the broken relationship when they were taken into care, the dramatic abduction, the emergency foster home placement, and finally the foster home placement. Although the children do not have memories of these events that enable them to tell a coherent story, many observations show that they both have fragmentary memories. A’s story about thieves who wanted to steal her in the other country and B’s fear of a bad man can be assumed to be rooted in such memories. These experiences have left the children particularly vulnerable to new broken relationships. They both display intense separation anxiety and cling to their foster parents. A has begun to relax more and seems to have achieved a sense of security that “mummy” and “daddy” will always be there. B is in a new clingy period, triggered by the foster parents being away from her for a few nights some months ago. In [my] opinion, there is no doubt that the children have a strong attachment to the people with whom they are living and the environment in which they are living. Being removed from them would constitute a serious trauma with the potential to do great harm, not least because of the vulnerability they have developed as a result of their experiences before the placement.” 96. The City Court deemed it out of the question to expose the children to the risk that returning them to the applicant would entail, and found that the conditions for this were not satisfied. They had not had any contact with their mother since the abduction on 21 June 2011. At the time of the court’s examination, they had no attachment to her. The City Court had no doubt that the children had such an attachment to their foster parents that it would be harmful to them to be removed. 97. Agreeing with the court-appointed expert, the City Court found it completely improbable (“helt usannsynlig”) that the parents would at any point in the future be in a position to make use of or exercise their parental responsibility. The situation was permanent, and it was in the children’s best interests that the foster parents be given parental responsibility for them. 98. It was sufficient for the removal of parental responsibility that the alternative requirement regarding attachment (as referred to in section 4-21 of the Child Welfare Act, see paragraph 114 below) was satisfied. The City Court nevertheless commented that there was still a risk with respect to C and his family. C had stated that the children meant everything to him, and the City Court did not rule out the possibility that he might make another attempt to take them to the Kurdistan-area if he found out about their whereabouts. The risk of this would increase significantly if the applicant were granted contact with her daughters again. 99. The police had carried out a new threat assessment before the main hearing in August 2014. The following was stated in their report: “There is little doubt that the mother in particular, but possibly also the father, will continue to fight for parental responsibility in respect of their children. However, the police consider it improbable that they will find out where the children are under the current circumstances. The children are young and cannot make contact with the mother or father themselves. However, one should not underestimate the will the father has demonstrated to get his children back. The abduction on 21 June 2011 probably required a lot of planning, and he put considerable resources into executing the plan. In addition, the abduction showed a willingness to use violent means to achieve his goals. The father himself stated to the police that he hired people to carry out the abduction. It is unclear what role the mother played in this, but given that she brought a large sum of money and a lot of clothes and other equipment to the meeting on 21 June 2011, it is not inconceivable that she might have known more than she told the police.” 100. The police had concluded that the threat level was moderate at that time because the parents did not know the children’s whereabouts, but that this could change. The following had been stated in the conclusion: “When applications are lodged for contact with the children, the threat situation could change significantly. The children have now reached an age where they could easily reveal the names of their foster parents and where they live. This applies regardless of where and how contact sessions are held. In addition, it is highly probable that the father, if he finds out that the mother has been granted contact with the children, may become active again. It is known that, in certain cultures, the father has a ‘right’ to the children when a marriage breaks down or similar situations arise. It was also an issue that he wanted to send the children back to his home country.” 101. The City Court found that it had been proved that a threat still existed which made it imperative to protect the children. It did not trust the applicant to be able to protect them against C if he were to become aware that she had contact with them. Nor did it trust C to accept that the children should remain in their foster homes. He had previously used accomplices and could do so again. Members of his own family could help him to take the children to the Kurdistan-area. In return for payment from C, the applicant’s half-brother had also tried to threaten her into returning to their home country. 102. The children could not be subjected to the risk of being abducted and taken to Iraq by people who were strangers to them. The City Court therefore also agreed to their identities remaining secret. This meant that there could be no contact with the applicant for fear that someone could reveal where they were living. If contact sessions were to take place, it would not be difficult to follow them home, regardless of what security measures were put in place. 103. The City Court also agreed with the child welfare authorities that adoption offered many advantages compared with placement in a permanent foster home (see paragraph 76 above). Adoption provided a higher degree of stability (“trygghet”), both for the foster parents and for the children. This was true in general, but it was particularly important to A and B, considering their history (“bakgrunn”). In this connection, it also had to be taken into consideration that the strict security measures that had been put in place to prevent another abduction had to be maintained. The children had changed their names and lived at secret addresses. 104. The foster parents had a strong wish to adopt the girls. According to the court-appointed psychologist, B.S., both girls had been particularly lucky with their foster home placements. 105. Both parents appealed to the High Court against the City Court’s judgment. The applicant’s appeal was not directed against the decision not to discontinue public care. In her declaration of appeal, she stated that she accepted that it had been a long time since her two children had been placed in their foster homes and that, having regard to their attachment at the time, she would not maintain the claim that they be returned to her. She appealed against the decision to remove her parental authority and authorise the children’s adoption, and requested that the High Court grant her visiting rights. 106. In a decision of 8 December 2014, the High Court unanimously refused to give the parents leave to appeal. 107. The High Court noted that the reasons given for the City Court’s judgment were relatively brief, but this was because that court had concurred with the reasons given by the Board. When looking at the Board’s decision and the City Court’s judgment jointly, there was no doubt (“utvilsomt”) that the children’s best interests had been considered in a satisfactory and adequate manner. 108. was not flawed because the significance of the children’s cultural background and identity had not been considered separately in the decision regarding what would be in their best interests. The same went for the question of sibling identity. The High Court found it clear that deciding to remove the parents’ parental responsibility and granting consent to the children’s adoption in this case was not in breach of Article 8 of the Convention or Articles 3 and 9 of the UN Convention on the Rights of the Child. 109. As regards the assessment of the children’s future situation with regard to security, the outcome was not central to the question of removal of parental responsibility and consent to adoption. As stated by the City Court, it was sufficient for the alternative requirement regarding attachment to be satisfied (see paragraph 98 above). This was not considered to be in dispute. Reference was made to the fact that before the High Court the applicant was no longer applying for the care order to be revoked, in view of the children’s attachment to their foster homes. 110. In any event, the High Court was of the view that there were no serious flaws in the City Court’s assessment of the security situation. It did not constitute a procedural error that this question had not been examined further and that no expert witnesses with particular expertise in the foreign culture aspects of the case had been appointed. 111. the fact that the children had been violently abducted in 2011 and the applicant had been subjected to serious threats initiated by C as recently as 2013, there was, in the High Court’s opinion, nothing to indicate that a further examination of the children’s security situation would have led to a different conclusion. The City Court had based its assessment on the police’s assessment that the level of threat against the children was currently moderate, since the parents did not know their whereabouts, but that the situation could change. The City Court had then carried out a concrete assessment of whether contact with the applicant could entail a risk of C initiating an abduction. In the High Court’s view, this assessment had not been flawed, either in terms of the assessment of the evidence or the application of the law. 112. The applicant appealed against the High Court’s refusal to grant her leave to appeal to the Supreme Court. 113. On 5 February 2015 the Supreme Court’s Committee on Leave to Appeal, composed of three Supreme Court Justices, rejected the appeal, unanimously finding that it had no prospects of success.
| 0 |
test
|
001-144677
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF BIBLICAL CENTRE OF THE CHUVASH REPUBLIC v. RUSSIA
| 3 |
Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion) read in the light of Article 11 - (Art. 11) Freedom of assembly and association (Article 11-1 - Freedom of association);Non-pecuniary damage - finding of violation sufficient
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Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
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4. On 21 November 1991 the Chuvash Christian mission “Voice of Truth” was registered as a religious organisation under the RSFSR Religions Act of 25 October 1990. It belonged to the Pentecostal movement of the Christian faith. 5. On 24 November 1998, in connection with the enactment of a new Religions Act of 26 September 1997, the organisation was renamed the Biblical Centre of the Evangelical (Pentecostal) Christians of the Chuvash Republic (Библейский Центр Чувашской Республики Христиан веры евангельской (пятидесятников)). 6. Under paragraph 2.2 of the organisation’s articles of association, one of the activities of the Biblical Centre was the establishment of educational institutions for training clergymen, organising conferences and seminars and lecturing. To that end the Biblical Centre had the right to found institutions of professional religious education, spiritual educational institutions, including Sunday schools for youth and children, and to establish non-commercial organisations pursuing educational aims (paragraph 2.3 of the articles). 7. On 20 January 1996 the Biblical Centre founded the Middle Volga Biblical College and a Sunday school, which were not registered as legal entities. 8. The Sunday school did not have any organised structure as such. It was held once a week as a means of keeping the children of parishioners occupied while the adults attended the religious service. Parents took turns to spend time with the children, to read and discuss the Bible with them. The school was free of charge and did not employ any staff. 9. The Biblical College recruited students from religious organisations belonging into the same Pentecostal denomination but located in different regions of Russia. Students were trained as evangelical attendants, pastors, preachers, missionaries, Sunday school teachers, preceptors, biblical signers for the deaf, and youth leaders. The subjects taught at the College included theology (dogma), exegesis (interpretation of religious texts), homiletics (the study of preparation and delivery of sermons), apologetics (defence of the Christian faith), history of Christianity, basics of pedagogy, theory of music, memorisation, and others. Upon completion of a training course, students obtained a document, referred to as a “diploma”, which certified training in particular subjects. Education at the College was free of charge. 10. In April and May 2007 the Novocheboksarsk town prosecutor, together with the Novocheboksarsk Fire Inspection Service and the Consumer Protection Service, conducted an inspection of the applicant organisation’s premises with the declared aim of verifying its compliance with the requirements of the legislation on education, freedom of conscience and religious associations. The grounds for the inspection were not revealed. 11. On 2 May 2007 the town prosecutor requested the director of the Biblical Centre to provide, within two days, detailed information about the activities of the Sunday school and Biblical College, including a list of subjects taught and the names of the teachers and all students, both past and present. 12. On 10 May 2007 the State Fire Inspection Service issued a formal note establishing the following violations of fire safety regulations: (a) the windows of the premises were equipped with solid metal bars; (b) an automatic fire alarm with smoke detectors was not installed; (c) fire-safety signs were absent. 13. By letter of 11 May 2007, the Consumer Protection Service reported the following violations to the town prosecutor: (a) students were not provided with comfortable work stations adapted to their height, sight and hearing; rudimentary benches were used instead; (b) walls were covered with paper-based wallpaper which could not be wiped clean; (c) linoleum on the floor did not offer sufficient protection against the cold; (d) windows were decorated with flowers in pots; (e) doors in the toilets for children of both sexes did not have locks; there was no personal-hygiene room for girls; (f) the staff did not have a separate toilet; (g) descriptions of course content, methodical literature and timetables did not refer to hygienic requirements; (h) the delivery and composition of students’ meals had not been agreed upon with the Consumer Protection Service. 14. All the violations were established by reference to the State-approved hygienic standards binding on institutions of public education and vocational training. 15. On 28 May 2007 the town prosecutor instituted administrative proceedings against the director of the Biblical Centre for allowing the Centre to conduct educational activities without authorisation (a licence), an offence under Article 19.20 § 1 of the Code of Administrative Offences. On 10 July 2007 the Justice of the Peace of the 4th Court Circuit of Novocheboksarsk heard the charge and found the director guilty of that offence. The Justice found, in particular, as follows: “The Novocheboksarsk prosecutor’s office inspected [the Centre] and discovered that the educational process [there] follows a specific educational programme and class schedule and is carried out by staff teachers in exchange for pay. Students’ knowledge of subjects is evaluated on a five-point scale or with pass-fail marks; upon completion of a course students obtain a diploma ... These elements indicate that the Biblical Centre engages in educational activities which are not listed in its articles of association ... The Education Act (law no. 3266-I of 10 July 1992) defines education as the purposeful process of upbringing and learning in the interests of the individual, society and the State, accompanied by the confirmation of achievement of the educational levels established by the State ... Pursuant to section 17 § 1 of the Education Act, an educational institution acquires the right to conduct educational activities upon receipt of authorisation (a licence)... As the materials in the case file show, the Centre has no such licence ...” 16. The Justice rejected the director’s argument that the activities of the Centre fell outside the scope of the definition contained in the Education Act, holding that the definition “may not be used to describe educational activities that are carried out in breach of the Education Act”. The director was sentenced to pay a fine of 10,000 Russian roubles. 17. In his statement of appeal, the director pointed out that the Education Act established specific educational levels (basic and intermediate general education, basic, intermediate and higher professional education, and post-graduate professional education), none of which were mentioned in the Centre’s programmes or diplomas. The religious instruction and guidance of followers fell outside the scope of the Education Act and were not subject to any licensing requirements. 18. On 31 July 2007 the Novocheboksarsk Town Court upheld the Justice’s decision in a summary fashion, without addressing the director’s arguments in detail. 19. In concurrent proceedings, on 10 July 2007 the same Town Court found the applicant organisation liable for the administrative offence of violating sanitary rules and hygienic requirements in respect of all the points identified by the State Fire Inspection Service and the Consumer Protection Service. The Town Court issued a warning to the applicant organisation. 20. On 2 August 2007 the Supreme Court of the Chuvash Republic summarily rejected the applicant organisation’s statement of appeal, in which it maintained that the sanitary standards binding on State educational institutions were not applicable to the Sunday school and Biblical college. 21. On 28 May 2007 the Novocheboksarsk town prosecutor filed a claim for dissolution of the Biblical Centre. He rested his claim on the findings of the two inspections, as described above, and the allegation of illegality of the educational activities conducted at the Biblical College and Sunday school. In his submission, such activities “violated the right of an indeterminate group of people to receive education in conditions that guarantee security, improvement of health and counter the negative influence of unhealthy factors”. 22. In his comments on the prosecutor’s application, the director of the Biblical Centre submitted that the applicant organisation merely dispensed religious instruction to its followers and did not provide formal education. He invited the court to reject the application and pointed out that the court could issue a separate decision ordering the Biblical Centre to bring its activities into conformity with the requirements of the law. He indicated that, in response to the prosecutor’s claims, the Centre had promptly adopted the Rules on lecture- and seminar-based education, as a result of which it had eliminated the use of ambiguous terminology such as “college”, “diploma”, and others. 23. The town prosecutor participated in the hearing on 3 August 2007. Responding to questions from the director of the Biblical Centre, he admitted that the initial inspection had purported to uncover elements of extremism in the Centre’s activities and that he had filed a claim for dissolution because “it was within his competence”. 24. A representative of the Federal Registration Service, the entity in charge of the registration of religious organisations, took part in the proceedings as a third party. She stated that there were 270 registered religious organisations in the Chuvash Republic. When asked by counsel whether those organisations had licences for their Sunday schools, she replied that the majority of them were Orthodox parishes which were entitled to carry out such activities under the provisions of the “standard Orthodox statute”. 25. On 3 August 2007 the Supreme Court ordered the dissolution of the applicant organisation and its removal from the State Register of Legal Entities. Having examined documents from the archive of the Middle Volga Biblical College, it acknowledged that some of the College’s activities had been one-time seminars and conferences to which the licensing requirement did not apply. However, the organisational chart of the Biblical College, the class schedule, work contracts with teachers, lists of students and diplomas issued to them were held by the Supreme Court to be evidence of ongoing educational activities in the College for which it should have obtained authorisation (a licence). Neither the Biblical Centre nor the Biblical College were registered as an educational institution, nor had they obtained a licence for conducting educational activities. Accordingly, they had acted in breach of the requirements of section 33 of the Education Act and section 19 of the Religions Act. 26. With regard to the Sunday school, the Supreme Court found that the contents and nature of religious education dispensed to children may be determined by the religious organisation providing it. Nevertheless, the material conditions of religious education should be compatible with sanitary and hygienic standards and other requirements applicable to educational institutions. The Supreme Court held that the above-mentioned judgments of 10 and 31 July 2007, which had acquired the force of res judicata, were sufficient proof of both the fact that the Biblical College dispensed education without the required licence, and the fact that the conditions in which students were educated at the Sunday school and the Biblical College fell short of the sanitary standards. 27. The Supreme Court held that the educational activities conducted by the applicant organisation without a licence amounted to a “gross and repeated violation” of the requirements of the Education Act and Religions Act and ordered its dissolution on the basis of Article 61 § 2 of the Civil Code and section 14 § 1 of the Religions Act. 28. On 16 October 2007 the Supreme Court of the Russian Federation, sitting as a three-judge panel composed of Judges Kn. (President), P. and B., dismissed the applicant organisation’s appeal against the dissolution decision, rejecting its arguments in a summary fashion.
| 1 |
test
|
001-179869
|
ENG
|
BGR
|
CHAMBER
| 2,018 |
CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA (No. 3)
| 4 |
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)
|
André Potocki;Angelika Nußberger;Erik Møse;Rousseva;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
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6. The background to the refusal to register Ilinden at issue in this case has been set out in detail in the judgments in the following cases: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, ECHR 2001-IX; United Macedonian Organisation Ilinden and Ivanov v. Bulgaria, no. 44079/98, 20 October 2005; United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria, no. 59489/00, 20 October 2005; Ivanov and Others v. Bulgaria, no. 46336/99, 24 November 2005; United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, 19 January 2006; United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 2), no. 37586/04, 18 October 2011; United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no. 34960/04, 18 October 2011; Singartiyski and Others v. Bulgaria, no. 48284/07, 18 October 2011; and United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, 18 October 2011. 7. On 27 September 2010 Ilinden’s board of management applied to the Blagoevgrad Regional Court for it to be registered as an association. On 3 February 2012 the Blagoevgrad Regional Court refused the application, and on 23 April 2012 its decision was upheld by the Sofia Court of Appeal. A detailed account of those proceedings may be found in Yordan Ivanov and Others v. Bulgaria (no. 70502/13, §§ 8-18, 11 January 2018). 8. On 23 March 2014 the second and third applicants and seven other people held a meeting at which they resolved to set up Ilinden as an association. They defined Ilinden’s aims and the means that it would use to attain them, adopted its articles of association, and elected its board of management, which consisted of all nine of them. 9. Shortly after that, Ilinden’s board of management applied to the Blagoevgrad Regional Court for it to be registered as an association. 10. In a decision of 30 June 2014 (реш. № 2768 от 30.06.2014 г. по ф. д. № 36/2014 г., БОС) the Blagoevgrad Regional Court refused the application. It first observed that even though Ilinden had declared that it intended to be an association which only served the interests of its members, its aims, as set out in its articles of association, showed that in reality it meant to serve broader public interests (see paragraph 23 below). The court went on to note that Ilinden’s articles of association stated that it would strive for, inter alia, the introduction of the Macedonian language in schools, the protection of the right of Macedonians to refute propaganda about their history and culture, and the protection of Macedonian cultural heritage, which was being “subjected to ethnocide by Bulgarian cultural institutions”. The articles of association also stated that Ilinden would organise seminars and press conferences to expose the reasons which underlay the “policy of forced assimilation and discrimination of, and xenophobia towards, Macedonians in Bulgaria”. According to the articles of association, Ilinden was a “Macedonian organisation based on a Macedonian ethnic foundation and origin within the boundaries of Bulgaria”, and it “would remind [people] of the terror perpetrated by Bulgaria, of the thousands of Macedonians killed, of the violence, the prisons and the deprivation of basic human rights and freedoms of Macedonians after 1913, which amounted to crimes under international law”. For the court, all those statements gave the impression that Ilinden intended to stir up national and ethnic hatred, contrary to Article 44 § 2 of the Constitution (see paragraph 21 below). Moreover, the statements, combined with the existence, albeit brief, of a political party called the United Macedonian Organisation Ilinden-PIRIN, whose re-registration had recently been refused, and with the existence of organisations bearing the same or similar names, led to the conclusion that the intention was to mislead society and to obtain the registration of an organisation pursuing political aims (see paragraphs 18-20 below), or an organisation directed against the unity of the nation. This was also contrary to section 7(2) of the Non-Profit Legal Persons Act 2000 (see paragraph 24 below), which barred associations from having misleading names. Lastly, the association’s intended name was not unique, as required by law. 11. Ilinden’s founders appealed. They submitted that the court had misconstrued Ilinden’s articles of association and had erred in finding that its activities would be political or directed against the unity of the nation. The real reason for the refusal to register Ilinden had been that it advocated views which were at odds with the official ones. 12. In a decision of 18 November 2015 (реш. № 2272 от 18.11.2015 г. по ф. д. № 2968/2014 г., САС, ТО) a three-member panel of the Sofia Court of Appeal upheld the refusal to register Ilinden by two votes to one. 13. The court began by saying that when assessing the aims of an association seeking registration, it had to base itself chiefly on the articles of association. But since by law in registration proceedings the court had to examine the reality of the matter rather than carry out a mere formal check, it had to have regard not just to the aims set out in the articles of association, but to the entirety of the articles, and on that basis ascertain the founders’ real aims and intentions. The court also had to bear in mind the traditions which the association purported to represent and the historical figures with which it identified, the past activities, if known, of its founders, leaders and supporters, as well as the positions they had advocated. All those elements had to be juxtaposed with the aims set out in the articles of association, with a view to verifying whether those aims were not in effect a cover for other aims. In doing so, and thus balancing the rights of the founders of the association against the rights of others and the public interest, the court could rely not only on the material in the case file but also on facts which were publicly known and of which it could therefore take judicial notice. 14. In Ilinden’s case, it had been common knowledge, sufficiently publicised in both Bulgarian and foreign media, that since 1990 some of its founders, leaders and supporters had in a persistent manner openly challenged both those who had opposed their views and the State authorities, which had led to a string of breaches of public order – clashes between Ilinden’s supporters and their opponents on account of the views expressed by the former about Macedonian history – reported in the media. Seen against that background, the declaration in Ilinden’s articles of association that people of any ethnicity could become members did not reflect the reality of the situation, which was that the organisation had been conceived as one based purely on Macedonian ethnicity. The same went for the declaration in the articles of association that Ilinden would only resort to peaceful means to achieve its aims. This had been belied by the organisation’s record of provoking its opponents and the State authorities by making strongly worded statements about violence against Macedonians such statements had featured in its articles of association as well which had led to real public clashes. The court had to also take into account the complex ethnic and religious situation in some neighbouring countries, as well as the severe migrant crisis affecting all of Europe and Bulgaria in particular, as a front-line State of the European Union. That crisis, coupled with the “recent, likewise commonly known, tragic events in Central European countries”, showed a categorical need to mobilise all available State and social resources. 15. In those circumstances, the application to register Ilinden had to be turned down for two reasons. Firstly, the pursuit of its real aims, seen against the backdrop of the heightened sensitivities of the population in Pirin Macedonia, where it was based, could have led to serious tensions and breaches of public order caused by, or involving, supporters of the organisation, as had happened in the past. In the tense situation facing Bulgaria and its neighbouring States, that had to be seen as a genuine possibility. Secondly, the realisation of Ilinden’s right to freedom of association would infringe the rights of all Bulgarians who did not support its aims or the means which it intended to use to attain those aims. All were entitled to believe that they were not citizens of a State which had committed international crimes, that they did not engage, in their capacity as Bulgarian citizens, in propaganda and manipulation of the history and culture of a neighbouring country and that they were not citizens of a State whose institutions had subjected the cultural heritage of part of its population to ethnocide. The Sofia Court of Appeal concluded that it was necessary to refuse the registration application, even though it recognised that it was also possible to dissolve an already registered association if it engaged in anti-constitutional or unlawful conduct. The refusal was a justified preventive measure. 16. The dissenting judge noted that Ilinden’s founders had complied with all formal requirements of the law. She went on to say that the registration regime was not to be used to hinder the exercise of the fundamental right to associate with others, and that the case called for the direct application of Article 11 of the Convention, which was part of Bulgarian law. She then noted how that Article had been construed by the European Court of Human Rights in several cases, including United Macedonian Organisation Ilinden-PIRIN and Others and United Macedonian Organisation Ilinden and Others (both cited above), and stated that, in her view, the fact that an association advocated a form of minority consciousness could not justify a restriction of its rights under that Article. The Court’s ruling on that point in Stankov and the United Macedonian Organisation Ilinden (cited above) had to be taken into account when examining the registration request at issue. There was, moreover, no evidence of actions by Ilinden’s founders which ran counter to the prohibition in Article 44 § 2 of the Constitution (see paragraph 21 below). The refusal to register it was thus disproportionate and unjustified. 17. Ilinden’s founders sought to appeal on points of law. On 22 February 2016 the judge-rapporteur of the Sofia Court of Appeal, who under the relevant rules of procedure had to check the appeal’s admissibility before forwarding it to the Supreme Court of Cassation, sent it back to the appellants. He noted that under the applicable rules of procedure, as consistently construed by the Supreme Court of Cassation, no appeal lay against appellate decisions confirming refusals to register an association. In a final decision of 15 July 2016 (опр. № 317 от 15.07.2016 г. по ч. т. д. № 1062/2016 г., ВКС, I т. о.) the Supreme Court of Cassation dismissed the founders’ appeal against the judge-rapporteur’s order. It likewise found that under the applicable rules of procedure, which it had already construed in several cases, the Sofia Court of Appeal’s decision was not amenable to appeal.
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test
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001-167560
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ENG
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UKR
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COMMITTEE
| 2,016 |
CASE OF RUSYN v. UKRAINE
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
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Erik Møse;Mārtiņš Mits;Yonko Grozev
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5. The applicant was born in 1981 and lives in Lviv. 6. On 29 January 2007 the applicant was arrested on suspicion of murder. 7. On 1 February 2007 the Lviv Shevchenkivskyy District Court (the Shevchenkivskyy Court) ordered his detention as a preventive measure pending trial, for an initial period of two months. 8. On 28 March 2007 the same court extended the applicant’s pre-trial detention for two more months on the ground that there was a considerable volume of investigative measures to be carried out and there were no reasons for changing the preventive measure. 9. On 29 May 2007 the investigation was completed and the applicant and his lawyer received access to the case file. 10. On 6 July 2007 another set of criminal proceedings was instituted against the applicant, for infliction of grievous bodily harm. 11. On 10 July 2007 the two criminal cases were joined. 12. On the same day the Lviv Regional Court of Appeal (the Court of Appeal) extended the applicant’s pre-trial detention to six months. 13. On 27 July 2007 the case was referred to the Shevchenkivskyy Court, which held a preliminary hearing on 31 August 2007. It ordered the applicant’s further detention without fixing any time-limits. 14. The Shevchenkivskyy Court remitted the case for further investigation three times (on 8 October 2007, as well as on 19 May and 18 November 2008). The appellate court quashed the first two decisions (on 18 December 2007 and 26 August 2008), but upheld the last one (on 27 March 2009). All the judicial rulings in question maintained the applicant’s continued detention without further reasoning. 15. On 14 May 2009 the investigation was completed and the case was referred for trial, this time to the Court of Appeal as a first-instance court. 16. On 27 May 2009 the Court of Appeal held a preliminary hearing, at which it decided, among other things, to remit the case for further investigation once again and to maintain the applicant’s detention. 17. On 4 August 2009 the Supreme Court quashed the above decision in so far as it concerned the remittal issue and rejected the applicant’s request for release on the ground that he was accused of serious crimes. 18. On 15 June 2010 the Court of Appeal found the applicant guilty of murder and attempted murder and sentenced him to thirteen years’ imprisonment. 19. On 22 February 2011 the Supreme Court upheld that judgment. 20. On 29 January 2016 the applicant was released following the legislative amendments pertaining to the enforcement of sentences.
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