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test
|
001-183337
|
ENG
|
BIH
|
COMMITTEE
| 2,018 |
CASE OF ROMAN CATHOLIC ARCHDIOCESE OF VRHBOSNA v. BOSNIA AND HERZEGOVINA
| 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)
|
Carlo Ranzoni
|
4. The applicant is a Roman Catholic community in Bosnia and Herzegovina, based in Sarajevo. 5. By decision of 9 May 2003, which became final and binding on 4 September 2003, the Human Rights Chamber for Bosnia and Herzegovina (“the Chamber”) found that the Federation of Bosnia and Herzegovina (an entity of Bosnia and Herzegovina) had discriminated against the applicant in its enjoyment of the right to freedom of religion guaranteed by Article 9 of the Convention. In order to remedy the situation it ordered the Federation of Bosnia and Herzegovina to ensure the relocation of public schools housed in the Archdiocese High School building in Travnik, and to reinstate the applicant in the premises within one year. The Chamber rejected a request by the applicant for pecuniary and non-pecuniary damages. 6. By an agreement of 21 May 2004, the Federation of Bosnia and Herzegovina undertook to reinstate the applicant in the impugned premises by 1 July 2006. Shortly thereafter, the Travnik Municipal Council adopted the implementing decisions, and also one of the public schools was moved from the premises. 7. On 23 June 2010 the Travnik Municipal Council issued a writ of execution (rješenje o izvršenju). On 5 October 2011 the Travnik Cantonal Court quashed that decision and remitted the case for reconsideration. On 17 October 2011 the Travnik Municipal Court held that it lacked jurisdiction to deal with the case. On 16 May 2012 the Travnik Cantonal Court quashed that decision and remitted the case for reconsideration. On 3 July 2012 the Travnik Municipal Court held that the decisions of the Chamber were not subject to enforcement proceedings. On 12 July 2012 the applicant lodged an appeal against that decision. At the date of the latest information available to the Court (28 August 2017), the Travnik Cantonal Court had not yet ruled on the matter. 8. On 30 October 2012 the Constitutional Court of Bosnia and Herzegovina determined that the Federation of Bosnia and Herzegovina had not yet fully enforced the decision of 9 May 2003. 9. On 17 February 2017 the applicant initiated civil proceedings against the public school remaining in its premises, requesting its relocation, as well as damages for the use of the premises for the period between 1 February 2014 and 1 June 2017. 10. On 14 July 2017 the Municipal Court in Travnik rendered a judgment in the applicant’s favour, rewarding in full its claims finally specified in the proceedings, namely 270,360 convertible marks (BAM) for pecuniary damages and 6,713 BAM for costs and expenses. The Municipal Court also ordered the respondent to vacate the applicant’s premises within 30 days from receiving the judgment. On 20 December 2017 the Cantonal Court in Novi Travnik upheld the judgment of the first-instance court. At the date of the latest information available to the Court (20 February 2018), the Central Bosnia Canton submitted a revision petition to the Supreme Court of the Federation of Bosnia and Herzegovina against the final judgment in these proceedings. It also appears that the public school has still not been relocated.
| 1 |
test
|
001-163462
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,016 |
RYMSKO-KATOLYTSKA GROMADA SVYATOGO KLYMENTIYA V MISTI SEVASTOPOLI v. UKRAINE
| 4 |
Inadmissible
|
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
1. The applicant association, Rymsko-Katolytska Gromada Svyatogo Klymentiya v Misti Sevastopoli (Римсько-Католицька громада Святого Климента в місті Севастополі), is part of the OdesaSimferopil Eparchy of the Roman Catholic Church and belongs to the Crimean Deanery (Decanat). It was registered as a religious organisation on 5 January 1995. It is currently composed of about 400 parishioners of various nationalities, residents of Sevastopol and the surrounding area, and was headed by a prior of the parish Mr Yuriy Ziminsky and vicar Jan Biletsky. The applicant association operates a Sunday school. It was represented by Mr I.F. Tkach, a lawyer practising in Sevastopol. 2. The Ukrainian Government (“the Government”) were represented, most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The Roman Catholic community in Sevastopol was founded in 1876 and consisted of about 4,500 members. After receiving permission from the authorities and approval from the Russian Emperor on 13 May 1904, the community built a Catholic church (костьол), which was named after Saint Clement (Собор Святого Климента). The construction of this church was financed by the Catholic community in Sevastopol, was authorised in 1900 and completed in 1911. The church was owned and managed by the community until early 1936, after the arrest of the prior of the community by the People’s Commissariat of Internal Affairs (НКВС) on 26 December 1935. A formal decision on “liquidation of the Catholic church” or dissolution of the Catholic religious community had been taken by the Presidium of the Sevastopol City Council and subsequently by the Central Executive Committee of Crimea in 1936 as the religious community had insufficient membership. 5. In late 1936 the Sevastopol City Council of Deputies decided to transfer the church building to the Sevastopol electricity company Transelectro for use as an electricity substation (трансформаторна підстанція). 6. The premises were partially damaged in the Second World War and then rebuilt in 1958-1960 using the foundations and walls of the old church, which had largely remained undamaged, at the expense of the City Council. In accordance with a redevelopment project in 1958 they were to be used as a cinema for 300-360 persons, with a screen measuring 11.5 metres. However, the existing architectural constructions had to be retained to the maximum possible extent. According to the architectural plans, the cathedral premises had to be rebuilt in such a way as not to reflect their religious origin and also in order to provide office premises for the Department of Cinemas of the City Council. The rebuilding also led to the destruction of the bell-tower, the internal reorganisation of the premises and the addition of an entrance hall for the cinema. After reconstruction, as from 1960, the premises were used as a cinema, which was eventually transformed into the “Druzhba” cinema for children. The lower part of the cathedral’s altar was transformed into a public toilet. The premises were also used to house a currency exchange bureau. The applicant association conducts religious ceremonies during the religious holidays near the entrance to the church, as it does not have permission to use it. It also conducts religious ceremonies at a rented apartment close to the premises in question. 7. On 1 July 1998 the First Deputy Chairman of the Sevastopol City State Administration provided the Cabinet of Ministers with a list of religious premises which had previously been nationalised and could be transferred to religious communities for permanent use. The church was included on the list of such premises, provided that funds be made available for the construction of a children’s cinema. 8. On 16 June 1998 the applicant association requested the Sevastopol City State Administration to transfer to it title to the premises of the former Catholic Church. On 26 June 1998 the Administration referred the applicant association’s request to the Sevastopol City Council (hereinafter – “the Council”) for a decision. 9. On 26 August 1998 the Department of Religions of the Sevastopol State Administration, acting on the basis of a resolution of 7 May 1998 of the Cabinet of Ministers authorising the transfer of religious premises to religious communities, included the former Catholic church building in the list of premises that were to be transferred to the applicant association, the only Catholic religious community in Sevastopol. The transfer was to take place on condition that a new children’s cinema was built by certain State authorities. 10. On 24 December 1998 the Sevastopol City Council, by decision no. 139, came to the conclusion that the transfer of the premises for use by the applicant association was “not advisable”. The applicant association sought to institute restitution proceedings before various judicial and administrative authorities. These proceedings are described below (see paragraphs 12-23 below). 11. On 7 April 1999 the Sevastopol City Department of Property issued order no. 100 requiring the city authorities to include the cinema in the register of State communal property. Following that, on 7 September 1999, the Sevastopol City State Administration rejected the applicant association’s request for transfer of the premises for its use, based on the provisions of Section 17 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991 (see paragraph 29 below). 12. On 24 March 1999 the applicant association instituted proceedings against the Sevastopol City Council before the Sevastopol City Court seeking to quash Council decision no. 139 of 24 December 1998. It also sought to obtain title to the premises, referring to Section 17 of the Act. 13. On 21 April 1999 the Sevastopol City Court rejected the applicant association’s claim, holding that it was not competent to hear a dispute between two legal entities as to title over property. On 4 May 1999 the applicant association appealed against that judgment to the Supreme Court. 14. On 9 June 1999 the Supreme Court quashed the judgment of 21 April 1999 and terminated the proceedings. In particular, it held that disputes between legal entities (in this case the applicant association and the Council), except in certain specified circumstances, were subject to examination by the State arbitration courts. The Supreme Court held that the applicant association was a religious community and had become a legal entity as from the moment of its registration on 5 January 1995. The claims had been lodged against the Sevastopol City State Administration and the Sevastopol City Council, which were also legal entities. The court ruled that the applicant association had to institute proceedings before the commercial (former arbitration) courts as the courts of general jurisdiction were, according to the court, not competent to deal with the matter. 15. In November 1999 the applicant association instituted proceedings in the Sevastopol City Court seeking the invalidation of the decision of the Sevastopol City State Administration of 7 September 1999 rejecting its request for transfer of the premises (see paragraph 11 above). 16. On 12 November 1999 the Sevastopol City Court refused to examine the applicant association’s request as it fell outside its jurisdiction. The court stated that the dispute related not to the decision of 7 September 1999, but to a controversy over the right to own particular premises between two legal entities, and had therefore to be examined by the commercial (former arbitration) courts. 17. On 22 December 1999 the Supreme Court quashed that ruling and remitted the case to the same court for fresh examination. In particular, it ruled that the issue under examination did not just concern a dispute between two legal entities as to the ownership of premises. The court stated that the applicant association’s claims concerned restitution of a religious building and thus had to be examined on their merits, in accordance with the provisions of Article 248-11 of the Code of Civil Procedure. 18. On 25 February 2000 the Sevastopol City Court rejected the applicant association’s request to transfer the title to premises to it and allow it their use. Without referring to any specific legal provision, it considered that the premises were not owned or administered by the Sevastopol City State Administration, but were “communal property” administered by the City Council according to the Local Government Act. The court also rejected the applicant association’s arguments that the original Catholic cathedral building had been constructed by the Roman Catholic religious community of Sevastopol and confiscated by the State authorities in 1936. It ruled that these claims concerned title to the premises, which had become “communal property” and the transfer of the premises into “communal property” was not challenged by the applicant. It established, having reviewed the evidence before it, that the cathedral had been damaged during the Second World War, rebuilt afterwards in 1960, and had been used as a cinema ever since. The court referred to Articles 15 (adversarial nature of proceedings), 30 (burden of proof), 62 (evaluation of evidence) and 248 (decisions with regard to administrative offences) of the Code of Civil Procedure, and in general terms to the Freedom of Consciousness and Religious Organisations Act (“the Act”), without referring to specific provisions of that law. 19. The applicant association appealed in cassation. It challenged inter alia the first instance court’s failure to apply the law that was applicable to the proceedings in the present case (Section 17 of the Act) and its erroneous application of legal provisions which were of no relevance to the legal relations at issue. In particular, the applicant association stated that: - the courts had not examined its complaints as to the lawfulness of the refusal of the Sevastopol City State Administration to transfer the religious premises at issue into its ownership and use; - the first instance court had established that the premises at issue were “communal property”, administered by the Sevastopol City Council, even though the proceedings concerned property owned by the State; - the property at issue had been unlawfully confiscated from a Roman Catholic religious community in Sevastopol and the State had undertaken to return this property back; - the “communal status of property” and the association’s failure to challenge transfer of property into “communal administration” were irrelevant to the determination of whether nationalised religious property should be returned or not. 20. On 17 May 2000 the Supreme Court examined the applicant’s appeal in cassation and upheld the ruling of 25 February 2000, finding no grounds for quashing it. In particular, it held that the premises had become communal property on 7 April 1999 and thus the Sevastopol City Council was the competent body to transfer title to property owned by it. Therefore, it was only within the competence of the Sevastopol City Council to decide and order return of such premises. It further stated that the first-instance court had lawfully refused to examine complaints about the right to claim property restitution as such complaints were to be examined in a different procedure. The court referred in its reasoning to the Local Self-Government Act and Articles 310 and 312 of the Code of Civil Procedure. 21. In September 2000 the applicant association instituted new proceedings before the Sevastopol City Arbitration Court, seeking a declaration that order no. 100 issued on 7 April 1999 was null and void. On 21 September 2000 the court, referring to the judgment of 25 February 2000 as being res judicata, ruled that the applicant association’s complaints were unsubstantiated. 22. On 13 December 2000 the First Deputy President of the Sevastopol City Arbitration Court upheld the judgment of 21 September 2000 in supervisory-review proceedings. In particular, it held that the applicant community had not raised any claims concerning the return of property to it before the first-instance court, and that the claims as to the unlawfulness of order no. 100 were unsubstantiated. 23. On 24 April 2001 the division responsible for review of decisions, rulings and resolutions of the Higher Arbitration Court examined the applicant association’s request for supervisory review of the aforementioned arbitration-court decisions and ruled that they were lawful and substantiated. It found that the premises at issue were communal property, had been damaged during Second World War and rebuilt in 1960s. The court also cited the findings made in the judgment of the Sevastopol City Court of 25 February 2000 as to the origin of the premises at issue. 24. From April 2001 the applicant association made repeated requests, both separately and jointly with religious groups of other denominations, for the transfer of the premises for use for religious purposes. In particular, they claimed that other larger religious denominations had received premises whereas their requests had been unsuccessful. These requests were heard by the Sevastopol City Council, at the request of the Sevastopol City State Administration, on 10 February 2004 and 10 November 2005. However, according to a letter from the Chairman of the Sevastopol City State Administration of 13 January 2006, a proposal by the City Administration to permit the use of the premises by the Catholic religious community of Sevastopol was not supported by the majority of the members of the City Council and so was not adopted. 25. On 30 September 2004 the then Prime Minister of Ukraine, Mr Yanukovych, instructed the Chairman of the Sevastopol City State Administration to organise, in cooperation with the City Council, the transfer of the premises to the applicant association. 26. On 24 January 2006 the Chairman of the Sevastopol City Council informed the applicant association that the cinema was part of a communal enterprise known as Kinoobyednannia “Kinosvit” (Кінооб’єднання “Кіносвіт”). He also stated that a transfer of the cinema for use by the religious community would be contrary to Article 21 of the Foundations of Legislation on Culture, so that there was no further need for the Sevastopol City Council to review the issue anew. 27. The most recent refusals to examine the issue of transfer of premises to the religious community date from August and September 2011. It appears from information in the case file, provided by the applicant association that the premises, which were cultural and historical monuments, were not being used as a cinema due to the poor state of the building and the need for significant renovation works. 28. The relevant domestic law and practice with regard to the activities of religious associations is summarised in Svyato-Mykhaylivska Parafiya v. Ukraine (no. 77703/01, 14 June 2007), and Tserkva Sela Sosulivka v. Ukraine (no. 37878/02, §§ 21-32, 28 February 2008). Other relevant domestic regulations and administrative and judicial practice are briefly summarised below. 29. Under section 17 § 2 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991, the State undertook to transfer title to or possession of religious premises and property belonging to the State to religious organisations. The transfer of property had to be done free of charges, on the basis of decisions of the Kyiv and Sevastopol City State Administrations, regional administrations or the Government of the Crimea. 30. The relevant extracts from the text of section 17 of the Act (in force at the material time) read as follows: “Religious organisations shall be entitled to use buildings and property placed at their disposal by the State, by organisations and by private individuals, on a contractual basis. Religious buildings and property which constitute State-owned property shall be transferred by the organisations administering them to the religious associations for their unpaid use or shall be returned into their ownership without payment, in accordance with decisions by the regional, Kyiv and Sevastopol City State Administrations, and in the Republic of the Crimea, by the Government of the Republic of the Crimea ... ... Religious buildings and other property of historical, artistic and other cultural value shall be transferred into the use of the religious organisations and shall be used by them in compliance with the rules on protection and use of historical and cultural monuments ... ... Requests made by religious organisations for transfer of religious buildings and property into ownership or unpaid use shall be considered within a period of one month, and information in writing sent to the petitioners. ... Decisions by the State bodies with regard to ownership or use of religious buildings and property may be appealed against to a court in compliance with the procedure envisaged by the Code of Civil Procedure ...” 31. The relevant extracts from the Resolution of the Verkhovna Rada (Parliament) of Ukraine “On the Procedure for Entry into Force of the Freedom of Conscience and Religious Organisations Act”, as amended on 23 December 1993, read as follows: “... 6. The Cabinet of Ministers of Ukraine, the Government of the Crimea and the regional, Kyiv and Sevastopol State Administrations shall ensure in accordance with the Act the return to the ownership of or free use of religious buildings and property by religious groups, taking into account the following: - the rights of the religious organisations which owned these buildings and property when they were nationalised; - the rights of the religious organisations which use these buildings and property in accordance with the procedure established by law; - investments made by the religious organisations in the property, rebuilding of the religious premises and length of use of such premises; - existence in the same residential area of other religious premises and their use by other religious organisations ...; - other important matters in their entirety. The decision of the relevant State body shall be reasoned ...” 32. Under the Presidential Decree of 4 March 1992 “On Measures Relating to the Return of Religious Property to Religious Organisations” it was established that all religious premises and property owned by the State and used “contrary to their mission” should be returned to the religious associations within the period 1992-1993. This period was further extended until 1 December 1997 by a Presidential Executive Order of 22 June 1994. On 21 March 2002 the President issued another decree “On Urgent Measures Relating to the Final Overcoming of the Negative Impact of the Totalitarian Policy of the Former Soviet Union with regard to Religion and on Restoration of the Breached Rights of Churches and Religious Organisations”, in which he recommended that regional bodies of local selfgovernment finalise the transfer of church premises that were being used “contrary to their designation”, and other buildings, to religious organisations. 33. Resolution No. 83 of the Cabinet of Ministers of Ukraine of 5 April 1991 (in force until 5 February 2002) “On the List of Historical Architectural Monuments which shall not be subject to Transfer to Permanent Use by Religious Organisations”, provided that the following cathedrals in Sevastopol were not to be returned to religious organisations: Volodymyrsky Cathedral (XIX century), Petropavlivsky Cathedral and Mykhaylivsky Cathedral (XIX century). 34. By Resolution No. 137 “On the Conditions of Transfer of Religious Premises which are Architectural Monuments to Religious Organisations” , adopted on 14 February 2002 by the Cabinet of Ministers, it was decided that such religious premises could be given to religious organisations for permanent use if the relevant educational institutions, archives or cultural institutions were moved to other premises. 35. On 14 July 1997 the Constitutional Court rejected a request for interpretation of section 17 § 3 of the Act, stating, inter alia, that complaints concerning the use of religious buildings and property were to be examined by courts of general jurisdiction. It also referred to the recommendations of the Presidium of the Higher Commercial (former Arbitration) Court in that regard. 36. On 21 October 1997 the Constitutional Court rejected a request for interpretation of the provisions of section 17 § 2 of the Act, lodged by the Greek-Catholic community “Preobrazhenska”, finding, inter alia, that there was no proof of inconsistent application of its provisions by the domestic courts. 37. According to paragraph 7 of the Practice Recommendation, the religious premises and property that belonged to State property were to be transferred into unpaid use or ownership of the religious organisations on the basis of the decisions taken by the regional, Kyiv and Sevastopol city state administrations and the Government of Crimea. The above-mentioned authorities were under an obligation to return such property, not used for religious purposes, within a period from 1992-1993. The return of property included transfer into unpaid use or ownership. The property could be returned to religious associations, which proved that they had owned the property before nationalisation. Thus, the Recommendation, with reference to Presidential Decree of 22 June 1996, mentioned that the transfer of ownership of the religious premises was one of the measures envisaged by law. Moreover, religious premises or property could be transferred to another religious association if there was no “legal successor” (правонаступник) religious association found in the vicinity where the religious premises or property were situated. 38. Paragraph 9.3 of the Practice Recommendation provided that property was to be returned to the same religious confessions which had owned the religious buildings before nationalization (orthodox church to be returned to orthodox community, Roman-Catholic church to RomanCatholic community, etc.). Information or written evidence as to the previous ownership of religious premises was to be sought from the parties, State archives, or State Religions Committee (paragraph 9.4 of the Recommendation). Claims for the return of religious premises to their original ownership could be lodged under the provisions of the Property Act with the commercial courts, and the lodging of complaints with the courts of general jurisdiction did not impede the examination of such claims (paragraphs 9.4-9.6 of the Recommendation). 39. Paragraph 9.8 of the Practice Recommendation stated that all property belonging to religious organisations before the entry into force of the Act was deemed to belong to the State and the State was to be regarded as the proper owner of such property. In particular, this ensued from the provisions of Article 366 of the Administrative Code of the Ukrainian Soviet Socialist Republic of 1927. Therefore, in accordance with section 4 of the Property Act, State bodies, which are mentioned in Section 17 of the law, could perform any lawful acts with respect to such property and the courts were to reject any claims against such lawful acts, unless these acts contravened the law. 40. The applicant association submitted two decisions of the Sevastopol City Council dated 29 December 1999 and 4 July 2006, by which title to former religious premises that were in communal ownership and used for cultural purposes had been transferred to Christian Orthodox communities in Sevastopol. By the decision of 29 December 1999 the Sevastopol City State Administration transferred title to the religious premises of the former St. Peter and Paul Cathedral, which had been used by the City Palace of Culture, to the Ukrainian Orthodox Church of the Moscow Patriarchate. According to the decision of 4 July 2006, the Sevastopol Centre of Culture and Arts was to be moved to different premises. 41. Article 2 of the 1991 Property Act (repealed by the Act of 27 April 2007), hereafter – the Property Act, established three forms of property ownership in Ukraine, which included private, collective and State property, with all three forms receiving equal protection from the State. Article 31 of the Property Act provides that the State property includes the State property itself and the property of administrative-territorial units (municipal or communal property). According to Article 32 of the Property Act, the subjects of the State property administration were the Verkhovna Rada of Ukraine (in relation to national property) and regional, district, town and village councils (in relation to communal property). Under Article 33 of the Property Act the Verkhovna Rada of Ukraine and the local council were responsible for administration of State property. Article 35 of the Property Act provides that communal property consisted of inter alia property necessary for ensuring economic and social development of a particular territory. 42. Paragraphs 3-5 of Article 16 of the Local Self-Government Act, in line with Article 142 of the Constitution of Ukraine, provide that the bodies of local self-government that represent local territorial communities, including the regional councils, shall be responsible for administration of “communal property”. 43. According to paragraphs 1-3 of the Cabinet of Ministers Resolution No. 311 of 5 November 1991 “On Separation of State Property of Ukraine into State-owned (Republican) Property and Property of the Administrative-territorial entities”, the “cultural property” had to be transferred into communal property and administered by the local territorial community of Sevastopol from the State property. 44. According to Article 248-11 of the Code, the courts had jurisdiction to hear complaints concerning decisions of State bodies with regard to the registration of religious associations and the ownership and use of religious property. Under Article 248-12 such complaints were to be lodged with the regional courts, the Kyiv and Sevastopol City Courts and, exceptionally, with the Supreme Court if the complaint concerned the State Religions Committee. A complaint could be lodged within a period of a month from the date of the decision. According to Article 248-13 of the Code, the complaint had to be examined within a period of ten days, if necessary with the participation of the complainant and the respondent State body. Under Article 248-13 of the Code, the court could order the State body to rectify its previous decisions so as to ensure that they complied with the law. The courts were to reject the claims if the State bodies’ decisions were lawful. 45. In accordance with Article 1 of the Code of Arbitration Procedure, in force at the material time, that is to say, before 21 June 2001, legal entities and private entrepreneurs engaged in business activities were entitled to apply to the arbitration courts, in accordance with the relevant jurisdictional rules, for the protection of their legal rights and interests. 46. Article 14 of the Code established that the Higher Arbitration Court had jurisdiction over complaints against the Regional State Administrations. In accordance with the rules on exclusive jurisdiction, under Article 16 of the Code cases concerning the enjoyment of possessions were to be examined in the arbitration court with jurisdiction for the area in which the property was situated. Under Article 17 of the Code, the court which had been wrongly seised was required to transfer the case file to another court that had jurisdiction in the case.
| 0 |
test
|
001-182215
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF LIU v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
4. The applicant was born in 1968 and lives in Sovetskaya Gavan, Khabarovsk Region. 5. On 22 October 2009 the applicant was arrested and brought to the Khabarovsk Administrative Detention Centre where he stayed until 27 November 2009. 6. Since 22 October 2009 he had been detained with more than 12 inmates in the cell no. 9 designed for 12 persons and had to take turns to sleep. A month after he had been transferred to another cell with the area of 6 square meters which he had shared with another inmate. 7. The detention centre had no shower facilities or a place for outdoor walks. The applicant’s cell was cold and damp, iron banks were not covered by mattresses. Toilets were not separated from the living area, and the persons using them were in full view of others. Food supply was inadequate, the applicant was served meals only once a day and had no drinking water from within the cell. 8. The Government submitted that the Khabarovsk Administrative Detention Centre comprised two cells: no. 5 with the area of 14.6 square meters for 3 inmates and no. 6 with the area of 18 square meters for 4 inmates. There was no overcrowding; the toilet had been separate by a shoulder length fence. The detainees may take a shower once a week. The temperature was 23oC, there were kettles with boiled water in the cells. 9. On 26 October 2009 the applicant’s wife, Mrs Liu, sought to visit the applicant but was refused. 10. On 6 and 10 November 2009 the applicant’s wife filed complaints with the Khabarovsk Prosecutor’s Office stating that she had not been allowed to see the applicant. 11. In August 2010 the applicant brought a civil claim for compensation in respect of non-pecuniary damage, stating that the conditions of his detention had been inhuman and degrading, and that the prohibition on family visits was unlawful. 12. On 9 February 2011 the Industrialnyy District Court of Khabarovsk dismissed his claim. Relying on the statements of a representative of the detention centre, the court held that the Internal Rules of the Administrative Detention Centres approved by the Decree of the Ministry of Defence of Russia of 6 June 2000 no. 605 dsp (“the Rules”) did not make provision for family visits, and that the applicant’s right to family life had not been breached as he had met his wife during court hearings. 13. On 18 May 2011 the Khabarovsk Regional Court upheld the above decision on appeal.
| 1 |
test
|
001-152385
|
ENG
|
SRB
|
COMMITTEE
| 2,015 |
CASE OF LUČIĆ 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)
|
Ján Šikuta
|
4. The applicant was born in 1958 and lives in Karan. 5. He was employed by Raketa-Putnički Saobraćaj AD, a company based in Užice (hereinafter “the debtor”). 6. Since the debtor had failed to fulfil its obligations toward its employees, the applicant brought three separate civil claims, seeking payment of salary arrears and various social security contributions. 7. On 31 August 2007 and 19 September 2007, respectively, the Municipal Court (Opštinski sud) in Užice rendered decisions ordering the debtor to pay the applicant certain sums. Both decisions became final on 9 October 2007. 8. Due to the debtor’s failure to fulfil its obligations from these decisions, the applicant submitted an enforcement request. On 15 May 2009 the Municipal Court (Opštinski sud) in Požega issued an enforcement order to that effect. 9. On 23 July 2009 the Municipal Court in Užice rendered a decision in the third set of civil proceedings brought by the applicant ordering the debtor to pay him an additional sum from the outstanding debt. On 2 September 2009 this decision became final. 10. Due to the debtor’s failure to fulfil its obligations from this decision, the applicant submitted an enforcement request. On 29 September 2009 the Municipal Court in Požega issued an enforcement order to that effect. 11. On 12 July 2010 the Commercial Court (Privredni sud) in Užice opened insolvency proceedings in respect of the debtor. As a result, all of the ongoing enforcement proceedings against the debtor were terminated. 12. The applicant duly reported his claim based on the above-mentioned court decisions to the insolvency administration. 13. On 8 June 2011 the court accepted the applicant’s claim. 14. The insolvency proceedings in respect of the debtor are still ongoing. 15. The debtor, which operated as a socially-owned company, was privatised on 27 December 2002. 16. On 17 July 2007 the privatisation was annulled because the buyer in question had failed to fulfil his contractual obligations. 17. Following the annulment of the debtor’s privatisation the State owned 58.18% of shares in the company. 18. On 11 December 2008 the State sold its shares to a private company.
| 1 |
test
|
001-164466
|
ENG
|
HUN
|
CHAMBER
| 2,016 |
CASE OF O.M. v. HUNGARY
| 3 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
|
6. The applicant was born in 1982 and currently lives in Budapest. 7. The applicant crossed the Hungarian border from Serbia clandestinely in the evening of 24 June 2014. Apprehended by a border guard patrol, he was taken into custody, since he was unable to show documentary evidence of his identity or right to stay in the country. The applicant then claimed asylum. 8. At the hearing held on 25 June 2014 by the Immigration Office, the applicant declared that he had fled from his country of origin, Iran, because of his homosexuality. He stated that he had been forced to leave Iran and, with the help of a human trafficker, he had entered Hungary without documents, because he had had no other way of doing so. At the hearing, he again applied for recognition as a refugee. 9. In view of his request, on 25 June 2014 the Csongrád County Police Department suspended the alien administration procedure. On the same day the Office of Immigration and Nationality commenced asylum proceedings. At the ensuing hearing the applicant said that he had intended to go to the United Kingdom, but since Hungary seemed to be a safe country he had requested asylum there. He stated again that he had had to leave Iran because he was homosexual and that criminal proceedings had been instituted against him for this reason, attracting very severe penalties. 10. After the hearing, the asylum authority, a department of the Office of Immigration and Nationality, ordered that the applicant be detained (menekültügyi őrizet), with effect from 7 p.m. on 25 June 2014, in Debrecen, relying on section 31/A (1) a) and c) of Act no. LXXX of 2007 on Asylum (the “Asylum Act”). In its decision the asylum authority observed that the applicant’s identity and nationality had not been clarified. It held that there were grounds for the presumption that if left at large, he would delay or frustrate the asylum proceedings and would present a risk of absconding, given that he had arrived unlawfully in Hungary and had no connections in the country or resources to subsist on. According to section 31/A (6) of the Asylum Act, the maximum length of asylum detention when ordered by the asylum authority is 72 hours. On the basis of section 31/C (3) of the Asylum Act and section 36/C (1) of the relevant Government Decree (see in paragraph 22 below), the applicant could have submitted an objection to the ordering of his asylum detention. 11. On 26 June 2014 the asylum authority applied to the Debrecen District Court for an extension of the asylum detention for a maximum of 60 days. The asylum authority pointed out in its application that Iranian asylum seekers tended to frustrate the procedure and leave for unknown places. To justify its application, it referred to the fact that the applicant’s stay in Hungary was unlawful, that he had no connection to the country, and that he lacked any resources to subsist on. 12. On 27 June 2014 the court appointed a legal representative for the applicant; on the same date – that is, before the expiry of the 72-hour period referred to in paragraph 10 above – it held a hearing. The hearing lasted from 9.40 to 9.45 a.m. In its ensuing decision the court dismissed the applicant’s application to be released and extended the asylum detention by a maximum of 60 days. It noted that the applicant’s identity was unclear, that he had arrived in Hungary unlawfully, and that he had no connections in the country or any means to subsist on. Without referring to other individual circumstances or the applicant’s sexual orientation, the court held that less stringent measures – such as an obligation to check in regularly with the authorities, to stay at a designated place of residence, or to pay asylum bail (menekültügyi óvadék) – were not suitable in the case to secure the applicant’s availability to the authorities. 13. On 8 and 11 July 2014 the applicant applied to the asylum authority to be released from detention or transferred to an open facility. In its reply, the asylum authority informed the applicant that an asylum hearing would be held in a few days: he would have the opportunity to prove his citizenship there. Because of this consideration, the asylum authority did not forward these requests to any other authority. 14. At the asylum hearing held on 18 July 2014 the applicant made the same statements as before. Referring to his sexual orientation, he explained that it was difficult for him to cope with the asylum detention for fear of harassment. At the hearing he provided the asylum authority with relevant and up-to-date information relating to his country of origin. 15. On 25 July 2014 the asylum authority stated that the applicant’s asylum request was neither inadmissible nor manifestly ill-founded and thus it ordered the examination of the case on the merits. 16. On 11 August 2014 the asylum authority again sought extension of the asylum detention by another maximum of 60 days, relying on section 31/A (1) a) and c) of the Asylum Act. In its application, the asylum authority did not give any detailed explanation as to why no other, less stringent measures could be applied in the case. 17. In her submission of 12 August 2014 to the asylum authority, the applicant’s legal-aid lawyer requested the termination of the asylum detention and the designation of a place of residence for the applicant with measures securing his availability during the proceedings. In her submission of the same day to the Debrecen District Court, the lawyer asked the court to hear the applicant and not to extend the asylum detention. 18. On 13 August 2014 the court appointed another legal representative for the applicant. On 19 August 2014 the court heard the applicant and dismissed the application for extension of the asylum detention. Relying on section 31/A (1) a) of the Asylum Act, the District Court stated that the delay caused by the acts of the authority for which the asylum seeker could not be held responsible did not provide grounds for the extension of the detention. Referring to section 31/A (1) c), the court further stated that the asylum authority had not given any specific reasoning for the view it had taken, namely that the applicant would abscond and frustrate the asylum proceedings. 19. On 22 August 2014 the asylum authority terminated the asylum detention and ordered a designated place of residence for the applicant in Debrecen with measures securing his availability during the proceedings. 20. On 31 October 2014 the applicant was recognised as a refugee. His asylum detention lasted from 25 June 2014 to 22 August 2014.
| 1 |
test
|
001-170859
|
ENG
|
SRB
|
CHAMBER
| 2,017 |
CASE OF CVETKOVIĆ v. SERBIA
| 4 |
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
|
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1981 and lives in Niš. 6. On 2 February 1999 the applicant gave birth to a daughter, A.C. One year later, she married V.C. (“the respondent”), her daughter’s biological father. 7. On 1 February 2005 V.C. lodged a claim with the Niš Municipal Court, seeking dissolution of the marriage, custody of A.C. and child maintenance. 8. On 16 May 2005 the Niš Social Care Centre granted the applicant interim care and custody of A.C. until the marriage was dissolved. 9. On 23 June 2005, while the applicant and A.C. were visiting a mental care institute where the child was undergoing treatment for her disturbed mental health as a result of her parents’ divorce, V.C. forcibly removed A.C. from the applicant’s custody and, in so doing, assaulted the latter physically, knocking her unconscious. 10. On 25 July 2005 the Niš Municipal Court issued an interim custody order requiring that V.C. surrender custody of A.C. to the applicant until the end of the marriage dissolution proceedings. 11. On 5 August 2005 a bailiff accompanied the applicant to the respondent’s home, requesting that the child be surrendered. The respondent’s father and A.C. were also present. The respondent stated that he would not prevent the mother from seeing her child but refused to hand her over, even if it meant paying a fine, claiming that the applicant could not provide suitable living conditions for A.C. and that A.C. preferred living with him. 12. Faced with the respondent’s failure to comply with the enforcement order, on 12 August 2005 the Niš Municipal Court ordered him to pay a fine in the amount of 10,000 Serbian dinars (RSD; approximately 120 euros (EUR)), within three days and to return the child to her mother by the same deadline. 13. On 18 August 2005 the bailiff again went to the respondent’s home, but there was no one there. On the same day the court contacted the Niš Social Care Centre asking for urgent action, since the applicant alleged that domestic violence was taking place there. 14. On 22 August 2005, the social care centre informed the court that it had advised the applicant and the respondent to visit a mental care institute in order to be provided with appropriate guidance in communicating with each other and in order for the child to resume the interrupted course of treatment. The court was informed that the Doljevac Social Care Centre had taken over responsibility for the case, since that was where the respondent’s residence was located. 15. On 12 September 2005 the Municipal Court ordered the respondent to pay a further fine in the amount of RSD 50,000 (approximately EUR 590) and to return A.C. to her mother. 16. On 15 September 2005 the respondent and his father contacted the court, declaring that the child did not want to go to her mother and refusing to pay the fine. 17. On 20 September 2005 a new attempt was made to enforce the interim order, this time in the presence of a psychologist from the Doljevac Social Care Centre, civilian police officers, the enforcement judge, a bailiff and the applicant. The child started to cry and refused to go with the applicant. The respondent stated that he had spoken with the child, encouraging her to go and live with her mother if she wanted, but the child had refused. The applicant was of the opinion that the child had been given instructions and put under pressure and was in fact strongly attached to her. She wanted to take the child immediately, regardless of her behaviour. The psychologist was against forcible transfer of the custody, claiming that it could have a negative influence on the child’s mental health and lead to autism. The child had already showed some of those symptoms, but they stopped after she had moved into her father’s home, where she had been living for five years. The psychologist proposed that mother and child start to meet under the supervision of the Centre on its premises. She also noted in the minutes that the parents should cease their manipulation of the child. 18. On 3 October 2005 the first meeting between mother and child was held on the premises of the Centre, but the applicant later told the court that it had not been successful because the child was allegedly subjected to pressure by her father. 19. At the next meeting, held on 14 October 2005, the child was constantly holding on to her father, crying and avoiding contact with her mother. The psychologist was not present during the meeting, being on sick leave at the time. After leaving the premises of the Niš Social Care Centre, the applicant and respondent and other persons present started to fight. The respondent’s father allegedly physically attacked the applicant. The court informed the Doljevac Social Care Centre about the incident, seeking advice as to how to proceed further. 20. On 2 March 2006 the applicant asked the court to enforce the interim custody order in the presence of the police. 21. The enforcement of the interim order was to be attempted on 20 March 2006 on the premises of the Niš Social Care Centre in the presence of the judge, a psychologist and a teacher from the Centre, the applicant and the respondent’s representative. The respondent and the child did not appear. The child was allegedly ill. 22. On 29 May 2006 the next enforcement attempt was made. The respondent again failed to appear. According to his representative, he had not been properly summoned. At the hearing, two psychologists were present, one from the Niš Social Care Centre and the other from the Doljevac Social Care Centre. Both gave their opinion concerning the forced return of the child to her mother, the psychologist from Niš contending that it was the only option, since the father was not willing to hand over the child voluntarily, and the psychologist from Doljevac arguing against it, on the basis that it could have a negative influence on the child’s further development. 23. The enforcement attempt scheduled for 13 June 2006 was also postponed due to the absence of the respondent and his representative. 24. On 29 June 2006 the respondent appeared without the child, because she was allegedly sick, but he did not submit any evidence in support of this allegation. Throughout the meeting he claimed that he was willing to hand over the child to the mother but that the child was refusing to cooperate. 25. On 27 July 2006 the court again ordered the respondent to pay a fine in the amount of RSD 20,000 and to return the child to her mother. 26. On 25 December 2006 the court asked the Niš Mental Care Institute to prepare an opinion concerning the enforcement of the interim custody order because of the difficulties encountered in the proceedings. 27. The Niš Mental Care Institute issued an experts’ report on 28 June 2007. The report contained the opinions of a psychologist, a sociologist and a neuropsychiatrist, all of whom had conducted interviews with the child and both her parents. The experts found that the child’s intellectual ability was on the low side and that her emotional and social maturity was underdeveloped as a result of the family situation. They also found that both parents were manipulating the child and not doing what was in her best interests. Their ultimate opinion was that the forcible removal of the child from her father and her current social environment without proper psychological preparation could at that stage provoke certain psychological disorders. The experts advised that the child should receive psychological and social counselling to help her overcome her resistance towards her mother, that the father and his family should be helped to change their attitude and stop influencing the child’s opinion towards her mother, and that both parents should receive counselling on how to behave in the best interests of the child. 28. On 14 January 2008 the Municipal Court ruled in favour of the father. The marriage was thus dissolved, V.C. was granted custody of A.C., and the applicant was ordered to contribute towards her maintenance on a monthly basis. Lastly, the court held that the applicant was entitled to spend time with A.C. on the premises of the Doljevac Social Care Centre every Saturday between 10.00 a.m. and 12.00 a.m. until such time as a different access arrangement might be warranted. 29. On 12 June 2008 and 28 May 2009 the Niš District Court and the Supreme Court of Serbia upheld the Municipal Court’s judgment at second and third instance, respectively. 30. All of the above-mentioned courts reasoned that, “notwithstanding her earlier forcible removal from ... [the applicant’s custody] ...”, it was in the best interests of A.C. to remain with her father since a separation could prove psychologically detrimental. In support of this conclusion, the courts referred to a separate opinion drafted by the Doljevac Social Care Centre, in addition to an expert’s report, stating that it would indeed be advisable for A.C. to remain in the environment to which she had become accustomed, where she was surrounded by love and care, and where she had made social connections (see paragraph 27 above). 31. In addition, the Supreme Court found that there was no evidence that the respondent had committed acts of violence against the child or the applicant. 32. On 8 September 2008 the Municipal Court suspended the interim custody proceedings. 33. The applicant never sought enforcement of the judgment of 14 January 2008 as regards the weekly meetings with the child. 34. On 16 March 2010 the applicant lodged an appeal with the Constitutional Court, alleging a breach of her parental and family rights, essentially complaining about the non-enforcement of the Municipal Court’s interim custody order of 25 July 2005. She also argued that the Supreme Court’s ultimate ruling on the issue of A.C.’s custody had failed to take into account the child’s best interests and had instead retroactively endorsed V.C.’s violent and unlawful conduct and had permanently separated her from her child. 35. On 15 March 2012 the Constitutional Court dismissed the complaint regarding the interim custody order of 25 July 2005 for being out of time, having been lodged more than 30 days after the applicant had been served with the District Court’s judgment of 12 June 2008. With respect to the applicant’s complaint regarding the Supreme Court, the Constitutional Court rejected it on the merits, accepting the Supreme Court’s reasoning entirely. 36. On 19 October 2007 the Niš Municipal Court found V.C. guilty of unlawfully removing A.C. from the applicant’s custody and sentenced him to six months’ imprisonment, suspended for a period of two years. The respondent was ordered to return the child to the applicant within fifteen days of the date on which the judgment became final. This judgment was upheld by the Niš District Court on 8 April 2008. 37. On 18 August 2008, acting upon the applicant’s initiative, the Niš municipal public prosecutor requested the revocation of the respondent’s probation, but withdrew the request on 16 December 2008 because the respondent had in the meantime been granted custody of A.C. On 25 December 2008 the Municipal Court terminated the proceedings seeking revocation of the probation. 38. Following the applicant’s claim for review of the judgment of 14 January 2008, on 12 October 2012 the Niš Municipal Court granted the applicant custody of A.C. and ordered V.C. to contribute towards her maintenance on a monthly basis. In its reasoning the court explained that A.C. had stated that she now wanted to live with the applicant and that V.C. himself no longer had any objections to this arrangement. This judgment became both final and enforceable on 10 November 2012 and A.C. moved to the applicant’s flat shortly thereafter. 39. In July 2013 the Niš Public Prosecutor’s Office received a criminal complaint that had been lodged against V.C. for failure to make maintenance payments. 40. It would appear that the applicant re-established contact with her daughter on 19 August 2012, that is to say after a period of seven years, and soon afterwards A.C. went to live with the applicant. However, it seems from the documents submitted by the Government that the mother-daughter relationship was not well re-established. A.C. kept returning to her father whenever she had a misunderstanding with her mother. She even gave a statement to the police to the effect that her mother was maltreating her. 41. On 27 August 2015 A.C. moved to her father’s home and it appears that she is still living with him by choice. It would also appear that the respondent filed a claim for review of the judgment of 12 October 2012 on custody of A.C. and that those proceedings are still pending.
| 0 |
test
|
001-147319
|
ENG
|
SVN
|
ADMISSIBILITY
| 2,014 |
JAKOB'S CENTER D.O.O. v. SLOVENIA
| 4 |
Inadmissible
|
André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
|
1. The applicant, JAKOB’S CENTER d.o.o., is a private company with a registered office in Zgornji Brnik. It was represented before the Court by Mr I. Trebec, a lawyer practising in Sežana. 2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. At the time of the events at issue, the applicant company was acting as a forwarding agent and customs broker for import-export transit operations. In that capacity, it was liable for the payment of customs debts if they were incurred. In 1997, the company carried out a transit procedure for the importation of goods supposedly destined for Bosnia and Herzegovina; however, in reality the goods never reached their destination, but were placed on the Slovenian market. The operation formed part of a wider fraud involving at least one customs official, P.K., and a number of other persons. Once the fraud had been detected, the customs debt incurred as a result of the fact that the goods had not left the national territory was imposed on the applicant company as the principal actor in the transit procedure. 5. On 7 April 1998, the applicant company paid 2,265,033.00 Slovenian tolars (SIT) (approximately 9,452 euros (EUR)) and on 17 November 1998 it paid SIT 1,810,855.00 (approximately EUR 7,557). Although it was not disputed by the authorities that the applicant company was the victim of fraudulent activities by third parties, it could not relieve itself of that liability. 6. The applicant company challenged its liability for the payment of the debt. The Customs Administration of the Republic of Slovenia dismissed its challenge, finding that although it was not the applicant company’s fault that the goods in question had been unlawfully removed from customs supervision, as the principal actor it was nevertheless liable for the payment of the customs debt. Moreover, the Customs Administration noted that any unlawful activity on the part of customs officials bore no relation to the applicant company’s duty to pay the debt. The Administrative Court subsequently dismissed an administrative action lodged by the applicant company. The Supreme Court dismissed an appeal lodged by the applicant company, upholding the position of the lower instances that, by acting as the principal company in the transit procedure, the applicant company had assumed the risk of having to pay customs debt. The Constitutional Court refused to accept the applicant company’s constitutional complaint for consideration. 7. In their submissions the Government noted that in November 2001 the applicant company had instituted commercial proceedings before the Koper District Court against the Republic of Slovenia and P.K. seeking compensation for the customs payment (SIT 4,075,888.00, approximately EUR 17,008), together with statutory default interest and costs of the proceedings. 8. The Government further explained that on 9 May 2006 the Koper District Court had found in favour of the applicant company. 9. The Republic of Slovenia and P.K. lodged an appeal. Thus, when the application was lodged before the Court on 10 April 2007, the proceedings were pending before the Koper Higher Court. 10. On 21 June 2007 the Koper Higher Court upheld the judgment of 9 May 2006, which then became final. 11. On 5 September 2007 the Republic of Slovenia lodged a motion for the protection of legality against the judgment of 21 June 2007 with the Office of the State Prosecutor General of the Republic of Slovenia, which did not accept to file a request for the protection of legality. 12. On 7 September 2007 the Republic of Slovenia enforced the judgment of 9 May 2006 and paid the applicant company EUR 36,908.40 (SIT 8,844,728.97). 13. In its application to the Court the applicant company did not mention the commercial proceedings or the judgment of 9 May 2006, which had been enforced. In its later submissions, it expressed its wish to maintain the application.
| 0 |
test
|
001-141781
|
ENG
|
TUR
|
CHAMBER
| 2,014 |
CASE OF FAZLI ASLANER v. TURKEY [Extracts]
| 2 |
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić
|
5. The applicant was born in 1963 and lives in Ankara. 6. In 1993 the applicant, who was a court registrar (zabıt kâtibi) in the registry of the Ankara Tax Court, passed a local competitive examination organised by the Ankara Judicial Committee for the post of head registrar (yazı işleri müdürü) at the Ankara State Security Court. However, since his ranking (15th place) in the competition was insufficient for him to obtain the post, he was placed on the reserve list drawn up at the close of the competition. The first successful candidate was appointed to the post in question. The second successful candidate was subsequently appointed to a position as head registrar in the second section of the Ankara State Security Court. 7. On 20 August 1997 the applicant applied to the Ministry of Justice to be appointed to the post of head registrar at the Eskişehir Administrative Court. 8. The authorities having refused his request, he lodged an application for judicial review with the Ankara Administrative Court (“the Administrative Court”). 9. By a judgment of 17 September 1998 the Administrative Court upheld the applicant’s claims. The court found that of the candidates who had passed the aforementioned competition, seven who had done better and eleven who had done less well than the applicant had been appointed head registrars in other judicial districts, and concluded that the authorities’ refusal had had no basis in law. 10. The Ministry of Justice appealed on points of law against that judgment. 6. As the appeal lacked suspensive effect, the Ministry proceeded to appoint the applicant to the post of head registrar in Eskişehir, in compliance with the judgment. 7. On 20 December 2000 the Fifth Administrative Proceedings Division of the Supreme Administrative Court (“the Fifth Division”) quashed the impugned judgment, contrary to the submissions of the Advocate-General, Ms A.Ö. The Fifth Division pointed out that the competitive examination organised by the Ankara Judicial Committee had been intended to fill a post in the Ankara State Security Court and that registration on the reserve list had not entitled the candidate in question to a post as head registrar in a court within the jurisdiction of a different judicial committee. It explained that an appointment could only be made to another judicial district at the request of the judicial committee in question or else in order to meet current judicial needs, upon a decision from the Ministry of Justice, which had discretionary powers in this field. 8. The bench comprised five judges, including Ms T.Ç. and Mr M.R.Ü., and was presided over by Mr E.Ç. 9. On 21 March 2002 the same division dismissed a request by the applicant for rectification of the judgment, on the grounds that none of the preconditions for recourse to this remedy as set out in the Code of Administrative Procedure had been met. 10. On 1 July 2002 the Administrative Court decided to maintain the position set out in its initial judgment, thus electing to disregard that adopted by the Fifth Division of the Supreme Administrative Court (ısrar kararı). 11. Following a fresh appeal on points of law lodged by the authorities, the case was referred automatically to the General Assembly of the Administrative Proceedings Divisions of the Supreme Administrative Court (Danıştay İdari Dava Daireleri Genel Kurulu; “the General Assembly”) owing to the resistance of the court of first instance. 12. On 17 January 2003 the said General Assembly quashed the judgment delivered by the Administrative Court by twenty-two votes to nine. Mr E.Ç. and Mr M.R.Ü. were on the bench, which was presided over by Ms T.Ç. in her capacity as Vice-President of the Supreme Administrative Court, a post to which she had recently been elected. The bench also included three judges who had adjudicated on the request for rectification of the Fifth Division’s judgment of 20 December 2000. 13. On an unspecified date the applicant submitted a request for rectification of the General Assembly’s judgment. 14. On 11 December 2003 the General Assembly rejected that request on the grounds that none of the conditions set out in the Code of Administrative Procedure had been met. Ms A.Ö., who had recently been promoted to the Supreme Administrative Court, sat on the bench, alongside other judges who had previously adjudicated in the case.
| 1 |
test
|
001-178346
|
ENG
|
RUS
|
CHAMBER
| 2,017 |
CASE OF MOSKALEV v. RUSSIA
| 3 |
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
|
5. The applicant was born in 1960 and lives in Omsk. 6. The applicant was deputy head of the Omsk Regional Department for the Execution of Sentences. 7. On 22 August 2002 the Novosibirsk Regional Court authorised for 180 days the interception and recording of the applicant’s telephone conversations, interception of postal communications and the collection of data from technical channels of communication. The surveillance authorisation read in its entirety as follows: “Operational-search measures carried out with the aim of combatting corruption within State authorities have revealed indications of a systematic bribery scheme operated by certain prison officials in the Omsk region. According to operative information, there are good reasons to suspect [the applicant], deputy head of the Omsk Regional Department for the Execution of Sentences, of arranging for, and systematically receiving, unlawful payments from confidants of the convicts serving their sentences in Omsk penal institutions in exchange for granting them various privileges (such as a prison leave, improved conditions of detention or transfer to another penal institution within the Omsk region, which was for some reason preferred by the convict in question). Given that [the applicant’s] actions contain elements of criminal offences under Article 290 § 4 of the Criminal Code [bribe-taking], classified as a serious offence, and under Article 285 § 1 of the Criminal Code [abuse of power], it is necessary to perform a combination of operational-search measures (interception and recording of telephone conversations, monitoring of correspondence and collection of data from technical channels of communication) in order to collect evidence of his criminal activities, and to receive information about the bribegivers and the payment mechanisms used.” 8. On 18 February 2003 the Novosibirsk Regional Court authorised “audio surveillance” of the applicant’s office for 180 days. The Government did not submit a copy of that decision. 9. Charges of bribe-taking or abuse of power have never been brought against the applicant. 10. In March 2003 the applicant was charged with disclosure of State secrets, an offence under Article 283 § 1 of the Criminal Code, for informing a convict’s relative that the convict was under covert surveillance. 11. When studying the criminal case file, the applicant learnt for the first time that his telephone conversations had been recorded and his other communications monitored. He also learnt that a recording of his telephone conversation with Ms L., a sister of a convict detained in a penal institution under his supervision, formed the basis for the charge of disclosure of State secrets. During the conversation, which had taken place on 17 October 2002, the applicant had warned Ms L. that her relative was under covert surveillance and that there were listening devices hidden in his cell. 12. At the trial the applicant pleaded not guilty. He claimed, in particular, that the recording of his telephone conversation with Ms L. was inadmissible as evidence as it had been obtained unlawfully. 13. On 16 February 2005 the Omsk Regional Court found the applicant guilty of disclosure of State secrets, an offence under Article 283 § 1 of the Criminal Code. It relied on the recording of the applicant’s telephone conversation with Ms L., among other evidence. It found that the recording was admissible as evidence as it had been obtained in accordance with the procedure prescribed by law. In particular, the interception of the applicant’s telephone conversations had been authorised by a court on the grounds that he was suspected of the serious criminal offence of bribetaking. The applicant was sentenced to three years’ imprisonment, suspended for two years. 14. In his appeal submissions the applicant complained, in particular, of a violation of his right to respect for his private life. He argued that the interception of his communications had been unlawful and unjustified, and that the recording of his conversation with Ms L. was inadmissible as evidence. 15. On 21 June 2005 the Supreme Court of the Russian Federation upheld the conviction on appeal. It noted that all the evidence had been collected in accordance with the procedure prescribed by law and was admissible.
| 1 |
test
|
001-168352
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF YABLOKO RUSSIAN UNITED DEMOCRATIC PARTY AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)
|
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The Republic of Karelia (“Karelia”) is a subject (constituent region) of the Russian Federation. Under Article 73 of the Constitution of the Russian Federation, subjects of the Federation possess the full authority of the Russian State in all matters other than those that come within the sole jurisdiction of the federal government or within the shared jurisdiction of federal subjects and the federal government to the degree of the latter’s scope of authority. 6. At the relevant time, the Legislative Assembly of Karelia (hereinafter “the LA”) had fifty members elected by universal direct suffrage for a five-year term. Twenty-five seats were allocated on a proportional representation basis to registered party lists receiving at least 7% of the region-wide vote, while the remaining seats were allocated to the winners of twenty-five single-mandate constituencies, determined by majority vote. There was no minimum turnout for the election to be valid, and each voter could only vote for one party and one candidate in the electoral constituency in which he or she resided. 7. The regional branch of the Yabloko political party was registered by a competent State authority (at that time the regional department of the Ministry of Justice) in 2002. 8. On 26 April 2006 the regional council of the applicant party called for a regional party conference to be held in two sessions on 27 May and 12 August 2006, respectively. The aim was to prepare for the LA elections that were to take place in autumn 2006. 9. Between 27 April 2006 and 26 May 2006 local party branches throughout Karelia held assemblies and conferences in accordance with the Yabloko party’s articles of association (hereinafter, “the charter”) and selected delegates to attend the regional party conference. At the time, the regional party had over 3,800 members, of whom 474 were so-called “registered party members”, that is, members who had specifically asked to be registered with the local party bodies in order to participate more actively in the party’s work, such as regional conferences. As a result, the 474 registered members elected forty-seven delegates to the regional conference. 10. On 27 May 2006 thirty-seven delegates present at the conference expressed their desire to participate in the upcoming LA elections. The nomination of candidates to the party list and electoral circuits was left to the second session scheduled for 12 August 2006. 11. On 10 and 11 June 2006 the Yabloko party at national level held its Thirteenth Party Congress, which adopted several amendments to the party’s charter. The charter maintained the division between party members and registered party members. In accordance with paragraph 9.1.14 of both versions the right to elect and be elected to the party’s governing and controlling bodies was reserved to registered members. The 2006 version specified, additionally, that party members who did not register automatically delegated the right to elect and be elected within the party to the registered party members of the relevant local branch. 12. On 4 July 2006 the LA set an election date of 8 October 2006. 13. On 27 July 2006 the amendments to the Yabloko national party charter were registered with the Federal Registration Service, upon which date they came into force. 14. On 12 August 2006 the regional party conference resumed. Thirty-seven of the forty-seven party delegates were present, and a quorum was declared. In accordance with the party’s charter, the conference nominated a 25-member party list and candidates for three electoral constituencies by secret ballot. The second and third applicants were chosen to run for office in two single-mandate constituencies. 15. The conference was attended by two representatives from the Karelia Directorate of the Federal Registration Service of the Ministry of Justice, and two members of the Central Electoral Commission of the Republic of Karelia (“the Electoral Commission”). At that time they did not report any irregularities in the conduct of the regional party conference. 16. On 16 August 2006 the applicant party submitted documents to the Electoral Commission in order to participate in the forthcoming election. On 21 August 2006 it paid the requisite deposits (150,000 Russian roubles (RUB) in respect of the party list and RUB 60,000 in respect of each of the three single-mandate candidates). 17. On 17 and 22 August 2006, after reviewing the documents, the Electoral Commission issued Orders nos. 65/343-3 and 66/352-3, by which it registered the applicant party’s three candidates, including the second and third applicants, and the party list. 18. On 31 August 2006 the Karelia Directorate of the Federal Registration Service wrote to the Electoral Commission and informed it that the party conference of 12 August 2006 had been based on the participation of registered party members, and not party members in general. It referred to the provisions of the legislation on political parties (see below) which guaranteed equal rights of participation in party activities for all members. It argued that the party could not make a distinction between registered and other party members for the purposes of internal activities. As such, the conference of 12 August 2006 had been held in breach of the applicable legislation. 19. On 8 September 2006 the Electoral Commission applied to the Supreme Court of the Republic of Karelia (hereinafter the Karelia Supreme Court) to annul its own decision to register the party list and single-mandate candidates. Referring to the letter of 31 August 2006, the Commission referred to the provision of the Basic Guarantees Act allowing the judicial annulment of the registration of individual candidates and party lists where “new facts” had come to light showing a violation of federal or regional law regulating the nomination of candidates. 20. In the meantime, on 11 September 2006 the Electoral Commission wrote to the head of the Federal Registration Service and informed him of the application lodged with the court. It also enquired which version of the charter should be applicable to the party conference of 12 August 2006 since the party had submitted the 2004 version to the Commission. 21. On 12 September 2006 the Federal Registration Service replied to the Electoral Commission that the new charter had been registered by that service on 27 July 2006 and that on the same day the old version of the document had ceased to be valid. The regional party should therefore have submitted the new version as the one applicable to their conference of 12 August 2006. At the same time, the Service stated that in June 2006 Yabloko had received a warning from it in connection with its differentiating between registered and other party members, and that the new version of the charter had contained provisions designed to correct that. In view of those considerations, the decision of the regional conference of 12 August 2006, which had been based on the previous version and had taken only registered members into account, could be seen as being in breach of the relevant legislation. 22. On 15 September 2006 the Karelia Supreme Court allowed the application of the Electoral Commission and annulled the decisions of 17 and 22 August 2006 to register the applicant party’s list and candidates. It referred to the conclusions of the Federal Registration Service and found that the procedure whereby only registered members had taken part in the decision-making process had contradicted the legislation on elections and on political parties. It also noted that the party had submitted an invalid version of its charter. 23. More specifically, the court concluded that the annulment decision was justified because the participation of a minority of the party’s regional membership in the nomination process had thwarted “the will of the majority”, finding as follows: “If one takes a formal approach to the problem it seems that all the requirements governing the nomination of the lists of candidates were observed. At the same time the court believes that the procedure for the nomination of the lists of candidates [to the LA] was breached. It was established at the court hearing that only so-called ‘registered members of the party’ participated and nominated the lists of candidates [to the LA] at the regional conference. What is the difference between ‘registered members of the party’ and ‘unregistered members’? Let us turn to section 7 of the party’s charter... The practice of applying these provisions of the charter in the party’s regional division in the Republic of Karelia is such ... that members of the party determine themselves whether to actively participate in the work of the regional branch of the party or to participate [only] as needed ... Accordingly, they decide whether to register with the regional branch or not. If a party member asks to be registered, one of the local branches, or the regional one, registers him with the [relevant] branch. From that moment the party member obtains the rights provided for by p. 9.1.14 of the charter... It is impossible to agree with applying the party’s charter in such a way. ... Section 8.4 of the [Political Parties Act] states that political parties should provide an equal opportunity for representation in a party’s governing bodies, in election lists and other positions ... Section 23.4 and 5 of the [Political Parties Act] establish that members of political parties take part in its functioning, have rights and bear obligations in line with the charter. Members have the right to elect and be elected to the party’s governing bodies, ... receive information about the party’s activities and the work of its governing bodies. However, this right, under p. 9.1.14 of the [Yabloko] charter, is reserved to a limited number of persons – ‘registered members’ – which in turn breaches the principle of the equality of party members as set out in Section 8.1 of the [Political Parties Act]. As a result, while the number of party members in Karelia was 3,824 (1 April 2006), the Conference was attended by 37 delegates who represented 394 registered members (15% of the total number of members). ... A democratic regime is characterised by the wide participation of the population in forming the organs of State authority and a wide spectrum of political rights and freedoms for citizens governed by the rule of law, the protection of the rights and legal interests of citizens and others. One can imagine that those exact same elements should appear in the activities of any democratic party. The Constitutional Court of the Russian Federation has emphasised the significance of the principle of the mandatory will of the majority, pointing out that ‘...elections as a means of determining the will of the people and forming the corresponding legitimate organs of State authority and local government, on whose behalf they exercise public authority, is based on the priority of the will of the majority of voters taking part in the vote’ (ruling of the Constitutional Court of 5 November 1998...). This principle applies with equal measure to the nomination of lists of candidates to [the legislature], since the basis for forming the representative bodies are the [candidates] nominated by political parties. In this specific case the principle of the ‘will of the majority’ was violated. In such circumstances, the court believes that the order for submitting electoral lists of candidates to the Karelia LA has been breached.” 24. The court dismissed the applicant party’s argument that interpreting the law in such a way constituted interference by the State authorities with the party’s internal organisation. The court responded by saying that it had been the conference’s duty to ensure compliance with the applicable legislation. 25. Lastly, the court noted that the party had submitted an invalid version of its charter. As a consequence, the court cancelled the registration orders of 17 and 22 August 2006. 26. The applicant party lodged an appeal against that decision with the Supreme Court of the Russian Federation. It stressed that the difference in treatment between registered and other party members could not be regarded as a “newly discovered fact” since it had been based on the party’s charter of 2004, which had been registered with the relevant service. A record of the entire proceedings of the conference had been submitted to the Karelia Registration Service, together with a copy of the charter on which both stages of the conference had been based. The party also pointed out that the Service had had two members present at the conference in August 2006, and therefore should have been fully aware of the procedure applied. 27. On 29 September 2006 the Supreme Court of the Russian Federation dismissed the applicant party’s appeal, with reasoning that was similar to that of the Karelia Supreme Court. 28. As a result of the annulment order coming into force the applicant party lost its election deposits. 29. On 8 October 2006 elections to the Fourth Legislative Assembly took place. The party list and the single constituency candidates nominated by the applicant party were not present on the ballot. The fourth applicant submitted that she had cast a ballot for the Yabloko party list, but that her choice had not been counted in the election results. 30. The Government submitted the following information about the elections which took place on 8 October 2006. Seven parties competed for places in the regional assembly: the Karelia branch of the Communist Party of the Russian Federation (KPRF) (obtained 12.77% of the votes cast), the Party of National Resurrection “People’s Will” (1.58%), the regional branch of the Patriots of Russia party (4.39%), the regional branch of United Russia (38.92%), the regional branch of the Liberal-Democratic Party of Russia (LDPR) (8.86%), the regional branch of the Russian Party for Life (16.19%) and the regional branch of the Russian Pensioners’ Party (12.06%). The total number of people who voted in the elections was 183,503, or 32.98% of the electorate. 31. The Government also presented information about the subsequent election to the Karelia LA, in which Yabloko candidates had participated. That election took place on 4 December 2011 and had five parties competing. Yabloko obtained 7.13% of the votes and had deputies elected to the LA. A total of 50.03% of voters took part.
| 1 |
test
|
001-142465
|
ENG
|
FIN
|
COMMITTEE
| 2,014 |
CASE OF VARJONEN v. FINLAND
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
|
Nona Tsotsoria;Päivi Hirvelä
|
4. The applicant was born in 1962 and lives in Pomarkku. 5. On 9 June 2005 the applicant’s husband was injured in a car accident and he received insurance benefits from an insurance company. However, on 2 and 5 March 2006 the insurance company refused his applications for compensation for rehabilitation. On 30 March and 4 April 2006 the husband appealed against these decisions to the Insurance Court (vakuutusoikeus, försäkringsdomstolen). The husband died on 3 August 2006 but the applicant and the estate decided to continue the appeals. 6. On 3 May 2010 the Insurance Court rejected the appeals. No appeal lies against these decisions. The judgment of the Insurance Court was sent to the applicant on 1 June 2010. 7. On 26 February 2010 the applicant lodged a complaint with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) complaining, inter alia, about the excessive length of the proceedings in the Insurance Court. 8. On 17 November 2011 the Ombudsman gave a reply, after having requested a statement from the Insurance Court which included reports from the referendary and the judges responsible for examining the applicant’s case. The Ombudsman considered that the proceedings in the applicant’s case had taken, in total, a long time. However, the Ombudsman accepted the reasons given by the Insurance Court, namely that the case had been exceptionally extensive, complex and time-consuming. The Insurance Court examined the case as a first instance, which required more preparation than when it examined appeals as a second instance. Also the case file had been incomplete and several requests for information had been made. The applicant, on her part, had sent a considerable number of documents during the course of the proceedings, which had also contributed to the length. The Ombudsman considered that there had been no particular inactivity in the Insurance Court. Hence it considered that, despite the lengthy proceedings, there had not been unjustified delays in the course of the proceedings. 9. On 20 October 2010 the applicant initiated extraordinary proceedings before the Supreme Court (korkein oikeus, högsta domstolen), requesting that the decisions of the Insurance Court be quashed because the referendary in the Insurance Court had been biased. 10. On 29 July 2011 the Supreme Court dismissed the application for being outside its competence. As the proceedings before the Insurance Court were administrative, it was the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) that was competent to examine an extraordinary appeal concerning an alleged procedural flaw. 11. On 5 October 2011 the applicant lodged an extraordinary appeal with the Supreme Administrative Court, claiming that the proceedings before the Insurance Court had been flawed due to the partiality of the referendary and the wrong application of law. 12. On 31 May 2012 the Supreme Administrative Court dismissed the complaint concerning the wrong application of law without examining the merits and rejected the partiality complaint after having examined it. The Supreme Administrative Court considered that the applicant had reasoned her complaint about the referendary’s partiality only with the fact that she had complained about the referendary to the Parliamentary Ombudsman. The court was of the opinion that the mere fact that the applicant had complained about the referendary to the Ombudsman did not put the impartiality of the referendary into question.
| 1 |
test
|
001-167107
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF MANDRYKIN v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
4. The applicant was born in 1951 and lived, prior to his arrest, in Irkutsk. 5. On 14 May 2008 the applicant was arrested. On an unspecified date he was charged with three counts of pimping and pandering, extortion and illegal keeping of firearms. The court remanded him in custody. 6. On 5 March 2009 he was committed for trial before the Oktyabrskiy District Court of Irkutsk. 7. On 3 August 2009 the District Court extended his pre-trial detention ’s arrest, he was accused of a serious crime, did not live at his domicile, hence he could abscond, threaten witnesses and interfere with the investigation. 8. On 26 November 2009 and 2 March 2010 the District Court extended the applicant’s pre-trial detention referring to the above grounds and stating that the victims of his crimes were minors. The court also took into account the applicant’s character, his state of health and age. 9. The applicant’s appeals against the detention orders were rejected. 10. On 29 March 2010 the District Court convicted him as charged.
| 1 |
test
|
001-181842
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF BELKOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
|
Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. In application no. 8344/12 the applicant submitted also a complaint under Article 5 § 4 of the Convention.
| 1 |
test
|
001-167505
|
ENG
|
MKD
|
ADMISSIBILITY
| 2,016 |
NOVESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 4 |
Inadmissible
|
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
|
1. Details about the applicants are set out in the appendix. 2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Mr Venče Noveski (“the first applicant”) is the applicant in applications nos. 25163/08 and 2681/10 and is the second applicant in application no. 71872/13. He is the brother-in-law of Mr Bogoljub Stoleski (“the second applicant”), who is the first applicant in application no. 71872/13. The second applicant lives in Skopje in the first applicant’s house, while the first applicant lives in Germany. The first applicant stated that he stayed in his house in the respondent State “when needed”, in particular during the summer and winter holidays. The Government did not submit any evidence to refute that statement. 5. On 25 March 2005 the first applicant lodged a criminal complaint against H., his neighbour, for the misappropriation of a right (самовластие). He alleged that on 19 March 2005 H. and other people had unlawfully demolished a wall on his property in order to get access to a road. He argued that he had suffered damage as a result. In a submission on 28 September 2006 the first applicant laid out the specifics of his claim for compensation. 6. On 8 November 2007 the Skopje Court of First Instance (“the trial court”) convicted H. and sentenced him to six months’ imprisonment, suspended for two years. The court relied on the fact that no penalty had previously been issued against H. as a mitigating circumstance. It further instructed the first applicant to pursue his compensation claim by means of a separate action for damages in order to not prolong the criminal proceedings (за да не се одолговлекува кривичната постапка). 7. The first applicant lodged a complaint against that decision. He submitted, inter alia, that the penalty was too lenient and that the trial court had failed to decide on his compensation claim. 8. On 15 January 2008 the Skopje Court of Appeal (“the appellate court”) dismissed the applicant’s complaints and upheld the lower court’s judgment and the penalty it had imposed. It remitted the issue regarding costs for fresh examination. It did not comment on the arguments concerning the compensation claim. 9. According to the first applicant while the trial was pending, H. had repeatedly attacked his property by throwing stones and fruit at his walls and attempting to break into his house. 10. On 7 July 2006 the trial court upheld a claim by the first applicant for disturbance of possession (нарушено владеење). It ordered H. to reconstruct the part of the wall he had demolished and refrain from further disturbance of the first applicant’s enjoyment of his property. As stated in the judgment, H. neither appeared before the court nor contested the first applicant’s claim. The court found that the first applicant had reported the incident to the police on two occasions. On 16 February 2007 the judgment became final. 11. On 9 July 2007 in enforcement of the above judgment, H. reconstructed the wall. The wall was again demolished the same day by Sh.H. (H.’s brother). Sh.H. was convicted of violent behaviour (насилство, see paragraph 30 below) over the incident and sentenced to one year and six months’ imprisonment, suspended for four years (trial court judgment of 18 May 2011). 12. On 16 July 2007 the first applicant lodged a fresh application, seeking to have a private bailiff order H. to reconstruct the wall (see paragraph 37 below). On 2 September 2007 he asked the bailiff to issue a fine against H., arguing that H. had again come onto his land. It appears that those requests remained undecided. 13. On 3 April 2006 the first applicant initiated criminal proceedings against H. and two others for a breach of the inviolability of the home (нарушување на неповредливоста на домот). He complained that between 17 March 2005 and 2 April 2006 H. had trespassed on his property. On 3 October 2006 he made a claim for compensation for damage. 14. On several occasions during the trial the first applicant alerted the trial court to the fact that H. had again demolished the wall, had repeatedly trespassed on his property, sounded his car horn, instructed others to throw objects at the first applicant’s house, and had threatened and even fired at him with an automatic gun. 15. On 24 December 2008 the trial court found H. guilty and sentenced him to six months’ imprisonment, suspended for two years. The court noted that H. had no criminal record. The court held that he had repeatedly gone onto the first applicant’s land, which was part of his home. In establishing the facts, it relied, inter alia, on the judgment in the proceedings referred to above, П.бр. 1224/05 (see paragraphs 10-12). Lastly, it advised the first applicant, in accordance with section 102 of the Criminal Proceedings Act, to pursue his compensation claim by means of a separate civil action for damages as he had not provided enough evidence to substantiate it. 16. The first applicant appealed, arguing that H. had already been convicted in earlier proceedings (see paragraphs 5-9 above). He requested that the court accordingly impose a more severe penalty. On 17 June 2009 the appellate court upheld the trial court’s judgment, finding no grounds to depart from the established facts and reasons provided. 17. On 7 September 2009 the first and second applicants lodged a criminal complaint against H. for breach of the inviolability of the home, alleging that on 29 July 2009 and on other occasions H. had again unlawfully gone onto the first applicant’s land and trespassed in his yard. 18. At the trial, H. stated that the applicants had objected to him using the road, which in his opinion was a public thoroughfare, because they considered it part of their property. He further stated that there was another road to his house, which he did not use. The court admitted in evidence a decision of 23 October 2008 in which the competent administrative authorities had ordered the wall to be demolished because it had been constructed unlawfully. 19. On 5 September 2012 the trial court convicted H. and sentenced him to one year’s imprisonment, suspended for three years. It further reprimanded him (судска опомена) for using insulting language to the second applicant in reply to the criminal complaint. The court relied on the final judgments in the previous proceedings against H. (see paragraphs 5-9 and 13-16 above) and took his previous convictions into consideration in determining the penalty. Lastly, it instructed the applicants to pursue their compensation claim by means of a separate civil action for damages. 20. The applicants appealed, arguing, inter alia, that the penalty that had been imposed would not fulfil the aims of punishment. On 16 April 2013 the appellate court dismissed the appeal, finding that the penalty would deter H. from reoffending. 21. The first applicant lodged a criminal complaint against a police officer who had carried out an on-site inspection related to the incident of 19 March 2005, but it was rejected by the public prosecutor. The latter found, inter alia, that the incident concerned a dispute between neighbours over their land. 22. On 19 March 2007 the applicants informed the police that despite the judgment of 7 July 2006 (see paragraph 10 above), H. had repeatedly entered the first applicant’s property and had incited some children to throw stones at their house. 23. On several occasions between 26 February 2010 and 11 September 2013, the applicants reported H. to the police for uttering insults, entering and damaging their property or threatening to kill them. 24. In 2013 the applicants initiated another set of criminal proceedings against H. on account of a breach of the inviolability of the home. It appears that the proceedings are still pending. 25. Under Article 39 § 4 of the Criminal Code, in determining the sentence of a person with previous convictions, the court will specifically consider whether the previous conviction was related to a similar offence as the new one, whether the offences were committed with the same motive, and what period of time has elapsed from the previous conviction or sentence, whether served or pardoned. 26. Under Article 49, a suspended sentence (условна осуда) means the court will impose a sentence and decide that it will not be enforced if the convicted person does not reoffend within a period determined by the court, which cannot be less than one year or longer than five (“the control period”). A suspended sentence may also entail the court determining that the sentence will be enforced if the convicted person does not return the proceeds of a crime, does not pay compensation for damage, or does not fulfill other obligations. 27. Under Article 51 § 1 the court shall revoke a suspended sentence during the control period if the convicted person commits one or more offences for which he or she is sentenced to imprisonment of two years or longer. Under Article 51 § 2, in cases of a less serious offence, the court assesses all the circumstances concerning the offences and the offender, especially the relation between the offences, their significance and the motives for them, and decides whether or not to revoke the suspended sentence. The court cannot impose a suspended prison sentence if the offender is to be sentenced to more than two years’ imprisonment for the initial and the new offences. Under Article 51 § 4 if the court does not revoke the suspended sentence it can pass another suspended sentence for the new offence. If the court finds that it should issue a suspended sentence for the new crime, it must determine a single sentence for the initial and new offence and a new control period. That period cannot be less than one year or longer than five. 28. Under Article 54 § 1, a suspended sentence may be revoked during the control period. If the convicted person commits an offence during that period which calls for the suspended sentence to be revoked and which was imposed by a final judgment after the expiry of the control period, the suspended sentence may be revoked within one year of the day of expiry of the control period. Under Article 54 § 2 if the convicted person does not fulfill some of the obligations referred to in Article 49, the court may decide, within a year of the expiry of the control period, that the suspended sentence should be enforced. 29. Under Article 145 § 1, any person who enters without authorisation another person’s home, a closed or fenced area belonging to that home, or private business premises designated as such, or does not leave such an area at the request of an authorised person, can be fined or imprisoned for one year. 30. Under Article 386 § 1, anyone who ill-treats or grossly insults another person, or threatens his safety or performs an act of gross violence against him and thereby causes a feeling of insecurity, threat or fear in the rest of the general public, can be imprisoned for between three months to three years. 31. Under Article 392 § 1, anyone who wilfully (самовласно) appropriates for himself a right or a right that he considers to be his own, can be fined or imprisoned for six months. 32. Chapter 10 of the Criminal Proceedings Act 1997 regulated pecuniary claims (имотно-правни барања) lodged in criminal proceedings. Under section 96 (renumbered to section 97 with the 2005 consolidated text of the Act, Official Gazette no. 15/2005) a compensation claim relating to a criminal offence was to be decided in criminal proceedings, unless it significantly delayed those proceedings. 33. Under section 100 (section 101 of the consolidated text), the court could question the accused about the grounds of the compensation claim. If a decision on the compensation claim would significantly delay the proceedings, the court confined itself to gathering evidence which would be impossible or very difficult to gather at a later stage. 34. Section 101 (section 102 of the consolidated text) provided that if the court found the accused guilty, it could fully or partially decide the compensation claim. If the evidence in the criminal proceedings did not provide a sufficient basis for a decision on the compensation claim, and there was a danger that the criminal proceedings would be prolonged unjustifiably in order to obtain such evidence, the court could decide solely on the existence of the grounds for compensation, or on the grounds and partially on the compensation claim, and adopt a supplementary judgment (дополнителна пресуда) for the rest of the claim. If the amount of compensation could not be determined on the basis of other evidence or if obtaining such evidence would lead to significant delays in the proceedings, the court could decide on the compensation claim by awarding just satisfaction (правичен надоместок). 35. If the accused was acquitted, the indictment was rejected, or the proceedings were discontinued, the court was to instruct the victim to pursue his or her compensation claim in civil proceedings (section 101(3)). 36. Under section 494(1) (section 543(1) of the consolidated text), if a suspended prison sentence required the convicted person to return the proceeds of the crime, provide damages or fulfill other duties but which he failed to do, the trial court could revoke the suspended prison sentence on the proposal of an authorised plaintiff (овластен тужител) or of its own motion. If the court found that the obligations had not been fulfilled, it could issue a judgment prolonging the period for fulfilment, releasing the convicted person from fulfilment or replacing that duty with another one. It could also revoke the suspended sentence or decide that the suspended prison sentence be executed (section 494(4)). 37. Section 225 of the Enforcement Act provides that if after an enforcement title (извршна исправа) concerning disturbance of possession (смеќавање на посед) has been enforced the respondent again disturbs the possession in the same manner, a private bailiff can order a return to the status quo ante on the basis of the same enforcement title. 38. Under section 11(3) a court in civil proceedings is bound by a criminal court’s final decision in respect of the existence of the offence and the criminal liability of the offender. 39. The Government submitted a copy of three judgments in which the courts granted a request by victims of a crime for the revocation of a suspended prison term after the offender failed to pay compensation or fulfil other obligations (the payment of maintenance).
| 0 |
test
|
001-148237
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,014 |
V.J. v. FINLAND
| 4 |
Inadmissible
|
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
1. The applicant, Mr V.J., is an Angolan national who was born in 1989. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr Pirkka Lappalainen, a lawyer practising in Tampere. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is a 25-year-old single male from Angola. He originates from Kakongo city in Cabinda province. His whole family belonged to the FLEC-FAC party (Frente de Libertação do Estado de Cabinda - Forças Armadas de Cabinda), supporting and fighting for the independence of Cabinda. His parents were killed by the Angolan security forces when he was three years old. The applicant, together with his brother and sister, went to live with his uncle and the uncle’s wife after the incident. The applicant’s uncle had an important role in the FLEC-FAC, being the representative of the party and coordinating its activities in their neighbourhood. The uncle was held for approximately two years in Yabi prison when the applicant was still at school. The applicant was also a member of the party but his activities within the party were minor, mostly limited to distributing leaflets. 5. The applicant described his problems with the authorities as first starting when he was around 14 years old (in 2003). He was selling tinned food at the market when he ended up having a disagreement with a buyer who subsequently reported him to the police, alleging that he was conspiring to kill an important army colonel. The applicant was apparently held for a long time (around 2 years) in detention without a trial, but eventually his uncle managed to buy his release. The conditions in detention were extremely poor and he also claimed to have been beaten and stripped naked. 6. The events that led to his flight from Angola happened in late 2008. When returning home after his working day at the market, the applicant found that his uncle, brother and sister had been killed in the house. His uncle’s wife and his own common-law wife, who was also living in the same house at the time, had disappeared. The applicant has not had any information about them since. He heard that some people from his village had managed to escape to the Democratic Republic of Congo and suspected that perhaps his spouse and his uncle’s wife were among those people. Subsequently, the applicant was taken by FAA (Angolan Armed Forces) soldiers to an unknown location where some 15 other persons were held. The applicant was questioned about the whereabouts of his uncle’s documents concerning FLEC-FAC and ill-treated by the soldiers. He was beaten on the head with the butt of a rifle, his feet were beaten and burned, he was shot in the leg and the surface of his chest was cut with a knife. Approximately five or six days later he managed to escape, together with another FLEC-FAC activist who had also been held captive. The applicant walked back to his village and went to see the local priest, who helped him to flee Angola. He stayed for a while with a friend of the priest and in a church in Luanda. Eventually the priest organised his escape through a smuggler. The applicant flew to Moscow and travelled by car to Finland, where he arrived on 17 April 2009. 7. On 10 July 2009 a general physician examined the applicant. The applicant had already been hospitalised in May and June 2009 for epileptic fits which were at first diagnosed as psychogenic or caused by injuries to the head. The general physician reported scarring in several places on the applicant’s body and diagnosed him as suffering from posttraumatic stress disorder. He referred the applicant to the Centre for Torture Survivors in Finland (Kidutettujen kuntoutuskeskus, Centret för rehabilitering av tortyroffer) for further examination and treatment. The applicant was examined on two occasions, on 3 December 2009 and 13 January 2010 respectively, by the physiotherapist of the Centre for Torture Survivors who reported that the applicant had altogether six visible scars on his body. Two 1 to 3 cm long scars were found on his forehead and half of his front teeth were missing. Other scars were detected on his chest, leg and feet, all matching his description of the torture he had suffered. The applicant complained also of chest pain and difficulties in breathing from time to time, which he claimed had been caused by being kicked in the chest. He was also very sensitive to touch in general, which the physician concluded to be most likely a psychological symptom of ill-treatment. The applicant had therapy sessions with both the psychiatrist and the psychologist of the Centre for Torture Survivors from 27 November 2009 until at least December 2012. In their various medical reports the psychiatrist and the psychologist concluded that the applicant’s psychological condition was consistent with him having experienced severe and multiple trauma, compatible with his claim of having been tortured and having experienced the killing of his family. The psychiatrist diagnosed the applicant with severe depression and post-traumatic stress disorder and reported him as suffering also from slight memory problems. His symptoms of posttraumatic stress disorder and his memory problems eased during treatment and the applicant managed to begin studies in Finland. From 27 to 29 August 2011 the applicant was again hospitalised due to severe epileptic fits occurring despite medication. He was referred to a neurologist for follow-up. 8. As from the end of October 2012 the applicant was reported to be suicidal and was shortly admitted to intensive mental care. 9. On 17 April 2009 the applicant sought asylum immediately on arrival in Finland. 10. On 27 May 2010 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) rejected his application and decided to send him back to Angola. In its decision the Immigration Service referred extensively and in detail to the applicant’s asylum interview and found several discrepancies in his story. It noted that on some occasions the applicant gave exact dates and on other occasions he could not place the events at a specific moment in time. The Immigration Service found the applicant’s story of his escape, in a wounded state, from the FAA soldiers to be unlikely and not credible. The Immigration Service concluded that as there were such credibility issues, the applicant’s scars could have been caused by other means than torture, as he claimed. It also doubted whether the applicant was from Cabinda province. 11. The applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that the Immigration Service’s decision be quashed and he be granted asylum, or alternatively, secondary protection or a residence permit due to individual humanitarian circumstances. He also requested that an oral hearing be held. The applicant also submitted to the court several new medical certificates, noting that it was common that such trauma as torture and epilepsy affect negatively a person’s memory and ability to recount events consistently. 12. On 19 August 2011 the Administrative Court rejected the applicant’s appeal and refused his request for an oral hearing as unnecessary. It noted, however, that the discrepancies in the applicant’s story were minor and did not give reason to doubt that he originated from Cabinda. On the other hand, the Administrative Court did not consider it likely that the applicant would have been arrested and tortured after the rest of the family had been killed. The applicant’s previous arrest when he was 14 years old seemed to be unconnected with later events. The Administrative Court considered, furthermore, that it was not likely that Angolan officials would be interested in the applicant now that his uncle was dead. Although the human rights situation in Cabinda was not very satisfactory, it concluded that the applicant could be returned there without a real risk of ill-treatment. 13. On an unspecified date the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen), reiterating the grounds of appeal already presented before the Administrative Court. 14. On 12 October 2012 the Supreme Administrative Court refused the applicant leave to appeal. The applicant was notified of the decision on 30 October 2012. 15. On 21 December 2012 the applicant lodged a new asylum application, referring to the same grounds as in his first application. He also submitted new medical certificates, arguing that his current state of health prevented his removal or that removal to Angola would amount to inhuman treatment as no medical treatment would be available for him there. He also submitted certificates of his studies in Finland and relied on them as grounds for a residence permit. 16. On 15 January 2013 the Immigration Service rejected the application after having examined it in a fast-track procedure and decided to expel him to Angola. It also imposed a two-year-ban on entry into Finland and the Schengen-area. The Immigration Service considered that the applicant’s situation had not changed since the previous application and that there were no grounds for a residence permit or grounds preventing the applicant’s removal to Angola. It noted that the situation in the Cabinda area had calmed down, even though some attacks were still reported between the Angolan army and some rebel groups of the FLEC-FAC. However, the applicant could relocate internally to other parts of Angola if he wished. As for his health, the Immigration Service noted that mental health care was available in Angola, although a shortage of medical staff in general was reported. Post-traumatic stress disorder could be treated in one private clinic in Luanda. The treatment of epilepsy was not mentioned. 17. The applicant appealed to the Administrative Court, requesting again that a stay on removal be granted. 18. On 7 February 2013 the Administrative Court notified the applicant that the request for interim measures had been refused. The applicant’s appeal before the Administrative Court remained pending before that court. 19. On 19 September 2013 the Administrative Court rejected the applicant’s appeal. 20. By letter dated 21 October 2013 the applicant appealed to the Supreme Administrative Court, requesting that the Administrative Court’s decision be quashed and he be granted asylum or, alternatively, secondary protection or a residence permit due to individual humanitarian circumstances. He claimed that his vulnerability continued to increase and that he was clearly in need of protection. 21. On 17 April 2014 the Supreme Administrative Court refused the applicant leave to appeal. 22. According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity. 23. According to section 87, subsection 1, of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004), aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership of a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country. 24. Section 88, subsection 1, of the Act (as amended by Act no. 323/2009) provides that an alien residing in Finland is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; or 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts. 25. Under section 88a of the Act (as amended by Act no. 323/2009), an alien residing in Finland is issued with a residence permit on the basis of humanitarian protection, if there are no grounds under section 87 or 88 for granting asylum or providing subsidiary protection, but he or she cannot return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation. 26. According to section 88b of the Act (as amended by Act no. 323/2009), the well-founded fear of being persecuted referred to in section 87b or the real risk of being subjected to serious harm referred to in section 88 may be based on incidents after the applicant’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in since his or her departure. 27. Section 98, subsection 2, of the Act (as amended by Act no. 432/2009) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant’s statements on his or her circumstances in the State in question and of real time information on the circumstances in that State obtained from various sources. After obtaining the statement, the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible, and if the authorities are convinced of the veracity of the application with regard to the applicant’s need for international protection. 28. According to section 147 of the Act, no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area. 29. Section 147b of the Aliens Act (as amended by Act no. 1214/2013) incorporates into the Finnish legal system the Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member States, of third-country nationals who are subjects of individual removal orders. The annex to the Decision contains common guidelines on security provisions for joint removals by air including, inter alia, an obligation for the Member States to ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for safe removal by air. 30. The Home Office’s Country of Origin Information Report on Angola of September 2010 provides the following information: “The United States State Department 2009 Country Report on Human Rights Practices on Angola observed that “the Memorandum of Understanding for Peace and Reconciliation for Cabinda Province, signed in 2006, largely brought an end to the insurgency in the province, although sporadic attacks by dissident factions of the Front for the Liberation of the Enclave of Cabinda (FLEC) and counterinsurgency operations by the Armed Forces of Angola (FAA) continued during the year. ... The intensity of the armed conflict in Cabinda has declined as a result of large-scale counterinsurgency operations in 2002-2003, and the government publicly claims that the Cabinda conflict came to a close in 2006, when a peace agreement was signed with a faction of the rebel Liberation Front for the Independence of the Enclave of Cabinda (FLEC). But the campaign for independence remains unresolved, and sporadic guerrilla attacks have been ongoing.” 31. According to the U.S. Department of State’s Country Report on Human Rights Practices for 2013 in Angola of January 2013: “The three most important human rights abuses were cruel, excessive, and degrading punishment, including reported cases of torture and beatings as well as unlawful killings by police and other security personnel; limits on freedoms of assembly, association, speech, and press; and official corruption and impunity.” 32. Concerning the availability of medical drugs for mental health, the Home Office’s Country of Origin Information Report on Angola of September 2010 states the following: “...the following therapeutic drugs are generally available at the primary health care level of the country: carbamazepine, phenobarbital, phenytoin sodium, amitriptyline, chlorpromazine, diazepam, fluphenazine, haloperidol, lithium. Prices keep on fluctuating depending on the availability of drugs.”
| 0 |
test
|
001-183205
|
ENG
|
MDA;RUS
|
CHAMBER
| 2,018 |
CASE OF POCASOVSCHI AND MIHAILA v. THE REPUBLIC OF MOLDOVA AND RUSSIA
| 3 |
Inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period (Russia);Preliminary objection joined to merits and dismissed (Art. 34) Individual applications;(Art. 34) Victim (the Republic of Moldova);Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect) (the Republic of Moldova);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture) (the Republic of Moldova);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture) (the Republic of Moldova);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation;Positive obligations) (the Republic of Moldova);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) (the Republic of Moldova)
|
Dmitry Dedov;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano
|
5. The applicants were born in 1975 and 1976 and live in Cahul and Cetireni respectively. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicants were convicted by Moldovan courts and, at the time of the events, were serving their sentences in prison no. 8 situated in the town of Tighina (Bender), in the Transdniestrian region of the Republic of Moldova. The town is situated in the security zone under the control of peacekeepers from Moldova, Russia and the self-proclaimed “Moldavian Republic of Transdniestria” (“MRT”). Prison no. 8 is under the exclusive control of the Moldovan authorities. By October 2003 some 236 people were detained there; some of them, such as the applicants, were ill with tuberculosis. 8. On 23 September 2002 the Bender local administration, which is subordinated to the “MRT” authorities, disconnected prison no. 8 from the electricity, water and heating supplies. As a result, the detainees were deprived of conditions of basic hygiene, and the food they received did not meet the minimum standards of quality. 9. The prison authorities informed the Moldovan Ministry of Justice, the President’s Office, the Organization for Security and Co-operation in Europe (OSCE), the Red Cross and the Council of Europe, as well as local human rights organisations, with a view to obtaining assistance in resolving the problem arising from the disconnection from the town’s utilities network. 10. On 12 August 2003 the Bender prosecutor’s office (which forms part of the official Moldovan authorities) informed the Helsinki Committee for Human Rights in Moldova (“the CHDOM”), for which the applicant’s representative worked, that, as a result of pressure from the OSCE, the Bender authorities had reconnected the prison to the electricity and water supply systems on 23 February 2003. On 10 July 2003 the last of the people who were ill with tuberculosis were transferred to a newly-built hospital wing in Pruncul prison hospital, situated in Moldova. According to the head of prison no. 8, some 236 healthy detainees, including the applicants, remained in the prison after that date. However, also on 10 July 2003, the local authorities disconnected prison no. 8 from the electricity and water supply systems again, without any warning. The “MRT” authorities insisted that the prison needed to be closed down. 11. On 15 September 2004 Mr Pocasovschi (the first applicant) was transferred to another prison. He was released on parole on 14 April 2005. Mr Mihăilă (the second applicant) was transferred to another prison on 1 March 2004 and was released on parole on 28 March 2005. 12. On 21 July 2003 the applicants’ representatives asked the Moldovan Prosecutor General’s Office to initiate criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities systems. On 12 August 2003 the Bender prosecutor’s office replied in general terms, describing the difficult situation with regard to prison no. 8 and the unsuccessful negotiations with the local authorities. 13. On 29 August 2003 the CHDOM asked the Bender District Court (which is part of the Moldovan court system) to order the prosecutor’s office to remedy the human rights violations taking place in prison no. 8. 14. On 7 October 2003 the head of prison no. 8 informed the court that, owing to insufficient access to water and electricity, detainees in his institution could not receive appropriate medical assistance or food of a sufficient standard, or maintain proper hygiene. 15. On 31 October 2003 the Bender District Court ordered the prosecutor’s office to initiate criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities supply. That decision was upheld by the Bender Court of Appeal on 18 December 2003. 16. According to the Moldovan Government, on 18 November 2003 the Bender prosecutor’s office contacted the “MRT” authorities with a view to prosecuting those responsible for disconnecting prison no. 8 from the utilities. It also informed the Joint Control Commission (see Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, § 90, ECHR 2004VII) of the need to include the subject on its agenda. On 20 December 2003 the “MRT” prosecutor’s office refused to open a criminal investigation on the ground that no crime had been committed. 17. On 19 January 2004 the relatives of two of the detainees made another complaint to the CHDOM regarding the inhuman conditions of detention in prison no. 8. That letter was forwarded to the Moldovan Ministry of Justice, the President of the Republic of Moldova and the Prosecutor General’s Office, along with a request to take all necessary steps to immediately improve the conditions of detention. 18. On 1 March 2004 the CHDOM asked the Bender prosecutor’s office what action had been taken pursuant to the above-mentioned court decisions. On 12 March 2004 the Bender prosecutor’s office replied that all the material was at the Prosecutor General’s Office, which was dealing with the case. 19. On 15 March 2004 the Ministry of Justice informed the CHDOM that the State was making all necessary efforts to ensure acceptable conditions of detention at prison no. 8, and that, at that time, the conditions of detention at that prison did not differ from those at other prisons in the Republic of Moldova. 20. On 20 April 2004 the Prosecutor General’s Office informed the CHDOM that it had lodged an extraordinary appeal with the Supreme Court of Justice against the decisions of 31 October 2003 and 18 December 2003. On 3 August 2004 the Supreme Court of Justice upheld those decisions. 21. On 1 June 2009 the CHDOM asked the Prosecutor General’s Office what actions had been undertaken after the judgment of the Supreme Court of Justice of 3 August 2004. On 14 July 2009 the Bender Prosecutor’s Office replied that the actions of the “MRT” authorities could not be investigated by the Moldovan authorities as long as the “MRT” authorities de facto controlled the territory of the “MRT”. 22. On 15 March 2004, on behalf of 141 detainees in prison no. 8, including the applicants, the CHDOM lodged a civil action against the Ministry of Justice, asking for the finding of a violation of the rights guaranteed under Article 3 of the Convention. The detainees had authorised the organisation to act on their behalf. The CHDOM also asked for an improvement in the conditions of detention and for the payment of compensation in the amount of 15,000 Moldovan lei (MDL – approximately 1,000 euros (EUR) at the time) for each detainee. 23. On 16 and 22 April 2004 the President of the Bender District Court asked the Supreme Court of Justice to decide whether the case should be examined by another court. On 19 May 2004 the Supreme Court of Justice rejected the request and left the case with the Bender District Court. 24. On 18 June 2004 the Bender District Court decided to transfer the case to the Buiucani District Court in Chişinău, in accordance with territorial competence principles. The claimants (the detainees) and their representatives were not consulted. On 22 June 2004 the CHDOM challenged that decision. On 14 July 2004 the Bender Court of Appeal set aside the decision of 18 June 2004 and ordered the urgent examination of the case by the Bender District Court. 25. On 28 December 2004 the Bender District Court declined to examine the claim because it did not satisfy legal requirements. On 1 February 2005 the Bender Court of Appeal set aside that decision. 26. After February 2005 many of the 141 detainees who were plaintiffs in the above-mentioned civil action were transferred to other prisons in various parts of the country, which made it more difficult for the CHDOM to obtain confirmation of each individual’s power of attorney, as requested by the Bender District Court. In such circumstances, the CHDOM selected nine cases (including those of the applicants in the present case) with which to continue the proceedings. Since the individuals concerned were also detained in separate prisons, the CHDOM made an application for their cases to be examined separately, an application which the Bender District Court refused on 11 November 2005. 27. On 26 April 2006 the Bender District Court rejected the CHDOM’s application to summon as defendants the individuals from the relevant local “MRT” authorities in Bender responsible for violating the detainees’ rights. On an unknown date in June 2006 the Bender Court of Appeal set aside that decision and ordered the summoning as defendants of A.P., A.M. and V.M., the heads of the relevant local “MRT” authorities in Bender. According to the applicants, none of these individuals was summoned by the Bender District Court. 28. On 15 December 2006 the judge who had been examining the case withdrew from it. On 18 May 2007 the judge who had taken over the case also withdrew from it. Subsequently, all other judges of the Bender District Court withdrew, allegedly for fear of persecution by the “MRT” authorities. As a result, the Bender Court of Appeal was asked to decide which other court could examine the case. On 13 November 2007 the Bender Court of Appeal decided that the case should be examined by the Anenii-Noi District Court. 29. On 26 December 2007 the Anenii-Noi District Court declined to examine the claim because it did not fulfil certain legal requirements. It found in particular that there was a lack of valid powers of attorney in favour of the CHDOM. 30. On 6 March 2008 the CHDOM lodged a reformulated court action in accordance with the legal requirements. It also asked for the Russian Government to be summoned as a defendant in the case, as it had de facto control over the territory of the “MRT”. It claimed EUR 10,000 and EUR 7,000 respectively for the breach of the applicants’ rights. On the same date the Anenii-Noi District Court declined to examine the claim because the powers of attorney issued by the detainees in favour of the CHDOM had expired. 31. On 20 May 2008 the Bender Court of Appeal set aside the decision of 6 March 2008, noting that, in the applicants’ cases, the powers of attorney had been renewed. 32. On 18 June 2008 the Anenii-Noi District Court adjourned the hearing because of the absence of a representative of the Ministry of Justice. The same thing occurred on 29 October 2008. The court also informed the CHDOM that, in a letter dated 2 July 2007, the Ministry of Justice had informed the court that a representative of the Russian Federation could only be summoned via the Ministry of Justice. 33. On 30 December 2008 the Anenii-Noi District Court adopted a judgment in which it allowed the applicants’ claims in part. It awarded each of them damages in the amount of EUR 200, to be paid by the Moldovan Ministry of Finance, and EUR 500, to be paid by the Russian Ministry of Finance. 34. On 30 June 2009 the Bender Court of Appeal quashed that judgment in part. It found that, following the prison’s disconnection from the utilities, the prison administration had no longer been able to offer food or medical treatment for tuberculosis which was of an adequate quality; there had been no access to showers, a very poor situation concerning personal hygiene, and only two hours of electricity per day, ensured by a low-power generator. None of the complaints made to the State authorities had resulted in an improvement in the conditions of detention until much later, as established in 2008. The court acknowledged a breach of the applicants’ right not to be held in inhuman conditions of detention, and increased the award in favour of each of them to MDL 20,000 (EUR 1,266 at the time). It also found that the Russian Federation could not be a defendant in Moldovan courts unless it expressly agreed to that, which was not the case here. 35. On 27 April 2010 the Supreme Court of Justice accepted the applicants’ appeal on points of law in part, and amended the judgment of the lower court. It analysed in detail the length of the civil proceedings (between 22 March 2004 and the date of adopting its own judgment on 27 April 2010), the complexity of the case, how the parties and the courts had contributed to the length of the proceedings, as well as the significant interest at stake for the applicants. The court found that, despite the applicants’ representatives’ actions contributing to the overall length of the proceedings (twenty-six out of the sixty-seven months), a breach of the right to a trial within a reasonable time had taken place, requiring additional compensation which it set at MDL 6,000 (approximately EUR 358 at the time). It did not amend the remainder of the lower court’s judgment. 36. The Moldovan Government submitted a long list of actions concerning their efforts to assert their sovereignty over the “MRT” territory and ensure that human rights were observed in the region. They also submitted copies of documents concerning prison no. 8 in Tighina/Bender specifically, raising in particular the issue of the prison being disconnected from utilities within the framework of the “5+2” negotiations process (between the OSCE, Russia, Ukraine, the European Union and the USA, in addition to Moldova and the “MRT”) and with various international organisations.
| 1 |
test
|
001-150638
|
ENG
|
BIH
|
CHAMBER
| 2,015 |
CASE OF ĐURIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
| 3 |
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);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
|
5. By six judgments of the Banja Luka Court of First Instance (“the Court of First Instance”) of 17 February 2000, 25 October 2000, 12 December 2008, 8 July 2003, 11 February 2003 and 31 August 1999, which became final on 15 May 2001, 18 March 2004, 12 January 2009, 30 June 2005 and 4 December 2000 respectively, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to pay, within 15 days, the following amounts in respect of war damage together with default interest at the statutory rate: (i) BAM 21,000 in respect of non-pecuniary damage, BAM 2,300 in respect of pecuniary damage and BAM 2,350 in respect of legal costs to the Đurićs; (ii) BAM 31,000 in respect of non-pecuniary damage, BAM 2,500 in respect of pecuniary damage and BAM 3,570 in respect of legal costs to the Bošnjaks; (iii) BAM 28,000 in respect of non-pecuniary damage, BAM 2,500 in respect of pecuniary damage and BAM 4,470.60 in respect of legal costs to the Bojanićs and Ms Banjac; (iv) BAM 40,000 in respect of non-pecuniary damage and BAM 2,835 in respect of legal costs to the Čolićs; (v) BAM 19,000 in respect of non-pecuniary damage and BAM 600 in respect of legal costs to Mr Lazarević; (vi) BAM 14,000 in respect of non-pecuniary damage, BAM 2,500 in respect of pecuniary damage and BAM 1,810 in respect of legal costs to the Komljenovićs. 6. The Court of First Instance issued writs of execution (rješenje o izvršenju) on 24 August 2001, 16 August 2004, 4 April 2011, 8 August 2007, 27 April 2009 and 28 March 2001. 7. The applicants complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). 8. On 16 January 2013 the Constitutional Court found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 in the cases of the Đurićs, Mr Lazarević, the Bojanićs and Ms Banjac. In line with its established practice in cases of this type, it refused the applicantsʼ compensation claims, holding that a finding of a violation constituted in itself sufficient just satisfaction. 9. The cases of the Čolićs, the Komljenovićs and the Bošnjaks are still pending before the Constitutional Court. 10. On 10 April 2008, 12 November 2010, 13 December 2010 and 18 July 2008 respectively the Đurićs, the Bošnjaks, the Čolićs, Mr Lazarević and the Komljenovićs were paid legal costs and default interest. 11. Under the new settlement plan (see paragraph 16 below) the Đurićsʼ case was scheduled for enforcement in 2014; the Bošnjaksʼ in 2019; the Bojanićsʼ and Ms Banjacʼs in 2030; the Čolićsʼ in 2024; Mr Lazarevićʼs in 2026; and the Komljenovićsʼ in 2017.
| 1 |
test
|
001-164460
|
ENG
|
NLD
|
CHAMBER
| 2,016 |
CASE OF A.M. v. THE NETHERLANDS
| 3 |
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan)
|
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
6. The applicant was born in 1966 and has been in the Netherlands since 2003. 7. On 25 July 2003 the applicant entered the Netherlands where on 19 August 2003 he applied for asylum, fearing persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the Refugee Convention”) and/or treatment in breach of Article 3 of the Convention. On 20 August 2003, he was interviewed about his identity, nationality and travel itinerary (eerste gehoor). He stated, inter alia, that he was an Afghan national of Hazara origin, that he came from Kabul and that he had travelled to the Netherlands via Pakistan, Iran and Germany. 8. On 21 August 2003 the applicant was interviewed about his reasons for seeking asylum (nader gehoor). He stated that he feared persecution and ill-treatment on account of his communist past as a former member of the communist People’s Democratic Party of Afghanistan (“the PDPA”) and for having served as a volunteer in the Revolutionary Guard (Sepah Enghelab). He further claimed that he risked ill-treatment at the hands of mujahideen party Jamiat-e Islami for having been involved between 1992 and 1994 with the rival Hazara-dominated, Hezb-e Wahdat party and, additionally, at the hands of a Mr S., whom he had captured and ill-treated during an interrogation conducted in the context of his work for Hezb-e Wahdat. He also feared problems from the side of Hezb-e Wahdat for having stopped working for them. 9. The applicant stated that he had joined the youth branch of the PDPA in 1978 and that in 1981 he had served as a volunteer for twenty days in the Revolutionary Guard. He had been discharged after he had stepped on a mine during combat. He further stated that in 1984 he had started to work for the Ministry of Trade in Kabul, at the department for government stores, and that in 1989 he had given a television interview in which he had criticised the then Minister of Trade. This interview had not been broadcast in 1989 but only in mid-May 1992, after the mujahideen had seized power in Afghanistan. The day after it had been broadcast, the applicant had been arrested by the mujahideen faction Ittehad-al-Islami (Islamic Union) then led by Abdul Rasul Sayyaf. In his opinion they had been under the impression, given that he had dared to criticise the Minister of Trade, that he was an important member of the Communist Party. He had been released after ten days in a prisoner exchange operation mediated, at the request of the applicant’s parents, by Mr M., an influential person of Hazara origin. 10. In return, the applicant had had to work for Hezb-e Wahdat. He had worked as a representative of the (military) Division 95 of Hezb-e Wahdat at the West Kabul peace commission in which Jamiat-e Islami, Ittehadal-Islami and Harakat-e-Islami had also been represented. His tasks had included trading prisoners and seized goods, and mediating between parties. He had also been responsible for preventing members of Hezb-e Wahdat’s Central Committee from defecting and for preventing members of other factions from infiltrating Hezb-e Wahdat. In the course of carrying out these duties and if circumstances so warranted, he had been under orders to take people secretly into custody. One of the persons taken in custody, Mr S., had been interrogated by the applicant himself, who had ill-treated Mr S. during interrogation. After Burhanuddin Rabbani and Ahmad Shah Massoud had taken over control of the Afshar district in West Kabul, the applicant had been arrested and detained again by Ittehadal-Islami in December 1992/January 1993. He had been released in a prisoner exchange organised by Hezb-e Wahdat. 11. The applicant had continued his work for the peace committee of Hezb-e Wahdat until December 1994, when this party had been defeated and retreated to Bamyan. The applicant had stayed behind in Kabul and had not been persecuted by “Khalili” (see paragraph 39 below). However, fearing Jamiat-e Islami and the Taliban, the applicant had then gone into hiding – moving around between Kabul and the villages of Siah Khak and Sar Shesmeh in the province of Wardak – until December 2001, when American troops had arrived. He had been arrested on 20 or 21 March 2002 by Jamiat-e Islami, then under the leadership of General Fahim. The applicant had been tortured several times during his incarceration. Mr S. had been present on one of those occasions. The applicant had been told by interrogators that he had been detained because he was a communist or a convert. He also thought that his arrest had something to do with Mr S. The applicant had managed to escape from prison after 45 days with the help of a guard – who like the applicant was a former communist – to whom the applicant had paid three thousand United States dollars. This guard had set up a mock execution outside the prison, which had enabled the applicant to escape. This guard had told the applicant that he should leave Afghanistan forever. After his escape, the applicant had first hidden in his house in Kabul for about 15 days and had subsequently stayed with a distant relative until he had left Afghanistan for Pakistan in May 2002. 12. On 18 September 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) informed the applicant that his case had been transmitted to the 1F Unit (see A.A.Q. v. the Netherlands (dec.), no. 42331/05, §§ 47-49, 30 June 2015) in order for it to examine whether Article 1F of the 1951 Refugee Convention should be applied to the applicant’s asylum request. 13. On 5 February 2004 the 1F Unit conducted a supplementary interview (aanvullend gehoor) with the applicant. During this interview, he declared, inter alia, that in 1981, as a member of the Revolutionary Guard, he had participated in a purge action – ordered by the PDPA Central Committee and the Ministry of Defence – aimed against persons active on behalf of Hezb-e Islami and Jamiat in a specific area and that prisoners of war had been handed over to the former Afghan communist security service, KhAD/WAD (Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati). He had become disabled when the tank on which he had been standing had hit a mine. The applicant also stated that, during the wars, Hezb-e Wahdat had plundered houses, seized privately owned cars and physically tortured persons. It was correct that Hezb-e Wahdat had committed many crimes and had shed much blood. He further related how he had interrogated and hit Mr S. at the Hezb-e Wahdat headquarters in Kabul. He also stated that, at present, he had no proof that he was being searched for but that it was clear to him, having been released upon payment of a bribe, that he could not show himself in Afghanistan. 14. On 21 April 2005 the Minister for Immigration and Integration issued notice of her intention (voornemen) to reject the first applicant’s asylum application and to apply Article 1F of the 1951 Refugee Convention. The Minister found it established, given his consistent and detailed statements, that the applicant had worked for the Revolutionary Guard and Hezb-e Wahdat but also found that, in his account to the Netherlands authorities, he had in part misrepresented the facts, had sought to trivialise his activities for Hezb-e Wahdat and had withheld important information. 15. The nature of the applicant’s work, and the contents of an official report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs, entitled “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”; DPC/AM 663896) and an official report, drawn up on 23 June 2000 by the Ministry of Foreign Affairs, on Hezb-e Wahdat (DPC/AM-681499), had given cause to consider whether Article 1F of the 1951 Convention was applicable to the applicant’s asylum claim. 16. In her notice of intention, the Minister analysed, on the basis of elaborate argumentation based on various international materials and on the prescribed and so-called “knowing and personal participation” test, the nature of the acts imputed to the applicant in the framework of Article 1F of the 1951 Refugee Convention, as well as his individual responsibility under that Convention. The Minister noted, inter alia, that the applicant had worked for a part of the PDPA Government, the Revolutionary Guard, which had collaborated with the KhAD and found that it was justified to conclude that the applicant had known or should have known about the criminal character of the KhAD and that its crimes had formed part of a widespread or targeted attack aimed against the civilian population. Having regard to the official report of 29 February 2000 (see paragraph 15 above), the Minister further found that the cruel character of the KhAD had been commonly known. The Minister further did not believe that the applicant had been ignorant of the criminal character of Hezb-e Wahdat when he had started to work for it as this had been widely known at the material time. Relying on the official report of 23 June 2000 (see paragraph 15 above), the Minister underlined that Hezb-e Wahdat had been considered during the Afghan civil war to be one of the most violent groups, not only because of its militia’s actions on the battle field and merciless liquidation of its political opponents, but in particular because of its militia’s crimes against the civil population of Afghanistan and for having instilled a true climate of terror in the country. The Minister lastly found it established that the applicant himself had committed acts of torture on the person of Mr S. 17. As regards Article 3 of the Convention, the Minister did not find it established that the applicant, if returned to Afghanistan, would be exposed to a real risk of being subjected to treatment prohibited by this provision. In reaching this finding, the Minister took into account, inter alia, that the applicant had stayed for about three months in Pakistan and about eight months in Iran without having sought assistance in these countries from, for instance, the United Nations High Commissioner for Refugees (“UNHCR”), that he had not applied for asylum when he had been apprehended by the police in Germany, and that he had not reported immediately to the immigration authorities after his arrival in the Netherlands. 18. On 17 June 2005 the applicant submitted written comments (zienswijze) on the Minister’s intended decision. On 19 October 2005 the Minister rejected the applicant’s asylum application, confirming the reasoning set out in her notice of intention of 21 April 2005 and rebutting the applicant’s written comments. 19. The applicant’s appeal against this decision was rejected on 25 January 2007 by the Regional Court (rechtbank) of The Hague, sitting in Roermond. It held in respect of the applicant’s activities as a fifteen-yearold adolescent volunteer for the Revolutionary Guard that, according to the applicable policy in respect of child soldiers, the Minister had not adequately reasoned her decision finding “knowing participation” in respect of this part of the applicant’s account. However, on the basis of the other elements of the account, it accepted the decision of the Minister to deny the applicant asylum by applying Article 1F of the Refugee Convention against him. It further held that it had not been established that the applicant – if expelled to Afghanistan – would be exposed to a risk of being subjected to treatment proscribed by Article 3 of the Convention from the side of Jamiat-e Islami on the basis of the general security situation in Afghanistan, or on the basis of his Hazara ethnic origin. 20. The applicant, who from his first interview was assisted by a lawyer in these asylum proceedings, could have filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), but did not do so. Consequently, the ruling of 25 January 2007 became final when the four week time-limit for filing an appeal with the Administrative Jurisdiction Division expired. 21. On 25 May 2007 the applicant was informed by the Deputy Minister of Justice (Staatssecretaris van Justitie) of the intention (voornemen) to declare him an undesirable alien entailing the imposition of an exclusion order (ongewenstverklaring) in accordance with section 67 § 1 (e) of the Aliens Act 2000 (Vreemdelingenwet 2000), following the decision to hold Article 1F of the Refugee Convention against him in the asylum procedure. 22. The actual decision to impose this exclusion order on the applicant was taken on 24 September 2007 by the Deputy Minister of Justice. As regards Article 3, the Deputy Minister did not find it established that the applicant would be at risk of being subjected to treatment contrary to this provision in Afghanistan or that there were any obstacles of a medical nature to his removal to Afghanistan. Further noting that the applicant did not have any relatives or other persons in the Netherlands with whom he had a family life within the meaning of Article 8 of the Convention, the Deputy Minister further found that the exclusion order did not constitute an interference with the rights guaranteed by this provision. 23. The applicant challenged this decision in administrative law proceedings. The last (for the applicant negative) decision in these proceedings was taken on 10 February 2009 by the Regional Court of The Hague, sitting in Maastricht. It noted that, in its ruling of 25 January 2007, which had obtained the force of res iudicata, the Regional Court of The Hague, sitting in Roermond, had concluded that there existed serious reasons for assuming that the applicant had been involved in acts referred to in Article 1F of the Refugee Convention. As the Deputy Minister had enjoyed a discretionary power in deciding whether or not to impose an exclusion order, it had to be assessed whether in deciding to impose that order, the competing interests involved had been carefully balanced. In view of the reasons given in the impugned decision and the applicant’s submissions, the Regional Court of The Hague, sitting in Maastricht, accepted the Deputy Minister’s decision that the applicant’s personal interests were outweighed by the general public’s interests pursued by the exclusion order. 24. In so far as the applicant had invoked Article 3 of the Convention, the Regional Court noted that in its ruling of 25 January 2007 it had already found that the applicant had not demonstrated that his expulsion to Afghanistan would expose him to a risk of a violation of his rights under that provision. It found that also in the proceedings at hand the applicant had not submitted facts or referred to circumstances on the grounds of which it should be accepted as plausible that he would risk a violation of his rights under Article 3 of the Convention if he were to be expelled to Afghanistan. As regards Article 8, the Regional Court noted that it appeared from the applicant’s notice of appeal (beroepschrift) that it was not in dispute between the parties that the applicant could not claim a right of residence on the basis of Article 8 of the Convention and that it was thus not necessary to consider this point any further. 25. The applicant, who was represented by a lawyer throughout these proceedings, could have filed a further appeal with the Administrative Jurisdiction Division, but he did not do so. Consequently, the ruling of 10 February 2009 became final after the expiry of the four-week time-limit for filing an appeal with the Administrative Jurisdiction Division.
| 0 |
test
|
001-178746
|
ENG
|
HUN
|
CHAMBER
| 2,017 |
CASE OF SCHESZTÁK v. HUNGARY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)
|
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Vincent A. De Gaetano;Georges Ravarani
|
5. The applicant was born in 1953 and lives in Ercsi. 6. On 28 February 2007 the applicant filed an action with the Székesfehérvár Labour Court against his former employer, claiming unlawful dismissal. On 6 June 2008 the court found in his favour and obliged the respondent to the action to pay him a severance payment, outstanding wages, a lump sum in compensation, and default interest. 7. On appeal, on 25 February 2009 the Fejér County Regional Court changed the judgment in part. In June 2009 the respondent filed a petition for review. 8. In an order of 2 June 2010 the Supreme Court forwarded the respondent’s petition to the applicant and informed him that, within eight days of receiving the order, he could file comments on the respondent’s petition and/or request an oral hearing. 9. On 7 June 2010 the applicant received the order, and on 14 June 2010 he dispatched his comments on the petition for review. The document was received by the Supreme Court on 17 June 2010. 10. Meanwhile, on 16 June 2010 the Supreme Court, sitting as a review court, had given a judgment in which it had reversed the previous decisions and dismissed the applicant’s action. The court stated that the applicant had not filed any comments on the petition for review. 11. The applicant complained and addressed his complaint of 6 December 2010 to the President of the Supreme Court. The Head of the Civil Division informed him that his comments on the petition for review had been belated.
| 1 |
test
|
001-158482
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF ZAKHARIN AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect)
|
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque
|
5. The first applicant was born in 1979, the second and third applicants were born in 1974, and the date of birth of the fourth applicant is unknown. The fourth applicant is the common-law wife of Mr Pavel Aleksandrovich Bazhenov (“the fourth applicant’s partner”). The second and fourth applicants live in Irkutsk Region and Irkutsk respectively. The first and third applicants are serving prison sentences in Irkutsk Region. 6. On 14 October 2003 the first and third applicants and the fourth applicant’s partner were arrested and taken to the police station on suspicion of murder. They were allegedly intimidated by police officers seeking to extract self-incriminating statements. 7. On 15 October 2003 a forensic medical examination was conducted in respect of the first and third applicants and the fourth applicant’s partner. It revealed that the first applicant had abrasions on his left shoulder, and bruises on both ears and on the back of his thorax; the third applicant had bruises on his left hip and under his jaw. The expert concluded that those injuries had been sustained the day prior to the examination and that they had not caused any permanent damage to the applicant’s health. The fourth applicant’s partner was discovered to have a closed nose fracture which amounted to slight damage to his health. 8. On 16 October 2003 the Oktyabrskiy District Court of Irkutsk (“the District Court”) authorised the detention of the first and third applicants and the fourth applicant’s partner pending the investigation. It relied on the gravity of the charges and the risk that they might interfere with the administration of justice (abscond, resume their criminal activity or threaten witnesses). They were placed in remand prison IZ-38/1 in Irkutsk. 9. On 24 October 2003 charges of aggravated murder were brought against them. 10. On 11 December 2003 the District Court extended the detention of the first and third applicants and the fourth applicant’s partner until 5 March 2004 on the same grounds. Those decisions were upheld on appeal by the Irkutsk Regional Court (“the Regional Court”) in respect of the first applicant on 29 January 2004 and in respect of the third applicant and the fourth applicant’s partner on 3 February 2004. 11. The first and third applicants’ detention was subsequently extended, on the same grounds, on 3 March and 4 March 2004 respectively, until 5 June 2004. The Regional Court upheld those decisions on appeal in respect of the first applicant on an unspecified date and in respect of the third applicant on 21 April 2004. 12. According to the first applicant, between 14 and 16 October 2003 the police subjected him to beatings, torture with electric wires, and deprivation of food and sleep. 13. Subsequently, for several days starting from 17 October 2003 the first applicant was intimidated by one of his cellmates, S. Ye. (nicknamed “the Nazi”), who had been instructed by the police to extract the applicant’s confession. As a result, on 21 October 2003 the applicant attempted suicide by cutting his left forearm. 14. On the same day the applicant was examined by a doctor, who reported superficial cuts on his left forearm. 15. On 4 November 2003 the applicant was taken to the police station. Throughout the day police officers allegedly beat him in the head, kidneys and genitals, tortured him with electric wires and threatened to kill him and to rape him. As a result, he attempted suicide by cutting his neck with a blade. 16. On the same day the applicant was examined by a doctor, who recorded the following injuries: a four-centimetre long cut on his neck and six superficial two-centimetre long cuts on his left forearm. 17. On 11 November 2003 the third applicant was taken for questioning to the police station, where he was beaten up by police officers S.Sh., S.S. and Ye.Kh. For an hour and a half the police officers allegedly kicked and punched the applicant, who was handcuffed and kneeling, and beat him with a stick. Unable to withstand the torture, the applicant jumped out of a third-floor window of the police station. However, as the applicant’s action was considered an attempt to escape, criminal proceedings were brought against him under Articles 30 § 3 and 313 § 1 of the Criminal Code (attempted escape). 18. The following day, on 12 November 2003 the third applicant was taken to hospital and diagnosed with a fracture to his right upper arm and contusions on his thorax and spinal cord, allegedly caused by the jump from the window. 19. As indicated above the first and third applicants and the fourth applicant’s partner were placed in remand prison IZ-38/1. The fourth applicant submitted that as from 24 October 2003 and for several days onwards her partner was beaten up by other inmates. He was not given any food and not allowed to sleep, and in the mornings he was taken to the police station where the ill-treatment continued. 20. From 25 November to 11 December 2003 the applicant’s partner was kept in detention facility IZ-24/1 in Krasnoyarsk, where, allegedly with the tacit consent of the facility’s officers, he was constantly ill-treated by other inmates. 21. From 11 December 2003 until 15 January 2004 the fourth applicant’s partner was detained again in remand prison IZ-38/1 in Irkutsk. Two of the inmates – S.Ye. and A. – deprived him of food and sleep, and threatened him with murder and rape. The chief of police, A.S., threatened him with rape. Several days later the applicant’s partner was raped by other inmates and the act was videotaped. He was then blackmailed with the tape. Finally, on 12 January 2004 he confessed. On 3 February 2004 the applicant’s partner was transferred to a solitary confinement cell. 22. On 5 February 2004 the applicant’s partner was found hanged. 23. The first and the third applicants and the fourth applicant’s partner complained to the prosecutor’s office of their ill-treatment at the hands of the police. The initial complaint concerned the alleged ill-treatment on 14 October 2003. Separate complaints were brought later in connection with other alleged instances of ill-treatment (see paragraphs 12, 13, 15 and 17 above). 24. On 20 November 2003 the Deputy Prosecutor of Irkutsk Region refused to open criminal proceedings against the police officers. The decision read as follows: “... [The first applicant] submitted that on 14 October 2003 he had been arrested by the police. When being brought to the police station he had been ill-treated by the police officers [description of the beatings]. On 21 October 2003 he cut his left forearm [because he had had a conflict with his cellmates and wanted to be transferred to a different cell]. On 4 November 2003 [the first applicant] cut his neck [because he had been beaten up by the police officers]. [The fourth applicant’s partner] submitted that on 14 October 2003 he had been arrested by the police and brought to the police station where physical force had been applied to him [description of the beatings]. He could not describe the officers who had ill-treated him. On 11 November 2003 he was again ill-treated; the police officers tortured him with electric wires and beat him up. [The third applicant] submitted that police officers ill-treated him and he was compelled to jump out of the window. ... [Chief police officer G.] submitted that on 14 October 2003 [the first and third applicants and the fourth applicant’s partner] had been arrested on suspicion of having committed particularly serious crimes. They showed active resistance during the arrest and therefore physical force and cuffing were applied to them. After the arrest [the above persons] were brought to the police station. The first applicant and the fourth applicant’s partner had injuries which had been inflicted on them at the arrest. Subsequently the first applicant and the fourth applicant’s partner were taken to the investigator for participation in the investigative actions. No physical or mental coercion was applied to them ... Similar statements were given by police officers Sh., S. and P. [The latter] added that on 4 November 2003 [the first applicant] participated in an investigative action at the police station. After the investigative action was completed, he and the [first applicant] remained waiting in office no. 302 for the applicant to be taken back to the remand prison. [The first applicant] was nervous, [he] expressed his fears of receiving a long sentence. During the conversation he cut his neck. He was provided with medical aid and taken to the remand prison, where he was examined by a doctor. According to the reports of the forensic medical examinations, the injuries of [the first and third applicants] did not cause any permanent damage to their health, and the injuries of [the fourth applicant’s partner] caused slight damage to his health. The [above] injuries could have originated from the impact of hard blunt objects with a limited surface area, which could be a fist or a foot. These injuries were caused to [the first and third applicants and the fourth applicant’s partner] at their arrest by the police officers. An inquiry was carried out in accordance with Article 144 of the Code of Criminal Procedure which established that [the first and third applicants and the fourth applicant’s partner] had shown active resistance during their arrest and the police had applied physical force and special means to them pursuant to Articles 12-14 of the Law on police. On 18 November 2003 the institution of the criminal proceedings against the police officers was refused in the absence of constituent elements of a crime in their actions. An inquiry was carried out in accordance with Article 144 of the Code of Criminal Procedure into [the first applicant’s] causing himself injuries on 21 October 2003. On 22 October 2003 the institution of the criminal proceedings was refused. Bodily injuries in the form of cutting wound of the neck were self-inflicted by the [first applicant], which is confirmed by the latter’s statements. No other injuries were discovered on [the first applicant] at his examination on 4 November 2003. This fact disproves [the first applicant’s] allegation of having been beaten up by the police on that day. On 11 November 2003 [the third applicant] jumped out from the third-floor window of the police station in an attempt to escape. Criminal proceedings were instituted against him under Articles 30 § 3 and 313 § 1 of the Criminal Code. No evidence was established during the inquiry to substantiate the allegations that police officers Sh., S., G. and P. had applied physical and mental coercion to [the first and third applicants and the fourth applicant’s partner]. The submissions made in this respect by [the latter] are unsubstantiated and far-fetched. ...” 25. On 4 March 2004 the Prosecutor of Irkutsk Region set aside the decision of 20 November 2003 and opened criminal proceedings against a number of police officers under Article 286 § 3 (a) of the Russian Criminal Code (Abuse of office associated with the use of violence or entailing serious consequences). 26. On 8 August 2006, however, the criminal proceedings were discontinued owing to the absence of constituent elements of a crime in the actions of the police officers. The applicants did not appeal against this decision in court. 27. On 11 February 2004 the Irkutsk Regional Prosecutor’s Office instituted criminal proceedings into the death of the fourth applicant’s partner under Article 110 of the Criminal Code (incitement to suicide). 28. On 11 May 2004 a post-mortem examination of the applicant’s partner was completed. It was established that he had died as a result of strangling. Apart from visible marks on his neck, the following injuries were recorded: abrasions on the neck, the lumbar region, the chest, the right forearm, the right wrist and the right hand; bruises and abrasions on the forehead; bruises in the soft tissues of the neck; and a hemorrhage in the mucous membrane of the anus. 29. On 26 June 2006 the criminal proceedings were discontinued owing to the absence of evidence of a crime. It was established that on 3 February 2004 the fourth applicant’s partner had been transferred to a solitary confinement cell after his lawyer had complained that the former had been subjected to abuse by other inmates. Thereafter, on 5 February 2004 the fourth applicant’s partner was found hung in the cell. The forensic medical expert concluded that the death had occurred as a result of strangling. It was further established that on the day of his death the fourth applicant’s partner had been kept in the cell alone, and that the lawyer’s allegations that his client had been ill-treated by other inmates had not been confirmed. 30. The lawfulness of the above decision was challenged before the court by the father of the deceased, Mr A. Bazhenov, who was granted victim status in the relevant proceedings. 31. On 16 July 2007 the Kuybyshevskiy District Court of Irkutsk found the above decision lawful and justified. It was not appealed against to the Regional Court. 32. On 25 December 2006 the Regional Court convicted the first and third applicants, along with five other co-defendants, of banditry, aggravated murder and robbery. It sentenced the first applicant to life imprisonment and the second applicant to twenty years’ imprisonment. The trial court examined the allegations of police ill-treatment in so far as the admissibility of evidence was at issue. It heard the applicants, examined the medical evidence, and questioned the applicants’ former cellmates and the police officers allegedly involved in the ill-treatment. Having taken into account the conclusions of the investigation, the court held that no unlawful methods of interrogation had been used against the applicants. 33. On 25 September 2007 the Supreme Court of Russia upheld the judgment on appeal. 34. On 5 September 2003 the flat of one of the victims was searched within the framework of the murder case involving the first and third applicants and the fourth applicant’s partner. The second applicant, who was found armed inside the flat, was taken to the police station for identification and questioning. He was kept there until 7 September 2003. According to the second applicant, police officers struck him in the area of his only kidney, tried to throw him out of the window, then forced him out onto the windowsill, from where he lost his balance and fell three floors down. 35. From 7 September to 7 October 2003 the second applicant underwent treatment in the traumatology unit of Angarsk hospital no. 36 for a cerebral contusion, massive damage to the soft tissue of his body and extremities, diffused hypodermic and subfascial haematomas, multiple abrasions on the head and extremities, kidney contusion, compression syndrome and right-sided post-traumatic pneumonia. 36. Meanwhile, on 8 September 2003 the applicant sought to institute criminal proceedings against the police officers. However, on 2 October 2003 the Deputy Prosecutor of the Irkutsk Region refused to open criminal proceedings, having arrived at the conclusion that the applicant had jumped out of the window in an attempt to escape. The applicant challenged the lawfulness of that decision in court. 37. On 22 December 2003 the Kirovskiy District Court of Irkutsk found the decision lawful and justified. 38. The applicant did not appeal against the judgment before the Regional Court.
| 1 |
test
|
001-184610
|
ENG
|
SVN
|
ADMISSIBILITY
| 2,018 |
NOVAK v. SLOVENIA
| 4 |
Inadmissible
|
Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
|
1. The applicant, Ms Vida Novak, is a Slovenian national, who was born in 1951 and lives in Maribor. She is represented before the Court by Mr E. Kralj, a lawyer practising in Maribor. 2. The Slovenian Government (“the Government”) were represented by their Agents, Ms T. Mihelič Žitko and J. Morela. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 23 February 1992 inheritance proceedings in respect of the property of the applicant’s late mother were instituted before the Maribor Local Court. 5. The applicant claimed that because of gifts made by her late mother she would be excessively deprived of her statutory share of the inheritance. As a result, the court, in 2001, stayed the inheritance proceedings and advised the applicant to pursue her claim in contentious proceedings. 6. On 17 December 2001 the applicant instituted contentious proceedings before the Maribor District Court. 7. By May 2005 the applicant had made five requests for a hearing to be scheduled. 8. On 23 May 2005 the Maribor District Court adjourned the proceedings. Both parties appealed. 9. On 5 July 2005 the Maribor Higher Court quashed the decision to adjourn the proceedings. 10. Between August 2005 and April 2006 the applicant made six requests for the District Court to schedule a hearing. 11. On 25 August 2006 she lodged a supervisory appeal. 12. On 16 October 2006 the president of the Maribor District Court ordered that the case be given priority. 13. The applicant made four further requests for a hearing. 14. On 19 June 2007 the court held a hearing and dismissed the applicant’s claim. The applicant appealed. 15. On 2 April 2008 the Maribor Higher Court allowed the appeal and remitted the case back to the District Court. 16. On 22 September 2008 the applicant lodged a supervisory appeal. 17. On 13 October 2008 the applicant was informed in response to her supervisory appeal that a hearing would be held within a period of less than four months. 18. On 4 November 2008 the Maribor District Court held a hearing and concluded the proceedings. Its decision was served on the applicant on 4 May 2009. She appealed on 8 May 2009. 19. On 26 August 2009 the Maribor Higher Court upheld the applicant’s appeal in part and modified the first-instance court’s decision accordingly. The applicant lodged an appeal on points of law. 20. On 5 May 2011 the Supreme Court issued a judgment rejecting her appeal on points of law. 21. On 26 August 2011 the Supreme Court, at the request of the applicant, issued an additional decision in respect of the case, which was served on the applicant on 19 October 2011. 22. On 9 December 2009 the applicant signed an agreement with her lawyer, agreeing to pay his fees for the representation in the compensation proceedings according to the Lawyer Fees Schedule (odvetniška tarifa, scheme setting out the official fees for lawyers’ legal services), which was based on the Lawyer Act (Zakon o odvetništvu, see paragraph 37 below). They later agreed that the legal fees and other costs could be settled once all the remedies had been exhausted. 23. On 10 December 2009 the applicant lodged a claim for compensation for non-pecuniary damage sustained as a consequence of undue length of the contentious proceedings (see paragraphs 6-21 above) with the State Attorney’s Office in accordance with the Protection of the Right to a Trial without Undue Delay Act (“the 2006 Act”). She had been offered 450 euros (EUR) by way of compensation, which she rejected as too low. 24. On 18 March 2010 the applicant instituted proceedings against the State seeking EUR 2,300 for non-pecuniary damage. When lodging the claim the applicant paid court fees in the amount of EUR 165. The State was represented by the State Attorney’s Office in Celje. The latter lodged a reply to the applicant’s claim on 30 March 2010. 25. On 14 April 2010 the applicant submitted her pleadings, disputing the arguments of the State Attorney’s Office. On 23 April 2010 the State Attorney’s Office submitted its pleadings. 26. On 11 May 2010 the Celje District Court held a public hearing. After the hearing it upheld the applicant’s claim in part. It noted that the parties had not significantly contributed to the length of the contentious proceedings, that the case was a rather simple one, and that the issue had certainly not been of minor importance to the applicant. The court referred to the compensation, which it considered to be typically awarded to the applicants by the Court in cases concerning similar length and involving a similar number of levels of jurisdiction. The court awarded the applicant EUR 450, with default interest, in compensation for non-pecuniary damage. 27. On 17 June 2010 the applicant lodged an appeal, paying court fees amounting to EUR 150. 28. On 2 February 2011 the Celje Higher Court partially upheld the applicant’s appeal and increased damages to EUR 650. The Higher Court found that the first-instance court had relied on case-law which was not analogous enough to the applicant’s case to be used as a criterion for an appropriate compensation. Noting that the allowed compensation under the 2006 Act ranged from EUR 300 to EUR 5,000, it considered that the applicant should have been awarded EUR 650. As regards the costs, it decided that the applicant was entitled to EUR 65 for legal representation in the first-instance proceedings and nothing with respect to legal fees for the representation at the appeal stage as the law did not provide for it (see paragraph 37 below). 29. On 30 May 2011 the applicant lodged a constitutional complaint and an application for constitutional review of the provisions of the Lawyer Fees Act (Zakon o odvetniški tarifi) in parts concerning the fees for legal representation in the proceedings under the 2006 Act. She complained about the length of the contentious proceedings and the courts’ handling of her claim for compensation for undue delays. She moreover argued that the extreme restrictions regarding the reimbursable legal fees in the proceedings under the 2006 Act, which did not apply to regular civil proceedings, were contrary to the equal protection of rights and the right to judicial protection enshrined in the Constitution. The proceedings under the 2006 Act were complex enough to require legal representation as several steps, such as using of acceleratory remedies and settlement procedure, had to be conducted before a compensation claim could be lodged and there were strict procedural rules as regards the conduct of the compensation proceedings. She also pointed out that the contested provisions of the Lawyer Fees Act had essentially affected the plaintiffs, who had suffered damage due to a breach of the reasonable time requirement. For the representation in the 2006 Act proceedings, the plaintiffs often paid legal fees based on an agreement, which meant that most of it might remain unreimbursed. 30. On 6 June 2012 the Constitutional Court rejected both the applicant’s constitutional complaint and the application for review of constitutionality. It rejected the constitutional complaint as inadmissible referring to section 55 (a) of the Constitutional Court Act (see paragraph 39 below). As regards the application for review of constitutionality, the Constitutional Court noted that the challenged law was no longer in force, and that in any event the outcome of the proceedings could not benefit the applicant, as her constitutional complaint had been rejected. 31. The applicant indicated to the Court that she was due to pay her lawyer EUR 1,093 with respect to court fees relating to the compensation proceedings. 32. After the Maribor Higher Court had issued its decision in the contentious proceedings (see paragraph 19 above), the Maribor Local Court continued with the examination of the case in the inheritance proceedings and on 1 April 2011 issued a decision on the distribution of the inheritance. Further to an appeal, the Maribor Higher Court issued a decision on 26 October 2011 (served on the applicant on 4 November 2011). 33. On 7 March 2012 the applicant, who had availed herself of the remedies provided for under the 2006 Act, reached an out-of-court settlement with the State Attorney’s Office after being offered the maximum amount of compensation allowed under the 2006 Act, namely EUR 5,000, as just satisfaction for the violation of her right to a trial without undue delay in the inheritance proceedings, as well as EUR 360 for the costs of legal representation. 34. For a detailed presentation of the 2006 Act, see Žunič v. Slovenia (dec.), no. 24342/04, §§ 16-26, 18 October 2007, and Žurej v. Slovenia (dec.), no. 10386/03, §§ 14-15, 16 March 2010. 35. As regards the reimbursement of costs and fees in the court proceedings, section 154 of the Civil Procedure Act (Official Gazette no. 26/99 with relevant amendments) provides that the losing party to the proceedings should bear the costs of the successful party. However, if the claim was upheld only in part, the court may order that the amount of the costs to be reimbursed by the defendant should correspond to the proportion of the upheld part of the claim. According to section 155 of the same Act only necessary costs were reimbursable. 36. In the compensation proceedings under the 2006 Act the parties have to pay the court fees which apply in ordinary civil proceedings under the Court Fees Act. The amount of the court fees depends on the monetary value of the claim. 37. The fees reimbursable to lawyers for representation of their clients were until 2009 specified in the Lawyer Fees Schedule, based on the Lawyer Act (Official Gazette no. 18/93 with relevant amendments), applicable from 12 July 2003. On 1 January 2009 the Lawyer Fees Act (Official Gazette no. 67/2008) entered into force. It specified, inter alia, the fees reimbursable to lawyers for representation of their clients in proceedings under the 2006 Act. The Lawyer Fees Act was the act applicable at the time of the applicant’s compensation proceedings. The fees for representation in the proceedings under the 2006 Act was set at EUR 10 for lodging a supervisory appeal, a motion for a deadline or a claim for settlement with the State Attorney’s Office. In court proceedings the award for representation was set at 10% of the compensation awarded by the court, but could not exceed EUR 300. There was no additional fee for representation in the appeal proceedings. 38. The Lawyer Fees Act was repealed on 9 May 2009 by section 19 of the Amendment to the Lawyer Act; however, the fees laid down in the Lawyer Fees Act were still applicable until the adoption of the new Lawyer Fees Schedule. According to the new Lawyer Fees Schedule, based on the Lawyer Act and applicable from 10 January 2015, the fees for lodging an application for a supervisory appeal or a motion for a deadline was raised from EUR 10 to EUR 91, while the distinction between court proceedings under the 2006 Act and ordinary civil proceedings was abolished and consequently the same fees applied to both. 39. As regards the admissibility of a constitutional complaint, section 55a of the Constitutional Court Act provides as follows: “(1) A constitutional complaint is not admissible if the violation of human rights or fundamental freedoms did not have serious consequences for the complainant. (2) It is deemed that there has been no violation of human rights or fundamental freedoms which had serious consequences for the complainant with regard to individual acts: issued in small-claims disputes in accordance with the act which regulates civil procedure, or in other disputes if the value in dispute for the complainant does not exceed the amount which is determined by the definition of small claims disputes in the act which regulates civil procedure; if only a decision on the costs of proceedings is challenged by the constitutional complaint; issued in trespass to property disputes; issued in minor offence cases. (3) Irrespective of the preceding paragraph, in especially well-founded cases the Constitutional Court may exceptionally decide on a constitutional complaint against the individual acts referred to in the preceding paragraph. An instance of an especially well-founded case is a decision that concerns an important constitutional question which exceeds the importance of the specific case.”
| 0 |
test
|
001-180846
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF MSKHILADZE v. RUSSIA
| 4 |
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)
|
Alena Poláčková;Helen Keller;Pere Pastor Vilanova
|
5. The applicant was born in 1972. 6. The applicant arrived in Russia in 1988. He was subsequently convicted of criminal offences on several occasions. He was released on 3 December 2014 after serving his most recent prison sentence. 7. On 2 December 2014 the Russian Ministry of Justice issued an exclusion order, declaring the applicant’s presence in Russia undesirable and prohibiting his return to Russia until 2020. Further to the exclusion order, on 4 March 2015 the migration authorities issued a deportation order in respect of the applicant and he was later arrested. On 6 March 2015 a judge authorised his further detention until 10 March 2015, with a view to enforcing the deportation order. His detention was then extended until 30 August 2015. 8. On 7 May 2015 the Georgian authorities informed the Russian migration authority that the applicant was not a Georgian national and that they would not assist in his return to Georgia. The applicant was released on 30 August 2015 following the expiry of the latest detention order. 9. On 14 December 2015 the applicant was accused of an offence under Article 18.8 § 3 of the Code of Administrative Offences (CAO) on account of his presence in Russia without the necessary documents. On 15 December 2015 the Kirovskiy District Court of Saint Petersburg convicted the applicant and ordered his administrative removal from Russia (without specifying the destination country). The judge noted that the applicant was a stateless person but held that he had to comply with a statutory obligation to leave Russia, having no valid legal basis for being there. Lastly, the judge ordered that the applicant be placed in a detention centre for foreigners, with a view to enforcing his administrative removal. 10. The judgment was amenable to appeal within ten days of receipt by the defendant. 11. On 25 December 2015 the applicant appealed, arguing, inter alia, that the penalty of administrative removal could not be enforced in the absence of Georgian or any other nationality and that it was therefore unjustified to place him in detention and keep him there. 12. On 26 January 2016 the Saint Petersburg City Court upheld the judgment of 15 December 2015. The appeal court considered that the applicant could still be removed to the country from which he had arrived in Russia if there was a readmission agreement with that country; that he could be held in detention for a maximum of two years, which was the statutory period for the enforceability of a penalty; and that the CAO had not required the trial judge to set any time-limit when ordering his placement in a detention centre for foreigners. 13. On 24 March 2016 the Georgian authorities again informed the Russian migration authority that they would not assist in providing documents for the applicant’s return to Georgia as he was not a Georgian national and there were no other legal grounds for such assistance. 14. The applicant sought a review of the decisions of 15 December 2015 and 26 January 2016. On 24 June 2016 the deputy President of the City Court upheld them on review under Article 30.12 of the CAO. 15. On 22 July 2016 the District Court dismissed an application from the applicant to terminate the proceedings to enforce the judgment of 15 December 2015. The court held that there was no statutory basis in the CAO or other legislation for granting such an application. On 8 November 2016 the City Court upheld that decision. 16. In the meantime, on 1 August 2016, referring to Article 5 § 4 of the Convention, the applicant lodged an application for release and again sought termination of the enforcement proceedings. By a letter of 2 August 2016 a judge of the District Court returned his application without examination. 17. The applicant lodged an individual complaint with the Russian Constitutional Court (see paragraph 29 below). 18. On 5 June 2017 the applicant’s lawyer lodged an application with the Kirovskiy District Court of Saint Petersburg in order to obtain the applicant’s release, referring to the above-mentioned constitutional ruling. On 22 June 2017 the District Court ordered his release. 19. From 15 December 2015 to 5 August 2016 (when the application was lodged with the Court) and then further until 22 June 2017 the applicant was kept in the Сentre for the Temporary Confinement of Foreign Nationals (Центр временного содержания иностранных граждан) in Krasnoye Selo. From the start date to mid-February 2016 he was kept in cell no. 404 and from mid-February to 3 August 2016 he was in cell no. 403. According to the applicant, each cell measured eighteen square metres and accommodated four people. The cells were equipped with bedside boards and beds but there were no chairs, tables or other furniture. On 3 August 2016 the applicant was transferred to cell no. 304, measuring eight square metres, where he was kept alone. From late September 2016 to 17 January 2017 he shared cell no. 706, measuring ten square metres, with another detainee. From 17 to 22 January he was in cell no. 405 and from 22 January to 22 June 2017 he was kept in cell no. 406 with three other detainees. 20. During the period of his confinement up to 3 August 2016 the applicant was locked in his cell most of the time, being taken to a courtyard (measuring some fifteen square metres) every second day for ten to fifteen minutes. He was taken there every third day from early 2017. The yard had no equipment for sport or leisure activities, no benches and no shelter from the rain or snow. 21. The toilets in the cells were separated from the main area by a fixed partition. There was no proper, ceramic toilet bowl, just a “hole” with a flusher set on a small base so the toilet had to be used in a squatting position. According to the applicant, the partition was not high enough and the toilet area remained visible. There were also unpleasant odours. 22. Shower facilities were accessible for ten minutes every fourth day in 2016 and once every seven to ten days from early 2017. There were no facilities for washing or drying clothes and no toilet paper, toothpaste, soap or the like was provided. Bedding was changed once a month. Subsequently, the applicant also stated that the cells became infested with bugs, cockroaches and mice, although it was not clear to what period of time he referred to. He submitted a photograph showing two captured mice in containers. 23. Food was brought to the cells but was cold, particularly in winter, and of mediocre quality. In the absence of tables, detainees had to eat on their beds. There was no supply of drinking water and no facilities for boiling water or cooking food. It was not possible to purchase food. 24. He had been allowed to leave cells 304 and 706 and move within the corridor and shower area but had been prohibited from entering other cells. 25. No radio, television, newspapers or the like were provided in the detention centre. The applicant and his co-detainees were apparently allowed to have a television set during his most recent period of detention. 26. The applicant has submitted several photographs of the cells, a statement written by his cellmate after March 2017, a statement from a detainee written in 2015 and a recent news report about the detention centre. 27. In November 2016 the detention facility was visited by members of a public oversight committee. They noted that the toilets (consisting of a “hole”) in the cells on the fourth floor were separated from the main area by a low partition or curtain and that it was not possible to switch the lights on or off from inside the cells. They also noted that the detention centre had no courtyard for detainees. 28. According to the Government, as of February 2017 the applicant was being held in cell no. 403, which measured 27.4 square metres (not eighteen as submitted by the applicant). The cell was equipped with a toilet, a sink with hot and cold water, beds and a table. The main lights were switched off at night. The detention centre had a library and detainees could borrow books. Food was prepared and delivered by an external catering company. Hot food was brought in special containers.
| 1 |
test
|
001-174962
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF POLUNIN AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)
|
Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-183240
|
ENG
|
ALB
|
ADMISSIBILITY
| 2,018 |
BAKIU AND OTHERS v. ALBANIA
| 4 |
Inadmissible
|
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
|
1. The case originated in seventeen applications (43928/13, 43934/13, 44107/13, 44132/13, 44136/13, 44140/13, 44147/13, 44150/13, 44152/13, 44153/13, 44522/13, 44526/13, 44535/13, 44542/13, 44548/13, 44611/13 and 44632/13) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirty-five Albanian nationals on 30 April 2013. 2. The applicants were represented by Mr D. Matlija and Mr T. Alexandridis, two lawyers practising in Tirana. The Albanian Government (“the Government”) were represented by their Agent, Ms A. Hicka of the State Advocate’s Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants, whose personal details are set out in the appended table, are Albanian nationals. They have been grouped according to the family they are part of. 5. During the communist period, families lived in State-owned housing in accordance with lease agreements. Private dwellings which passed into State ownership through legislation on nationalisation were given by the communist government to other families, who as a rule worked for State institutions at the time. In such cases, the local authorities issued occupancy authorisations, which had the effect of granting the right to a tenancy of a flat (“secure tenancy”). A secure tenancy agreement was concluded between tenants and the State-owned Housing Maintenance Company (Ndërmarrja Komunale Banesa – “the Housing Company”). 6. In 1992, following the end of communist rule, the Privatisation of State-Owned Housing Units Act provided for the privatisation of all Stateowned housing in favour of occupying families. No provision was made for the privatisation of private dwellings which had been nationalised and were occupied by tenants (see “Privatisation of the State-Owned Housing Units Act” below for detailed information). 7. In 1993 the Property Restitution and Compensation Act was enacted. Former owners or their heirs were entitled to claim restitution of expropriated or nationalised properties as well as compensation. The restitution of dwellings occupied by tenants did not affect the secure tenancy agreements concluded in the meantime, which remained controlled by law (see the “Property Act 1993” section below for detailed information). 8. In 2004 and 2006 the legislature introduced a time-limit within which tenants had to vacate the dwellings restored to former owners. The said provisions were struck down by the Constitutional Court in 2005 and 2007, respectively (see Constitutional Court’s decisions nos. 26/05 and 11/07 below for detailed information). 9. The applicants had been living as tenants for many years (between twenty-one and sixty-seven years) in housing units that, following the fall of communism, were restored to the former owners. The applicants had been paying State-controlled rent in accordance with domestic law (see “Relevant domestic law” below). 10. On 1 August 2012 the Government introduced a Normative Act ordering tenants to vacate dwellings which had been restored to the former owners (“the Normative Act 2012”). 11. On 13 September 2012 Parliament enacted a law endorsing the Normative Act 2012. 12. On 20 August 2012 the Association of Tenants living in Expropriated Properties (Shoqata e Qiramarrësve në Shtëpitë Shtetërore Ish Pronë Private – “the Association”) challenged the constitutionality of the Normative Act 2012. 13. On 31 October 2012 the Constitutional Court rejected the Association’s constitutional complaint and declared the Normative Act 2012 constitutional. The reasoned decision became public on 6 February 2013 (see “Domestic proceedings” in the “Normative Act 2012” section below for detailed information). 14. Pursuant to the Normative Act 2012, eviction orders as well as enforcement writs were issued against the applicants. 15. On 12 December 2012 the Association and 638 tenants, including all the applicants, addressed a petition to the Council of Ministers, claiming that the Normative Act 2012 did not provide effective measures for provision of housing for them. They further called upon the authorities to postpone their eviction until after the Christmas holidays. The end of the letter read as follows: “the appellants, some members of the Association” (kërkuesit, disa anëtarë të Shoqatës së Qiramarrësve në Banesat Shtetërore Ish Pronë Private). No reply was given by the Council of Ministers. 16. None of the applicants possessed any real estate or other alternative housing at the time the eviction orders and the enforcement writs were issued against them. The applicants’ economic status is briefly described in Appendix 1 hereto. 17. In 2013 and 2014 the National Commercial Bank (“the Bank”) (see “Normative Act 2012” section below for more information) concluded agreements for zero-interest loans with seven families, namely Bakiu (application no. 43928/13), Toqi (application no. 43934/13), Kovaci (application no. 44132/13), Ilirjan Subashi (application no. 44153/13), Paja (application no. 44535/15), Vladimir Dhimitri (application no. 44611/13) and Kadareja (application no. 44632/13), respectively on 11 September 2013, 28 June 2013, 20 March 2013, 2 August 2013, 25 March 2014, 24 June 2013 and 23 May 2013, disbursing loans in the amounts of 37,000 euros (EUR), EUR 40,700; EUR 28,260; EUR 31,500; EUR 25,440; EUR 40,700; and EUR 18,000, respectively. 18. The applications for a zero-interest loan submitted by the Batku (application no. 44107/13), Xhillari (application no. 44147/13), Vincani (application no. 44150/13), Spahiu (application no. 44522/13) and Fikaj (application no. 44548/13) families were refused by the Bank on the grounds that they did not meet its requirements to obtain a loan. 19. The Reci (application no. 44526/13) and Lulzim Dhimitri (application no. 44542/13) families were classified as “homeless” (i pastrehë) but failed to complete the documentation necessary to obtain a loan. The authorities did not have any other information in respect of the three remaining families, namely Meta (application no. 44136/13), Nikolla (application no. 44140/13) and Bujar Subashi (application no. 44152/13). 20. As the file was lacking some information concerning the individual situations of the applicants at the time of the communication of the case to the Government, the Court asked the applicants to submit factual information as regards: the size of the dwelling, the estimated value of the dwelling, the location of the dwelling, the monthly rent paid, the average monthly rent and their monthly earnings. They were further asked to inform the Court whether the eviction orders had been enforced. They were also asked to provide information about their housing situation at that time and how they intended to find long-term accommodation. 21. Only some of the applicants replied in writing, giving some of the information requested by the Court. Detailed information is set out in Appendix 2 hereto. In reply to the Court’s question whether the eviction orders had been enforced, only the Bakiu (application no. 43928/13), Reci (application no. 44526/13) and Paja (application no. 44535/13) families submitted bailiff records according to which the first two families were evicted on 30 January 2013, whereas the Paja family was evicted on 12 February 2013. The remaining applicants did not submit bailiff’s records indicating the exact date of their eviction. The applicants submitted to the Court, amongst other information, the following. The applicants constituting the Bakiu family (application no. 43928/13) submitted that a 0% loan had been taken by their niece, who was not a member of the family, since they had not met the Bank’s requirements for obtaining a loan. They had subsequently bought an apartment, where they were living at the time of the submission. The applicants constituting the Bujar Subashi family (application no. 44152/13) submitted that a 0% loan had been granted but they had not been able to use it. Instead, some of the members were renting a flat; the remaining members were accommodated by their relatives. The applicants constituting the Ilirjan Subashi family (application no. 44153/13) had received a 3% loan from Tirana Municipality. Since the loan was not adequate they were obliged to solicit the help of another person to obtain another loan from a bank. It would appear that the applicants bought an apartment, where they were living at the time of the submission. The applicant Mr Reci (application no. 44526/13) was renting an apartment as he was unable to take a loan from the Bank for failure to meet the relevant requirements. The applicant Paja (application no. 44535/13) was granted a 0% loan. It would appear that she bought an apartment where she was living at the time of the submission. The applicants constituting the Lulzim Dhimitri family (application no. 44542/13) were renting an apartment at the time of the submission as they did not meet the Bank’s requirements to obtain a loan. The applicants constituting the Fikaj family (application no. 44548/13) were renting an apartment at the time of the submission. Their applications for a 0% loan and social housing had been rejected by the authorities for failure to meet the relevant requirements. The applicants constituting the Kadareja family (application no. 44632/13) had received a 0% loan. They had subsequently bought an apartment, where they were living at the time of the submission. 22. The remaining applicants informed their legal representatives that they had been accommodated by relatives, often under cramped conditions. They noted that due to their indigence, they did not have any possibilities of securing alternative housing for themselves and their families other than being provided with social housing. 23. Article 59 of the Constitution provides, amongst other things, that the State, within its constitutional powers and the means available to it, and with the aim of helping private industry and entrepreneurship, aims to fulfil the housing needs of its citizens. It further provides that the fulfilment of social objectives cannot be claimed directly through the courts. It is the law which defines the conditions under which and the extent to which a person may claim the realisation of this objective. 24. Article 101 of the Constitution empowers the Council of Ministers to introduce Normative Acts in cases of necessity and urgency. Normative Acts contain provisional measures. They have to be endorsed by Parliament in order to have the force of law. 25. Other relevant provisions at the material time read, as follows: Article 17 “1. The limitation of the rights and freedoms provided for in this Constitution may be established only by law for a public interest or for the protection of the rights of others. A limitation shall be in proportion with the situation that has dictated it. 2. These limitations may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in the European Convention on Human Rights.” Article 122 “1. Any international agreement that has been ratified constitutes part of the domestic legal system after it is published in the Official Gazette of the Republic of Albania. It is directly applicable, except when it is not self-executing and its application requires the adoption of a law. The amendment and repeal of laws approved by a majority of all members of the Assembly is done by the same majority for the purposes of the ratification of an international agreement. 2. An international agreement ratified by law has priority over the laws of the country that are incompatible with it. 3. The norms issued by an international organization have priority, in case of conflict, over the law of the country when the direct application of the norms issued by the organization is expressly contemplated in the agreement ratified by the Republic of Albania for participation therein.” Article 131 “The Constitutional Court shall decide on: (a) the compatibility of a law with the Constitution or international agreements as provided for under Article 122 ... (c) the compatibility of Normative Acts introduced by central and local authorities with the Constitution or international agreements ... (f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” Article 134 §§ 1 (f) and 2 1. The Constitutional Court may initiate proceedings only at the request of: ... (f) political parties and other organisations; (g) individuals. 2. The entities designated in the first paragraph, letters ... (f) and (g), may lodge applications only on issues connected with their interests.” 26. Under Article 609 of the CCP a debtor may seek before the domestic courts to have an executable decision (titull ekzekutiv) declared invalid or to have it declared that the obligation does not exist or that it exists in a smaller amount or that it has later ceased to exist. 27. Under Article 610 of the CCP parties may complain to a court of an act or failure to act by a bailiff within five days of the said act or omission. 28. Article 611 of the CCP at the material provided that the appeal before the court against the bailiff’s acts or omissions had no suspensive effect on the execution. There was a right of appeal against the court decision. 29. The Act was intended to privatise State-owned housing units and to create a free market for housing, thus enabling tenants to become owners. Families living in State-owned flats, pursuant to a lease agreement, could purchase those flats and become owners subject to completion of a set of actions, such as payment of the full privatisation price and registration of the property at the relevant land registry office. 30. Section 16 of the Act provided that homeless citizens were entitled to receive loans from financial institutions to resolve their housing needs. The interest payments would be borne by the State through the National Housing Agency (Enti Kombëtar i Banesave – “the NHA”). Section 19 stated that rents for housing units which had previously been private property would be liberalised from December 1995. Section 21 provided that State-owned housing units which had previously been private property were not privatised under the Act. Section 25 stated that the State would provide rental housing, which would be constructed in the future, to, inter alia, tenants [who should vacate the housing unit as a result of its return to the former owner] living in dwellings belonging to former owners. 31. In decision no. 11 of 27 August 1993 the Constitutional Court held, inter alia, that no discrimination had resulted from the existence of two categories of tenants, as provided for under domestic laws. The decision, in so far as relevant, reads: “The [Constitutional] Court observes that [the Privatisation of State-Owned Housing Units Act] and [the Property Restitution and Compensation Act] govern the problems of the privatisation of State-owned housing units and of the restitution of properties to former owners or compensation for them. Under both laws, tenants of State-owned housing units have the right to take them into private ownership in compliance with the conditions prescribed by the law. In order to resolve their housing needs, tenants of dwellings that have been restored to former owners have been granted the right to receive loans from financial institutions, the interest payments on which ... are to be borne by the State, as expressly provided for in section 16 of the Act, or, alternatively, are to be accommodated as tenants in housing units to be constructed by the State under section 25 of the said Act. The different solutions to the housing problems that concern these categories of tenants do not arise from any type of discrimination between them, but are a result of the different statuses they enjoy: the first are tenants of State-owned housing units, the second are tenants of dwellings that have been restored to former owners.” 32. According to the Property Act the former owners of properties expropriated by the relevant regime and their legal heirs had the right to claim their ownership over the original properties. Upon ownership being determined they were entitled either to have allocated the original immovable property or to be awarded compensation in one of the forms provided for in law. Other relevant provisions of the Property Act are set out below. 33. The relevant provision of the Property Act 1993 provided: Section 14 “The relationship between tenants and former owners who become owners/landlords pursuant to this law shall be governed by [the Privatisation of State-Owned Housing Units Act]. If ... the former owner provides the tenant with housing within the same localgovernment area, consisting of a surface area in accordance with the housing norms in force, ... the tenant shall be obliged to vacate the dwelling. The State is obliged to resolve the housing needs of current tenants in accordance with the current housing norms, by giving priority to families with limited financial means. At their request former owners may be compensated in one of the forms determined by this law.” 34. In so far as relevant, the Property Act 2004, replacing the Property Act 1993, provided: Section 9 “1. Properties which are the property of former owners shall be vacated by tenant(s) within three years. The tenants shall continue to pay the rent set by the Council of Ministers for two years after the entry into force of this Act. The Council of Ministers shall be responsible for housing homeless tenants by providing a dwelling at a low rent, a low-interest loan or a dwelling whose rent is borne by the State.” 35. In its decision no. 26 of 2 November 2005, the Constitutional Court struck down section 9(1) of the Property Act 2004. It attached importance to the fact that the relevant provision had worsened the status of tenants compared to the provisions that had existed before the Property Act 2004 had entered into force. It found therefore that the amendment to the legislation had not respected the principle of legal certainty. It concluded that a limitation on tenants’ right to shelter could not be justified by the public interest in upholding former owners’ property rights. 36. Following the above-cited Constitutional Court decision, in 2006 the legislature amended section 9 of the 2004 Act to read as follows: Section 9 “1. Properties which are the property of former owners and which were leased to tenants by the State before the entry into force of [the State-Owned Housing Units Act], which are used for housing needs, shall be transferred to the possession of the former owner(s) when one of the following conditions is met: a. The housing needs of the tenants have been met in any other lawful way; b. The former owner provides the tenants with a dwelling that has a surface area no smaller than the dwelling they already use and which is in an approximately similar condition and within the same local-government area, until such time as the tenants’ housing needs are met in one of the other ways provided by this section. c. The tenants conclude a loan contract with a financial institution, in accordance with the first and second paragraphs of section 25 of [the Social Programmes for the Housing of Inhabitants of Urban Areas Act]; d. The tenants benefit from housing or a plot of land as provided for by section 25 (3) of [the Social Programmes for the Housing of Inhabitants of Urban Areas Act]” ... 4. Homeless persons who are tenants in dwellings which are the property of former owners and who have not concluded a loan contract in accordance with sub-paragraph (c) of the first paragraph of this section, or have not yet been provided with housing in accordance with subparagraphs (a), (c) and (d) of the first paragraph of this section, shall lose their right to possess the dwelling by 31 December 2008. They shall be offered social housing programmes, in accordance with section 4 of the Social Programmes for the Housing of Inhabitants of Urban Areas Act. The former owner is entitled to take lawful possession of the dwelling under his legal title. 5. The rent for dwellings occupied by homeless persons as provided for in paragraph 1 of this section is indexed according to INSTAT data on the basis of annual price and salary increases. Its aim is to cover the expenses of the owner for the maintenance and good administration of the dwelling ...” 37. In decision no. 11 of 4 April 2007 the Constitutional Court struck down section 9 of the Property Act 2006. It followed the same line of reasoning as in its decision no. 26/05. It recommended that the Council of Ministers introduce new legislative measures to fill the legal vacuum. 38. On 1 August 2012 the Government introduced the Normative Act for the vacation of former owners’ properties which were occupied by tenants. Only those tenants whose names had been transferred to the Bank to obtain a zero-interest loan for a period of thirty years to buy a flat would be evicted. The list of homeless tenants in line to obtain a loan would be drawn up by the NHA and submitted to the Bank by 5 September 2012. The deadline to voluntarily vacate the properties was set as 1 November 2012. 39. In the event of a failure to vacate a flat voluntarily within the prescribed time-limit, the NHA, upon written notification of the former owner, would issue an eviction order, which would be considered an executable decision within the meaning of the Code of Civil Procedure. The NHA would then ask the District Court to issue an enforcement writ for the vacation of the flat. Section 3 bars a stay of execution of the enforcement writ. 40. In addition to a zero-interest loan for a period of thirty years, section 4 of the Normative Act also provides for social rental housing provided by municipal councils and placement of old people who are unable to care for themselves or who do not have the means to pay for social rental housing in retirement homes. 41. On 10 September 2012 the Ombudsman issued a public opinion in relation to the Normative Act 2012. He gave the opinion that the legal vacuum resulting from the striking down of section 9 of the Property Act 2006 should have been filled by Parliament instead of by the Government, that there had been no detailed study as regards the status of homeless families, that the time-limits fixed by the Normative Act were extremely short, that no stay of execution was allowed and that no public interest justified a breach of the principle of legal certainty. In the end, he concluded that the Normative Act 2012 was incompatible with the Constitution. 42. On 13 September 2012 Parliament endorsed the Normative Act. According to the hearing record of the same day, the ruling majority members of parliament (“MPs”) stated that there were 3,157 families living as tenants in dwellings returned to former owners, of these 1,000 had applied for a loan at the Bank, out of whom 285 had already obtained a loan. The programme of granting a zero-interest loan, meaning that interest payments were to be borne by the State, had been in existence since 2009. 43. According to opposition MPs, the passing of the Normative Act was hasty and required specialised and broader discussions. They requested that the Ombudsman’s opinion be circulated to MPs. 44. On 20 August 2012 the Association lodged a constitutional complaint with the Constitutional Court, challenging the constitutionality of the Normative Act 2012 and the Law of 13 September 2012 endorsing it. The Association submitted that the solutions provided for by the Normative Act 2012 were incompatible with the principle of legal certainty. They were detrimental to tenants by removing the State’s obligation to provide housing for this category. They were further discriminated against vis-à-vis those tenants who had obtained housing under the State Contribution to Homeless Families Act 1995. 45. The Association also averred that the situation should have been governed by an Act of Parliament instead of a Normative Act introduced by the Government. It further took issue with the lack of a possibility to challenge the stay of the enforcement and the fact that tenants had to voluntarily vacate the flats within a short time-limit, specifically by 1 November 2012. 46. In their additional submissions of 23 October 2012 the Association stated that the Normative Act 2012 did not provide effective solutions on the following grounds: local-government units did not possess the necessary funds and means to provide social housing; the Bank did not possess sufficient funds to provide loans to every homeless family; the majority of the applicants, owing to their age, insufficient earnings, previous criminal records and the lack of collateral, would never become eligible for a loan. 47. In their written submissions of 23 October 2012 to the Constitutional Court, the Ministry of Public Works and Transportation submitted that since 2008 the Government had been implementing a financing scheme of zerointerest loans to homeless families living in housing belonging to former owners. The statistics showed that out of 3,157 registered homeless families, 999 of them had applied for zero-interest loans, out of which only 285 had concluded contracts for disbursement with the Bank. Even though loans had been approved in respect of the remaining homeless families, they had delayed signing the paperwork for their disbursements. Having regard to the delays by homeless families in applying for zero-interest loans and in subsequently signing the paperwork for their disbursement, the Government had introduced the Normative Act as a matter of urgency. The Normative Act had remedied the former owners’ property-rights issues in accordance with Article 1 of Protocol No. 1 to the Convention and avoided making the State liable to payment of high reparation claims. In their view, there had been no breach of the principle of legal certainty, since the problem of homeless families had been the subject of discussions for the previous twenty years. Moreover, the Normative Act provided for social rental housing provided by local-government units or for accommodation at retirement homes for old people who did not meet the requirements to obtain a loan. 48. On 31 October 2012 the Constitutional Court informed the Association that it had unanimously dismissed its constitutional complaint. The reasoned decision became available on 6 February 2013 (decision no. 1/13). 49. The Constitutional Court found that the Association had legal standing having regard to its statute, act of incorporation, the nature of its activity and the nature of the Normative Act which it had challenged. It found that there was a connection between the aim for which the Association had been established and the constitutional issue brought for examination before the Constitutional Court. 50. In respect of the merits of the case the Constitutional Court found that, pursuant to Article 101 of the Constitution, there was a necessity and urgency to introduce the Normative Act 2012. This was dictated by the fact that former owners had been waiting for twenty years to have title to the dwellings returned to them. It had also been conditioned by the implementation of the Strasbourg Court’s pilot judgment in the case of Manushaqe Puto and Others (cited above) as regards the enforcement of final decisions recognising former owners’ right of restitution of their properties or compensation in lieu. It further referenced the Strasbourg Court’s findings in the cases of Beshiri and Others v. Albania (no. 7352/03, 22 August 20060), Driza (cited above) and Ramadhi and Others (cited above) and noted the systemic failures of the domestic system to respect former owners’ right of peaceful enjoyment of possessions. It therefore considered that the Normative Act had struck the right balance between the tenants’ rights and the former owners’ right of property. 51. As to the proportionality test, the Constitutional Court held that the Normative Act provided for a thirty-year loan at 0% interest, as the payments would be borne by the State. The interest to be paid would exceed the principal to be taken as a loan by a tenant. Furthermore, the Normative Act laid down other positive obligations for the State, such as the provision of social housing to such tenants by local-government units, priority to be given to social rental housing, as well as placement of old people who were not capable of taking care of themselves or had no one else to attend to them in retirement homes. In the court’s view, this showed that the State had made sufficient provision for vulnerable groups. Housing these individuals was a shared task between the State and the individuals themselves. The proposed measures could not be said to be arbitrary, unfair or based on an unreasonable assessment. Neither could they be considered to be more stringent; on the contrary, they were more favourable. The obligation for tenants to vacate the dwellings was necessary and the interference was justified by the public interest. 52. The Constitutional Court rejected the Association’s complaint that the courts could not stay the enforcement on the grounds that its powers of constitutional review did not extend to issues concerning the interpretation, implementation and harmonisation of domestic laws. 53. On 23 December 2013 the Ministry of Urban Development (Ministria e Zhvillimit Urban) issued an order (“the Ministry’s order”) pursuant to which the NHA, before the submission of the request to the District Court for the issuing of the enforcement writ, had to check whether the tenants had obtained a loan and/or housing in accordance with domestic law. It was also decided that such a request could not be submitted during the winter period. It further provided several safeguards in the event of a family including elderly people, children, disabled persons, or if the housing conditions were outside of normal lifestyle standards. In such a case the family was provided with social rental housing or a housing bonus. The NHA, in implementing section 4 of the Normative Act 2012, had to urgently request that the municipal councils make social rental housing available. It appears that following this order, the NHA suspended the enforcement proceedings in respect of eighteen tenant families. 54. On an unspecified date F.B. and Sh.B., tenants, instituted judicial proceedings under Articles 609, 610 and 611 of the CCP, challenging the NHA’s eviction order, the District Court’s enforcement writ and the ensuing bailiff’s actions carried out following the introduction of the Normative Act 2012. In that case F.B. and Sh.B. and the former owners had concluded a lease agreement on the basis of a final court decision which had obliged the tenants to pay a rent, as set out by the Council of Ministers in favour of the former owners. 55. F.B. and Sh.B. claimed before the domestic courts that they were not obliged to vacate the dwelling as the lease agreement was valid and still in force. Furthermore, the eviction order had been issued by the NHA, which had no jurisdiction to decide on the civil dispute at issue. Subsequently, the bailiff actions had been invalid too. Also the enforcement writ as issued by the District Court was invalid as the NHA had not been the creditor. Only former owners should have asked the district court to issue an enforcement writ. The tenants further claimed that the Normative Act 2012 did not protect in a proportionate manner the right of tenants to respect for their homes. They were further unable to receive a 0% loan due to their lack of financial means (they were unemployed and did not own any immovable property) and age. They also submitted that the bailiff actions carried out were in breach of Article 8 of the Convention as they had not been proportional in that they had not strike a balance between the former owners’ and the tenants’ interests. They finally asked the District Court to stay the enforcement proceedings and to send the case for trial before the Constitutional Court on account of the unconstitutionality of the Normative Act 2012. 56. On 12 April 2013 the Tirana District Court rejected the action reasoning that upon the entry into force of the Normative Act 2012 the lease agreement concluded between the tenants and the former owner no longer had any legal binding effect. Subsequently, the eviction had been lawful and the tenants were obliged to vacate the dwelling in favour of the former owners. The District Court also noted that the tenants had submitted supporting documents to substantiate their claim that they did not own any immovable property or any other financial mean and they were indeed receiving a retirement and disability pension. However, it reasoned that these were not grounds to challenge an executable decision under Article 609 of the CCP. 57. The District Court rejected the appellants’ claim against the enforcement writ on the ground that the NHA was eligible under the Normative Act 2012 to ask a district court the issuance of an enforcement writ. 58. The District Court also rejected the action under Article 610 of the CCP against the bailiff’s actions on the ground that the execution had already taken place, namely the dwelling had already been vacated in favour of the former owner. Furthermore, it reasoned that since the tenants had challenged the bailiff actions on the ground that the executable decision was invalid, as long as that decision was valid, so were the bailiff actions. 59. As regards the tenants’ application to send the case for trial before the Constitutional Court, the District Court dismissed it as manifestly illfounded in that the Constitutional Court had already examined the constitutionality of that Act in its decision no. 1/13. 60. As regards the stay of the enforcement proceedings the District Court in the first hearing had already rejected the request by way of an interlocutory decision on the grounds that in the meantime the tenants had already been evicted. Moreover, the tenants had not provided any evidence to prove the existence of irreparable harm. In its decision of 12 April 2013 on the merits of the case the District Court reasoned that Article 611 of the CCP as regards the stay of enforcement proceedings had prevalence over section 3 of the Normative Act 2012, which barred any stay of enforcement. 61. The District Court’s decision was upheld by the Court of Appeal on 7 October 2014. However, the Court of Appeal noted that the District Court’s assessment concerning the stay of enforcement had been erroneous since the Normative Act 2012, as lex specialis, had prevalence over the provisions of the CCP. The tenants did not lodge an appeal with the Supreme Court on the grounds that the building had in the meantime been demolished. 62. On two other occasions other tenants had instituted judicial proceedings under Articles 609-612 of the CCP challenging the NHA’s eviction order, the District Court’s enforcement writ and the ensuing bailiff’s actions. The tenants’ representative had lodged complaints with the Ombudsman about the unreasonable length of the judicial proceedings. However, one of the cases was discontinued on the ground that the tenants had not been present at the court hearing without any reason whatsoever. On the other case the tenants had not provided the district court with an adequate address. It appears that both decisions had become final.
| 0 |
test
|
001-168381
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF ADAYEV v. RUSSIA
| 4 |
Violation of Article 6+6-3-d - Right to a fair trial (Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)
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Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
4. The applicant was born in 1976 and lives in Achkhoy-Martan, Chechen Republic. 5. On 13 January 2001 two soldiers of the Russian federal forces M. and P. came to the applicant’s house to buy drugs. After the applicant sold heroin to them, unknown persons attacked the soldiers, put them in a car and took them to a hide-out where they were kept for five days. The kidnappers also took M.’s automatic gun. The soldiers were released by law-enforcement officers on 18 January 2001. The gun was never found. 6. On an unspecified date the authorities opened a criminal investigation into the soldiers’ abduction. The applicant was the only suspect. Other perpetrators had not been identified. 7. According to the applicant, on 4 April 2007 at approximately 7 p.m. he was arrested on suspicion of having participated in abduction of M. and P. According to the arrest record, the applicant was arrested on 5 April 2007 at 10:40 a.m. 8. On 6 April 2007 the Achkhoy-Martan District Court of the Chechen Republic authorised the applicant’s detention pending the criminal proceedings against him. 9. On an unspecified date the investigator questioned M. and P. Both of them submitted that they had been abducted from the inner yard adjacent to the applicant’s house. They had come to the applicant’s house to buy drugs. The applicant had asked them to enter to help him move the car that had been parked inside. After they had been done with the car, they had been attacked by four persons. M. had cried out to the applicant for help, but the applicant had done nothing. After that they had been blindfolded, put in a car and taken to another place. 10. On 26 June 2007 the District Court found the applicant guilty of abduction and theft of firearms and sentenced him to seven years’ imprisonment. The court relied on the statements of M. and P. given during the questioning by the investigator, the written statements made by their parents to whom M. and P. had told about their abduction, the written statements made by other soldiers who confirmed that M. and P. had been missing in 2001. Investigator Mir. testified in court as regards his questioning of M. and P. The court also heard a number of the applicant’s relatives and neighbours who testified as to the applicant’s character and the curfew introduced in the village in 2001 and studied the materials from the case-file prepared by the investigator. As regards the use of M. and P.’s written statements, the court noted as follows: “... According to [the rules of criminal procedure], if the victim of the crime fails to appear in court, the court, if requested by a party to the proceedings or of its own motion, may decide to have the [victim’s] earlier statement read out in the event of a natural calamity or other extraordinary circumstances preventing the [victim’s] appearance in court. The court considers that the victims were prevented from appearing in court for the following reasons: their psychological state, i.e, their lack of desire to reminisce about the circumstances of the abduction coupled with deprivation of liberty and, possibly, with the life threat, and to live through this again; lack of safety during the trip to Chechen Republic where the political situation is still troublesome, especially ... for ethnic Russians who are not locals; a risk that the [applicant’s] relatives might put pressure on them; and the fact that they live far away and do not have means to pay for the trip to attend the court hearing. The court considers such circumstances to be extraordinary and preventing the victims from appearing in court.” 11. On 15 August 2007 the Supreme Court of the Chechen Republic upheld the applicant’s conviction on appeal. 12. On 26 December 2011 the applicant was released.
| 1 |
test
|
001-171101
|
ENG
|
RUS
|
CHAMBER
| 2,017 |
CASE OF S.K. v. RUSSIA
| 3 |
Violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Syria);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Syria);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Extradition);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court;Review of lawfulness of detention);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
|
5. The applicant was born in 1986. Since February 2015 he has been kept in a detention centre for foreign nationals in the town of Makhachkala, Dagestan Republic, Russia. 6. The applicant arrived in Russia in October 2011. He was in possession of a visa declaring the purpose of his visit as business. The applicant’s visa was due to expire in October 2012. However, the visa allowed the applicant to stay in Russia for no longer than ninety days in the course of a single visit. As submitted by the Government, he was therefore expected to leave Russia in early 2012. 7. The applicant did not leave and started to live together with Ms B., a Russian national. In November 2013 they had a child together. In April 2014 they married. 8. In the meantime, on 15 and 19 February 2013 the applicant was found guilty of an offence under Article 18.10 of the Code of Administrative Offences (CAO), which provided that a foreigner could be punished for unlawful employment activities in Russia. 9. By judgment of 26 February 2015 the Sovetskiy District Court of Makhachkala found the applicant guilty of an offence under Article 18.8 § 1.1 of the CAO (see paragraph 24 below), of remaining in Russia after the expiry of the visa. It sentenced him to a fine and a penalty of forcible administrative removal (принудительное административное выдворение) from Russia. The District Court held as follows: “Article 18.8 § 1.1 of the CAO provides for the following penalties: a fine of between 2,000 and 5,000 roubles with or without administrative removal from Russia ... The subsidiary penalty of administrative removal from Russian may be imposed with due regard to the information that confirms the actual need to impose such a penalty on the defendant, as well as the information that confirms the proportionality of this penalty as the only acceptable measure for achieving a balance between the public and private interests at stake ... The defendant has no legal grounds for remaining in Russia. If a fine is imposed, the defendant will add himself to the group of illegal labour immigrants who do everything to avoid compliance with the Russian migration legislation. The penalty of administrative removal is also necessary for the sake of national security, to avoid the spread of various infectious diseases such as HIV, tuberculosis and leprosy, and to ensure the optimal balance of labour resources and in order to support, as a matter of priority, the employment of Russian nationals ...” 10. In the same judgment the District Court ordered that, while awaiting enforcement of the administrative removal, the applicant be placed in a special detention facility for foreigners in the town of Makhachkala. 11. Lawyer D. lodged a statement of appeal on behalf of the applicant against the judgment of 26 February 2015. It appears that the applicant raised arguments relating to his family life in Russia; it is unclear whether he raised any argument relating to a risk to his life and physical integrity in the event of enforcement of the penalty of forcible removal. 12. On 4 March 2015 the Supreme Court of the Dagestan Republic upheld the judgment. The appeal court held as follows: “Article 18.8 § 1.1 of the CAO provides for the following penalties: a fine of between 2,000 and 5,000 roubles with administrative removal from Russia ... [The applicant] has committed a violation of the regime applicable for the presence of foreigners in Russia, by way of omitting after 7 October 2012 to leave Russia ... The court dismisses [the applicant’s] argument relating to his family life in Russia ... The marriage with Ms B. was concluded on 28 April 2014, which was a long time after the commission of the offence by [the applicant] ... The administrative offence record did not contain any information relating to his family life in Russia. No such information was adduced during the proceedings before the first-instance court ... [The applicant’s] prolonged violation of the migration legislation since October 2012 amounts to abuse of Russia’s hospitality and thus should be treated as a breach of the receiving country’s interests ...” 13. On an unspecified date the applicant received a copy of the appeal decision. 14. The penalty of administrative removal was not enforced. According to the Government, the bailiff service instituted enforcement proceedings on 12 March 2015, but they were not pursued on account of an application lodged by the applicant for temporary asylum (see below). 15. On 5 May 2015 the applicant applied for temporary asylum. He referred to the ongoing intensive military actions in Syria, in particular in his home town of Aleppo. He further argued that given his age, he would be drafted by the governmental forces for active military service, thereby putting his life and physical integrity in danger. 16. It appears that the applicant engaged lawyer K. to assist him in those proceedings and had a meeting with him in the detention centre. On 2 June 2015 the applicant called the lawyer from the detention centre, complaining of beatings. On the same day, the lawyer was refused access to the applicant in the detention centre, apparently because he should have obtained authorisation for the visit from the regional migration authority. The lawyer wrote to the regional prosecutor’s office complaining of a violation of the applicant’s rights and physical integrity. 17. On 4 June 2015 the lawyer made a further unsuccessful attempt to gain access to the applicant. 18. On 6 August 2015 the local migration authority dismissed the applicant’s application for temporary asylum. The applicant sought review of this refusal before the Federal Migration Service (“the FMS”). On 24 September 2015 the FMS upheld its decision, stating as follows: “In February 2012 there were no large-scale military operations in Syria; there were only localised hostilities between governmental forces and opposition groups. Despite the above, the applicant failed to leave Russia ... At the time he did not apply for asylum and continued to stay in Russia unlawfully until the imposition of the penalty of administrative removal. The following violations of the migration rules for foreigners should be pointed out: The applicant arrived in Russia under a business visa, whereas his actual goal was employment. Thus, his declared aim did not correspond to the actual aim for arriving in Russia. The applicant was unlawfully engaged in employment activities ... In February 2013 he was twice prosecuted for administrative offences. However, even after this, he did not seek asylum, while neglecting the real possibility of his future deportation from Russia ... The Ministry of Foreign Affairs points out that Syrian nationals who return to their homeland or who are deported or expelled there may arrive in Damascus and then proceed to other regions that are controlled by governmental forces.” 19. On 14 October 2015 the applicant, assisted by lawyer M., sought judicial review of the refusal of temporary asylum under the Code of Administrative Procedure (“the CAP”) and asked the Leninskiy District Court of Makhachkala to put in place an interim measure by way of suspending enforcement of the judgment of 26 February 2015. On 16 October 2015 the court refused to deal with the case, concluding that it had to be lodged before a court with jurisdiction in the area of the applicant’s current “place of residence”; his stay in the detention centre did not qualify as a place of residence. 20. Assisted by Ms Biryukova (who is his representative before this Court) the applicant resubmitted his application for judicial review to the Basmannyy District Court of Moscow. On 27 October 2015 the District Court left the matter without examination because the applicant had not indicated the date and place of his birth; had not specified whether he had a law degree, which was relevant because the case could only be lodged by a person in possession of a law degree; and had not provided evidence that his representative had a law degree. The applicant was required to remedy the above defects by 18 November 2015. 21. By a judgment of 9 December 2015 the District Court upheld the refusals of temporary asylum. The court held that the applicant was at risk of violence which was no more intensive than for other people living in Syria: “The grounds for granting temporary asylum on account of humanitarian considerations include the following situations: a grave medical condition for which the foreigner will not receive the requisite medical care in the country of nationality, thus putting his or her life at risk; a real threat to his or her life or liberty on account of hunger, epidemics, emergency situations of environmental or industrial origin or on account of an internal or international conflict that encompasses the entire territory of the state of nationality; a real threat of being subjected to torture or another cruel, inhuman or degrading treatment or punishment in the country of nationality. Under Article 62 of the Code of Administrative Procedure the parties to the case must prove the circumstances to which they refer as the basis for their claims or objections, unless otherwise provided for by the Code. Assessing the evidence submitted to it, the court concludes that [the applicant] has not adduced convincing arguments that he is at risk of being persecuted by the authorities or by groups of the population on account of his religion, race or membership of a social group ... Despite the difficult social and political situation in Syria, there are no grounds to consider that his life will be at a higher risk than that of other people living in this country ... According to information from the Federal Migration Authority, people returning to Syria may reach directly the city of Damascus, which is under the control of the government. ...” 22. The applicant received a copy of the judgment in February 2016 and lodged an appeal. He argued that the first-instance court had not paid proper attention to his argument relating to the risk to his life and physical integrity in the event of his removal to Syria; the migration authority had not refuted his argument while the court had shifted the burden of proof onto the applicant and had placed undue emphasis on the illegality of the applicant’s presence in Russia. His appeal was dismissed by the Moscow City Court on 8 June 2016. The appeal court held as follows: “The first-instance court considered that the applicant did not fall within the scope of the notion of “refugee” under the Refugees Act ... In view of the applicant’s failure to submit specific facts disclosing that in the event of his removal to Syria he would be exposed to a real threat to his security ... or that he was persecuted in this country, the appeal court agrees with the first-instance court ... The appeal court also notes that the applicant arrived in Russia in 2011 but only sought temporary asylum in 2015.”
| 1 |
test
|
001-164167
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,016 |
SIHLER-JAUCH AND JAUCH v. GERMANY
| 4 |
Inadmissible
|
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
1. The applicant in the first case, Ms Dorothea Sihler-Jauch, is a German national who was born in 1958. The applicant in the second case, Mr Günther Jauch, is a German national who was born in 1956. Both applicants live in Potsdam and were represented before the Court by Ms K. Schmitt, a lawyer practising in Berlin. 2. The second applicant is a well-known journalist, producer and television presenter. The television shows he was presenting at the relevant time included a political talk show and a news magazine. 4. The applicants married in July 2006. The wedding reception was held in the Belvedere, an ancient palace surrounded by an English garden in Potsdam. The wedding ceremony took place in the Friedenskirche, also in Potsdam. Both locations are well-known tourist attractions and are generally open to the public. 5. Among the 180 wedding guests were well-known journalists, television presenters and sports personalities. The mayor of Berlin also attended the wedding. 6. Due to the anticipated media interest in the wedding, the applicants’ legal representative had informed the relevant newspapers beforehand that the applicants did not wish any reports to appear containing details of the wedding. In addition, both locations were closed to the public and only invited guests were allowed inside. 7. On 13 July 2006 the magazine Bunte, a so-called “people’s magazine” with a circulation of approximately 650,000, published an article about the wedding. The article was announced on the cover of the magazine and illustrated with several photographs. Besides photographs of wedding guests and old photographs of the applicants, one photograph showed the first applicant on her wedding day, taken before the wedding ceremony inside the restricted area. It was (erroneously) captioned “NEWLY WED Thea Sihler after the wedding vows” (FRISCH GETRAUT Thea Sihler nach dem Jawort). During the subsequent civil proceedings, the question of where the photograph of the first applicant had been taken from was a matter of contention. While the applicants asserted that it had been taken from outside the restricted area, through a hole in the wall ‒ using a strong telephoto lens ‒ the magazine maintained that they had no information regarding the photograph’s provenance since it had been purchased from a stock photographic agency. They speculated, however, that it could just as easily have come from one of the accredited photographers, or from an invited guest, or from a member of staff. 8. The article itself informed the reader about the precautions taken by the applicants to prevent press coverage but also gave details about the wedding, including the nature of the catering, the drinks, the applicants’ outfits, the music and the decoration of the church. The article also included quotes from the address given by the priest, and from the speeches of the second applicant and the first applicant’s father, as well as an excerpt from an intercessory prayer recited by one of the applicants’ children. 9. After publication of the article and at the request of the applicants, the magazine signed a cease and desist declaration regarding the further publication of a number of statements from the article outlining the details of the wedding. The magazine refused to sign such a declaration in respect of the above-mentioned photograph of the first applicant. 10. On 1 August 2006 the Berlin Regional Court issued a cease and desist order in respect of further publication of the photograph of the first applicant on her wedding day. 11. The first applicant brought proceedings against the magazine, claiming EUR 250,000 as a notional licence fee, EUR 75,000 in damages and EUR 997.37 of pre-trial expenses for the cease and desist declaration. 12. On 11 January 2008 the Hamburg Regional Court reaffirmed the cease and desist order, awarded the applicant EUR 25,000 in damages and ordered the magazine to reimburse the pre-trial expenses. 13. The court held that the article concerned an event of public interest because the second applicant was one of the most famous and popular television presenters in Germany, who had a strong influence on shaping public opinion. His wedding was therefore anyway of public interest and even more especially so since the public were interested in knowing who had a sufficiently close relationship with him to be invited to attend his wedding. The latter point was of particular importance in terms of enabling the public to judge the second applicant’s journalistic independence. The court also found that the chosen wedding locations increased the level of public interest in the wedding, since the two places were amongst Germany’s most popular tourist attractions. The court found that neither the article nor the photograph showed the applicants in a negative light, nor were they in any way derogatory. Nor did the photograph touch on the core of the applicants’ privacy, as it did not show the wedding ceremony itself. Nonetheless, the court found that publication thereof had not been justified by a legitimate interest as the first applicant had chosen to retreat to a secluded place, away from the public eye. Furthermore, the applicants had made clear their intention to prevent press coverage of their wedding by asking the press to refrain from reporting it and taking precautions to create a degree of seclusion by restricting access to the wedding location(s). 14. However, the court held that publication of the article alone ‒ regardless of the accompanying photograph ‒ constituted a serious enough violation of the first applicant’s personality rights to justify damages. In particular the publication of core details of the wedding party and ceremony ‒ such as quotes from the speeches, the range of drinks and food offered during the wedding and the choice of music ‒ could not be justified by any public interest but rather constituted a voyeuristic intrusion into the applicants’ privacy. Concerning the notional licence fee, the court held that it could not be considered normal commercial practice to pay royalties to the subjects of a news report. Consequently the magazine had not saved royalties which they would normally have had to pay to the first applicant for publishing the report and the photograph. 15. On 21 October 2008 the Hamburg Court of Appeal set the Regional Court’s judgment aside and dismissed the first applicant’s action in its entirety. It confirmed the Regional Court’s reasoning regarding public interest on the basis of the popularity of the wedding locations. It furthermore, and in particular, emphasised that, owing to the influence of the second applicant on public opinion and his role in presenting political television shows, the public had a legitimate interest in knowing who was invited to his wedding ‒ including the mayor of Berlin ‒ and to judge whether the public opinion presented by him was consistent with or contradictory to his real life. As the wedding was a shared event in the life of both the applicants, the first applicant was obliged to accept the public’s interest in the life of the second applicant. 16. However, the court disagreed with the findings of the Regional Court concerning the level of interference with the first applicant’s personality rights. It held that the details published about the wedding, such as information regarding drinks, food and music, were not core private issues but constituted information that was generally discussed and of interest in the context of a wedding. Furthermore, the court pointed out that it was normal practice and to be expected that, in the context of a wedding, photos would be taken by different people, whether invited guests or not. As the photo of the first applicant did not show her in a negative light and was not published on the front page of the magazine, its publication could be justified by public interest. Lastly, the Court of Appeal gave special consideration to the publication of quotes from the priest’s address, the speeches of the second applicant and the first applicant’s father, and an excerpt from an intercessory prayer recited by one of the applicants’ children. It reasoned that this information was more intrusive than the rest of the published details. Nonetheless, even though the wedding was not open to the general public, around 180 guests had been invited, and they were not bound to confidentiality. As these guests were not all part of the core family, the speakers and the applicant had to accept that certain information would be communicated to persons who were not invited and to the general public. In conclusion it reasoned that the mere desire on the part of the applicants to have no press coverage could not outweigh the legitimate public interest in the wedding, the published details and the photograph. 17. The first applicant’s complaint against the refusal of leave to appeal on points of law was rejected. 18. On 12 May 2010 the Federal Constitutional Court declined to admit the applicant’s constitutional complaint, without providing reasons (1 BvR 760/10). 19. The second applicant also brought proceedings against the magazine, claiming damages of at least EUR 25,000 and EUR 1057.69 in pre-trial expenses for the cease and desist declaration. 20. On 24 April 2009 the Hamburg Regional Court dismissed the second applicant’s action. It endorsed the reasoning of the Hamburg Court of Appeal and quoted its judgment of 21 October 2008 at length. 21. The applicant’s appeal and complaint against the denial of leave to appeal on points of law were rejected. 22. Article 5 §§ 1 and 2 of the Basic Law (Grundgesetz) guarantee freedom of expression and the freedom of the press and provide that these freedoms are subject to the limitations laid down in the provisions of the general laws and in the statutory provisions for the protection of young people and are also subject to the obligation to respect personal honour (Recht der persönlichen Ehre). 23. Section 22 § 1 of the Copyright (Arts Domain) Act (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie) provides that images can only be disseminated with the express consent of the person concerned. Section 23 § 1 (1) of the Act provides for exceptions to that rule in cases where the images portray an aspect of contemporary society (Bildnisse aus dem Bereich der Zeitgeschichte) as long as publication does not interfere with a legitimate interest of the person concerned (section 23 § 2). 24. Article 823 § 1 of the Civil Code (Bürgerliches Gesetzbuch) provides that anyone who, intentionally or negligently, unlawfully infringes another’s right to life, physical integrity, health, freedom, property or other similar right, shall be liable to furnish compensation for the resulting damage. Article 253 of the Civil Code stipulates that monetary compensation may be demanded in respect of non-pecuniary damage only in the circumstances provided for by law. These include an injury to a person’s body, health, freedom or sexual selfdetermination.
| 0 |
test
|
001-168162
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,016 |
ÖZEL FEZA EĞİTİM ÖĞRETİM YURT VE KANTİN İŞLETMECİLİĞİ TİCARET ANONİM ŞİRKETİ v. TURKEY
| 4 |
Inadmissible
|
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković
|
1. The applicant, Özel Feza Eğitim Öğretim Yurt ve Kantin İşletmeciliği Ticaret Anonim Şirketi, is a joint stock company registered in Turkey that operated a private tutoring centre (dershane) in Kütahya for students preparing for secondary school and university entrance examinations at the time of the events giving rise to the present application. The applicant company was represented before the Court by Mr M. Kasap, a lawyer practising in Ankara. 3. Law no. 5580 on Private Education Institutions was enacted on 8 February 2007 to govern the authorisation, operation, management and supervision of private education institutions. According to former section 2 (b) of Law no. 5580, the term “institution” included, for the purposes of that Law, private institutions engaging in pre-school, elementary and secondary school education, schools for special education and various training courses, distance learning institutions, private tutoring centres, driving schools, inservice training centres, student study centres, special education and rehabilitation centres, and other similar private education institutions. 4. According to former section 2 (f) of Law no. 5580, a “private tutoring centre” was defined as a private education institution that prepared students for, inter alia, examinations held for admittance to secondary education or higher education (hereinafter referred to as “entrance examinations”). 5. On 1 March 2014 Law no. 6528 was enacted to amend various laws, including Law no. 5580. Amongst other changes, Law no. 6528 removed “private tutoring centres” from the list of private education institutions that were authorised to operate within the scope of Law no. 5580, and made certain arrangements for the transformation of private tutoring centres in operation to other education institutions. It also amended the definition of “various training courses” mentioned in section 2 (b) of Law no. 5580 to specify that such training courses could not engage in preparing students for entrance examinations, and further added that “student study centres” referred to in the same paragraph could only offer services to students who were aged twelve or below. According to the preparatory works to Law no. 6528, such amendments were considered necessary mainly to tackle the dichotomy and inequality of opportunity caused by private tutoring centres within the education system, which had over the years begun to be perceived as an alternative to compulsory education institutions. 6. On 13 July 2015, following an action brought by a group of Members of Parliament, the Constitutional Court decided to annul those provisions of Law no. 6528 that concerned private tutoring centres, as well as the amendments made to the definitions of “various training centres” and “student study centres”. The annulment became effective on 24 July 2015, the date of publication of the Constitutional Court’s decision. The Constitutional Court stressed in its decision that private tutoring centres had been set up to prepare students for entrance examinations, and thus served a specific need which was not always met by regular schools. Instead of taking more targeted measures to deal with the problems posed by those tutoring centres, however, the legislator had opted for their complete abolition, which was not a proportionate response in the circumstances, considering in particular that no alternatives were on offer to meet the specific needs of students preparing for entrance examinations. The Constitutional Court noted in this connection the amendment of the definitions of “various training courses” and “student study centres” to prevent them from replacing private tutoring centres. 7. On 8 August 2015 the Regulation on Private Education Institutions was amended. The amendments concerned, inter alia, details regarding the “transformation programme” that had to be followed by private tutoring centres and the various education institutions that they could transfer into. 8. On 12 August 2015 the Ministry of Education issued a circular (no. 2015/23) regarding, inter alia, the situation of private tutoring centres. The circular stated that following the Constitutional Court decision, private tutoring centres currently in operation had to transform themselves into other private education institutions in order to be able to continue to operate. According to section 1 of this circular, any private tutoring centres which had not applied for the “transformation programme” by 1 September 2015 would have their operating licences revoked. 9. Following an action brought by an education workers’ trade union, on 15 September 2015 the Supreme Administrative Court ordered a stay of execution of circular no. 2015/23. The Supreme Administrative Court stated that by virtue of Article 153 of the Constitution decisions delivered by the Constitutional Court did not have retroactive effect, which meant that while the relevant provisions of Law no. 6528 abolishing private tutoring centres had been annulled, the former provisions of Law no. 5580 governing those centres had not been reinstated. This, the Supreme Administrative Court explained, created a gap in the law in respect of the legal status of private tutoring centres which were currently in operation; this gap had to be filled by the legislator. In the absence of such action by the legislative body, any measures taken by the administration to close down private tutoring centres or limit their activities would be ultra vires. For this reason, the Supreme Administrative Court found that circular no. 2015/23 issued by the Ministry of Education had been ultra vires and had contravened the Constitutional Court decision by virtue of its provisions providing for the closure of private tutoring centres. Two of the members of the Supreme Administrative Court, including the president, delivered a dissenting opinion stating that circular no. 2015/23 was lawful and in compliance with the Constitutional Court decision. It appears that the Supreme Administrative Court has not yet delivered a decision on the merits of this case. 10. On 18 September 2015 the Ministry of Education issued another circular (no. 2015/25) on the subject. According to section 1 of this circular, no administrative action would be taken by governors’ offices against private tutoring centres which were operating lawfully at the time of the enactment of Law no. 6528. However, legal action would be taken against those private tutoring centres which continued to operate without transforming themselves into one of the other private education institutions defined in Law no. 5580. 11. On 18 December 2015 the Ministry of Education revoked the licence of the applicant company to operate a private tutoring centre, on the ground that it had continued to operate without being transformed into one of the other private education institutions listed in Law no. 5580, contrary to circular no. 2015/25. As a result of this decision, on 24 December 2015 the applicant company was banned from operating a private education institution for five years. 12. Prior to its amendment by Law no. 6528 (see below paragraphs 13-14), section 2 of Law no. 5580 provided as follows: “The definitions Section 2- The [terms] mentioned in this Law [are defined as follows] ... (b) Institution: private institutions engaging in pre-school, elementary and secondary school education, schools for special education and various training courses, institutions of distance learning, private tutoring centres, driving schools, inservice training centres, student study centres, special education and rehabilitation centres, and other similar private education institutions ... (f) Private tutoring centre: private education institutions that prepare students for examinations held for admittance to secondary education or higher education, to train [students] in their desired subjects and to enhance their level of knowledge. (g) Various training courses: private education institutions that operate for the purpose of enhancing individuals’ knowledge, skills, linguistic [skills], abilities and experiences in social, artistic, sportive, cultural and vocational spheres, [and] to [enable them to] make use of their free time according to their wishes ... (j) Student study centre: private education institutions established to assist students to study their lessons [and] to complete their assignments and projects; [and] to conduct social, artistic, sporting and cultural activities in accordance with [the students’] interests, wishes and abilities ...” 13. Among other changes, Law no. 6528 removed “private tutoring centres” from the list of institutions defined in section 2 (b) of Law no. 5580 and abolished section 2 (f) accordingly. It also amended section 2 (g) and (j) as follows: “(g) Various training courses: private education institutions that operate for the purpose of enhancing individuals’ knowledge, skills, linguistic [skills], abilities and experiences in social, artistic, sporting, cultural and vocational spheres, [and] to [enable them to] make use of their free time according to their wishes, on the condition that they do not engage in preparing students for examinations for entrance to secondary education and higher education ... (j) Student study centre: private education institutions established to assist students of twelve years of age and below to study their lessons [and] to complete their assignments and projects; [and] to conduct social, artistic, sporting and cultural activities in accordance with [the students’] interests, wishes and abilities.” 14. Law no. 6528 also added a provisional section 5 to Law no. 5580. According to paragraph 1 of this provisional section, private tutoring centres which had not transformed themselves into another private education institution could only operate until 1 September 2015. 15. The decision of the Constitutional Court of 13 July 2015 has been outlined in paragraph 6 above. 16. The relevant information regarding the circular no. 2015/23 issued by the Ministry of Education on 12 August 2015 and the decision of the Supreme Administrative Court dated 15 September 2015 ordering the stay of execution of that circular may be found in paragraphs 8-9 above. 17. The relevant information regarding circular no. 2015/25 issued by the Ministry of Education on 18 September 2015 may be found in paragraph 10 above. 18. According to information obtained proprio motu by the Court, on an unspecified date an action was brought by an education workers’ trade union seeking the annulment and stay of execution of circular no. 2015/25. On 11 December 2015 the Supreme Administrative Court dismissed the request for a stay of execution. It held that the repeal of the relevant provisions of Law no. 6528 by the Constitutional Court had created a legal lacuna concerning the legal status of private tutoring centres. The circular at issue had sought to fill that lacuna by providing for the operation of such private tutoring centres after transformation into other private education institutions, which was also in conformity with the Constitutional Court decision in this respect. Two members of the Supreme Administrative Court delivered a dissenting opinion against the decision of the majority, following the reasoning of the previous Supreme Administrative Court decision concerning circular no. 2015/23 (see paragraph 9 above). It appears that the Supreme Administrative Court has not yet delivered a decision on the merits of this case. 19. According to Article 125 of the Turkish Constitution, all acts and decisions of the administration are subject to judicial review. 20. Section 2 of Law no. 2577 (Administrative Procedure Act) provides that anyone whose personal rights have been violated as a result of an allegedly unlawful administrative act or decision can bring an action for annulment of that act or decision. 21. A description of the relevant domestic law and practice regarding the right of individual application to the Turkish Constitutional Court, as well as a review of the mechanism for individual application, may be found in Hasan Uzun v. Turkey (dec.), no. 10755/13, §§ 7-27 and §§ 52-71, 30 April 2013).
| 0 |
test
|
001-154162
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF S.L. AND J.L. v. CROATIA
| 3 |
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations);Pecuniary damage - reserved (Article 41 - Just satisfaction)
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicants are sisters who were born in 1987 and 1992 respectively and live in P. 6. In June 1997 the applicants, represented by their mother V.L., concluded a real estate agreement with B.P. in which they expressed their intention of buying a villa of 87 square metres and the adjacent courtyard of 624 square metres in V., a seaside neighbourhood of P. (hereinafter: the “house”). The agreement stated that the house was in poor condition as certain individuals had lived there for several years without any legal basis and had ruined the furniture and installations. 7. The agreement was formalised in a real estate purchase contract of 17 December 1997 by which the applicants acquired ownership of the house for an amount of 450,000 Croatian kunas (HRK). 8. On 26 November 1999 the applicants registered their ownership of the house and the plot of land in the land register in equal shares. 9. On an unspecified date V.L. requested from the relevant Social Welfare Centre (hereinafter: the “Centre”) the authorisation to sell the house owned by the applicants, such authorisation being required under the relevant domestic law in cases where a parent wishes to dispose of a child’s property (see paragraph 39 below). 10. As a result of that request, on 10 April 2000 V.L. and her husband Z.L. (the father of the second applicant) were interviewed at the Centre. They stated that they had bought the house in 1997 for HRK 450,000 and that they had already spent approximately 80,000 Deutsche marks (DEM) renovating it. However, the house required some further investment for which they lacked the necessary means and thus they intended to sell it and to live with one of their parents. They further explained that they owned a retail business and that they had no problems with their children, who both had excellent marks at school. V.L. and Z.L. also promised that they would open a bank account on behalf of their children, into which they would deposit the money from the sale of the house. They pointed out that they had contacted a real estate agency, which was looking for a potential buyer. They also agreed that V.L. would conclude the sale contract once they had managed to find a buyer. 11. In February 2001 Z.L. was arrested and held in detention in connection with a suspected attempted murder and the unlawful possession of firearms. He was later indicted on the same charges in the P. County Court (Županijski sud u P.), which on 10 October 2001 found him guilty and sentenced him to six years’ imprisonment. During the criminal proceedings his defence lawyer was M.I, a lawyer practising in P. 12. On 15 October 2001 M.I. submitted a request to the Centre seeking authorisation for a real estate swap agreement between the applicants and a certain D.M., who was in fact M.I.’s mother-in-law. He provided powers of attorney signed by V.L., Z.L. and E.B. (the father of the first applicant) authorising him to obtain the Centre’s consent to a swap real estate agreement. 13. Together with his request, M.I. provided a draft swap agreement stipulating that D.M. would transfer to the applicants her four-room flat of 78.27 square metres, situated on the fourth floor of a residential building in P. (hereinafter: the “flat”), while the applicants would transfer their ownership of the house to D.M. The draft swap agreement also stated that the values of the properties to be exchanged were the same and that the parties waived their right to object that they had sustained damage as a result of giving the exchanged property away at below half of its real value. M.I. also submitted another document, a supplement to the swap agreement, in which the parties to that agreement acknowledged that V.L. and Z.L. had invested significant sums of money in the house and that, on the basis of the amounts shown on certain available invoices, D.M. would compensate them for those investments. 14. V.L. was invited to the Centre for an interview on 23 October 2001 in connection with M.I.’s request. She stated that her husband had meanwhile been imprisoned and that their retail business had started to go badly, leading her to close it in August 2001. She also explained that she was unemployed and that this situation had affected the applicants, who were no longer doing so well at school. She further stated that she had been obliged to borrow money to pay the bills for the house and that the overall situation had prompted her and Z.L. to exchange the house for a flat in P. with the additional obligation on the part of the flat-owner to pay them the difference in value between the two properties, amounting to some 100,000 DEM according to her estimate. Lastly, V.L. pointed out that E.B., the father of the first applicant, had given his consent to the swap agreement. She also undertook to register the ownership of the flat in the applicants’ names. 15. On 13 November 2001 the Centre gave its authorisation for the swap agreement, whereby the applicants would transfer their ownership of the house to D.M. while the latter would transfer her ownership of the flat and a garage to the applicants. The decision drafted by the Centre specified that V.L. was obliged to provide the Centre with a copy of the swap agreement. 16. In its statement of reasons behind the decision, the Centre pointed out that it had taken note of the powers of attorney provided to M.I. by the applicants’ parents, V.L.’s statement of 23 October 2001, birth certificates for the applicants and land registry certificates for the properties, and the draft swap agreement. It had also noted the fact that Z.L. had been convicted at first-instance of the offence of attempted murder and unlawful possession of firearms. Based on this information, the Centre concluded that the swap agreement was not contrary to the best interests of the applicants since their property rights would not be extinguished or reduced as they would become the owners of a flat which would provide fully suitable living accommodation. 17. On the same day, the Centre gave its authorisation for the supplementary document to the swap agreement by virtue of which D.M. would pay the applicants 5,000 DEM each on account of the difference in value between the exchanged properties. As a condition of this decision, V.L. was obliged to provide the Centre with a bank statement attesting that the payment had been made. In its statement of reasons, the Centre referred to a request made by V.L. for the conclusion of a supplement to the swap agreement and the statement she had given to the Centre. The Centre also found that this would not be contrary to the interests of the applicants. 18. The above two decisions issued by the Centre on 13 November 2001 were forwarded to the lawyer M.I. 19. On 16 December 2001 the applicants, represented by V.L., concluded the real estate swap agreement with D.M. before a Public Notary in P., and the applicants thereby transferred their ownership of the house to D.M. while the latter transferred her ownership of the flat and the garage to the applicants. The swap agreement contained a clause under which the parties agreed that there was no difference in the value of the exchanged properties, and that they had no further claims on that account. It also set down the value of the properties at some HRK 400,000. 20. Based on this contract, the applicants and D.M. duly registered their ownership of the properties with the land registry. 21. On 28 December 2001 lawyer M.I. submitted to the Centre a certificate from the land registry showing that the applicants had registered their ownership of the flat and bank statements showing that they had received the amount of 5,000 DEM each. 22. On 2 and 12 March 2002 the P. Tax Office (Ministarstvo financija, Porezna uprava) declared a tax obligation of HRK 20,000 for each of the parties ‒ based on the declared value of the transaction involved in the swap agreement ‒ which was divided by half in respect of the applicants, who were thus obliged to pay HRK 10,000 each. 23. On 17 November 2004 the applicants, represented by Z.L. as their legal guardian, brought an action against D.M.in the P. Municipal Court (Općinski sud u P.), asking the court to declare the swap agreement null and void (ništav). 24. During the proceedings the applicants argued that the swap agreement had effected the exchange of the ownership of the house ‒ which comprised two flats, each measuring 87 square metres, was only five minutes’ walk from the sea and was worth approximately 300,000 euros (EUR) ‒ for a flat and a garage worth in total no more than EUR 70,000. Given that at the time when the contract was concluded they were only fourteen and nine years old, the Centre should have defended their rights and should not have given its consent to a swap agreement of that kind. In this respect they pointed out that section 265 § 1 of the Family Act listed specific instances in which the property of a minor could be disposed of, and that no such instance had existed in their case. Moreover, the Centre had failed to carry out an on-site inspection or to commission an expert report which would have allowed it to estimate the value of the house and adopt a proper decision concerning the request for authorisation of the swap agreement. The applicants therefore considered that, by failing to take such vital measures, the Centre had allowed an unlawful and immoral property exchange to be executed. In their view, this had resulted in ab initio invalidity of the exchange. The applicants also pointed out that their legal guardian Z.L. had not been party to the discussions concerning the swap agreement. They therefore proposed that the trial court examine several witnesses, including the participants to the swap agreement, the employees of the Centre, the first applicant ‒ who was by that time already seventeen years old ‒, and commission an expert report establishing the value of the properties. 25. On 1 March 2005 the P. Municipal Court dismissed the applicants’ request to take any of the proposed evidence on the grounds that the case could be decided on the basis of the documents from the case file. 26. On 15 April 2005 the P. Municipal Court dismissed the applicants’ civil action. It argued that it was not in a position to re-examine the Centre’s decision to authorise the swap agreement, since that was an administrative decision which could only have been challenged in administrative proceedings. Thus, given that such a decision existed, the P. Municipal Court could not find the swap agreement to be unlawful or contrary to the morals of society. It also pointed out that the swap agreement could possibly be only a voidable contract (pobojan) but no claim to that effect had been made by the applicants. 27. The applicants challenged that judgment by means of an appeal lodged before the P. County Court, arguing that the first-instance court had failed to examine any of their arguments and had thus erred in its decision concerning the validity of the swap agreement. 28. On 19 March 2007 the P. County Court dismissed the applicants’ appeal as ill-founded, endorsing the reasoning of the first-instance court. 29. The applicants then lodged an appeal on points of law before the Supreme Court (Vrhovni sud Republike Hrvatske) on 8 June 2007. The second applicant was represented by V.L., and the first applicant, having in the meantime reached the age of majority, was able to conduct the legal action herself. 30. In their appeal on points of law the applicants argued, inter alia, that the P. had negligently allowed the swap agreement to be concluded without taking into account the value of the properties and the nature of their family circumstances at the time, namely the fact that Z.L. was in detention and that V.L. was known as a person with a problem of drug abuse. 31. On 19 December 2007 the Supreme Court dismissed the applicants’ appeal on points of law as ill-founded and endorsed the decisions of the lower courts, which found that the civil courts were not in a position to re-examine the Centre’s final administrative decision allowing the conclusion of the swap agreement. Moreover, it did not appear to the Supreme Court that the Centre had failed in its protection of the best interests of the applicants. 32. The applicants then lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating their previous arguments before the lower courts. The second applicant was represented by V.L. 33. On 9 June 2010 the Constitutional Court declared the applicants’ constitutional complaint inadmissible as manifestly ill-founded. 34. A report by the Ministry of Social Policy and Youth (Ministarstvo socijalne politike i mladih) of 30 January 2014 submitted to the Court suggests that the Centre was not aware of V.L.’s drug abuse problem nor had it been alerted concerning M.I.’s conflict of interest. 35. According to a report by the Ministry of Health (Ministarstvo zdravlja) of 7 February 2014, V.L. started her drug addiction therapy on 12 December 2003 and terminated it in 2004. She then started again in 2007 and she was still undergoing therapy at the present time. 36. The information available from the e-land registry concerning property in Croatia shows that the house and the land on which it is located measure 225 square metres with an adjacent courtyard of 476 square metres, all of which is registered in the name of D.M. as owner.
| 1 |
test
|
001-157364
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,015 |
PODHRADSKÝ v. SLOVAKIA
| 4 |
Inadmissible
|
Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
1. The applicant, Mr Milan Podhradský, is a Slovak national, who was born in 1937 and lives in Šaľa. He was represented before the Court by Ms D. Matušková, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 22 May 2001 the applicant was abducted by masked persons. Under the threat of killing him and his daughter they obliged the applicant to sign a document on transfer of his share in a business company. He was released on 23 May 2001. 4. After his release the applicant contacted the Regional Directorate of the Police Corps in Nitra. He was heard several times by that authority. Subsequently the case was transferred to the Šaľa District Office of Investigation which heard the applicant again. These interviews included those on 29 May and 11 October 2001. In both, the applicant submitted that, during the incident, amounts of money in various foreign currencies had been taken away from him. In addition, in the latter questioning, he submitted that, by the forced transfer of his business share, he had suffered damage worth the equivalent of some 72,000 euros (EUR) and that he wished to join the criminal proceedings as an aggrieved party under Article 43 §§ 1 and 2 of the 1961 Code of Criminal Procedure (Law 141/1961 Coll., as applicable at the relevant time – “the 1961 CCP” – see paragraphs 18 and 19 below). 5. The interview of 11 October 2001 followed the opening by the Šala District Office of Investigation of a criminal investigation earlier the same day into the suspicion that the offences of extortion and unlawful restriction of personal liberty might have been committed by one or more persons unknown. 6. Between December 2001 and 2007 the police authority stayed the investigation and the Public Prosecution Service (“the PPS”) at several levels ordered that it be resumed on several occasions. In October 2007 the case was transferred to the Office for Combating Organised Crime (“the OCOC”). 7. On 29 January 2008 two persons, A. and B., were charged with extortion and restricting the applicant’s personal liberty. 8. On 18 April 2008 the applicant was questioned by the investigator. He submitted that, in terms of compensation, he claimed EUR 180,126 in respect of the business share and EUR 4,300 in respect of the foreign currency taken away from him. 9. On 16 September 2008 the proceedings against B. were terminated as her prosecution had become statute barred. 10. On 22 October 2008 the proceedings were split in two parts. The first set of proceedings concerned A., who was suspected of having ordered and organised the applicant’s abduction. The second set aimed at identification of the persons who had abducted the applicant. Those proceedings were stayed on 17 August 2010 but then resumed following an order by the PPS of 8 November 2012. They are still pending before the OCOC. 11. Meanwhile, in the first set of proceedings, on 19 March 2009 charges of extortion and restricting personal liberty had been brought against another individual, C. 12. On 10 May 2010 A. and C. were indicted to stand trial in the Trnava District Court on the charges mentioned above. 13. On 10 May 2012 the District Court discontinued the proceedings. It observed that the police and the investigative authorities had generated such delays at the pre-trial stage of the proceedings that much of the evidence had lost validity. There had been repeated unlawful and arbitrary actions by these authorities such as, for example, the discontinuation of the proceedings against B. but not against the other defendants. As a result, there was no valid evidence showing that A. and C. had committed the offences of which they stood accused. 14. On 8 January 2013 the Trnava Regional Court quashed the decision of 10 May 2012 and remitted the matter to the District Court for a new determination, following appeals by the applicant and the PPS. 15. The proceedings are still pending. 16. On 12 April 2010 the applicant lodged a complaint with the Constitutional Court. He alleged, inter alia, that the OCOC and several offices of the PPS involved in the above proceedings had breached his right to a fair hearing within a reasonable time. 17. On 29 June 2010 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. With reference to Article 46 § 3 of the 2005 Code of Criminal Procedure (Law 301/2005 Coll., as amended - “the 2005 CCP” - see paragraphs 20 et seq. below), it held that a person who considers to have suffered damage as a result of a criminal offence may claim to be a victim of a breach of his or her right to a hearing within a reasonable time only after charges of that offence have been brought against a specific person. The Constitutional Court therefore had the power to examine only the proceedings subsequent to the bringing of charges against A. and B. on 29 January 2008. As the applicant’s complaint was only concerned with the pre-trial phase of the proceedings, the period under examination ended on 10 May 2010 when the case was transmitted to the District Court by way of the indictment. The period under consideration had therefore lasted two years and some three months which was not excessively long. In support of this conclusion, the Constitutional Court observed that except for one fourmonth period of inactivity the investigator had been acting expeditiously. The decision was served on the applicant 6 September 2010. 18. Article 43 §§ 1 and 2 provide, inter alia, that an aggrieved party in criminal proceedings may attach a third-party claim for damages to the proceedings and request that the court convicting the person charged with a criminal offence (obvinený) order the latter to pay compensation for the damage caused to the aggrieved party by the offence. 19. According to a summary of the relevant judicial practice published in the Collection of Judicial Decisions and Standpoints (Zbierka súdnych rozhodnutí a stanovísk) of the Supreme Court under no. 22/1979, a thirdparty claim for damages is properly made if it specifies the defendant against whom it is made, the ground on which it is made, and its amount. 20. As from 1 January 2006, the 1961 CCP was entirely replaced by the 2005 Code. In so far as relevant, the 2005 Code contains provisions (Article 46 §§ 1 and 3) similar to those of the 1961 CCP. 21. A third-party claim must specify the ground and scope of the claim and may only be attached to the criminal proceedings if the matter of compensation has not already been decided upon in civil or other proceedings (Article 46 §§ 3 and 4). 22. Pursuant to Article 287 § 1, where a court convicts a person charged with an offence which has caused damage to third persons within the meaning of Article 46 § 1, as a rule it orders him or her to compensate such damage, provided that the claim has been filed correctly and in due time. 23. The Constitutional Court held (see for example its judgments in cases nos. I. ÚS 157/02; III. ÚS 183/05; I. ÚS 18/06 and I. ÚS 67/2010) that a third party who joined criminal proceedings with a claim for damages has the right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution) as such a duly lodged claim excludes the possibility of having it decided upon in civil proceedings (Article 83 of the Code of Civil Procedure). 24. In a decision of 12 December 2013 in case no. II. US 660/2013, relying on its previous decisions nos. I. US 212/07, III. US 109/06, III. US 254/10, III. US 508/12 and IV. US 188/13, the Constitutional Court upheld the principle that, in accordance with the Court’s judgment in the case of Krumpel and Krumpelová v. Slovakia (no. 56195/00, 5 July 2005), an aggrieved party of a criminal offence, who had attached a third-party claim for damages to the criminal proceedings, was entitled to the guarantees of the civil limb of Article 6 of the Convention. However, the aggrieved party only benefited from the right to a hearing within a reasonable time under Article 6 after a charge had been brought against a specific person. Despite a direct argument by the complainant to that effect, the Constitutional Court gave no answer to the fact that in its judgment in the case of Bíro v. Slovakia (no. 2) (no. 57678/00, § 44, 27 June 2006), the Court had found that, as a matter for principle, civil-party claims for damages made in Slovakia jointly with or subsequently to the lodging of a criminal complaint enjoy the guarantees in question from the moment they were made. 25. In connection with the present application, the Constitutional Court produced a report dated 11 June 2013 concerning the applicability of the right to a hearing within a reasonable time under Article 6 § 1 of the Convention and its constitutional equivalent to third-party claims for damages attached to criminal proceedings (adhézne konanie). The report may be summarised as follows. 26. A party aggrieved by a criminal offence may attach a third-party claim for damages to the criminal proceedings concerning that offence under Article 46 § 1 of the 2005 CCP (see paragraphs 20 et seq. above). Neither the statue nor the case-law of the Constitutional Court make this right dependant on whether or not the defendant has been charged with the offence in question. However, it is only once a charge is brought against a specific person that a concrete legal relationship is created between the aggrieved party and the person charged and it is only then that the aggrieved party becomes entitled to assert the third-party claim against the charged person in the criminal proceedings. Whether or not a person has been charged with the offence concerned is not a criterion for the aggrieved party’s being able to make a third-party claim in the criminal proceedings but for that party’s being able to rely on the right to a hearing within a reasonable time in relation to that claim.
| 0 |
test
|
001-147482
|
ENG
|
CYP
|
ADMISSIBILITY
| 2,014 |
ASIR AND OTHERS v. CYPRUS
| 4 |
Inadmissible
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
|
1. A list of the applicants is set out in the appendix. They were represented by Ms Y. Renda, a lawyer practising in Nicosia. 2 3. The applicants are 63 Turkish-Cypriot relatives of 126 people who were killed during the conflict in Cyprus in 1974. 4. The applicants and their relatives were living in three small villages Murataga (Maratha), Sandallar (Sandallaris) and Atlilar (Aloa) on the Famagusta road close to some Greek-Cypriot villages. 5. On 15 July 1974 there was a coup organised against the President of Cyprus, Archbishop Makarios. The applicants submitted that the coup, which aimed at union of Cyprus with Greece (enosis) was supported by the Greek Cypriot National Guard Army which had a plan for the ethnic cleansing of Turkish Cypriots from certain areas. When the coup started, mass murders of Turkish Cypriots began. 6. On 20 July 1974, there were reports of Greek Cypriots arriving in the villages of Murataga and Sandallar, taking the villagers away forcibly. 7. On 15 August 1974 a villager returning to Atlilar found the village deserted. They found traces of a bulldozer and hundreds of bullet cases, as well as pamphlets concerning EOKA-B. On 18 August, soldiers and journalists visited the village to investigate what had happened. On 19 August, in the presence of UN observers, a small pit was uncovered in which 37 villagers’ bodies had been crammed. Their heads had been cut off, the bodies were handcuffed. The bodies had been run over by a bulldozer and had meshed together, rendering exhumation difficult. The bodies were recovered and buried together on 25 December 1974. 8. Investigations then took place as to what had happened in the other two villages. 9. Murataga had a population of 135. At noon on 20 July, armed Greek Cypriots had taken the villagers to Alanci. They had separated the men aged 15-60 from the women and took them to a military camp. The women and children were sent back to the village. Some of the men were released from the military camp in early August. 10. On 14 August, Greek Cypriots came to Murataga, raiding and looting the houses. They brought the villagers from Sandallar to Murataga, killed everyone after torturing them and buried them by running over them with a bulldozer on the rubbish dump. The boys had had their heads cut off. The women and girls had been raped. The bodies were crushed and unrecognizable. The site of the massacre was first uncovered by Safak Nihat whose account was published in a Turkish-Cypriot newspaper. Nihat and his family had escaped the massacre by hiding in barrels and in a hayloft. They emerged to find the village burning and empty of people. On 2 September, Nihat was helping his uncle with a herd of sheep. Nearing the garbage dump, he saw four pyramid-like heaps and became aware of a terrible smell. He saw a child’s arm protruding from a heap and ran to tell his uncle. Soldiers arrived with United Nations personnel. 89 bodies were exhumed. The victims were buried on 4 September. 11. The story of the three villages and the torture and massacre of men, women and children was told in a book published in 2010 – “Step by Step Genocide”, published by the Association of Murataga-Sandallar-Atlilar Martyrs. It was also recounted in the reports of the United Nations Secretary-General dated 27 August and 10 September 1974. 12. No official investigation was launched into the events. 13. In 2009, an old Greek Cypriot who wished to clear his conscience before he died called some of the applicants to the south and gave names of the perpetrators. They promised not to give his name to the police. They were shaken as most of the names were those of people they knew, who had been their neighbours from many years before 1974. The applicants drew up a petition and their lawyer submitted it to the Attorney-General on 9 December 2009. Some of the names of the alleged perpetrators also appeared in the Turkish-Cypriot press on 14 August 2009. 14. On 11 January 2010, the applicants learned from a newspaper that an investigation had been started by the Attorney-General of Cyprus. Their lawyer wrote to the authorities on 4 February 2010 stating that they were willing to give statements. 15. Following this correspondence, some applicants were summoned by Greek Cypriot police to give their complaints between 17 March 2010 and 9 March 2011. 16. On 7 June 2010, the applicants’ lawyer wrote to the AttorneyGeneral complaining about the lack of information about the investigation and stating his clients’ right to be informed. On receiving no reply within 30 days, the applicants lodged an action in the Cyprus courts. 17. On 21 March 2011, the applicants’ lawyer received an e-mail from a government lawyer that the names of the alleged perpetrators had been sent to the police for their statements to be taken. Statements from four of these suspects were submitted in the course of the court proceedings – the translations into Turkish were very poor. They stated in essence that they had left the area due to the fighting and did not know who had committed the crimes. The applicants submitted that although there were 30 names on their list the authorities had only looked for 15 persons. No further information has been forthcoming about the investigation. 18. The applicants’ court case was still pending. The Attorney-General is claiming in defence that the matter of investigation is an act of State not subject to judicial review, citing that Supreme Court ruling to that effect in Özalp Behiç Saricaoğlu and others v the Republic of Cyprus (nos. 589/06, 590/06, 591/06 and 593/06) 19. The Government provided the following information about the investigation into the deaths of the applicants’ relatives. 20. On 23 September 2009, following publication in August of an article in a Turkish-Cypriot newspaper about the killing of the applicants’ relatives, the Attorney-General instructed the police to carry out an investigation, in particular as regarded the fifteen persons named in the article who had lived in nearby Greek-Cypriot villages. 21. On 9 December 2009, five relatives wrote to the Attorney-General requesting an investigation and naming thirty Greek-Cypriot villagers as perpetrators. Fifteen of these had already been named in the newspaper. 22. The police investigation which had not yet been completed followed up on the names of potential suspects. These villagers had fled from the occupied areas and had to be traced. It transpired that, on verification of electoral rolls, four individuals had been named twice, that the identity of one perpetrator could not be confirmed, that one had moved abroad without discoverable address and that eleven had died. 23. The police obtained statements from all the remaining individuals who had been named. Supplementary statements were taken from some of them. Four persons named as witnesses by members of the families turned out to be relatives, not eye-witnesses. The police were unable to obtain information as to the identity of the Greek Cypriot who had named the alleged perpetrators. The police followed other leads, including contacting official bodies, United Nations sources, seeking inter alia to contact the Swedish monitors who had been at the site of the exhumations, other villagers from the area and any persons named in the statements taken. Some leads were still being followed up. 24. In his letter dated 3 July 2013, the Attorney-General stated that the investigations were still ongoing and further information might still come to light.
| 0 |
test
|
001-162023
|
ENG
|
LTU
|
CHAMBER
| 2,016 |
CASE OF BAGDONAVIČIUS v. LITHUANIA
| 4 |
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1964. He is currently serving a prison sentence in the Pravieniškės Correctional Home (Pravieniškių pataisos namai – atviroji kolonija). 6. In March 2009 the applicant was arrested and placed in pre-trial detention on suspicion of several instances of trafficking drugs in very large amounts as part of an organised group. 7. Between 30 March 2009 and 14 June 2010 the applicant was held at Lukiškės Remand Prison (Lukiškių tardymo izoliatorius - kalėjimas) in cells which measured approximately eight square metres and which housed between two to four detainees. 8. On 14 June 2010 the applicant was transferred to Kaunas Remand Prison (Kauno tardymo izoliatorius). According to a document issued by that prison, the average space per prisoner in the cells where the applicant was held varied, but was sometimes less than three square metres per inmate. 9. On 2 September 2011 the applicant complained to the Prisons’ Department (Kalėjimų departamentas), a body that oversees Lithuanian prisons, about the conditions in which he had been held (dėl buvusių prastų kalinimo sąlygų) in Lukiškės Remand Prison. In its reply of 15 September 2011, the department admitted that the applicant’s allegations that he had been held in overcrowded cells in Lukiškės had been partly proved. 10. After visiting Kaunas Remand Prison on 28 November 2011, the Public Health Centre (Visuomenės sveikatos centras) found that the prison complied with general health and hygiene requirements. 11. On 5 August 2013 the applicant started court proceedings for damages, arguing that the conditions of his detention in Lukiškės Remand Prison had been abysmal. 12. By a decision of 19 November 2013, the Vilnius Regional Administrative Court held that the applicant had missed the three years’ statutory deadline to lodge a claim for damages, because he had been released from Lukiškės Remand Prison on 14 June 2010. 13. The applicant appealed, arguing that he had only learned in July 2012 that his rights had been breached, when he had started communicating with his current representative before the Court, Mr S. Tomas. 14. By a final decision of 30 October 2014, the Supreme Administrative Court dismissed the appeal, noting that the applicant could have asked for legal aid to start court proceedings for damages in a timely fashion if he had been without sufficient means to employ a lawyer. 15. On 22 September 2011, while he was being held at Kaunas Remand Prison, the applicant had his first myocardial infarction. He was taken that day to a public hospital – the cardiology unit of the Hospital of the Lithuanian University of Health Sciences’ Kaunas Clinics (Lietuvos sveikatos mokslų universiteto ligoninė – Kauno klinikos, hereinafter – “the Kaunas Clinics”), where he underwent a surgical intervention. The doctors noted in the applicant’s medical file that he was a heart attack risk because he had smoked 10-15 cigarettes a day for twenty-five years. Another risk factor was hereditary, because the applicant’s father had had myocardial infarction. 16. On 28 October 2011 the Kaunas Clinics’ doctors concluded that the applicant’s condition had stabilised (būklė stabilizavosi). The applicant was prescribed medications for his condition (medikamentinis gydymas), explained what kind of diet and health regime to follow and transferred to the Prison Department Hospital (Laisvės atėmimo vietų ligoninė). 17. As can be seen in the documents submitted by the parties, and as was later confirmed by the Ombudsperson (see paragraph 30 below), the doctors at the Prison Department Hospital, on the instructions of the doctors at the Kaunas Clinics, performed a number of tests on the applicant (including urine, blood, and an ECG). They also prescribed a diet that was low on salt and fat. Given that the applicant’s state of health was stable and improving, on 3 November 2011 the applicant was sent back to Kaunas Remand Prison. The doctors recommended that he continue to take the medications he had been prescribed. 18. On 6 December 2011 the applicant was again placed in the Prison Department Hospital for an earlier scheduled consultation. He had some diagnostic tests and was treated with medications. 19. On 14 December 2011, while at the Prison Department Hospital, the applicant had a second myocardial infarction and was immediately transferred to a public hospital – the Cardiology and Angiology Centre of Vilnius University Hospital’s Santariškės Clinics (Vilniaus Universiteto Ligoninės Santariškių klinikos, hereinafter – “the Santariškės Clinics”), where he was examined and tests were performed. Two days later, on 16 December 2011, the doctors in Santariškės held that the applicant’s state of health was stable, and on that day he was returned to the Prison Department Hospital. 20. While being held at the Prison Department Hospital, on 6 March 2012 the applicant was taken back to the Santariškės Clinics for a consultation. The doctors recommended the applicant be treated with medications and also prescribed a diet which was low on salt and fat. The doctors also recommended that the applicant engage in physical activity for 45 to 50 minutes a day. They also recommended that the applicant be “brought back to the Santariškės Clinics’ Cardiology and Angiology Centre after six months (po 6 mėnesių) for a consultation, having registered in advance”. 21. On 15 March 2012 the Prison Department Hospital released the applicant back to Kaunas Remand Prison. The applicant’s medical record indicates that he was released because his state of health “had improved (pagerėjo)”. It also states that the applicant “could walk (gali eiti)”. Among the risk factors, the doctors noted that the applicant smoked. It was recommended that the applicant have further outpatient treatment with medications (medikamentinis ambulatorinis gydymas), follow a diet that was low on fat and salt and be physically active by taking exercise (fizinis aktyvumas). 22. On 31 December 2011 the applicant was issued with a certificate that he had lost 60% of his capacity for work. The document stated that he could not perform any work where he needed to lift more than 15 kilograms. However, the applicant could do work that involved walking, sitting or bending. 23. In reply to a complaint by the applicant’s lawyer, on 14 May 2012 the Prison Department Hospital noted that it had rigorously adhered to the instructions from cardiologists of category III medical care institutions (see paragraph 65 below). 24. The applicant was again admitted to the Prison Department Hospital, staying there from 27 to 29 March 2012 with digestion-related issues (haemorrhoids). The doctors noted that the applicant had got haemorrhoids three years previously. After examining the applicant, they prescribed outpatient treatment with medications, and noted that he was fit enough to be taken to a court hearing. 25. In April 2012 the Kaunas Remand Prison’s administration told the applicant in reply to a request that as of that month he would be provided the same menu of food as women (Jums bus tiekiamas maitinimas pagal moterų valgiaraštį). 26. After visiting the Prison Department Hospital between 7-22 May 2012, the Public Health Centre concluded that the hospital complied with general health-care and hygiene requirements. 27. The applicant was admitted to the Prison Department Hospital from 21 to 28 June 2012 for a scheduled follow-up (planine tvarka) of his heart condition. The applicant’s medical record shows that a number of tests had been performed on him, the doctors concluded that his state of health was “unchanged (be pakitimų)” and “satisfactory (patenkinama)”. The medical certificate issued at the time of the applicant’s discharge from the hospital on 28 June 2012 also indicated that he smoked, which was a risk factor. 28. In March 2012 the applicant also wrote to the Ombudsperson, complaining that he had been held at Lukiškės Remand Prison, Kaunas Remand Prison and at the Prison Department Hospital, where he had suffered great psychological stress. He argued that in those facilities his health had worsened and as a consequence he had suffered two myocardial infarctions. He also claimed that in Kaunas Remand Prison he had not been provided with the right diet, going against the doctors’ recommendations. The applicant was also dissatisfied with the fact that he had not been provided rehabilitation therapy. In April 2012 the applicant withdrew, in writing, the part of his complaint concerning Kaunas Remand Prison, stating that he had no complaints about that facility. 29. On 6 June 2012 the Ombudsperson accepted the applicant’s withdrawal of his complaint as regards Kaunas Remand Prison. The Ombudsperson, however, established that the conditions of the applicant’s detention at Lukiškės Remand Prison, where he had been held between March 2009 and June 2010, as well as at the Prison Department Hospital, where he had been held between 16 December 2011 and 15 March 2012, had been in breach of domestic legislation on overcrowding. In particular, the applicant had been held in the Prison Department Hospital in a room where he had had 4.42 square metres of personal space. 30. The Ombudsperson nevertheless dismissed the complaint about a lack of proper medical care. After examining the documents related to the applicant’s treatment in hospitals, the Ombudsperson noted that, contrary to the applicant’s submissions, neither the Kaunas Clinics nor the Santariškės Clinics had prescribed him a course of rehabilitation therapy after the applicant’s first and second heart attacks respectively. On the contrary, both Clinics had made recommendations for further treatment, such as the medications, tests and dietary requirements which were required, and which the Prison Department Hospital had followed. 31. According to three documents provided by the applicant’s representative, Mr. S. Tomas, in September and December 2012 and in April 2013 the outpatient polyclinic in Upninkai (Upninkų ambulatorija, hereinafter – Upninkai Polyclinic), a village in Jonava district in Lithuania, gave “the applicant’s authorised person” three written statements by the polyclinic’s head doctor. They noted that the applicant had suffered from myocardial infarction and summarised his medical history. One of those documents also stated that because of his state of health, as seen in the light of certain legal acts issued by the Minister of Health, the applicant should be released from serving his sentence. 32. In November 2012 the applicant was taken to the Prison Department Hospital for a planned consultation with a cardiologist. The applicant spent about a month there. During that time, on 15 November 2012, he was also taken to the Santariškės Clinics, where the doctors performed a cardiopulmonary exercise test (veloergometrija) and an ultrasound examination of the heart (ultragarsinis širdies tyrimas). The applicant’s heart was rhythmical, with no decompensation. The cardiologists prescribed medications to treat the applicant, said he should limit his intake of fat and salt (as concerned his diet) and have 45-50 minutes of physical activity a day. He was to return for a further consultation, although the exact date was not indicated. The doctors in the Prison Department Hospital also performed a number of tests. When they released the applicant back to Kaunas Remand Prison on 5 December 2012 they concluded that “his illness was without complications (ligos eiga: be komplikacijų)”. The applicant’s state of health was “satisfactory (patenkinama)”. 33. As can be seen from the applicant’s medical records, on 12 February 2013 Kaunas Remand Prison sent him to the Prison Department Hospital for “a full examination, follow-up and treatment” of his heart condition. The doctor’s examined the applicant, including an ECG and blood tests, and concluded that his state of health was “satisfactory”. It was noted that the applicant smoked. 34. After the applicant’s arrest on 25 March 2009, a court sanctioned his pre-trial detention for an initial duration of three months. The detention was then prolonged a number of times. 35. On 28 November 2011 the Kaunas Regional Court extended the applicant’s pre-trial detention for three months on the grounds that the applicant was suspected of being the organiser of a criminal group which committed drug-related crimes, that he had connections abroad, did not work and faced a heavy sentence. Moreover, there was evidence in the file that the applicant had attempted to influence other suspects, thus impeding the criminal investigation. 36. The applicant’s lawyer appealed, arguing that her client had suffered a double myocardial infarction, had been operated on and treated at the Prison Department Hospital. In addition, he had another illness, connected to the digestive system. The lawyer argued that her client would not receive proper medical assistance, as regarded his regime and diet, in the Prison Department Hospital. She asked that a milder remand measure than pre-trial detention be ordered. 37. On 29 December 2011 the Court of Appeal dismissed the appeal, finding that milder remand measures would hinder the course of justice. It held that there was no information in the file preventing the holding of the applicant in pre-trial detention because of his state of health. The court noted that the applicant was being held at the time at the Prison Department Hospital and was receiving 24-hour medical assistance. 38. In March 2012 the applicant’s lawyer submitted several new requests asking to replace detention with a less severe remand measure owing to the deterioration of the applicant’s health while in detention. She also relied on the Santariškės Clinics’ record of 6 March 2012, where it was stated that the applicant needed a low-salt diet, a special regime for his meals and physical activity. The lawyer maintained that such assistance could not be provided at Kaunas Remand Prison or at the Prison Department Hospital, thus preventing the applicant from having satisfactory medical care. 39. On the basis of the request by the applicant’s lawyer, on 23 March 2012 the Kaunas Regional Court ordered a comprehensive forensic examination to be performed by a doctors’ commission, comprising a cardiologist, to answer the question whether the applicant was ill with a serious, incurable illness (sunki nepagydoma liga), and, if so, whether for that reason he could be released from serving a sentence. In the meantime, the court extended the applicant’s pre-trial detention. 40. On 20 April 2012 the Court of Appeal upheld the decision to extend the applicant’s detention. The court observed that although the applicant had serious health problems, he had always been provided with adequate treatment at the Prison Department Hospital or, if necessary, in a public hospital. 41. After examining the applicant’s medical records from the Kaunas Clinics and the Santariškės Clinics, as well as from the Prison Department Hospital, on 11 June 2012 experts from the State Forensic Medicine Service (Valstybinė teismo medicinos tarnyba) produced report no. EKG 24/12 (02). It read that the applicant had an ischaemic heart illness, having suffered a myocardial infarction; he also had hypertension and ischaemic cardiomyopathy. Those ailments should be classified as serious and incurable illnesses. However, the experts concluded that the applicant’s state of health at the time did not meet the criteria which allowed a convicted person to be exempted from serving a sentence, according to the rules set by the Ministry of Health and the Ministry of the Interior (see paragraph 49 below). One of the doctors on the commission was a cardiologist, a professor and habilitated doctor of sciences at the Kaunas Clinics. Another doctor was a surgeon with 35 years of experience. 42. The applicant’s pre-trial detention was then prolonged by court rulings on 13 June, 24 July and 25 September 2012. 43. The last pre-trial detention order was upheld on 19 October 2012 by the Court of Appeal. The applicant’s lawyer referred to the reports from the Upninkai Polyclinic and claimed that neither Kaunas Remand Prison nor the Prison Department Hospital could guarantee the necessary medical care for the applicant. The Court of Appeal however noted absence of any new documents showing that the applicant’s state of health had worsened. The Court of Appeal also had regard to the practice of the Court to the effect that the State should protect inmates’ physical health (it relied on Kudła v. Poland [GC], no. 30210/96, ECHR 2000XI, and Peers v. Greece, no. 28524/95, ECHR 2001III). However, in the applicant’s case there was no evidence that there would be a lack of medical assistance. Furthermore, the comprehensive medical examination (see paragraph 41 above) had not ruled out keeping the applicant detained, and, in the court’s view, its conclusions prevailed over those of the Upninkai Polyclinic. There was no reason to hold that keeping the applicant detained, and, if necessary, treating him at the Prison Department Hospital or in another hospital, could be considered as inhuman or degrading. 44. By a judgment of 13 December 2012, the Kaunas Regional Court found the applicant guilty of a number of drug-related crimes and sentenced him to sixteen years and six months imprisonment in a correctional home. The applicant was to remain detained until the judgment became final. 45. The applicant’s conviction was upheld by the Court of Appeal on 31 March 2014, but the sentence was changed to fourteen years of deprivation of liberty in a correctional home. 46. By a final judgment of 16 December 2014, the Supreme Court upheld the appellate court’s verdict. The Supreme Court also relied on expert report no. EKG 24/12 (02) (see paragraph 41 above), and held that the lower courts had been correct in finding that the applicant’s state of health did not prevent him from serving a prison sentence.
| 0 |
test
|
001-165425
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,016 |
SAKİN v. TURKEY
| 4 |
Inadmissible
|
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
|
1. The applicant, Mr Ethem Sakin, is a Turkish national, who was born in 1961 and is currently serving a prison sentence in the Bolu TType Closed Prison. He is represented before the Court by Mr C. Yetkiner, a lawyer practising in Istanbul. 2. The Turkish Government (“the Government”) are represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 4 January 2010 the applicant was taken into pre-trial detention at the Bilecik M-Type Closed Prison (“Bilecik Prison”), pending the criminal proceedings against him on a charge of murder. He was initially placed in a smoking cell (koğuş, a multi-occupancy living unit) reserved for inmates in pre-trial detention only. 5. On an unspecified date in 2011 the Bilecik Assize Court found the applicant guilty on three counts of murder. The applicant appealed against that judgment. There is no further information in the case file as regards the outcome of the appeal proceedings. 6. According to the information and documents provided by the Bilecik Prison administration, the applicant changed cells a total of seven times during his detention at Bilecik Prison between 4 January 2010 and 26 December 2012. The changes were all effected at the applicant’s request. It appears that two of those changes were made to accommodate his wish to stay in a non-smoking cell, and the remaining changes were made following conflicts with his cell-mates. It further appears that while some of the cells he stayed in were allocated exclusively to inmates in pre-trial detention, others accommodated both those in pre-trial detention and convicts. 7. On 20 March 2012 the applicant sent a letter to the General Directorate of Prisons and Detention Centres of the Ministry of Justice, requesting his transfer to another prison. He argued that he was not safe in the Bilecik Prison, where he had many enemies. He also mentioned in the same letter that as a non-smoker he was sharing a cell with smokers, and that there were also convicts in his cell. 8. By a letter dated 9 May 2012 the General Directorate of Prisons and Detention Centres informed the Bilecek public prosecutor’s office that the applicant’s allegations regarding his safety in prison had been found to be groundless. The applicant could, therefore, continue to serve his sentence in conditions “suitable to his status”. 9. On 1 and 8 January 2013 the applicant sent letters to the Ministry of Justice and the Human Rights Inquiry Committee of the Grand National Assembly of Turkey (“the Human Rights Inquiry Committee”), respectively, alleging that the warden and some other officers at the Bilecik Prison had applied psychological pressure on him. The applicant also complained in his letters about the problem of accommodating smokers with non-smokers and detainees with convicts in the same cells. 10. On 11 February 2013 the Human Rights Inquiry Committee informed the applicant that his letter had been communicated to the Bilecik office of the General Directorate of Prisons and Detention Centres. 11. In the meantime, on 26 December 2012 the applicant had been transferred to the Çanakkale E-Type Closed Prison (“Çanakkale Prison”) on disciplinary grounds. The applicant claimed that at the Çanakkale Prison he had been placed in a cell measuring 4.5 by 4.5 metres, with eleven other inmates. According to the information provided by the Government, however, the cell where the applicant stayed measured 5.7 by 5 metres and accommodated nine other inmates. 12. On 30 May 2013 the applicant sent a letter to the General Directorate of Prisons and Detention Centres to complain about the cramped living conditions at the Çanakkale Prison. 13. In its reply dated 18 June 2013, the General Directorate of Prisons and Detention Centres informed the applicant that the Çanakkale Prison had a maximum capacity of 704 prisoners, but that it had accommodated only 647 prisoners at the material time. The General Directorate added that two hundred and seven new penal facilities would be set up in the next five years, following which prisoners would be accommodated in more favourable conditions. 14. Upon receiving the information provided by the General Directorate of Prisons and Detention Centres, on 27 June 2013 the applicant wrote a letter of reply, claiming that the figures provided did not reflect the real capacity of the prison, but the overinflated capacity that resulted from the use of triple bunk beds. 15. In the meantime, on 11 and 24 June 2013 the applicant had sent similar complaint letters to the Çanakkale Prison Monitoring Board, which in its response of 9 July 2013 informed the applicant that his complaints would be taken into consideration at their next visit to the prison in question. 16. It appears that on 30 July 2013 the Çanakkale Prison Monitoring Board visited the Çanakkale Prison and met with the applicant. In its letter dated 3 September 2013, the Monitoring Board informed the applicant that his complaints had been taken into consideration and that they would be communicated to the Ministry of Justice in its quarterly interim report. 17. In the meantime, on 19 August 2013 the applicant had been transferred to the Kocaeli T-Type Closed Prison (no.1) (“Kocaeli Prison”) following his request to be closer to his family. 18. On 23 August 2013 the applicant lodged an individual application with the Turkish Constitutional Court (“the Constitutional Court”), by post, to complain about the overcrowding problem at the Çanakkale Prison. 19. By a letter dated 29 August 2013, the Registry of the Constitutional Court informed the applicant that his application could not be registered because he had failed to comply with the procedural rules on the submission of applications set out in section 47(1) of Law no. 6216 on the Establishment and Rules of Procedure of the Constitutional Court of Turkey and section 63 of the Internal Regulations of the Constitutional Court (Anayasa Mahkemesi İçtüzüğü), which stipulated that individual applications had to be lodged directly with the Constitutional Court in person, or through local courts or representations abroad. Applications submitted by post would not, therefore, be accepted. 20. On an unspecified date the applicant was transferred to the Bolu TType Closed Prison. 21. Section 4 of Law no. 4675 on Enforcement Judges lays down the duties of Enforcement Judges as follows: “1. To examine and resolve complaints concerning the admission of convicts and detainees to penal institutions and detention centres, [their] placement, accommodation, heating and clothing, feeding, hygiene, [their] medical examination and treatment for the protection of their physical and mental health, [their] relations with the outside world, ... and other such activities. 2. To examine and resolve complaints concerning the execution of the convicts’ sentences, ... [their] transfer, ... ... 4. To examine the reports prepared and communicated by the monitoring boards of penal institutions and detention centres on their observations on the penal institutions and detention centres falling under their jurisdiction, and to rule on any complaints.” 22. Section 5 of Law no. 4675, governing the application procedure to the enforcement judge, provides as follows: “... Complaint[s] may be lodged directly with the enforcement judge by way of a petition, or through the intermediary of the office of the public prosecutor or the administration of the penal institution [or] detention centre. Applications lodged other than with the enforcement judge shall be transmitted to the latter at once and within three days at the most. Complaints made orally shall be recorded and a copy [of the record] shall be given to the applicant. ...” 23. In accordance with section 6(5) and (6), an objection may be lodged against a decision of an enforcement judge with the local assize court. 24. The Government submitted fourteen examples of decisions delivered by the Constitutional Court concerning individual applications lodged by prisoners from different prisons. The decision delivered by the Constitutional Court in application no. 2013/2025 is particularly noteworthy on account of its pertinence to the present application. The application in question was lodged on 25 September 2012, only two days after the entry into force of the new remedy before the Constitutional Court. The applicant prisoner complained, inter alia, of the unlawful practices of the prison administration, including placing him in accommodation with smokers despite the fact that he suffered from asthma. The Court observes that the prisoner’s complaints regarding the unlawful practices of the prison administration, including placing him in accommodation with smokers, were declared inadmissible by the Constitutional Court for non-exhaustion of the available remedies, on account of the prisoner’s failure to bring his complaints before an enforcement judge.
| 0 |
test
|
001-183561
|
ENG
|
ROU
|
COMMITTEE
| 2,018 |
CASE OF HALIP AND VELEA v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal 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 applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. The applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-180201
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,017 |
B.T. v. RUSSIA
| 4 |
Inadmissible
|
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
|
1. The applicant, Mr B.T., is an Uzbek national who was born in 1977. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms N.N. Motuz, a lawyer practising in Simferopol. 2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. The applicant complained under Article 3 of the Convention about the real risk of ill-treatment in the event of his extradition to Uzbekistan. 4. On 19 July 2016 the applicant’s request for an interim measure under Rule 39 of the Rules of Court was granted. It was indicated to the Russian Government that the applicant should not be extradited until further notice. At the same time the Court, acting under Rule 54 § 2 (a) of the Rules of Court, requested the Government to provide factual information regarding the extradition proceedings. 5. On 30 August 2016 the Government provided the requested information, arguing in particular that the applicant did not face any real risk of ill-treatment in Uzbekistan because he did not belong to any vulnerable group and because the Uzbek authorities had provided relevant assurances. 7. On 19 December 2013 an investigator in Uzbekistan opened a criminal inquiry into the applicant’s actions. On 25 December 2013 he was indicted on charges of trafficking in drugs, a search warrant was issued in his name and his detention was ordered in absentia. 8. According to the applicant, at the end of January 2014 he crossed the Russian border and subsequently moved to the Crimea. 9. On 29 June 2015 the applicant was arrested. 10. On 24 July 2015 an extradition request was submitted by the Uzbek authorities. 11. On 7 April 2016 the applicant’s extradition was authorised by a deputy Prosecutor General of the Russian Federation. The applicant challenged the decision in court. 12. On 19 May 2016 the extradition order was upheld on appeal. 13. On 28 July 2016 the Supreme Court of the Russian Federation upheld the appeal court’s decision. The applicant’s extradition authorisation became final and enforceable. 14. In response to the applicant’s arguments under Article 3 of the Convention, the Supreme Court stated that the applicant did not face a risk comparable to persons belonging to vulnerable groups identified by the international reports. They considered that he voluntarily left Uzbekistan in pursuance of family life in Russia and was charged with a drug-related offence, which was not a politically or religiously motivated crime. They referred to the assurances of the Uzbek authorities and argued that he had failed to prove that his individual circumstances justified the conclusion that he would face a risk of ill-treatment if extradited to Uzbekistan. In the relevant part the judgment read as follows: “Having considered the complaints concerning possible torture of B.T. [in Uzbekistan], which would prevent his transfer to Uzbek authorities, [the court] notes the following. It follows from the World Report 2016 [by Human Rights Watch] on the situation in Uzbekistan, as well as reports on the criminal justice system in Uzbekistan of the UN and international non-governmental organizations, submitted by the representative of B.T., that there are instances of the use of torture, ill-treatment by law enforcement officials, and systematic persecution of political opposition, human rights activists, journalists, [non-orthodox] Muslims and Christians. Judicial consideration of this complaint by B.T. did not reveal circumstances capable of leading to a conclusion that he would be subjected to the risk of cruel treatment or torture in case of extradition to Uzbekistan. In his statements after arrest and during the court hearings B.T., an ethnic Uzbek, did not claim that he belonged to any opposition movement or a religious group. He did not justify his departure from Uzbekistan by any persecution on political, religious, ethnic, faith, or social grounds. Neither did he raise these arguments in his appeal. According to B.T.’s statements in court he arrived to Crimea, where his relatives (mother and brother) reside, with the purpose of establishing a family. The charges of drug-related offences pursued against B.T. also have no political or religious basis. Under these circumstances the written assurances of [Uzbek authorities], compliant with international legal standards, as well as assurances that the criminal prosecution will be pursued in strict compliance with criminal procedure legislation and international treaties, must be considered sufficient... Any other conclusion in absence of specific information on the existence of a real risk of violation of [B.T.’s Article 3 rights] would be a mere speculation. Violations of the said Convention provision in respect of persons charged with politically or religiously motivated crimes do not substantiate the conclusion that similar violations are going to take place in respect of B.T., who is accused of a common criminal offence.” 15. On 22 December 2016 the applicant was released on his own recognisance because of the expiry of the maximum statutory period of detention.
| 0 |
test
|
001-159914
|
ENG
|
ROU
|
CHAMBER
| 2,016 |
CASE OF BOACĂ AND OTHERS v. ROMANIA
| 3 |
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicants are all Romanian nationals of Roma origin and heirs of I.B., who, together with some of the applicants, initiated the domestic proceedings. Those proceedings were still pending when I.B. died on 1 April 2010. 6. I.B.’s heirs pursued the case before the domestic courts and lodged a complaint before the Court on his behalf and on their own behalf. 7. On 30 March 2006 at around 5 p.m. A.N., I.B.’s daughter-in-law, was attacked near I.B.’s home. I.B.’s three sons (the applicants nos. (1)-(3) in the appendix) and C.G.M., the victim’s father, went to Clejani Police Station to report the assault. 8. In front of the police station they were allegedly attacked by a group of fifty villagers. When I.B. arrived there, attracted by the noise, he saw C.G.M. injured, with his head covered with blood. His sons’ car was also damaged (the windows were broken and the car’s bonnet was concertinaed). I.B. also saw the villagers chasing his sons and attacking them with stones, bats and bricks. 9. At around 6 p.m. police officers T.B. and M.N. from Clejani police station, accompanied by colleagues from the Giurgiu Rapid Intervention Squad (Detaşamentul Poliţiei pentru Intervenţie Rapidă) arrived at I.B.’s home to take him into custody. The police intervention team entered the yard and took him by force to the police car, while shouting abuse and calling him a gypsy (ţigan). To I.B.’s question whether they had a search warrant, T.B. pointed to the special squad and said “They are my search warrant!”. Then the police made two children from the household, one aged 13 and one 14, lie down on their stomachs and called them wretched disgraceful gypsies (ţigani borâţi). The sixth applicant, Marian Boacă, who was 13 at the time, and M.D., I.B.’s daughter-in-law, were taken to the police station in the same car. 10. Later, the first three applicants, I.B.’s other sons, were apprehended on the street by ten masked police officers, who shouted at them to lie down and then kicked them in the stomach and face while shouting abuse and calling them “wretched disgraceful gypsies”. They were also taken to Clejani police station, where they found the sixth applicant and M.D. standing with their arms up, facing the wall. 11. The interrogations took place in the chief of police’s office. I.B. was taken there first. He was beaten up first by police officer T.B. and two masked officers. Two more masked officers joined them later. They kicked I.B. in the ribs, on his right side; they punched him and beat him with their weapon butts and shouted abuse. I.B. lost consciousness. The first three applicants were brought to the same office and tripped over their father’s body, which was lying unattended on the floor. They were ordered to lie down and were hit and shouted at. T.B. called the chief of the Letca Noua Police Station and told him to come for “a match with the boys” (la o partidă cu băieţii). Some ten to fifteen minutes later officers from Letca Noua joined the interrogations and started hitting the applicants. According to the applicants, the police officers who beat them up had been drinking alcohol. 12. At the applicant’s request, the officers eventually allowed I.B. to leave the police station, but told the first three applicants that they had to sign confessions concerning the rape of a foreign woman and the theft of pipes. The statements had been written by the police officers. The applicants were not allowed to read the contents of those confessions. They denied committing any crime, but eventually signed the confessions and were allowed to leave the police station. 13. On 30 March 2006 an altercation broke out between the Boacă family and the G. family, both parties behaving aggressively towards each other and armed with dangerous objects. The altercation occurred in front of the Clejani police station, where the G. family (belonging to the Ursari Roma community – țigani ursari) was going to make a criminal complaint against the applicants’ family about a previous altercation that had occurred the same day. In their statements to the police, members of the G. family related that the third applicant had tried to hit them with the car and, driving dangerously, had managed instead to hit his father, I.B. 14. In this context, at 6.30 p.m. the Giurgiu Rapid Intervention Squad was called to restore public order. A team of four officers and a driver was in place from 7 p.m. to 6 a.m. the next day. According to the police agents’ statements, there were no incidents during this operation, as the Boacă family members concerned willingly complied with the police orders given when they were apprehended. Four eyewitnesses, all proposed by I.B., declared they had seen him come out of the police station feeling ill, but with no apparent indications that he had been attacked. 15. M.N., the head of Clejani police station, did not participate in the investigation out of fear of reprisals from the Boacă family. 16. I.B. was taken by ambulance to Giurgiu County Hospital, where he underwent pulmonary X-ray investigations but received no treatment. He was then taken to Bucharest University Hospital, where he remained from 31 March to 4 April 2006. 17. On 11 April 2006 a forensic doctor examined him. The medical certificate concluded that he had suffered a thoracic trauma inflicted by a “blow caused by a hard object or by body impact”. He needed fifteen to nineteen days to recover. 18. Mihăileşti Police started investigating the events of 30 March 2006. The accusations were of theft of pipes by members of the Boacă family and of a brawl involving twenty-one people, mainly belonging to the two families (Boacă and G.). Statements were taken from all those involved in the altercation and from some eyewitnesses. In their various statements made during those investigations, I.B. and the applicants declared that they had been beaten up by police. Some members of the opposing family declared that I.B. had been hit by the car driven by his son, the third applicant. 19. On 9 May 2007 the prosecutor’s office attached to Giurgiu County Court decided not to prosecute any of those involved in the incidents. He noted that the pipes had been returned to their rightful owner, who did not wish to seek damages from the applicants’ family; as for the brawl, the prosecutor noted that there had been “reciprocal violence” and therefore decided to impose administrative fines on all involved. 20. It appears that the decision was not contested. 21. On 1 June 2006 I.B. and the first three applicants lodged a criminal complaint with the prosecutor’s office attached to Giurgiu County Court against the police officers who had allegedly ill-treated them. In his complaint to the police, I.B. stated that the police chief was friendly with the Ursari Roma from Clejani, with whom the Boacă family were in conflict. They also complained of discrimination, arguing that because of their Roma origin the police officers had been aggressive towards them and had called them racist names. 22. The prosecutor started the investigations. He took statements from the six police officers involved in the events, including T.B. and M.N. They all denied having harmed the plaintiffs in any way. The prosecutor examined the intervention squad’s official report from 30 March 2006 as well as the prosecution file concerning the accusations brought against the members of the two families involved in the fight on 30 March (see paragraph 18 above). 23. On 18 December 2006 the prosecutor’s office dismissed the complaint on the ground that the police officers’ actions did not disclose any appearance of a criminal offence. The prosecutor noted that the rapid intervention squad was called to the scene of an altercation which the local police could no longer contain. In the squad’s official report it was explained that intervention was required “for an altercation between two Gypsy clans” (scandal între două grupuri de ţigani). The prosecutor considered that the plaintiffs had failed to provide medical evidence of the injuries they had sustained, or that injuries had been inflicted by police officers. 24. The plaintiffs appealed against that decision to the prosecutorinchief, but their objection was dismissed on 29 January 2007. The applicants challenged that decision before the Giurgiu County Court, reiterating their complaints of ill-treatment and discrimination. 25. On 16 April 2007 the Giurgiu County Court upheld the prosecutor’s decision, considering that the applicants had not provided proof of their allegations. 26. The plaintiffs appealed, and on 27 June 2007 the Bucharest Court of Appeal quashed the above-mentioned decision and ordered the prosecutor to continue the investigation. It considered that the prosecutor had not taken into account the forensic medical certificate delivered to I.B., had not heard either the applicants or the eyewitnesses, and had not allowed the applicants to produce evidence (medical evidence or witnesses). 27. On 29 August 2008 the prosecutor’s office refused to institute criminal proceedings against the police officers. The prosecutor considered that the plaintiffs had not substantiated their allegations of ill-treatment and discrimination. It found that the police officers had acted lawfully and had been trying to counter the plaintiffs, who had used gas guns and sharp objects. One eyewitness was heard by the prosecutor. 28. I.B. and the first three applicants appealed against the prosecutor’s decision, but on 21 October 2008 the prosecutor-in-chief dismissed their objections and thus upheld that decision. On 28 October 2008 I.B. and the first three applicants appealed once again before the Giurgiu County Court. 29. On 3 February 2009 the Giurgiu County Court allowed the appeal lodged by the four plaintiffs, quashed the decisions of the prosecutor and of the prosecutor-in-chief, and sent the case back to the prosecutor, on the ground that the investigations ordered by the court had not been carried out by the prosecutor. 30. The prosecutor’s office challenged that decision, and on 12 June 2009 the Bucharest Court of Appeal allowed the appeal on points of law in part. It found that the criminal investigation should be continued regarding I.B.’s injuries. As far as the first three applicants were concerned, it considered that the criminal investigation should be closed because, in failing to sign the appeal against the decisions of 29 August 2007 and of 21 October 2008, they had in fact not endorsed the application for an investigation. The court considered that by failing to sign the application for leave to appeal within the assigned deadline the applicants had lost the right to lodge that appeal. 31. On 28 October 2009 the prosecutor’s office refused to institute criminal proceedings against the police officers, on the ground that their actions were consistent with their professional duties. He heard evidence from four eyewitnesses, who had seen I.B. being taken into the police station and then had seen him coming out. They reported that they could not see any signs of violence on him. One witness said that he could hear I.B. screaming and wailing in the police station, and that when he came out he had asked them to call an ambulance because he did not feel well. 32. On 4 December 2009 the prosecutor-in-chief upheld that decision. I.B. appealed against both decisions before the Giurgiu County Court, which on 22 April 2010 dismissed his appeal. The court noted that the prosecutor heard I.B. and four villagers who were in front of the Clejani police station during the incidents. The four villagers declared that I.B. did not have any signs of violence on him when he left the police station. The court dismissed as unsubstantiated the allegations of discrimination made by I.B. 33. On 1 April 2010 I.B. died of causes unrelated to the present case and the first six applicants continued the proceedings instituted before the domestic courts. 34. On 14 December 2010 the Bucharest Court of Appeal upheld the decision delivered by the Giurgiu County Court and dismissed an appeal on points of law raised by I.B.’s heirs. It reiterated that the four witnesses had not seen the police officers beating the victims, and considered that the fact alone that there had been other witnesses who could have been heard by the prosecutor was irrelevant, given the evidence already gathered in the case.
| 1 |
test
|
001-162827
|
ENG
|
SMR
|
ADMISSIBILITY
| 2,016 |
X v. SAN MARINO
| 4 |
Inadmissible
|
Aleš Pejchal;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
|
1. The applicant, Mr X is a San Marinese national, who was born in 1963 and lives in Fiorentino. He was represented before the Court by Mr F. Cocco, a lawyer practising in Rimini, Italy. 3. On an unspecified date the applicant, a police superintendent, lodged a criminal complaint for defamation against a newspaper and a journalist, as well as GF the elected chief of the administrative district of Fiorentino (Capitano di Castello) (who had given an interview to the newspaper), in connection with press articles which were published on 20, 23 and 25 February 2012. The articles claimed that, inter alia, a policeman (a title presumably traceable to the applicant) was fraudulently obtaining benefits from the State, including the use of a State apartment, despite it being needed by other persons. 4. Subsequent to the articles, the administrative body in question removed the apartment from the applicant’s possession. According to the applicant, the articles questioned his morality – they cast doubts over whether rent and service charges had been paid, hypothesised as to whether other benefits were also being enjoyed by the applicant, and posed questions regarding the possibility of the applicant’s involvement in other minor fraud infractions, even though, according to the applicant, such infractions were common in lease contracts. The last article also focused on the applicant’s profession and, in his view, was written in a manner intended to bring him into disrepute. Moreover, it was not based on the truth in so far as no substantiation was given to the allegations that the applicant was not wanted for the post of commander of the police brigade; or that that there had been friction between him and the citizens of Fiorentino; or that some persons had in fact complained about the applicant, as had been claimed by GF in the interview. 5. Prior to this last article and following the first two articles the applicant had written to various media outlets with a statement in his defence clarifying his situation. He also clarified the situation regarding the apartment that was the subject of the articles, which was in his possession by title of lease. The entirety of the applicant’s statement was published, together with comments by the journalist who authored the press articles, in the third above-mentioned article. 6. Criminal proceedings no.175/2012 were instituted against the abovementioned persons and testimony was heard from the applicant, the journalist and other witnesses. 7. On 31 January 2013 the investigating judge (Commissario della Legge, hereinafter “the Commissario”) requested that criminal proceedings no.175/2012 be archived. The Commissario recalled the importance of freedom of expression, noting that this was not however unlimited and could be curtailed in view of the dignity, honour and reputation of other persons. Having regard to the principles derived from the right to freedom of expression, the articles complained of were not offensive, and thus could not be subject to criminal liability. 8. The Commissario considered that neither the title (“A Fiorentino abita l’ultimo giapponese” – “The last Japanese living in Fiorentino”) nor the content of the first article contained any criminally relevant statement. The applicant had confirmed that, as mentioned in the beginning of the article, he had lived in an apartment provided by the State situated in the cultural centre (centro sociale) of Fiorentino. The Fiorentino authorities (through GF) had also confirmed that an application had been lodged to regain possession of the property (as mentioned in the central part of the article). As to the questions posed in the last part of the article (namely, concerning the rent of the apartment and the fact that a family was living in a cultural centre built for other purposes, and so forth), the subject matter was one of public interest and the formulation of the questions appeared to be correct and did not exceed the limits of the exercise of journalistic functions. The same was valid for the second article (called “Appartamenti dello Stato, per i cittadini bisogna vederci chiaro” – “Clarification needed for the citizens on State-owned apartments”) which reconstructed the historical context in the eighties, explaining the existence of an anti-drug unit and an anti-drug squad, and reiterated the content of the previous article. Nor was the third article, which contained an interview with GF, as well as the applicant’s letter and a comment by the journalist and a third person, subject to any criminal liability. The article had not related to “eviction” as mentioned by the applicant, but correctly to the authorities’ decision to have the apartment reassigned to someone else, a procedure which did not require the intervention of the applicant. Similarly the applicant’s confused challenge to a reference to an anti-drug dog could not be upheld since the comment – to the effect that it had made sense for the applicant to benefit from the use of the apartment at the time when a canine squad existed, but no longer now that the squad had been disbanded – reflected reality and was a reserved statement. Lastly, the adjective sbroccato (a person who lost it), which was today a term of general use (sdoganato) could not be considered defamatory, as the term was not offensive or intimidating. Any other considerations put forward by the applicant appeared to refer to disagreements within the police department, which even if they were true do not appear to be relevant to the present case. 9. The Commissario considered that as the information was true and in the general interest, the articles fell within the legitimate exercise of the right to information. Moreover, the applicant had been given a right of reply, and a faithful reproduction of his statement had been published in its entirety. 10. The Commissario considered that a balance had to be reached between both constitutionally guaranteed rights, specifically, on the one hand that of the honour, reputation and dignity of the individual, and on the other that of freedom of expression and of the press to impart information and for persons to receive information. “Justification” was the crux of the right to report news, thus abstract “defamatory” statements made within the requisite limits were licit and part and parcel of freedom of expression as long as they did not exceed the requisite limits and thus amount to abuse. The balance between the right to respect for the dignity, honour and privacy of the individual and that of freedom of expression was not subject to precise definition, even more so given that that freedom of expression may take various forms – including rapidly developing trends or changes in language – which remain in any event subjective. Indeed, according to domestic case-law, it was a priori impossible to dictate the general limits between what was licit and what was not. 11. In the light of such principles, the Commissario considered that in the present case the articles had been justified in order to impart information on a matter of public interest, specifically in reference to a policeman, the use of public property and the involvement of the authorities. They had not been intended to offend anyone’s honour. The content of the articles did not overstep the limits of free speech, and the sole fact that the articles may have inconvenienced the applicant did not suffice to make them amount to a criminal act of defamation (the sole matter subject to the court’s jurisdiction). 12. The Attorney General agreed and on 14 February 2013 the Commissario ordered that criminal proceedings no.175/2012 be archived on the basis of the above-mentioned reasoning, noting that there were no elements to issue a bill of indictment. 13. The applicant challenged that decision (opposizione) on 21 March 2013. 14. By a decision of 3 May 2013 notified on 27 May 2013 the judge of criminal appeals ordered that criminal proceedings no.175/2012 be archived, and rejected the applicant’s objection as manifestly ill-founded. The judge noted that the applicant had reiterated his arguments without referring to the reasons given by the first-instance court, and ignoring the fact that the allegations made by the accused had been substantiated by documentary evidence. Further, the judge stated that the three impugned articles had not offended the applicant’s reputation. They questioned the use of State apartments without attributing to the applicant any particular untoward behaviour. They contained whole truths and, although the articles were written as a form of criticism, the applicant had had a right – which he made use of – to defend himself in the press. Lastly, GF had provided a copy of his correspondence with the authorities which related to the use of the apartment in question and in respect of which he had given an interview which had then been published. Thus, his actions had not been a gratuitous accusation but a supply of correct information concerning the applicant’s activity and functions.
| 0 |
test
|
001-184068
|
ENG
|
UKR
|
CHAMBER
| 2,018 |
CASE OF INDUSTRIAL FINANCIAL CONSORTIUM INVESTMENT METALLURGICAL UNION v. UKRAINE
| 3 |
Preliminary objection joined to merits and dismissed (Art. 34) Individual applications;(Art. 34) Victim;Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;(Art. 35-3-a) Ratione materiae;Remainder inadmissible (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Impartial tribunal;Independent tribunal);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);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)
|
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
|
6. On 6 August 2003 the Cabinet of Ministers decided that Kryvorizhstal State Metallurgical Enterprise (hereinafter “Kryvorizhstal”) was to be privatised. At the time Kryvorizhstal was one of the world’s largest steel manufacturing companies, employing about 60,000 people and producing about 20% of Ukraine’s annual steel supply. On 4 November 2003 the Ministry of Economy and European Integration included Kryvorizhstal in a list of State-owned assets which were to be privatised. Subsequently, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market adopted decisions designed to ensure the privatisation of the enterprise. 7. The applicant company was founded in April 2004 by nine private companies, five of which were owned or controlled by A., one of the leaders of the Party of Regions. Members of that party held the majority of posts in the Cabinet of Ministers in the period 2003-2004, including the post of Prime Minister. The remaining four companies were owned or controlled by P., the son-in-law of Mr L. Kuchma, the second President of Ukraine who held the post from 19 July 1994 to 23 January 2005. 8. On 12 May 2004 the State Property Fund (“the Fund”) announced a bidding competition for the purchase of 93.02% of the share capital of Kryvorizhstal. A condition of bidding was that a bidder had to have produced one million tons of charcoal of Ukrainian origin and two million tons of steel in Ukraine in each of the three years preceding the competition. The applicant company took part in that competition. 9. Out of six bids submitted by various companies, the Fund selected bids by the applicant company and Consortium Industrial Group, finding that these companies satisfied the conditions of the competition. 10. On 14 June 2004 the applicant company was declared the winner (successful bidder) of the bidding competition. On the same day the applicant company concluded a purchase contract with the Fund and paid 4,260,000,000 Ukrainian hryvnas (UAH), the equivalent of about 608,000,000 euros (EUR) at the time, for the shares at issue. The shares were transferred to the applicant company’s deposit account at ING Bank Ukraine. 11. On 23 July 2004 the applicant company appointed T. to represent it as the owner of the Kryvorizhstal shares and to complete the formalities of the transfer pursuant to the contract of 14 June 2004. 12. Without any further specification or evidence, the applicant company stated that it had invested substantial financial resources in Kryvorizhstal during the period of its control. 13. The lawfulness and transparency of the privatisation of Kryvorizhstal was contested by the political opposition, whose leaders in 2004 were Mr V. Yushchenko, Mrs Y. Tymoshenko and Mr O. Moroz. In their public statements, they all accused President Kuchma, P. and A. of fraud, and called for the enterprise to be returned to the State. 14. During the 2004 presidential election campaign the issue was debated by two main rivals, Mr Yushchenko and Mr Yanukovych. Mr Yanukovych, whose candidature was openly supported by President Kuchma and A., insisted that the privatisation of Kryvorizhstal had been lawful and fair. 15. Between late November 2004 and January 2005 a series of protests took place in the immediate aftermath of the run-off vote of the 2004 election, an election which, according to numerous national and international reports, was compromised by massive corruption, voter intimidation and direct electoral fraud. These events are commonly known as the Orange Revolution. 16. Following the revote of 26 December 2004, Mr Yanukovych lost the election to Mr Yushchenko, who became the third President of Ukraine on 23 January 2005. On 24 January 2005 Mrs Tymoshenko was appointed to the post of interim Prime Minister. On 4 February 2005 the Verkhovna Rada (Ukrainian Parliament) approved the appointment of the new Cabinet of Ministers, headed by her. The Party of Regions formed the parliamentary opposition. 17. According to different media reports submitted by the applicant company, between January and April 2005 President Yushchenko and Prime Minister Tymoshenko made public statements that the privatisation of Kryvorizhstal had been unlawful, and that the enterprise would be returned to the State and subsequently resold. 18. In particular, in an interview of 26 January 2005 Prime Minister Tymoshenko said that “Ukrainian enterprises, like Kryvorizhstal, which had blatantly been stolen, had to be returned to the State.” 19. On 4 February 2005 President Yushchenko made the following statement when addressing the Verkhovna Rada: “...I promise that fair privatisation will be carried out this year. Those facilities which were stolen, starting with Kryvorizhstal, will be returned to the State ...” 20. On 12 February 2005 the Cabinet of Ministers revoked its decision of 6 August 2003 by which the privatisation of Kryvorizhstal had been launched. On 15 February 2005 the Fund also revoked its decisions concerning the privatisation. 21. On 8 June 2005 the State took control of Kryvorizhstal, pursuant to commercial court decisions declaring its privatisation unlawful (see paragraphs 51-53 and 56-57 below). By a decree of 11 June 2005, the Cabinet of Ministers declared the contract of 14 June 2004 invalid and withdrew the Kryvorizhstal shares from the applicant company. 22. On an unspecified date the money paid for the shares in the enterprise in 2004 was returned to the applicant company. 23. By two decrees of 23 June 2005, the Cabinet of Ministers launched the procedures for resale of 93.02% of Kryvorizhstal’s share capital. On 9 August 2005 it approved the bidding conditions. The next day the bidding competition was officially announced. 24. The applicant company did not participate in the competition. Instead, it challenged the authorities’ decrees issued in February and June 2005 before the commercial courts and the courts of general jurisdiction, but to no avail. The applicant company did not provide any further details of those proceedings. 25. On 24 October 2005 the bidding competition was completed by an auction, which was broadcast live by major television stations. Mittal Steel Germany GmbH was declared the successful bidder. On 28 October 2005 it concluded a purchase contract with the Fund and became the new owner of 93.02% of Kryvorizhstal’s share capital, for the price of UAH 24,200,000,000, the equivalent of about EUR 3,964,021,752 at the time. Eventually, Mittal Steel Germany GmbH was succeeded by ArcelorMittal Duisburg GmbH, which, according to the documents submitted by that company, made significant investments in Kryvorizhstal. 26. According to the applicant company, after the 2004 election A. was targeted for his political expression and association. In particular, companies which he owned or controlled were subjected to various checks by the authorities. The authorities allegedly attempted to nationalise some of those companies, though they were unsuccessful. The applicant company submitted copies of several petitions to the domestic authorities made by third parties with a view to preventing the nationalisation of those companies. 27. On 28 May, 3 and 11 June 2004 respectively, three private individuals, N., a lawyer practising in Kyiv, S. and Kh., members of Parliament, lodged with the Golosiivskyy District Court of Kyiv three separate administrative law complaints against the decisions of the Fund and the State Commission on Securities and the Stock Market concerning the organisation of the 2004 bidding competition, contending that those decisions had violated the right of every citizen to participate in the privatisation of State property. 28. On an unspecified date the President of the Kyiv Court of Appeal transferred the case to the Pecherskyy District Court of Kyiv (“the Pecherskyy Court”). By separate decisions of 8 and 14 June 2004, the latter court refused to consider those complaints, and ordered that its decisions be immediately “enforced”. No copy of those decisions was provided to the Court. 29. On 2 August 2004 the Kyiv Court of Appeal changed the decisions of 8 and 14 June 2004 in part by excluding the provisions concerning their immediate enforcement. 30. On 14 June 2004 I., a private individual, and N. lodged with the Shevchenkivskyy District Court of Kyiv a claim against the Fund, the State Commission on Securities and the Stock Market, and ING Bank Ukraine, challenging the validity of their decisions and actions in connection with the privatisation of Kryvorizhstal. On an unspecified date the case was transferred to the Pecherskyy Court. 31. At the claimants’ request, the applicant company was invited to participate in the proceedings as a third party. By letters of 20 October and 25 November 2004, the Pecherskyy district prosecutor applied to the court for leave to participate in the case to represent the interests of I. and those of the State. The prosecutor’s application was granted. 32. On 25 June 2004 Consortium Industrial Group, the losing party in the 2004 bidding competition, instituted proceedings in the Kyiv Commercial Court against the applicant company, the Fund, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market, challenging the validity of the authorities’ decisions adopted in connection with the privatisation of Kryvorizhstal and the contract of 14 June 2004. It contended that the 2004 bidding competition had been unlawful and unfair. 33. In particular, Consortium Industrial Group argued that the shares in Kryvorizhstal had not been issued in accordance with the law; that the competition had not been announced in due time; that the conditions of the competition had been too narrow and restrictive, thereby limiting the circle of potential bidders and disrespecting the statutory right of every citizen to participate in the privatisation of State assets; that the shares should have been sold through the stock exchange; and that its total offer, including the money it had planned to invest in Kryvorizhstal, had been higher than the amount paid by the applicant company for the shares in the enterprise. It also argued that, because the complaints by three private individuals against the decisions concerning the organisation of the 2004 bidding competition had been ongoing before the courts in the period May-June 2004, any decision adopted between 8 and 14 June 2004 in relation to the competition had been invalid. 34. On 5 July 2004 the applicant company lodged a counterclaim against the other parties to the proceedings, asking the court to endorse its right to 93.02% of the Kryvorizhstal shares. 35. By a procedural ruling of 20 July 2004, the Kyiv Commercial Court found that the Office of the Prosecutor General had to participate in the proceedings, and ordered it to designate a representative in the proceedings. Notwithstanding that ruling, no prosecutor appeared before the Kyiv Commercial Court or the Higher Commercial Court in 2004. 36. Kryvorizhstal took part in the proceedings as a third party. 37. On 19 August 2004 the Kyiv Commercial Court, having considered the arguments of Consortium Industrial Group in detail, dismissed them as unsubstantiated and found that the privatisation of Kryvorizhstal had been carried out in accordance with the relevant legislation. The court held, inter alia, that citizens’ rights to participate in the privatisation had not been restricted, since they had been free to establish companies and participate in the competition through such companies. It also stated that the complaints by the private individuals against the competition had not been lodged in accordance with the law, and thus had had no suspensive effect. The court further endorsed the applicant company’s property rights over the Kryvorizhstal shares, and banned any actions by the defendants which could violate these rights. 38. Consortium Industrial Group appealed in cassation to the Higher Commercial Court. 39. On 22 October 2004 the Higher Commercial Court held a hearing in the presence of the parties’ representatives and upheld the judgment of 19 August 2004. The parties made no appeal to the Supreme Court against the decision of 22 October 2004. 40. On 7 February 2005 the Prosecutor General lodged a cassation appeal in the interests of the State with the Supreme Court, alleging that the contested decisions of the Kyiv Commercial Court and the Higher Commercial Court concerned the rights and obligations of the Cabinet of Ministers. The Prosecutor General sought an extension of the time-limit for lodging his appeal, stating, without giving any further details, that he had missed it since he had only become aware of the decision of 22 October 2004 in the course of examining a complaint by S. to the Prosecutor General. According to the Government, the Office of the Prosecutor General had received that complaint on 30 December 2004, and it had been directed mainly against the decision of the Higher Commercial Court of 22 October 2004. 41. In his appeal, the Prosecutor General mainly challenged the application of the law by the Kyiv Commercial Court and the Higher Commercial Court, and alleged that those courts’ decisions had been inconsistent with a decision of the Supreme Court in a similar case. He also stated that the courts had failed to invite the Cabinet of Ministers to take part in the proceedings, although the subject matter had concerned its functions under the relevant privatisation regulations. 42. On 17 February 2005 the Supreme Court granted the extension requested and opened the proceedings on the merits of the Prosecutor General’s cassation appeal. No copy of that procedural ruling was provided to the Court. 43. On 1 March 2005 the Supreme Court allowed the appeal by the Prosecutor General, quashed the decisions of the lower courts, and remitted the case for fresh consideration. It found that under Ukrainian law neither Consortium Industrial Group nor the applicant company had been eligible to participate in the 2004 bidding competition; that the competition had not been announced in due time, as required by law; and that the lower courts, when allowing the applicant company’s counterclaim, had erred in applying the rules of procedure, which stated that no counterclaim could be lodged by a defendant against another defendant in the proceedings. 44. On 21 March 2005 the Deputy Prosecutor General lodged with the Kyiv Commercial Court, to which the case had been remitted, a claim in the interests of the State and on behalf of the Fund against the applicant company, the Ministry of Industrial Policy, and the State Commission on Securities and the Stock Market. His claim was directed against the decisions concerning the privatisation of Kryvorizhstal and the contract of 14 June 2004. He also sought the return of the Kryvorizhstal shares to the Fund, and asked the court to seize the shares as a temporary measure until the dispute was finally resolved. 45. The Deputy Prosecutor General argued that the 2004 bidding competition had not been organised in a lawful and fair way, particularly regarding the conditions which the potential bidders had had to satisfy. He further submitted that the bidders whose offers had been chosen had not satisfied the legislative requirements for participating in that competition. 46. On 23 March 2005 the court held a hearing in camera at which it decided to open the proceedings and invite the parties to submit their arguments on the case. It also scheduled the next hearing for 1 April 2005. 47. On 1 April 2005 the court ordered that ING Bank Ukraine, where the shares at issue had been deposited, participate in the case as a defendant. The Office of the General Prosecutor was granted leave to take part in the proceedings as a third party on behalf of the Cabinet of Ministers. 48. On 15 April 2005 the applicant company requested that the court allow journalists to attend the hearings in the case. The court rejected that application, finding that the journalists had not obtained official authorisation from the court administration. 49. Subsequently, journalists obtained the necessary authorisation and attended the hearings. 50. On 21 April 2005 a copy of the Pecherskyy Court’s decision of 21 April 2005 (see paragraph 83 below) was included in the case file and examined by the court at a hearing on the same day. 51. On 22 April 2005 the court delivered a judgment in the case whereby it allowed the claims of Consortium Industrial Group and the Office of the Prosecutor General, which it found to be of the same nature. It annulled the authorities’ decisions concerning the 2004 privatisation and the contract of 14 June 2004, and ordered the Fund to return the money paid by the applicant company for the Kryvorizhstal shares. The applicant company’s counterclaim was rejected, and it was ordered to return the shares to the Fund and pay UAH 1,903, the equivalent of about EUR 291 at the time, to the State for costs and expenses. 52. The court held that the Fund had failed to announce the competition in due time; that it had unlawfully introduced a condition concerning the production of charcoal and steel; that the Fund had failed to set out specific conditions of sale of certain number of the Kryvorizhstal shares outside the bidding competition; that the Fund’s decisions issued between 8 and 14 June 2004 in relation to the competition had been invalid, as the complaints of three private individuals against the decisions concerning the organisation of the 2004 bidding competition had been ongoing before the courts during that period; and that the applicant company and Consortium Industrial Group had unlawfully been allowed to participate in the competition. 53. By a procedural ruling of 28 April 2005, the same court seized the shares at issue. On the same day, bailiffs started enforcement proceedings in respect of that ruling. 54. The applicant company appealed against the judgment of 22 April 2005 and the ruling of 28 April 2005. According to the text of the Kyiv Commercial Court of Appeal’s decision of 2 June 2005 (see paragraph 56 below), the applicant company contended that the Kyiv Commercial Court had wrongly established the , and that it had erred in applying the law. The applicant company further challenged the lawfulness of the bailiffs’ actions as regards enforcement of the ruling of 28 April 2005. No copy of the applicant company’s appeal was provided to the Court. 55. In the appeal proceedings, the applicant company asked the Kyiv Commercial Court of Appeal to suspend the proceedings before the commercial courts pending the outcome of the proceedings before the courts of general jurisdiction (see paragraphs 81-87 below). The court rejected that application on the grounds that the latter proceedings were not decisive for the outcome of the commercial case. 56. On 2 June 2005 the Kyiv Commercial Court of Appeal changed the judgment of 22 April 2005 in part. In particular, the appeal court found that the claims by Consortium Industrial Group had to be rejected, as it had not been eligible to participate in the 2004 bidding competition. The applicant company’s appeal was dismissed as unsubstantiated. 57. By the same decision, the appeal court annulled the ruling of 28 April 2005 for non-compliance with the procedural rules, and refused to consider the applicant company’s complaints against the bailiffs, on the basis that the matter fell outside its jurisdiction. The court further ruled to seize the Kryvorizhstal shares for the purpose of securing the claim by the Office of the Prosecutor General. 58. The applicant company appealed in cassation. No copy of the cassation appeal was provided to the Court. 59. On 21 July 2005 the Higher Commercial Court rejected the applicant company’s cassation appeal as unsubstantiated. 60. On 31 August 2005 a panel of three judges of the Supreme Court rejected the applicant company’s further cassation appeal. No copy of that appeal was provided to the Court. 61. In the course of the proceedings before the commercial courts between February and June 2005 the applicant company challenged the impartiality of the judges and the courts dealing with its case on a number of occasions, alleging that their decisions and actions were influenced by government officials. According to the text of the judgment of the Kyiv Commercial Court of 22 April 2005 and the decision of the Kyiv Commercial Court of Appeal of 2 June 2005 (see paragraphs 51-52 and 5657 above), the applicant company’s procedural applications were rejected as unsubstantiated. No further explanation in that regard was given by the courts. 62. After 1 March 2005, and while the applicant company’s case was being considered by the commercial courts, the President and the Prime Minister made a number of public statements concerning the proceedings. The applicant company submitted different media reports reproducing and/or interpreting those statements. The Government argued that some of the reports had not interpreted the statements accurately. In particular, they referred to the reports concerning the Prime Minister’s press conference of 5 April 2005, at which she had made statements as to when the ongoing proceedings before the Kyiv Commercial Court might be completed. 63. According to a number of other reports, at a press conference of 11 April 2005 the Prime Minister said: “... Facilities such as Kryvorizhstal ... I think that today the [authorities] are involved in the court proceedings concerning the return of those assets to the State. We are confident that we have a clear position [in relation to the case], and these enterprises will be returned to the State ...” In an interview of 14 April 2005 the President stated: “... If the owners refuse to cooperate voluntarily, we will go down the legal route and will undoubtedly win [the case]. [However,] this will take several months... The facility has been stolen, and the cost of that theft is several billion [United States] dollars. For me, this is a fact... We prepare the terms of a new [bidding] competition...” 64. On 23 April 2005, commenting on the possibility that the applicant company could appeal against the judgment of 22 April 2005, the Prime Minister stated: “... This will be an important decision by the appeal [court]. It will be evidence not only of the court’s objectivity, but also of the [past] negotiations behind closed doors between various representatives from the authorities and the business...” 65. In July 2004 Consortium Industrial Group instituted proceedings in the Pecherskyy Court against the applicant company, the Fund, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market, challenging the validity of the authorities’ decisions issued in connection with the privatisation of Kryvorizhstal and the contract of 14 June 2004. Consortium Industrial Group relied mainly on the same circumstances and considerations referred to in its claims before the commercial courts. Its claims before the courts of general jurisdiction contained an additional element – a challenge to the validity of T.’s appointment on 23 July 2004 as the applicant company’s representative in the procedures following the 2004 bidding competition. 66. T. took part in the proceedings as a defendant. Kryvorizhstal participated in the proceedings as a third party. 67. On 25 August 2004 the court delivered a judgment dismissing the claims of Consortium Industrial Group. For the most part, it contained identical reasons to those in the judgment of the Kyiv Commercial Court of 19 August 2004 (see paragraph 37 above). 68. On 1 and 27 December 2004 respectively the Kyiv Court of Appeal and a panel of three judges of the Supreme Court upheld the judgment of 25 August 2004. 69. On 9 February 2005 N. lodged an application for review of the above case with the Pecherskyy Court, in the light of newly discovered circumstances. In particular, she argued that the findings concerning the right of every citizen to participate in the privatisation of State assets contained in the judgment of 25 August 2004 had been contrary to the judgment of the Constitutional Court of 1 December 2004 (see paragraph 99 below). She also contended that the courts had not been aware of the fact that the decisions of the Pecherskyy Court of 8 and 14 June 2004 had been challenged on appeal, and thus they had not become final before 2 August 2004. 70. N.’s application was dealt with by the same judge of the Pecherskyy Court who had sat in the main proceedings. 71. By a telegram of 15 February 2005, the court informed the applicant company that the next day it would hold a hearing, at the request of N.. 72. On 15 February 2005 the applicant company lodged with the court an application to consult the case file. The application was not granted. 73. On 16 February 2005 the court held a hearing on the merits of N.’s application. Consortium Industrial Group, T., the State Commission on Securities and the Stock Market and Kryvorizhstal, who had been the parties to the main proceedings, did not take part in the hearing. 74. The representatives of the applicant company requested leave to consult the case file and the adjournment of the hearing on the grounds that they had not been informed about the merits of the application before the hearing, and accordingly had not been able to prepare for it. They also sought the withdrawal of the judge dealing with the case, challenging her impartiality. 75. The judge rejected the applications by the applicant company’s representatives, and read out the application by N. 76. The applicant company’s representatives objected to the application, arguing that N. was not entitled to ask for a review of the case, since she had not been a party to the original proceedings, and there were no newly discovered circumstances or other reasons capable of warranting the reopening of the proceedings. 77. The applicant company’s representatives did not receive a copy of the application either before or during the hearing. 78. On 17 February 2005 the court allowed the application. It found that the right of every citizen, including that of N., to participate in privatisation and challenge its lawfulness had been confirmed by the judgment of the Constitutional Court of 1 December 2004. It also held that the ruling of 8 June 2004 on N.’s complaint concerning the 2004 competition had not entered into force at the time when the competition had taken place, and thus it could not have served as one of the grounds for rejecting the claims by Consortium Industrial Group. 79. The court quashed its judgment of 25 August 2004 and held that the higher courts’ decisions of 1 and 27 December 2004 were no longer valid. 80. On an unspecified date the case was transferred to another judge of the Pecherskyy Court for fresh examination. 81. On 28 February 2005, following an application by N., the Pecherskyy Court decided to examine the claims of I., N., and Consortium Industrial Group (see paragraphs 30 and 65 above) jointly, holding that they were of the same nature and concerned the same defendants. 82. On an unspecified date the applicant company lodged an application for review of the ruling of 17 February 2005 with the same court, in the light of newly discovered circumstances. 83. On 21 April 2005 the court granted the application by the applicant company, quashed the ruling of 17 February 2005, and rejected N.’s application of 9 February 2005 on the grounds that she had not participated in the original proceedings concerning the claims by Consortium Industrial Group. 84. By a separate ruling of the same date, the court rejected the claims by I. and N., finding that they had not participated in the 2004 bidding competition and did not have an arguable claim in respect of the subject matter of the proceedings. The court held that their claims represented a disguised attempt to settle a dispute between legal entities falling within the jurisdiction of commercial courts. 85. By decisions of 20 and 27 July 2005, the Kyiv Court of Appeal quashed the ruling of 21 April 2005, stating that, in the light of newly discovered circumstances, the ruling of 17 February 2005 was not to be reviewed, and that, with regard to Article 6 of the Convention, the Pecherskyy Court had unlawfully limited I.’s and N.’s right of access to a court. 86. On 15 October 2007 the Donetsk Regional Court of Appeal, acting as a court of cassation, upheld the decisions of 20 and 27 July 2005. 87. The case was remitted to the Pecherskyy Court, which on 6 February 2008 decided not to examine the claim of Consortium Industrial Group, because its representatives had failed to appear before the court. 88. No appeal was lodged against the decision of 6 February 2008. According to the Government, on the basis of that decision the joined proceedings before the courts of general jurisdiction were terminated. The applicant company did not contest this.
| 1 |
test
|
001-168700
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF ALENTSEVA v. RUSSIA
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
András Sajó;Dmitry Dedov;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
5. The applicant was born in 1974 and lives in Moscow. 6. Prior to its privatisation, the flat at 10-3-34 Bolshoy Rogozhskiy Pereulok, Moscow, had been owned by the City of Moscow. R. had resided there as a tenant under the social housing agreement with the City. On 31 May 1993 the title to the flat was transferred to R. under a privatisation scheme. 7. On 12 August 1996 R. died. 8. In October 1999 Yar. applied to a notary seeking recognition as R.’s heir. In support of his application, Yar. submitted a will allegedly signed by R. on 9 February 1996. 9. On 2 June 2000 the notary granted the request and issued a certificate confirming, inter alia, that Yar. had inherited R.’s flat. 10. On 20 June 2000 the Moscow City Committee for Registration of Real Estate Transactions (the “City Registration Committee”) registered the certificate, confirming Yar.’s title to the flat. 11. On 13 July 2000 Yar. sold the flat to the applicant. On an unspecified date the City Registration Committee registered the transaction and issued the relevant deed, confirming the applicant’s title to the flat. The applicant moved in and resided in the flat. After the birth of her daughter in 2004, she resided there with her daughter. 12. On an unspecified date the authorities opened a criminal investigation concerning the forgery of the will issued on behalf of R. 13. On 6 June 2001 the Taganskiy District Court of Moscow found Yar. guilty of fraud and sentenced him to five years’ imprisonment and confiscation of property. In particular, the court established that Yar., acting in concert with other persons, whose identity was not known, had fraudulently acquired R.’s flat and sold it to the applicant on the basis of a forged will. The judgment became final on 25 July 2001. 14. On 5 March 2002 the prosecutor brought a civil claim on behalf of the Department for Housing of the City of Moscow (the “Housing Department”) seeking (1) the annulment of R.’s will and of the applicant’s title to the flat; (2) the applicant’s eviction; (3) restitution of the flat to the City of Moscow; and (4) annulment of the purchase agreement between Yar. and the applicant, and the reimbursement by Yar. of the amount the applicant had paid for the flat. 15. On 16 December 2003 the District Court examined the case in the applicant’s absence and granted the prosecutor’s claims in full. The applicant appealed. 16. On 16 June 2004 the Moscow City Court held that the District Court had failed to duly inform the applicant of the date and time of the hearing. It quashed the judgment of 16 December 2003 and remitted the case for fresh consideration. 17. In the new set of proceedings the applicant brought a counterclaim against the City of Moscow, seeking to be recognised as a bona fide purchaser of the flat. 18. On 14 November 2005 the District Court invalidated R.’s will and Yar.’s title to the flat. The court established that the property was escheat and ordered its restitution to the City of Moscow. It also ordered the applicant’s eviction. The court dismissed the remainder of the prosecutor’s claims concerning the annulment of the sale contract concluded by Yar. and the applicant, and the former’s obligation to return the sum paid by the applicant to her. As regards the applicant’s counterclaim, the court recognised that she had bought the flat in good faith. However, it found that because Yar. had acquired R.’s flat fraudulently, he had, in fact, stolen it from the City of Moscow and the latter had the right to reclaim the flat from the applicant, despite the fact that she was a bona fide purchaser. 19. On 24 January 2006 the City Court upheld the judgment of 14 November 2005 on appeal. 20. On 23 March 2006 the district bailiff’s service instituted enforcement proceedings in respect of the judgment of 14 November 2005. 21. On 2 April 2008 the applicant and her daughter were evicted from the flat. According to the applicant, they had to move in with her parents and her brother and his family. 22. According to the Government, on 9 April 2010 the flat was reassigned to Sh., who had been on the social housing waiting list for twenty-five years. 23. On 12 May 2011 the District Court recognised the City’s title to the flat. In particular, the court established that R. had died intestate and without heirs and that her flat should have been transferred to the State as escheat property. The court also terminated the applicant’s title to the flat. 24. On 22 September 2011 the City Court upheld the judgment of 12 May 2011 on appeal.
| 1 |
test
|
001-180317
|
ENG
|
HRV
|
CHAMBER
| 2,018 |
CASE OF MILIĆ AND OTHERS v. CROATIA
| 4 |
No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
|
5. The applicants’ particulars appear in the appendix to this judgment. 6. During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over Krajina. The operation was codenamed “Storm” (Oluja) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina but some also went to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000. 7. On 5 November 1997 Croatia ratified the Convention. 8. The applicants and P.M. (born in 1942), who was the husband of one of the applicants and the father of the others, lived in Razbojište, near the larger village of Krupa, on the territory of Krajina. During the night of 4 to 5 August 1995 all the family, save for P.M., fled Croatia. P.M. was killed during Operation Storm on 5 August 1995. According to the applicants, P.M. was killed in the courtyard of his house in Razbojište, although he was an unarmed civilian. According to the Government, he was armed and was killed in an exchange of fire with the Croatian Army in the broader area of Krupa. The villages of Razbojište, Krupa and Žegar and the settlement of Milići are located near each other. 9. On 11 October 1995 the police found the remains of an unidentified person in Razbojište and they were buried in Gračac Cemetery under the number 434. 10. On June 2002 exhumations were carried out at Gračac Cemetery. The process was conducted under the auspices of the International Criminal Tribunal for the former Yugoslavia (Međunarodni kazneni sud za bivšu Jugoslaviju) and the County State Attorney’s Office in Zadar. Body no. 434 was also dug up and an identity card was found in the name of P.M. The remains were examined at the Institute for Forensic Medicine in Zagreb (Zavod za sudsku medicinu i kriminalistiku) and on 15 October 2002 an autopsy report was issued which concluded that the cause of death had been three wounds from shelling. On 24 November 2003 the third applicant identified the remains as those of her father, P.M. 11. The police opened an investigation into the circumstances of P.M.’s death after the applicants on 5 September 2005 brought a claim for damages with the State Attorney’s Office in connection with his killing (see paragraph 20 below). 12. On 21 October 2005 the police interviewed Ž.M., who said that P.M. had joined a village guard unit during the war. Ž.M. did not know who might have killed P.M. 13. On 11 August 2015 the Zadar police received an anonymous letter stating that on 10 August 1995 two men, V.G. and M.B., had killed twelve elderly people in the village of Žegar in the “Milića” cave, near Krupa. 14. On 25 August 2015 the police interviewed O.M. and S.M., residents of Žegar. O.M. said that he had never heard of someone being killed in the “Milića” cave even though he had lived all his life in the area. He also said that during Operation Storm five people from the settlement called Milići, part of the village of Žegar, had been killed, including P.M. They had all been members of the paramilitary forces and had been armed. He had heard that they all had perished in rocky areas of the village but did not know the cause and manner of their deaths. S.M. had no information about the possible perpetrators of the alleged crime in question. 15. On 26 August 2015 the Zadar police informed the Zadar County State Attorney’s Office that five persons had been killed in the settlement of Milići during Operation Storm, one of whom was P.M., who had died on 5 August 1995. 16. On 14 September 2015 the police interviewed V.G., a captain in the Croatian Army during Operation Storm, who had been in command of the Zadar Military Police Third Company of the 72nd Battalion, who said that he had never been to Žegar and had never heard of anyone being killed there. He had been in Benkovac (a town situated some forty kilometres from Žegar) throughout Operation Storm. He had also said that he could state with certainty that none of the members of his unit had committed any crimes, otherwise he would have known about it. 17. On 16 September 2015 the police interviewed M.B., a Croatian soldier and member of the 72nd Battalion during Operation Storm. He also said that he had never been to Žegar and had never heard of anyone being killed there. He had been near Obrovac (a town situated some twenty kilometres from Žegar) during the military operation. 18. On 1 October 2015 the Zadar County State Attorney’s Office closed the investigation. 19. On 22 January 2016 the Zadar County State Attorney’s Office informed its counterpart in Split County that it had not been able to confirm the allegations made in the anonymous letter of 11 August 2015 as there was no indication that twelve elderly people had been killed in the “Milića” cave. However, five members of the Serbian paramilitary forces had been killed during Operation Storm, including P.M. Enquiries had therefore been stopped since the information given in the anonymous letter had proved to be unreliable. 20. On 5 September 2005 the applicants submitted a claim for damages with the State Attorney’s Office in connection with the killing of P.M. The request was refused. On 12 April 2006 the applicants brought a civil action against the State in the Zagreb Municipal Court, seeking compensation in connection with P.M.’s death. The claim was dismissed on 30 March 2010 on the grounds that it had not been established how P.M. had been killed and that the applicants had not proved that his killing had amounted to a terrorist act for which the State was liable. It had also not been established that he had been killed by members of the Croatian army or police in areas where there had been no operations related to the war. In addition, the claim had become statutebarred. During the proceedings information was obtained from the archives of the Ministry of Defence showing that the Croatian army had entered the area in question on 6 August 1995, whereas P.M. had been killed on 5 August 1995. The first-instance court also accepted the statement of the witness O.M., who said that the village of Žegar had been shelled on 5 August 1995. The first-instance judgment was upheld by the Zagreb County Court on 21 September 2010. On 10 June 2014 the Supreme Court upheld the lower courts’ judgments in respect of the ruling that the applicants’ claim had become statute-barred. 21. A constitutional complaint lodged by the applicant was dismissed on 25 February 2015.
| 0 |
test
|
001-152655
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF MILEUSNIĆ AND MILEUSNIĆ-ESPENHEIM v. CROATIA
| 4 |
No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Effective investigation)
|
Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
6. The applicants were born in 1936 and 1967. Until his death the first applicant lived in Novska, Croatia. The second applicant lives in Dieskau, Germany. 7. According to the applicants, on 18 December 1991, during the armed conflict in Croatia, a number of the first applicant’s neighbours, together with the other members of their family, gathered in the first applicant’s home in Novska, Croatia, because the town was being shelled. At about 9.45 p.m. several soldiers broke into the house and immediately started to hit and kick the first applicant. He could not see them well because the house, like the rest of the town, was without electricity. When he fell to the ground, they dragged him into the kitchen where V.M., the first applicant’s wife and the second applicant’s mother, and G.M., the first applicant’s daughter and the second applicant’s sister, and B., one of their neighbours, were sheltering. In the candlelight, the first applicant saw five men in military uniforms of the Croatian Army with balaclavas on their heads. They continued to hit and kick the first applicant and one of the men cut through the first applicant’s palm with a knife. The other man cut one of B.’s fingers off with the knife. One of the soldiers shot G.M. in the head, the other then cut B.’s throat with a knife and subsequently shot at her with a firearm. The soldiers then ordered V.M. to make coffee for them. One of the soldiers introduced himself as Grgić from a nearby village, Bročice. He asked the first applicant if he knew him and then hit him on the head with the shotgun. One soldier then cut a muscle in the first applicant’s right hand. Next, the soldiers shot V.M. dead. After that, a soldier shot the first applicant through his right cheek. The soldiers then left the kitchen. The first applicant escaped through the window and ran away, reaching a nearby medical centre. From there he was transferred to a hospital in Kutina, then to Zagreb where he lay in a coma for three days. When he came round, one of the doctors told him that three men had been looking for him and wanted him killed. His sister sent an ambulance from Germany and he was transferred from Zagreb to Germany, where he was treated from 6 January to 15 May 1992. 8. When the first applicant returned to his home in Novska on 19 July 1992, he found refugees accommodated in part of the house. In the intervening period, all of his possessions had been taken away. 9. It appears that the police were alerted of the above-described events the following day. On 30 December 1991 the Sisak County Court ordered an investigation into the events in respect of suspects Ž.B., D.L, D.M., I.G. and Z.P. 10. On 23 March 1992 the Zagreb Military Prosecutor dropped the charges against I.G. and Z.P. on the ground that there was insufficient evidence that “any projectiles had been shot from their weapons”. 11. On 23 March 1992 the Zagreb Military Prosecutor indicted the remaining three suspects, Ž.B., D.L. and D.M. before the Zagreb Military Court on three counts of murder aggravated by an exceptionally immoral purpose. 12. The Zagreb Military Court terminated the proceedings against Ž.B., D.L. and D.M. on 2 November 1992 on the basis of the General Amnesty Act. 13. D.L. died on 19 January 1997. 14. On 30 October 2008 the applicants lodged a criminal complaint against six suspects, namely, Ž.B., D.L., D.M., I.G. and Z.P., on charges of war crimes against the civilian population. 15. On 10 December 2008 the Sisak County State Attorney’s Office dismissed the complaint against D.L. since he had died in 1997. 16. On 12 January 2009 an investigating judge of the Sisak County Court heard evidence from the first applicant. On 13 January 2009 the first applicant asked that two witnesses be called and provided their addresses and telephone numbers to the County Court. 17. On 9 February 2009 the Police interviewed the potential witnesses, M.B. and P.U. 18. On 30 July 2009 the State Attorney’s Office in Sisak County submitted a request to the Sisak County Court to open an investigation into the above-mentioned criminal complaint. The request was denied on 1 October 2009. However, upon an appeal lodged by the Sisak County State Attorney’s Office of 6 October 2009, the Supreme Court of Croatia ordered on 30 March 2010 that the investigation in respect of Ž.B., D.M., I.G. and Z.P. be carried out. 19. On 20 May 2010 the investigating judge heard evidence from the four suspects. One of them confessed to some of the charges but the other three remained silent. The investigating judge ordered the detention of all four suspects. 20. The investigating judge heard evidence from the first applicant and one other witness on 11 June 2010 and from another four witnesses on 28 June 2010. She heard the first applicant again on 5 July 2010, as well as an expert witness and one of the accused. 21. On 9 July 2010 the Sisak County State Attorney’s Office indicted Ž.B., D.M., I,.G and Z.P. in the Sisak County Court on charges of war crimes against the civilian population, which included the killing of V.M. and G.M. and seriously wounding the first applicant. The accused lodged objections to the indictment which were dismissed by the Supreme Court (Vrhovni sud Rpublike Hrvatske) on 19 August 2010. 22. Hearings were held on 23 and 24 September 2010. On the latter date the County Court commissioned a report on the autopsy of V.M. and G.M. and a psychiatric report in respect of the accused Ž.B. The report on the autopsy was submitted on 2 November 2010 and the psychiatric report on 11 November 2010. 23. Hearings were held on 15, 16 and 19 November 2010. On the last-mentioned date a judgment dismissing the charges was delivered on the ground that the accused had already been tried for the same offence before the Zagreb Military Court. The charges against I.G. and Z.P. had been dropped by the prosecutor and the proceedings against Ž.B. and D.M. had been terminated under the General Amnesty Act. 24. The Sisak State Attorney’s Office lodged an appeal on 23 February 2011 and on 21 February 2012 the Supreme Court upheld the judgment in respect of I.G. and Z.P. and quashed the judgment in respect of Ž.B. and D.M. As regards I.G. and Z.P. the Supreme Court concluded that the prosecutor had dropped the charges against them because there had not been sufficient evidence that they had participated in the shooting of the victims. Neither had the evidence adduced in the proceedings before the Sisak County Court indicated their involvement in the killing and wounding of the victims. The relevant part of the judgment referring to the actions of I.G. and Z.P. reads: “The evidence presented [at the trial] ... did not establish any activity on the part of the accused I.G. and Z.P. so as to indicate [that they had committed] acts of violence towards Petar Mileusnić or any other person in the house, before Ž.B., D.M. and the late D.L. started to shoot at the victims. The [first-instance] court concluded that the accused I.G. had not entered the house at all and that the accused [D.]P. had quickly entered and exited the house of the victim Petar Mileusnić, without having committed any act in the house.” The Supreme Court further held as follows: “Since no new facts were established in the fresh criminal proceedings in which the impugned judgment was delivered ... save for those [facts] in respect of which the State Attorney had already dropped the charges, irrespective of their different legal qualification, the conclusion of the first-instance court that [the situation] was a matter of res judicata is correct and, contrary to the assertion of the State Attorney in the appeal, the indictment was correctly dismissed in respect of the accused I.G. and Z.P. in accordance with Article 353 point 5 of the Code of Criminal Procedure (1997).” 25. The case was then transferred to the Zagreb County Court. 26. Hearings before the Zagreb County Court were held on 28 November 2012 and 23 January 2013. 27. On 29 October 2013 that court found the accused Ž.B. and D.M. guilty as charged and sentenced them to ten and nine years’ imprisonment respectively. The judgment was upheld by the Supreme Court on 7 March 2013. 28. On 22 December 2004 the applicants brought a civil action against the State in the Novska Municipal Court (Općinski sdu u Novskoj), seeking compensation in connection with the deaths of V.M. and G.M., wounding of the first applicant as well as pecuniary damage as regards the expenses incurred for the stone erected on the grave of their relatives. In these proceedings the Croatian State was represented by the State Attorney’s Office. 29. On 29 September 2005 the Municipal Court dismissed the applicants’ claim, finding that it had become time-barred. 30. That judgment was upheld by the Sisak County Court on 31 August 2006 and by the Supreme Court of Croatia on 21 February 2007. 31. A subsequent constitutional complaint lodged by the applicants concerning the assessment of facts and interpretation of laws was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 13 May 2009. 32. On 25 November 2014 the second applicant and the Republic of Croatia, Ministry of Defence, represented by the State Attorney’s Office, reached a settlement by which the State was to pay the second applicant the following amounts: 150,000 Croatian Kuna (HRK) for non-pecuniary damage for the killing of his mother; HRK 75,000 for non-pecuniary damage for the killing of his sister; HRK 12,800 for pecuniary damage concerning the expenses incurred for the stone erected on the grave of his mother and sister; and HRK 2,500 for costs he incurred in the civil proceedings. The said amounts, together with the applicable interest rates, were paid to the second applicant on 8 December 2014.
| 0 |
test
|
001-179215
|
ENG
|
SVN
|
CHAMBER
| 2,017 |
CASE OF RIBAĆ v. SLOVENIA
| 4 |
Violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
|
5. The applicant was born in 1942 and lives in Maribor. 6. The Socialist Federal Republic of Yugoslavia (“the SFRY”) was a federal State composed of six republics: Bosnia and Herzegovina, Croatia, Serbia, Slovenia, Montenegro and Macedonia. Nationals of the SFRY had “dual citizenship” for internal purposes, that is to say they were citizens of both the SFRY and one of the six republics. They had freedom of movement within the federal State and could register as permanent residents wherever they settled on its territory. 7. The SFRY had two pension systems – military and civil. The pension rights of military personnel were regulated by and secured through the federal authorities. In particular, members of the Yugoslav People’s Army (hereinafter “the YPA”), the armed forces of the SFRY, paid their contributions to and received their pensions from a special military pension fund based in Belgrade (Zavod za socialno osiguranje vojnih osiguranika, hereinafter “the YPA Fund”). The YPA Fund paid pensions to military pensioners irrespective of where they undertook military service or lived once retired. This was the only pension fund existing at federal level. In parallel, each republic had in place its own pension legislation and public pension fund set up for the payment of civil pensions. 8. Between 1991 and 1992 the SFRY broke up. On 25 June 1991 Slovenia declared its independence. 9. In 1992 the Slovenian Government issued the Ordinance on the payment of advances on military pensions (see paragraph 28 below, hereinafter “the Ordinance”) which regulated, on a temporary basis, the payment of military pensions to former YPA military personnel residing in the Republic of Slovenia who had applied for or fulfilled the conditions for retirement under the rules governing the pension and disability insurance of military personnel (hereinafter “the SFRY military rules”) by 18 October 1991, the date of withdrawal of the YPA from Slovenia (see P.P. v. Slovenia, no. 39923/98, Commission decision of 1 July 1998, Decisions and Reports (DR) 3, p. 25). This was followed in 1998 by a new Act on the Rights Stemming from the Pension and Disability Insurance of Former Military Personnel (see paragraph 29 below, hereinafter “the 1998 Act”) which put in place a comprehensive regulatory framework for the pension rights of former YPA military personnel, in most cases allowing for pensions to be paid only to Slovenian nationals. 10. In 1994 the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia) transformed the YPA Fund (see paragraph 7 above) into the Social Insurance Fund of Military Personnel of the Federal Republic of Yugoslavia on the basis of the Yugoslav Army Act. The (transformed) YPA Fund continued paying YPA pensions to the citizens of the Federal Republic of Yugoslavia. However, it remains uncertain to what extent, if at all, the YPA Fund continued paying YPA pensions to the citizens of the Federal Republic of Yugoslavia residing in the other former SFRY republics (see also, mutatis mutandis, Kudumija v. Bosnia and Herzegovina and Serbia, and Remenović and Mašović v. Bosnia and Herzegovina, (dec.), nos. 28233/08 and 2 others, § 11, 4 June 2013). 11. At the inter-State level, however, the question of responsibility for the payment of pensions to military personnel who had acquired or applied for pensions with the YPA Fund under the rules governing the pension and disability insurance of military personnel (hereinafter “the SFRY military rules”) remained unresolved until the Agreement on Succession Issues entered into force in 2004 (see paragraph 30 below). 12. The applicant was a citizen of the Republic of Serbia in the SFRY. Following its dissolution, he retained citizenship of the then Federal Republic of Yugoslavia. He has been residing in Slovenia since 1964 and has had permanent resident status since 1981. In 1969 he married a Slovenian woman, with whom he had two children. He was a non-commissioned officer in active military service in the YPA until 30 September 1991, when he retired. 13. On 16 July 1991 he applied for retirement to the Maribor military district headquarters, and was then “available” (na razpolago) until his retirement. On 13 November 1991 the YPA Fund found him to be entitled to an old-age pension under the SFRY military rules as from 1 October 1991 with more than forty-one pensionable years with bonus (benificirana doba) in the YPA. The applicant maintained that he had only received his pension from the YPA Fund twice (in November 1991 and January 1992), when he had personally gone to Belgrade to collect it. 14. On 23 October 1991 the applicant applied for Slovenian citizenship under section 40 of the Citizenship Act (see paragraph 26 below). By a decision of 11 July 1992 the Ministry of Interior dismissed his application. It based its decision on section 40(3) and section 10(1)(8) of the Citizenship Act, which stipulated that the Ministry was allowed to refuse an application where there was reason to believe that the person posed a threat to public order, security or national defence. After the Constitutional Court quashed the decision and the case was remitted to the Ministry of Interior for fresh consideration, the latter on 2 September 1997 again dismissed his application on the same grounds. The applicant instituted court proceedings, which were unsuccessful. On 13 October 2005 the Constitutional Court rejected a constitutional complaint by him on the grounds that it was no longer relevant because he had acquired Slovenian citizenship in 2003 (see paragraph 19 below). 15. On 27 February 1992 the applicant applied for an advance on his military pension under the Ordinance (see paragraph 28 below). On 29 April 1993 he requested the YPA Fund to discontinue the payment of his pension. By a decision of 17 May 1993 his payments were stopped with effect from 31 January 1992. The applicant lodged this request after realising that the Pension and Disability Insurance Institute of Slovenia (hereinafter “the Institute”) only granted advances under the Ordinance provided that the YPA Fund stopped paying the pension. By a decision of 5 May 1993 the Institute found that the applicant had been entitled to such an advance starting from 1 November 1991. It held that he had been a permanent resident of Slovenia since 1 April 1981 and had fulfilled the conditions for pension entitlement under the SFRY military rules by 18 October 1991. 16. On 13 October 1998 the Institute, on the basis of section 25 of the 1998 Act (see paragraph 29 below), issued of its own motion a decision not to convert the applicant’s advance on his military pension into an old-age pension under the 1998 Act. His advance was suspended as of 31 October 1998. The Institute decided that since the applicant had been in active military service in the YPA from 25 June to 18 July 1991 and from 18 July 1991 had been on leave, he did not fulfil the statutory conditions for converting the advance on his military old-age pension into an old-age pension under section 2(1)(4) of the 1998 Act. 17. The applicant appealed, complaining that at the relevant time he had not been on leave, but had been available until his retirement. On 30 September 2002 the Institute dismissed his appeal, holding that he could not be considered a beneficiary under section 2(1) of the 1998 Act as he did not have Slovenian citizenship and did not comply with the requirements applicable to foreign beneficiaries. It added that he could re-apply for an old-age pension under the 1998 Act once he acquired Slovenian citizenship. 18. The applicant subsequently applied for judicial review of the Institute’s decision before the Ljubljana Labour and Social Court, maintaining that, as a resident of Slovenia, he should have been treated in the same way as Slovenian citizens. 19. On 1 April 2003 the applicant acquired citizenship by naturalisation under section 19 of the amended Citizenship Act read in conjunction with section 10(1) of the Citizenship Act (see paragraph 27 below). 20. On 4 June 2003, after lodging a new request with the Institute, the applicant was granted an old-age pension as from 1 April 2003. 21. On 13 January 2006 the Ljubljana Labour and Social Court dismissed the application for judicial review (see paragraph 18 above). It pointed out that the applicant’s situation had to be assessed with regard to the different categories of beneficiaries listed in section 2(1) of the 1998 Act. It concluded that the applicant had not fulfilled the conditions for an old-age pension set out in section 2(1)(2) of the 1998 Act. Likewise, as a foreigner he had not met the conditions set out in section 2(1)(4) of the 1998 Act. He had therefore been eligible for an old-age pension under section 2 of the 1998 Act only from 1 April 2003 onwards, the date on which he had acquired Slovenian citizenship. 22. The applicant lodged an appeal with the Higher Labour and Social Court. On 21 March 2007 the appeal was dismissed, essentially on the grounds that in the legally relevant period the applicant had been a foreigner who had not had rights to a pension or other benefits under the SFRY military rules by 25 June 1991 as required by section 2(1)(2) of the 1998 Act. The court held that the other provisions of section 2 of the 1998 Act were applicable only to Slovenian citizens and, thus, the applicant, who had not fulfilled the condition of nationality, should not have relied upon them. 23. The applicant lodged an appeal on points of law, claiming he should have been treated the same as Slovenian citizens. On 23 March 2009 it was dismissed by the Supreme Court, which followed the lower courts’ reasoning. It held that in the period at issue the applicant had not met the requirements of any of the categories of beneficiaries under section 2 of the 1998 Act, having applied for the pension under the SFRY military rules on 16 July 1991 and having only acquired Slovenian citizenship on 1 April 2003. 24. On 24 March 2010 the Constitutional Court decided not to accept a constitutional complaint by the applicant for consideration, finding that it did not concern an important constitutional issue or entail a violation of human rights which had serious consequences for him.
| 1 |
test
|
001-182169
|
ENG
|
POL
|
CHAMBER
| 2,018 |
CASE OF CHIM AND PRZYWIECZERSKI v. POLAND
| 3 |
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione personae;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Tribunal established by law);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
|
5. The first applicant was born in 1950 and lives in Warsaw. The second applicant was born in 1946 and lives in Apollo Beach, Florida, United States of America. 6. The Foreign Debt Service Fund (Fundusz Obsługi Zadłużenia Zagranicznego “the FOZZ”) was established by the Law of 15 February 1989, which entered into force on 21 February 1989. It was a legal entity whose liabilities were guaranteed by the State Treasury. The task of the FOZZ was to collect and manage the funds earmarked for servicing Poland’s foreign debt. Those funds were to be used to repay Poland’s foreign debt. 7. The FOZZ was managed by its Director General, who had statutory authority to independently represent the Fund and enter into contracts on its behalf. The first applicant was initially appointed Head of Domestic Operations and later Deputy Director General of the FOZZ. The second applicant was the Managing Director and Chairman of the Board of Directors of the Universal Foreign Trade Company based in Poland. 8. Criminal proceedings were instituted following a complaint lodged by J.T., a German national, at the Polish Consulate in Cologne. 9. An investigation was opened on 7 May 1991. On 18 February 1993 the Warsaw Regional Prosecutor filed a bill of indictment with the Warsaw Regional Court. He charged the first applicant and another individual, K.K., with misappropriation of public property and mismanagement. On 27 September 1993 the court decided to return the bill of indictment to the prosecutor so that certain shortcomings in the investigation could be rectified. 10. On 19 January 1998 the prosecutor filed an updated bill of indictment with the Warsaw Regional Court. 11. The first applicant was charged with misappropriation of the FOZZ’s property of a considerable value committed with other persons as a continuous offence between March 1989 and February 1991. She was further charged with failure to perform her duties to the detriment of the FOZZ. 12. The second applicant was charged with misappropriation of 1,557,178.05 US dollars (USD) to the detriment of the FOZZ committed with other persons as a continuous offence between July and September 1990. 13. There were five other accused in the case. 14. In February 1999 the applicants’ case was assigned to Judge B.P. The trial started on 4 October 2000 and a number of hearings were held until October 2001. On 19 October 2001 Judge B.P. was appointed Minister of Justice and consequently the whole trial had to be restarted. 15. On 19 October 2001 the President of the 8th Division of the Warsaw Regional Court asked the President of the Regional Court to assist the Division in finding a Regional Court judge from the appellate divisions who could hear the applicants’ case. He stated that, owing to a lack of judges and the volume of work in the 8th Division, there were no judges who could examine the case in question swiftly. 16. On 6 November 2001 the President of the Regional Court referred the request to the Board of the Regional Court (kolegium Sądu Okręgowego). She informed it that one of the judges, Judge A.K., had not agreed to a proposal by the management of the court to be transferred to the 8th Division to examine the FOZZ case. However, Judge A.K. stated that he would go if the Board took a decision in that regard. 17. On 6 November 2001 the Board unanimously decided to transfer Judge A.K. from the 10th Appellate Division to the 8th Criminal Division with effect from 15 November 2001. It further decided to assign him to case no. VIII K 37/98. In a letter of 7 November 2001 the President of the Regional Court informed Judge A.K. of that decision. 18. On 22 November 2001 the President of the 8th Criminal Division assigned Judge A.K. to case no. VIII K 37/98 “in accordance with the decision of the Board of the Warsaw Regional Court”. 19. The new trial bench was composed of Judge A.K., acting as president, and two lay judges. A substitute judge and two substitute lay judges were also assigned to the case. 20. The first hearing before the new bench was set for 30 September 2002. On that date Judge A.K. allowed journalists to record images and the identities of the defendants. He stated on that occasion that “there are forty million victims in this case, and society has the right to have images and personal information about the defendants”. 21. There were 224 hearings held in the trial court. Some 314 witnesses were heard, and a number of expert accounting reports and more than 1000 documents were examined. The files of the case were very voluminous. 22. On 8 February 2005 the trial court finished hearing evidence in the case. 23. On 29 March 2005 the Warsaw Regional Court delivered its judgment. Judge A.K. presented the main reasons for the verdict orally. 24. The trial court convicted the first applicant of misappropriation of the FOZZ’s property of a considerable value committed with other persons between March 1989 and December 1991 (Article 284 § 2 in conjunction with Articles 12 and 294 § 1 of the Criminal Code). The trial court held that, in her capacity as Head of Domestic Operations and later Deputy Director General, she had misappropriated a total of USD 3,779,835.75 from the FOZZ for the benefit of herself and other entities (point III of the operative provisions of the judgment). With regard to that offence, the court sentenced her to five years’ imprisonment and a fine. 25. The trial court further convicted the first applicant of failure to perform her duties and of exceeding her authority between March 1989 and July 1990 (Article 217 § 2 in conjunction with Article 4 of the Criminal Code of 1969). As a result of those failings the FOZZ had suffered damage of no less than 21,068,680.58 Polish zlotys (PLN) (point IV of the operative provisions of the judgment). With regard to that offence, the trial court sentenced her to three years’ imprisonment and a fine. 26. The trial court convicted the second applicant of misappropriation of the FOZZ’s property of a considerable value (USD 503,000) committed with other persons (Article 284 § 2 in conjunction with Article 294 § 1 of the Criminal Code, point VI.1 of the operative provisions of the judgment). With regard to that offence, the trial court sentenced him to two and a half years’ imprisonment and a fine. 27. It further convicted the second applicant of theft of the FOZZ’s property of a considerable value (USD 1,074,120) committed with other persons (Article 278 § 1 in conjunction with Article 294 § 1 of the Criminal Code, point VI.2 of the operative provisions of the judgment). With regard to that offence, the trial court sentenced him to two and a half years’ imprisonment and a fine. 28. The trial court gave the first applicant a cumulative sentence of six years’ imprisonment and the second applicant a cumulative sentence of three and a half years’ imprisonment and a fine. The trial court ordered the applicants to compensate the FOZZ for the damage caused. The first applicant was further ordered to pay compensation to the State Treasury. 29. On 30 March 2005 Judge A.K., in view of the complexity of the case, requested the President of the Warsaw Regional Court to grant him an extension until 31 May 2005 for preparation of the written judgment. The request was granted. The judgment was served on the applicants’ counsel on 5 May 2005. The operative part of the judgment runs to seventy pages and the reasoning to 830 pages. 30. The reasoning included a short presentation of evidence by certain witnesses concerning the alleged financing of political parties by the FOZZ. It stated that the issue “had not been relevant for the determination of the case”. 31. The reasoning further included a passage saying that “in the court’s assessment, the FOZZ trial has not, however, shown the important role played by the [second applicant] in the functioning of the FOZZ...”. 32. Subsequently, Judge A.K. requested that the Board of the Regional Court transfer him back to the 9th Appellate Division. On 17 May 2005 the Board granted that request in connection with “the termination of the FOZZ case in the 8th Criminal Division”. 33. The Law of 3 June 2005 on amendments to the Criminal Code (“the 2005 Amendment”), which extended limitation periods, entered into force on 3 August 2005 (see paragraphs 108-117 below). 34. It appears from the case file that the second applicant moved to the United States of America on an unspecified date. 35. The applicants lodged appeals with the Warsaw Court of Appeal. They alleged that Judge A.K. had been assigned to their case in breach of Articles 350 § 1 (1) and 351 § 1 of the Code of Criminal Procedure (“the CCP”). They argued that since the composition of the trial bench had been unlawful the appellate court should have quashed the lower court’s judgment in its entirety. They further alleged that Judge A.K. had been involved in the passing of the 2005 Amendment, which amounted to a breach of their right to a fair trial by an impartial tribunal. 36. The second applicant alleged that Judge A.K. had lacked impartiality, referring to a statement made by him at the opening of the trial and certain passages in the reasoning showing that he had a negative attitude towards him. He also referred to statements made in an interview given by Judge A.K. to the weekly newspaper Newsweek Polska assuming the defendants’ guilt and showing hostility towards the so-called “white collars”, who in his view should have been severely punished. 37. The applicants also alleged that the trial court had violated the rules of criminal procedure and the rights of the defence in various respects. 38. In the course of the appellate proceedings, the Warsaw Court of Appeal referred a legal question to the Supreme Court, seeking an interpretation of the provisions of the CCP concerning the assignment of a trial court judge to a given case and the consequences of an irregularly constituted trial bench for the outcome of appellate proceedings. 39. The legal question read as follows: “Does the expression “court improperly constituted” in Article 439 § 1 (2) of the CCP also concern a situation in which a court that ruled on a case included a judge who had been “allocated” to the case by some other entity than the [one] authorised to do so by law, i.e. the president of a court (president of a division) assigning a judge – Article 350 § 1 (1) of the CCP – in the manner specified in Article 351 § 1 of the CCP.” 40. In a Resolution adopted on 17 November 2005, the Supreme Court replied as follows: “The assignment of members of a court in breach of the rules specified in Articles 350 § 1 and 351 § 1 of the CCP constitutes a relative ground of appeal (względna przyczyna odwoławcza) referred to in Article 438 § 2 of the CCP.” 41. In its legal question, the Court of Appeal noted that, in consequence of a decision adopted by the Board of the Warsaw Regional Court, the president of a division in that court had issued an order assigning Judge A.K. to hear case no. VIII K 37/98 pursuant to Article 350 § 1 (1) of the CCP. The same court also noted that the manner of assigning members of the court in that case had violated the rules specified in Article 351 § 1 of the CCP since Judge A.K. had not been on the list of judges from which a judge should have been selected, but had been “transferred” to the 8th Division of the Warsaw Regional Court in order to hear case no. VIII K 37/98. 42. The Supreme Court agreed with the Court of Appeal that the rules specified in Articles 350 § 1 and 351 § 1 of the CCP had been violated in the case. There had been a breach of Article 350 § 1 of the CCP, which consisted of a decision not entirely “independent” in nature being taken by the president of a division to select Judge A.K. to hear the case, since that decision had been predetermined by an earlier decision of the Board of the Regional Court. There had also been a violation of Article 351 § 1 of the CCP, which consisted of disregarding the list of judges of the division and assigning as a member of the court a judge who had been “transferred” from another division for that specific purpose, without indicating other valid reasons, as required by that provision. 43. The Supreme Court then examined whether the above-mentioned breach of the rules specified in Articles 350 § 1 and 351 § 1 could be regarded as the court being “improperly constituted” within the meaning of Article 439 § 1 (2) of the CCP. Pursuant to that provision, a finding that a court had not been properly constituted resulted in the judgment being automatically set aside on appeal. The Supreme Court noted that in previous cases the term had been applied in the following situations: where a court had been composed of a smaller or larger number of members than provided for by law; where lay judges had sat as members of a court instead of professional judges and vice versa; and where a member of a court had had no authority to examine a case in a given court. 44. The Supreme Court emphasised that a violation of the rules on the assignment of members of a court contained in Articles 350 and 351 of the CCP did not – in itself – result in a situation where a court had examined a case in a composition not provided for by law or where a member of a court had had no authority to decide in a given case. On the other hand, if a decision by a president of a court (president of a division) had, in breach of Article 351 § 1 of the CCP, resulted in a court with a composition unknown in the law for a given category of cases or a person not authorised to examine cases in a given court being selected, such a flaw would have to be regarded as an automatic ground of appeal within the meaning of Article 439 § 1 (2) of the CCP. However, in such a situation the procedural flaw would have to consist not only of a violation of Article 351 of the CCP, but also a violation of the provisions of the CCP concerning the composition of judicial benches and the competence of judges to examine cases in a given court. In such a situation, a violation of procedural rules would be of a qualified, double nature. 45. That had not occurred in the case under consideration, in which only Articles 350 § 1 and 351 § 1 of the CCP had been violated. In the Supreme Court’s assessment, a sole violation of the above-mentioned provisions should be regarded as a relative ground of appeal. Consequently, in order to allow an appeal based on a relative ground, an appellate court had to establish, at least, a hypothetical link between the alleged procedural violation and the content of the judgment within the meaning of Article 438 § 2 of the CCP. 46. The Warsaw Court of Appeal delivered its judgment on 25 January 2006. 47. It quashed the first applicant’s conviction in respect of the offence of failure to perform her duties and of exceeding her authority (point IV of the operative provisions of the trial court’s judgment). The reason given was that the offence had become subject to limitation on 17 July 2005, prior to the date of entry into force of the 2005 Amendment. 48. The Court of Appeal further quashed the second applicant’s conviction in respect of theft of the FOZZ’s property of a considerable value (point VI.2 of the operative provisions of the trial court’s judgment). The principal reason given was the court’s refusal to apply the 2005 Amendment to the relevant offence imputed to the second applicant. In consequence, the limitation period in respect of that offence had expired on 12 September 2005. 49. The Court of Appeal accordingly quashed the cumulative sentences imposed on the applicants. It discontinued the part of the proceedings concerning the quashed convictions. The Court of Appeal also lowered the fines imposed on the applicants. 50. The remainder of the trial court’s judgment was upheld, including the first and second applicant’s convictions for misappropriation of the FOZZ’s property of a considerable value (points III and VI.1 respectively of the operative part of the trial court’s judgment). 51. The Court of Appeal analysed the circumstances surrounding the assignment of Judge A.K. to the case. It found that the decision to assign him had simply been a consequence of the Board of the Regional Court’s decision and not a sovereign act by the President of the 8th Division in the exercise of his powers under Article 350 § 1 (1) of the CCP. Having regard to the above, the Court of Appeal found that the statutory rules on the assignment of judges set out in Articles 350 § 1 (1) and 351 § 1 of the CCP had not been respected. 52. Having regard to the Supreme Court’s Resolution of 17 November 2005, the Court of Appeal considered the effect of the breach of Articles 350 § 1 (1) and 351 § 1 of the CCP on the content of the trial court’s judgment. 53. The Court of Appeal examined the circumstances concerning the enactment of the 2005 Amendment extending limitation periods, which was relevant for some of the charges against the applicants. 54. The bill had been introduced by a group of MPs from the opposition party, Law and Justice, on 21 February 2005, before the date of delivery of the trial court’s judgment on 29 March 2005. The bill had made direct reference to the applicants’ pending case. 55. The intentions of the drafters had been confirmed during debates in the Special Committee for Codification Amendments of the Sejm (the Lower House of Parliament) and at the plenary session of the Sejm. One of the supporters of the draft bill had been the member of parliament (MP) Z. Ziobro, who had also acted as rapporteur in the course of the parliamentary debate on the bill. Judge A.K. had been serving at that time as an advisor to the Special Committee on his recommendation. 56. The Court of Appeal observed that a judge could be appointed a member of the Minister of Justice’s Criminal Law Codification Commission in accordance with the rules and procedures set out in the relevant Ordinance of the Council of Ministers. However, a judge was prevented from participating in parliamentary work on criminal law codification as an advisor chosen by an MP, parliamentary group or a political party. By doing so, a judge would in fact be acting as a lobbyist disclosing his political preferences. Such conduct was contrary to Article 178 § 3 of the Constitution and the provisions of the Organisation of the Courts Act. 57. The Court of Appeal noted that, according to a letter from the Chancellery of the Sejm (see paragraph 97 below), Judge A.K. had not been an advisor to the Special Committee in connection with the work on the bill extending limitation periods. However, the court’s analysis of some parliamentary records contradicted that assertion. It transpired from the minutes of a meeting of the Special Committee on 1 June 2005 that Judge A.K. had been present during a discussion on the bill. At that meeting Z. Ziobro MP, after the Committee had rejected his amendment to the bill, asked Judge A.K. “whether in this situation the FOZZ case would become time-barred”. The Court of Appeal also referred to the minutes of the plenary session of the Sejm on 3 June 2005. At that session Z. Ziobro MP, replying to a question, stated that Judge A.K. had been permanent advisor to the Committee and presented verbatim the judge’s position on an aspect of an amendment to the bill. 58. The Court of Appeal, having regard to the parliamentary records, established that Judge A.K. had actively sought to influence the amending legislation to the detriment of the defendants, even though at the same time he had examined their case at trial. 59. The Court of Appeal held as follows: “In the present case ... on the basis of the circumstances concerning the passing of the 2005 Amendment established in the course of the appellate proceedings, the Court of Appeal reached the conclusion that the regulations contained in the Act had been adopted by the legislature, in particular, so that they could be applied to the pending proceedings in a specific case indicated in the reasons for the bill, and in addition, the judge hearing the case took part in the process of amending the law as an advisor, thus showing a lack of impartiality. Having regard to the foregoing, the application of the 2005 Amendment to the present case would have patently violated the standards of Articles 10 and 45 § 1 of the Constitution and Article 6 of the Convention concerning the right to a fair trial before an impartial tribunal and would have had an obvious influence on the pertinent part of the judgment.” 60. The Court of Appeal decided not to apply the 2005 Amendment to that part of the case. It therefore found that the limitation period in respect of the offence of theft of the FOZZ’s property of a considerable value imputed to the second applicant had expired on 12 September 2005 (point VI.2 of the operative provisions of the trial court’s judgment). It held that his conviction in respect of that offence had to be quashed and that the relevant part of the proceedings had to be discontinued. 61. Having regard to the foregoing, the Court of Appeal allowed the applicants’ arguments concerning the flaws in the assignment of Judge A.K. to the case and the efforts of the judge to amend the legislation applicable to the case in the course of the trial and at the formal examination stage of the appeal. In the appellate court’s view, the applicants had rightly pointed out that by accepting the role of advisor to the proponents of the bill amending the Criminal Code (extending limitation periods) Judge A.K. had shown a lack of impartiality. At the same time, Parliament, by failing to respect the rule of law, had encroached upon the competences of the judicial authorities and flouted the guarantees of a fair trial. 62. The Court of Appeal underlined that the above shortcomings had only affected part of the trial court’s judgment, namely the offence imputed to the second applicant (point VI.2 of the operative provisions of the trial court’s judgment), for which the limitation period had been set to expire on 12 September 2005. Only in that part did there exist a logical and irrefutable causal link between the error in the assignment of Judge A.K. and his subsequent efforts to pass legislation amending the law to the detriment of the defendants in the case examined by him. 63. As to the remainder of the case, the Court of Appeal did not establish that the above shortcomings had influenced the content of the trial court’s judgment. Accordingly, it did not accept the applicants’ submissions, which were aimed at having the judgment of the trial court quashed in its entirety. 64. With regard to certain passages in the reasoning showing that Judge A.K. had a negative attitude towards the second applicant, the Court of Appeal found that many of them had been opinions based on fact and therefore could not be seen as showing a lack of impartiality towards the second applicant. However, the court agreed with the defence that the passage about the important role of the second applicant in the activities of the FOZZ had not been fact-based and was therefore inappropriate. Nonetheless, the statement was related to hypothetical behaviour of the second applicant which was unrelated to the charges against him and in any event had not influenced the content of the judgment. The second applicant had not substantiated either how the passage related to the financing of political parties by the FOZZ could show that Judge A.K. had had a negative attitude towards him, when that issue had not been examined by the trial court. With regard to the allegation raised by the second applicant of a lack of impartiality on the part of Judge A.K. in connection with his statement about the forty million victims in the case, the Court of Appeal found it to be groundless. It considered that the statement had to be seen in the proper context in which it was made, namely the trial court’s determination to elucidate all the 65. The Court of Appeal dismissed the remainder of the applicants’ appeals. It examined various allegations concerning the rights of the defence and the rules of criminal procedure raised by the applicants and rejected them all as unfounded or as having no bearing on the content of the judgment. 66. The Prosecutor General lodged a cassation appeal against the part of the Court of Appeal’s judgment concerning the discontinuation of the proceedings against the second applicant in respect of the charge of theft of the FOZZ’s property of a considerable value (point VI.2 of the operative provisions of the trial court’s judgment). The Prosecutor General argued that the Court of Appeal had erred in holding that the application of the 2005 Amendment to the offence in question would have breached Articles 10 and 45 § 1 of the Constitution and Article 6 of the Convention on account of the alleged lack of impartiality of Judge A.K. In his view, the appellate court’s finding had resulted in the relevant part of the proceedings being unjustifiably discontinued. 67. The applicants also lodged cassation appeals. They challenged the Court of Appeal’s finding that the uncontested breach of the rules concerning the assignment of Judge A.K. to their case could not have influenced the content of the trial court’s judgment. In their view, the assignment of Judge A.K. in flagrant breach of Articles 350 § 1 and 351 § 1 of the CCP had resulted in their case not being examined by an impartial judge. 68. They further challenged the Court of Appeal’s finding that the established lack of impartiality of Judge A.K. resulting from his active involvement in the passing of the 2005 Amendment could only be relevant for some of the offences imputed to them. In their view, his lack of impartiality had affected the whole trial and therefore the trial court’s judgment should have been quashed in its entirety. 69. The second applicant also alleged that the Court of Appeal had not examined his arguments that Judge A.K. should have been removed from the case because of doubts as to his impartiality. 70. The applicants repeated their allegations concerning various violations of the rights of the defence and the rules of criminal procedure committed by the trial court, which had allegedly not been duly examined by the Court of Appeal. 71. On 21 February 2007 the Supreme Court gave judgment. It allowed the cassation appeal of the Prosecutor General and quashed the part of the Court of Appeal’s judgment concerning the discontinuation of the proceedings against the second applicant, remitting that part of the case to it. It dismissed the cassation appeals filed by the applicants. 72. The Supreme Court examined the applicants’ allegation that the assignment of Judge A.K. in flagrant breach of Articles 350 § 1 and 351 § 1 of the CCP had resulted in their case not being examined by an impartial judge. It confirmed that Judge A.K. had been assigned to the applicants’ case in breach of the above provisions. However, having regard to its Resolution no. I KZP 43/05 of 17 November 2005, the Supreme Court noted that it was necessary to examine whether the above flaw had influenced the content of the trial court’s judgment. For that to be the case the judge would have to be interested in the case having a specific outcome by violating the rules of criminal procedure. 73. In that connection, the Supreme Court first noted that behaviour which could raise doubts about the lack of impartiality of a judge hearing a case would have to arise up until delivery of the judgment by the judge in question. Secondly, it noted that the mere determination of the court in striving to conclude the proceedings before the expiry of the limitation period was not indicative of its partiality. The lack of impartiality of a judge had to manifest itself in restrictions on the procedural rights of a party, improper gathering of evidence or the imposition of an unjust sentence. However, the applicants had not provided concrete examples of such shortcomings and had limited themselves to general allegations. They had merely referred to one statement made by Judge A.K. about “the forty million victims”, the passage in the reasoning of the trial court related to the financing of political parties by the FOZZ and the antagonism of political parties with which Judge A.K. and the second applicant respectively sympathised. 74. With regard to the statement about “the forty million victims” the Supreme Court paid attention to the context in which it had been made – at the first trial hearing on 30 September 2002 in which Judge A.K., the president of the bench, had allowed journalists to disseminate images and information about the identities of the defendants (see paragraph 20 above). In the Supreme Court’s view, an analysis of the statement did not permit the conclusion that Judge A.K. had identified himself with the victims in the case under examination by him. The statement had indicated that it was society that was entitled to have images of the defendants. For the Supreme Court, the statement was another unnecessarily pompous statement by Judge A.K. which was not in itself proof of his lack of impartiality. It also noted that the defence had not reacted to this statement by requesting that he be removed from the case. Likewise, before the start of the trial the defence had not raised the issue of any of the members of the trial bench possibly having a negative attitude towards the second applicant. With regard to the passage related to the financing of political parties by the FOZZ, the Supreme Court noted that it did not point to a lack of impartiality on the part of Judge A.K. The judge had concluded in the reasoning that that issue had been irrelevant for the determination of the case. Having regard to the foregoing, the Supreme Court did not share the applicants’ views about the alleged lack of impartiality of the trial court. 75. The Supreme Court examined the applicants’ arguments related to the alleged lack of impartiality of Judge A.K., which had allegedly ensued from his involvement in the passage of the 2005 Amendment. In that connection, the court noted that the bill had been introduced on 21 February 2005 and that only from that moment in time could one talk about his alleged involvement in the process. The bill had been introduced after the trial court had finished hearing evidence in the case (8 February 2005) and at a time when the trial had entered its final stages, with the closing statements by the parties. The court further noted that the parliamentary debate on the bill had effectively started in April 2005, after the trial court had delivered its judgment (29 March 2005). Accordingly, it could not be said that the trial hearing had coincided with the parliamentary debate on the bill. 76. Furthermore, the 2005 Amendment had entered into force on 3 August 2005 and the limitation period with regard to one of the offences (point VI.2 of the operative part) had been set to expire on 12 September 2005. Accordingly, the consequences of the expiry of the limitation period and the entry into force of the law extending limitation periods had taken place in the course of the appellate proceedings. 77. The Supreme Court concluded that Judge A.K.’s involvement in the parliamentary debate on the bill had occurred after the trial had ended and thus could not have had any effect on the content of the judgment. It noted that the Court of Appeal must have embraced a similar view on that issue since it had not decided to quash the trial court’s judgment in its entirety. 78. Having regard to the above conclusion, the court noted that the principal issue before the Court of Appeal and now before it was the compatibility of the 2005 Amendment with the Constitution and the Convention, as well as the related problem of how the court should proceed in the event of a finding of incompatibility. 79. With regard to the constitutionality of the 2005 Amendment, the Supreme Court referred to the established case-law of the Constitutional Court, which provided that limitation periods were not a subjective right (prawo podmiotowe) and therefore could be subject to change, including retrospectively. A change to a limitation period did not have a bearing on the criminalisation of a given act or the penalty that could be imposed. Rules on limitation periods did not provide guarantees for a person who committed an offence, but were established for the sake of punishment and were related to the State’s criminal policy (referring to the Constitutional Court’s judgment of 25 May 2004, case no. SK 44/03). 80. With regard to the constitutionality of the 2005 Amendment related to the shortcomings of the legislative process, the Supreme Court concurred with the Court of Appeal that the conduct of that process indicated that the impugned legislation had been adopted with a view to influencing the outcome of a particular case. The Court of Appeal had analysed the issue from the perspective of the “partiality” of Judge A.K., who had been involved in the preparation of the law partly determining the outcome of the case, but for the Supreme Court that issue had to been seen in a wider context. In fact, the Court of Appeal had analysed the issue of the “partiality of the legislature” and understood it to mean an encroachment by the legislature on the competences of the judicial authorities by the former’s involvement in the determination of a specific case by means of enacting legislation. 81. The Supreme Court analysed whether “the partiality of the legislature” had occurred in the applicants’ case. It had regard to the reasons for the bill which, although very brief, had contained two paragraphs related to the FOZZ case. 82. The Supreme Court noted that the parliamentary debate on the bill, both in the relevant Committee meetings and at the plenary session of the Sejm clearly indicated the existence of links between the need to enact the impugned legislation and the proceedings in the applicants’ case. A statement made by Z. Ziobro MP during the debate on the bill in the Sejm on 22 March 2005 was relevant here (“Among the thousands of cases [threatened by the expiry of the limitation period] there is also this one, which outrages and shocks Polish public opinion the most, which ... became the instigator and final argument for the introduction of this bill, and that is FOZZ-gate and the real risk of the limitation period expiring in this case”). Similarly, the statement made by J. Kaczyński MP in the same debate left no doubt as to the intentions of the proponents of the bill (“there is a legal possibility of influencing these proceedings”). 83. In conclusion, the Supreme Court found that the involvement of the legislature, with the support of Judge A.K., could support the allegation that the object of the 2005 Amendment had been to influence the outcome of the applicants’ specific case. Such a situation in turn raised doubts about its conformity with Articles 2 and 10 of the Constitution. 84. In the applicants’ case, the Court of Appeal held that the 2005 Amendment was unconstitutional and for that reason, it independently decided not to apply it in the case. However, the Supreme Court found that in that respect the Court of Appeal had exceeded its competences. Instead of refusing to apply the unconstitutional legislation, it had been required to put a legal question to the Constitutional Court on the constitutionality of the 2005 Amendment. In the Supreme Court’s view, the Constitutional Court had the exclusive competence to declare legislation unconstitutional. 85. For that reason, the Supreme Court quashed the part of the Court of Appeal’s judgment concerning the discontinuation of the proceedings against the second applicant (point VI.2 of the operative provisions of the trial court’s judgment) and remitted that part of the case to it. 86. Following the Supreme Court’s directions, on 31 August 2007 the Court of Appeal put a legal question to the Constitutional Court on the constitutionality of the 2005 Amendment. 87. The Court of Appeal submitted that “FOZZ-gate” had been mentioned throughout the parliamentary debate on the bill. It referred to the reasons for the bill and the statements made by the MPs, advisors and representatives of the Ministry of Justice in the course of debates of the Special Committee for Codification Amendments referring to the same case. In view of the above, the Court of Appeal considered that the 2005 Amendment had not been enacted as a general instrument of criminal policy, but followed from the legislature’s desire to influence the outcome of a particular case. Such a situation amounted to an encroachment by the legislature on the competences of the judicial authorities. For the Court of Appeal, there were substantiated doubts about the compatibility of the 2005 Amendment with Articles 2 (rule of law principle) and 10 (separation of powers) of the Constitution. 88. In its decision of 11 February 2009 (case no. P 39/07), the Constitutional Court discontinued the proceedings initiated by the legal question of the Court of Appeal on the grounds of ne bis in idem. It referred to an earlier judgment it had adopted on 15 October 2008 (case no. P 32/06), which was decisive for the case at issue. In that judgment the Constitutional Court held that the 2005 Amendment was compatible with the Constitution and Article 6 § 1 of the Convention (see paragraphs 118 and 125-126 below). 89. The Constitutional Court noted that the Court of Appeal had not questioned the very extension of the limitation period or the possibility of applying extended limitation periods to offences committed before the entry into force of the amending legislation which had not become time-barred under the rules formerly applicable. The allegations of the Court of Appeal had instead concentrated on shortcomings in the legislative process, but without invoking any of the relevant constitutional provisions regulating that process. The Court of Appeal had focused on the context and the circumstances surrounding the enactment of the impugned legislation by referring to select statements of the persons taking part in the parliamentary debate on the bill and mentioning certain passages from the reasons for the bill. However, that issue had already been addressed in the Constitutional Court’s judgment of 15 October 2008 (see paragraphs 122-124 below). In that judgment, it had also underlined that the contested amendment had not influenced the judicial determination of the case. 90. On 1 June 2009 the Court of Appeal gave judgment. 91. It upheld the trial court’s judgment with regard to the second applicant’s conviction for theft of the FOZZ’s property of a considerable value (point VI.2 of the operative provisions of the trial court’s judgment). It only lowered the fine imposed on him in respect of that offence. 92. Having regard to the Constitutional Court’s decision of 11 February 2009, the Court of Appeal ruled that it could not discontinue the criminal proceedings against the second applicant with regard to the abovementioned offence on account of the expiry of the original limitation period as had been decided in its first judgment. It would not be acceptable to refuse to apply a law whose constitutionality had been confirmed by the Constitutional Court. 93. With regard to the allegations concerning the improper assignment of Judge A.K. to the case, the Court of Appeal, following the Supreme Court’s judgment, held that that shortcoming had not affected the content of the trial court’s judgment. It dismissed further arguments raised by the second applicant in his appeal against the trial court’s judgment. 94. The second applicant lodged a cassation appeal against the Court of Appeal’s judgment. He alleged, in particular, that the Court of Appeal had violated the provisions of the substantive criminal law related to his conviction under Article 217 § 2 of the old Criminal Code. On 27 May 2010 the Supreme Court dismissed the second applicant’s cassation appeal as manifestly ill-founded. 95. In issue no. 7 of 20 February 2005, Newsweek Polska published an article entitled “Polish Di Pietro” about the FOZZ trial, including an interview with Judge A.K. The relevant part reads as follows: “Journalists divide judges into those who have “pressure on the small screen” and those who consistently refuse to comment. Judge A.K. has a reputation as one of the best lawyers in Poland, but also as a “media stonewaller”.. In the FOZZ trial he [has] a dual role: as a main judge and as a defender of what remains of the reputation of the administration of justice. The threat of the limitation period hangs over the indictment. ... “Journalist: Are you afraid that you will not have enough time to correct the prosecutors’ mistakes and sentence [those who are] guilty? Judge A.K.: I will not comment on the trial. This is not a commission of inquiry. Q: Perhaps it does not resemble a meeting of a commission [of inquiry], but don’t you have the impression that you are participating in the theatre of the absurd? The defendants faint, pretend to be mentally ill... A: I have. What’s even worse [is that] I feel too frequently that it is not the defendant in the hands of a court, but me in the hands of the defendant and his counsel. Frequently, a team of people is working on how to use too liberal a law to block the trial. Unfortunately, we have succeeded in creating a belief among criminals that they can go unpunished. Q: Do you think that opportunity makes a thief? A: Not an opportunity, but the lack of an inevitable and adequate punishment. Up until recently a criminal could still laugh in our faces, because even if, by a miracle, he was caught and sentenced, he could use the stolen money with impunity, and even boast about it. ... Q: They still brag that they transferred money to their wives and that nothing can be done to them. A: What we know about scandals is not even the tip of the iceberg. We already have [the] white-collar mafia. It is time to find efficient methods of detecting crimes and begin applying adequate punishments. ... Q: Even if we catch criminals more efficiently, where would we lock them up? A: We will stop spending money on implementing inefficient programmes, and build more prisons. Thanks to harsh punishments and a ‘zero tolerance’ [policy] even for minor crimes, it was possible to resolve the crisis in New York. Why shouldn’t that idea work here?” 96. On 26 January 2006 Z. Ziobro, who had been appointed Minister of Justice in the meantime, gave an interview to a radio station. The transcript of the relevant part reads as follows: “Q: Minister, your deputy, Judge [A.K.] has been criticised by the Court of Appeal’s judges, who found that Judge [A.K.] had not been impartial in the case against Ż. and [the first applicant]. A: The Court of Appeal’s judges were either misled or have been seriously mistaken because they have relied on false information. Q: Who could have misled them? A: Perhaps the defence lawyers, who raised certain arguments, not always properly, but always in the interest of their clients. ... The facts are that, firstly, Judge [A.K.] was not an advisor to the Law and Justice [party], but an advisor to the Sejm’s [Special Committee for Codification Amendments], as were many other judges, including judges of the Supreme Court. No one is alleging that because of that those judges are not impartial, and rightly so. Secondly, Judge [A.K.] did not take part in the debate on the provision extending limitation periods. I am the author of this provision, I conceived this provision and presented it to J. Kaczynski, and I then consulted two law professors, with whom I cooperate, who are also members of [advisors to] the Sejm’s committees, Professors M. and L.T., I think that both of them would confirm this. Q: But did you rely on Judge [A.K.]’s opinion in this case or not? A: I could not have relied on Judge [A.K.]’s opinion in this case, because in this case Judge A.K. did not give an opinion. In this case Judge [A.K.] was not at all an initiator of this idea. I was the author. Q: And you did not speak to him about this issue: A: No, I did not speak to Judge [A.K.] about this issue. In this case, I acted as Z. Ziobro MP, who seeing what was happening in the FOZZ case, concluded that limitation periods should be extended. And not only in the FOZZ case, but also in other cases ...” 97. An official note dated 21 July 2005 was submitted to the Warsaw Court of Appeal. It reads as follows: “Judge A.K. was recommended by the deputy chairman of the Committee Z. Ziobro MP (PiS) to participate as an advisor in the work of the [Special Committee for Codification Amendments]. Because there is no custom in the Committee to appoint a permanent advisor, Judge A.K. was invited to many bills amending the criminal law on the instruction of Z. Ziobro MP. It should be underlined that Judge A.K. was not the Committee’s advisor in the legislative work on the deputies’ bill amending the Criminal Code [extending limitation periods] (document no. 3785) at any stage of the work. Judge A.K. was present at the [Committee’s] meeting on 1 June 2005 on the point concerning the above-mentioned bill, because he was waiting for the beginning [of a discussion on] of the third point for which he had been invited as an advisor (i.e. on the bill amending the Criminal Code and the Code of Execution of Sentences in respect of combating paedophilia ...) The agenda of that meeting included a discussion on the amendments proposed in the second reading of the deputies’ bill: I. amending the Criminal Code ([on] limitation periods – document no. 3785), II. amending the Code of Criminal Procedure ..., III. amending the Criminal Code and the Code of Execution of Sentences ([on] combating paedophilia ...). Because the times for discussing particular points [of the agenda] were not been specified, Judge A.K. was present from the beginning of the meeting.” 98. It appears that Judge A.K. participated as an advisor to the Special Committee on two bills amending the Criminal Code. One of those bills was introduced by the President of the Republic in December 2001 and the other by the then opposition party, Law and Justice, in March 2002. The Sejm has not concluded the debate on those bills.
| 1 |
test
|
001-168844
|
ENG
|
LTU
|
CHAMBER
| 2,016 |
CASE OF MISIUKONIS AND OTHERS v. LITHUANIA
| 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;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The first and second applicants were born in 1940 and 1942 respectively and live in Kaunas. The third applicant was born in 1977 and lives in France. The first and second applicants are husband and wife, and the third applicant is their daughter. 6. On 25 January 2001 the Vilnius County Administration (hereinafter “the VCA”) acknowledged G.O.’s right to restoration of title in respect of 0.728 hectares of land in the Antaviliai estate in the Vilnius Region. That land had belonged to G.O.’s father and had been nationalised by the Soviet regime. 7. The following day G.O. sold his right to restoration of title in respect of that plot of land in equal parts to four buyers: the three applicants and V.M. (the first and second applicants’ son, and the third applicant’s brother). The sale agreement was signed by V.M., acting as the applicants’ representative. The four buyers paid, in equal parts, a total of 15,000 Lithuanian litai (LTL; approximately 4,344 euros (EUR)) to G.O. 8. On 25 June 2001 the VCA issued documents confirming the applicants’ and V.M.’s right to receive 0.182 hectares of land each from the State for free. As the second applicant had been a deportee of the Soviet regime, in line with the domestic law she and her family had priority rights to have their property rights restored. The applicants and V.M. were provided with four plots of land (one plot each) in the city of Vilnius the following month. 9. In August and September 2001 the applicants, represented by V.M., sold their plots to third parties for the price of LTL 25,000 (EUR 7,241) for each plot. The sale agreements indicated that the indexed value of each plot, estimated by the Vilnius Branch of the State Enterprise Registry of Land and Other Immovable Property (Žemės ir kito nekilnojamojo turto kadastro ir registro valstybės įmonės Vilniaus filialas), was LTL 25,650 (EUR 7,429). 10. In October 2001 the Vilnius City Police Department opened a pretrial investigation concerning allegations of fraud in connection with the restoration of property rights in the Vilnius Region. It was suspected that an organised criminal group was forging documents showing deportee status in order to obtain priority rights in the property restoration process. It was also suspected that some officials of regional authorities had unlawfully restored property rights to individuals who did not have such rights. 11. On 26 November 2001 V.M. was interviewed as a witness in the investigation and asked to explain how he and his family (the applicants) had obtained land in Vilnius. V.M. stated that in 1994 he had befriended E.K. who was his wife’s stepbrother. V.M. knew that E.K.’s job was related to land measurement. Sometime in 2000 V.M. mentioned to E.K. that his mother (the second applicant) had been a deportee. Then E.K. told him that it was possible to acquire restoration rights from other persons and get certain privileges available to former deportees. After about six months E.K. informed V.M. that he had found a person who was willing to sell his restoration rights. E.K. advised V.M. that it was better if the contract with that person (G.O.) was signed by four family members and not just one, because that way they could obtain four separate plots of land. E.K. dealt with all the related paperwork and contacted public officials, while V.M. only signed the sale agreements with G.O. After V.M. and his family had received plots of land, E.K. suggested selling them, and found buyers for all the four plots. V.M. submitted that he had not known the buyers previously and had only met them when signing the agreements. He received LTL 25,000 from each buyer. In all their dealings related to the land V.M. and his family trusted E.K. and assumed that he knew all the relevant legal acts, as his work was related to land. Neither V.M. nor the applicants paid any money to E.K. at any point. 12. On 10 January 2002 V.M. was again interviewed as a witness in the investigation. He retracted his previous statement in part and stated that he had not received payment for the four plots of land (LTL 25,000 for each plot) and did not know if the buyers had paid that money to E.K. or to anyone else, or if they had paid anything at all. V.M. also stated that in the autumn of 2001 E.K. had informed him about the pending pre-trial investigation and advised him to tell the authorities, if questioned, that he (V.M.) had received the payment. E.K. had assured V.M. that everything had been done lawfully, but now V.M. considered that he had been misled and deceived by E.K. 13. It appears that none of the applicants were interviewed or had any procedural status in the investigation. 14. On 15 June 2007 the Vilnius City District Prosecutor ruled that “the facts of the case confirmed that suspects A.Ž., G.S. and S.Ž. had acted unlawfully” and that “during the investigation it was indisputably established (neginčytinai nustatyta) that suspect A.Ž. had unlawfully included relatives of friends or acquaintances of hers on the list of those who had priority right to have their property rights restored”. That same ruling discontinued the investigation as time-barred. 15. In January 2002 the prosecutor of the Vilnius Region (hereinafter “the prosecutor”) lodged a claim before the Vilnius City First District Court, asking for the administrative decisions which had acknowledged G.O.’s right to restoration of title, the sale of G.O.’s restoration rights to the applicants (and V.M.), and all the administrative decisions which had allocated land to them, to be overturned. That claim was amended in June and September 2002 and June 2005. The prosecutor submitted that the Law on Restitution, in force at the material time, entitled G.O. to receive one plot of up to 0.2 ha, with the remainder of his land being compensated for in other ways (see “Relevant domestic law” below), so the applicants were not entitled to be allocated a plot of land of that size each. The prosecutor also submitted that the VCA had unlawfully restored the applicants’ rights to property in the order of priority: even though the second applicant had been a deportee, G.O. had not, and thus he did not have the right to transfer to the applicants priority rights which he himself did not have. 16. On 20 February 2006 the Vilnius City First District Court allowed the prosecutor’s claim in part. The court found that the authorities had lawfully decided to restore G.O.’s property rights and that the latter had lawfully sold those rights to the applicants. However, the court upheld the prosecutor’s argument that G.O. did not have the right to sell more rights than he had himself, and that the applicants’ property rights could only have been restored under the same conditions as would have been applied had they been restored to G.O. The court observed that although such a rule had not been explicitly stipulated in the Law on Restoration at the time when G.O. sold his rights to the applicants, that rule stemmed from a systemic and logical interpretation of that Law, as well as from legal acts of lower rank (see paragraphs 32 and 34 below). Accordingly, the court held that the applicants had the right to receive one plot of land of up to 0.2 ha, but not three separate plots of that size, and they were not entitled to restoration in the order of priority. It overturned the administrative decisions which had allocated the land to the applicants. 17. As a result, the Vilnius City First District Court ordered the applicants to return to the State the plots of land which they had received from it for free. Since they had sold the land to third parties and restitution in integrum was not possible, the court decided that they had to pay the State the market value of that land. In line with Article 6.147 § 2 of the Civil Code (see paragraph 38 below), when property subject to restitution is transferred and the person who transferred it has acted in good faith, he or she has to compensate in the amount of the market value of the property at the time when it was received or transferred, or at the time of restitution, whichever is lowest. The court noted that the prosecutor had not alleged that the unlawful transaction had occurred because of the applicants’ fault or that they had acted in bad faith; nor had it been determined, at the time of the proceedings, that any crime had been committed. Accordingly, the court ordered the applicants to return to the State an amount corresponding to the market value of the land at the time they sold it, as that value was the lowest. On the basis of an estimate by the State Enterprise Centre of Registers, each applicant was ordered to pay LTL 216,000 (EUR 62,560). 18. The applicants appealed against that judgment; on 6 June 2006 the Vilnius Regional Court dismissed their appeal. The court considered that obliging the applicants to pay compensation in the amount of the market value of the land was not disproportionate, because they still retained the right to have property rights restored and to obtain new plots. 19. On 5 June 2007 the Supreme Court dismissed a cassation appeal by the applicants. It held that ignorance of the law could not absolve anyone of responsibility, and thus the applicants should have known that property rights had been restored to them in breach of peremptory legal norms, especially as there was information that they had been advised by E.K., who worked in a municipal land reform department (see paragraphs 11-12 above). 20. On 29 June 2007 the applicants submitted a claim against the State for pecuniary damages before the Vilnius Regional Administrative Court. They contended that each of them had received LTL 25,000 for selling the land but had been ordered to pay LTL 216,000 to the State each, and thus had suffered pecuniary losses of LTL 191,000 (EUR 55,317) each. They also asked for pecuniary damages of LTL 5,230 (EUR 1,514) for the court fees each of them had had to pay in the previous proceedings (see paragraphs 15-19 above). 21. After submitting their claim, the applicants applied for suspension of the execution of the Vilnius City First District Court’s judgment of 20 February 2006 (see paragraph 16 above), submitting that they did not have sufficient funds to comply with it. On 7 December 2007 the Vilnius Regional Administrative Court rejected their application on the grounds that the execution of the judgment had not been started yet, and that, in any event, if the applicants did not have sufficient funds nothing would be seized from them. 22. On 13 March 2008 the Vilnius Regional Administrative Court dismissed the applicants’ claim for damages. The court acknowledged that the VCA had acted unlawfully when allocating land to the applicants; however, it considered that the applicants had not proven that they had suffered any pecuniary damage. The court noted that the applicants still had the right to restoration of title to G.O.’s land, because their agreement had not been cancelled, and that they were on the list of candidates to be given new plots of land. Accordingly, until such plots were given to them it was not possible to assess whether the applicants had suffered pecuniary damage or not. 23. The Vilnius Regional Administrative Court also noted that there had been a criminal investigation concerning the VCA’s unlawful decisions restoring property rights. Although the investigation was eventually discontinued, it had nonetheless “indisputably established” that certain employees of the VCA had unlawfully issued documents recognising restoration rights (see paragraph 14 above). The court noted that one of those employees was E.K., whom the applicants had consulted. Accordingly, the court held that the applicants should have known that they had received the land unlawfully and that they had themselves contributed to the pecuniary damage “by acting carelessly and negligently” (veikdami nerūpestingai ir neatsargiai). 24. The applicants appealed against that judgment. They submitted, inter alia, that even if they had contributed to the pecuniary damage, the main agent who had caused those damages had been the VCA. Therefore, they argued that, in line with the provisions of the Civil Code (see paragraphs 39-40 below), the liability should have been distributed proportionately between the VCA and the applicants and not placed solely on them. The applicants also submitted that the fact that V.M. had consulted E.K. did not prove that the applicants had conspired with E.K. or other unlawfully acting officials, or that the applicants had pressured any officials to act unlawfully to their benefit. The applicants contended that after their restoration rights had been cancelled the original state of affairs should have been restored, and they should not have been obliged to pay more than they had received. 25. On 2 March 2009 the Supreme Administrative Court dismissed the applicants’ appeal and upheld the judgment of the lower court. It underlined that the applicants had received the land from the State for free, and that they had immediately sold it to third parties who had to be considered bona fide acquirers. The court held that by selling their plots for a price that was significantly lower than their market value the applicants had acted at their own risk, and thus the difference between what they had received (LTL 25,000 each) and what they were obliged to pay to the State (LTL 216,000 each) could not be regarded as pecuniary damage. The Supreme Administrative Court further held that even if the applicants had suffered pecuniary damage, they could not be awarded damages because they themselves had acted unlawfully. Relying on the Supreme Court’s judgment of 5 June 2007 (see paragraph 19 above), the Supreme Administrative Court considered that the applicants had abused their rights by attempting to get from the State more land than G.O. had been entitled to receive. Accordingly, having concluded that both the applicants and the VCA had acted unlawfully, the court relied on Article 6.282 § 1 of the Civil Code (see paragraph 40 below) and held that there were no grounds to award them pecuniary damages. 26. Subsequently the applicants applied for reopening of the proceedings, but on 31 December 2009 the Supreme Administrative Court dismissed their application. 27. In March 2013 a bailiff began executing the Vilnius City First District Court’s judgment of 20 February 2006 (see paragraph 16 above). According to the documents in the Court’s possession, from that date until June 2015 the first and second applicants each paid LTL 2,445 (EUR 708) in monthly payments ranging from LTL 69 (EUR 20) to LTL 200 (EUR 58). The third applicant paid LTL 3,249 (EUR 941) in monthly payments ranging from LTL 69 (EUR 20) to LTL 300 (EUR 87). At the time of the parties’ observations to the Court, the execution was ongoing. The Government submitted that in the future, when the applicants were provided with new plots of land (see paragraphs 28-30 below), the remaining amount could be recovered from those plots. 28. On 19 July 2007 the VCA included the applicants (and V.M.) on the list of individuals who had the right to have title to property restored in the area around Vilnius. Their number in the list was 1417 B. 29. On 14 March 2016 the applicants (and V.M.) were informed by the National Land Service that they were number 185 in the above-mentioned list. They were invited to a meeting of candidates during which they would be able to choose one plot of land of up to 0.12 hectares in joint ownership. 30. As submitted by the Government, that meeting took place on 5 April 2016 and the first and second applicants, as well as V.M., were present but the third applicant was not. Since the four of them were entitled to receive one plot of land in joint ownership, the first and second applicants (and V.M.) were not allowed to choose a plot in the absence of the third applicant. The Government further submitted that there was still land available in the area around Vilnius and that the applicants would be invited to another meeting, planned to take place in the autumn of 2016. At the time of the parties’ observations to the Court, the applicants’ property rights had not yet been restored.
| 1 |
test
|
001-183535
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF GORCHAKOVA AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);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)
|
Alena Poláčková;Dmitry Dedov
|
5. The list of applicants is set out in the appended tables. 6. The applicants were employees of a municipal education institution. 7. On 13 June 2001 they brought proceedings before the Kolomna Town Court of the Moscow Region (“the Town Court”) against their employer and the town administration seeking recovery of unpaid wages and taxes to various social funds. 8. On 13 July 2004 the Kolomna Town Court issued a first-instance judgment on the merits of the case. On 22 September 2004 the Moscow Regional Court quashed the judgment on appeal and remitted the case for a fresh examination. 9. On 7 July 2005 the Town Court granted the applicants’ claims awarding each of them a certain amount against their employer (see Appendix I). The judgment was upheld on appeal by the Moscow Regional Court on 28 September 2005. 10. Between 26 June 2001 and 7 July 2005 the court hearings were adjourned twenty-five times due to the respondents’ or one of the respondents’ failure to appear, eighteen times on the claimants’ request and eleven times pursuant the requests by the defendants; four times the firstinstance court adjourned the case as the respondent authorities had been requested to submit additional documents. Moreover, on 11 June 2002 the proceedings were suspended pursuant to a decision by the domestic court on account of the claimants’ alleged failure to appear; on 4 February 2003 that decision was quashed by the appeal court, due to the first-instance court’s failure to notify the applicants of the hearing date. Thus, the period attributable to the authorities amounts to over one year. 11. On an unspecified date in 2005 the employer institution was liquidated. On 18 October 2005 the relevant record was made into the State Register of Legal Entities. 12. According to the Government’s submissions of 19 July 2011, on 30 June 2006 the judgment of 7 July 2005 was partially enforced in respect of certain applicants, as specified in Appendix I.
| 1 |
test
|
001-161543
|
ENG
|
UKR
|
CHAMBER
| 2,016 |
CASE OF KORNEYKOVA AND KORNEYKOV v. UKRAINE
| 2 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);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);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary
|
7. The applicants are a mother and child born in 1990 and 2012 respectively. 8. On 16 January 2012 the first applicant, who was in the fifth month of pregnancy, was detained by the police on suspicion of robbery. 9. On 26 January 2012 the Dzerzhynskyy District Court of Kharkiv (“the Dzerzhynskyy Court”) ordered her pre-trial detention as a preventive measure pending trial. 10. On the same date she was placed in the Kharkiv SIZO. 11. On 22 May 2012 the first applicant was taken to Kharkiv Maternity Hospital no. 7 (“the maternity hospital”). 12. On the same date she gave birth to the second applicant. He measured 49 cm and weighed 2.9 kg. 13. Three female security officers guarded the first applicant in the hospital. According to her, they stayed on the ward at all times. The Government submitted that they had left the ward during the delivery. 14. The first applicant alleged she had been continuously shackled to her hospital bed or to a gynaecological examination chair, the only exception being during the delivery when the shackles had been removed. It is not clear from her submissions exactly how she had been shackled; on one occasion, she submitted that after the delivery she had had her foot shackled to the bed. At the same time, she submitted that the guards had only removed the shackles from her wrists for breastfeeding. 15. According to the Government, the first applicant was never handcuffed or shackled in the maternity hospital. 16. On 25 May 2012 the applicants were discharged. 17. On 12 November 2012 the first applicant wrote in a statement for the SIZO administration (see paragraphs 41 and 76) that the maternity hospital staff had treated her well, that she had not been handcuffed or shackled, and that the two female security officers who had been on her ward had been helping her take care of the baby. 18. In December 2012 and January 2013 the prosecution authorities questioned some maternity hospital staff and the security officers who had guarded the first applicant with a view to verifying her allegations, particularly as regards her shackling (see also paragraphs 76-82 below). 19. On 21 December 2012 the chief doctor of the maternity hospital wrote to the governor of the Kharkiv SIZO, in reply to an enquiry by the latter, to say that during her stay in the maternity hospital the first applicant had been guarded by SIZO officers at all times, that the officers in question had not been on the delivery ward, and that the first applicant had not been handcuffed or shackled during the delivery. 20. On 24 December 2012 the chief obstetrician, Ms Ti., gave a written statement to the prosecution authorities. She submitted that the first applicant had been shackled by the wrists to the gynaecological examination chair during her examinations both in the admissions unit and later in the obstetric unit, and that it was usual practice for detainees to be shackled and guarded by three guards. 21. Two other obstetricians, Ms F. and Ms S., and a nurse, Ms To., made similar statements. Ms F. submitted that she could not remember any details regarding the second applicant’s delivery. Ms To. specified that the first applicant had not been shackled during the delivery or subsequently during breastfeeding. 22. The chief doctor of the neonatal unit Ms Vl. also submitted that the first applicant had been shackled to a gynaecological examination chair. Furthermore, she indicated that two guards had been staying on the ward near the applicants, with a third near the door. 23. The security officers who had guarded the first applicant denied that she had been handcuffed or shackled in hospital. 24. The applicant’s lawyer enquired with a former nurse, Ms P., about the conditions faced by women in detention during delivery, with reference to her related work experience. On 7 February 2013 Ms P. wrote to him indicating that she had indeed worked as a nurse at Donetsk Regional Childcare and Maternal Health Centre from 1996 to 2005, and that in 2004 or 2005 a detained woman had been shackled to her bed during her baby’s delivery there. 25. While the first applicant was held in several different cells in the SIZO, her application form referred only to the conditions of her detention with her baby in cell no. 408, in which she had been held from 14 March to 8 November 2012. The summary of facts below therefore only concerns that cell. 26. The cell, situated in a semi-basement, was cold and damp. There was no hot water and only an irregular supply of cold water. The first applicant therefore rarely had the opportunity to take a shower and bath her new-born son. She also had to store cold water in plastic bottles for her own use. She boiled water on a defective electric cooker in a kettle, which she had to borrow from the administration and which was provided to her for no longer than fifteen minutes each time. The toilet and shower were in a niche not separated from the living area. The toilet was often blocked. There was no baby changing table or cot in the cell. 27. The first applicant was not provided with any baby hygiene products. Nor did she receive nutrition suitable to her needs. On the days of court hearings her only meal was breakfast, which consisted of bread and tea. No packed lunches were provided to her. 28. The applicants were able to have outdoor walks of about ten minutes per day, but not every day, in a communal walking area. 29. Lastly, one of the inmates she shared with was HIV positive. 30. Cell no. 408 was a high-comfort cell designed for pregnant women and women with children. It was located on the ground floor, measured fifty-two square metres and could accommodate up to six people. The first applicant shared it with two or sometimes three inmates. 31. The cell had three windows measuring over eight square metres in total. There was hot and cold water, as well as a drinking water cooler with a capacity of ten litres. 32. Furthermore, there were all the necessary furniture and facilities such as air conditioning, a refrigerator, an electric stove, a baby cot and a pram. There was also a supply of nappies and hygiene products. The toilet and shower were separated from the living area. 33. The first applicant was provided with adequate nutrition in accordance with the applicable standards (the total energy value of her daily meals being 3,284 kilocalories). She received three hot meals per day with the exception of hearing days, when she missed lunch. She breastfed her son and refused the baby food provided by the SIZO. There were no restrictions on food or other parcels she received from her relatives. 34. The applicants had a daily two-hour walk in a specially designated area. 35. They never shared a cell with inmates with HIV. 36. The Government provided four colour photographs of cell no. 408, showing a spacious and light room in a visually good state of repair. There were three large windows with sheer curtains. The cell had a washbasin. There was also a lavatory with a bidet and a shower cubicle, both separated from the living area by opaque glass doors. Also on the photographs were a wardrobe, two beds with bedside cabinets, a cot, a table with two stools, a baby stool, a shelf with some tableware, a microwave, a television and a baby changing table. 37. Another photograph showed a walking area for detained mothers with babies, with a flowerbed and a wall with a nature mural. The first applicant and her baby were on the photograph, as well as another woman with a pram. 38. On 1 and 2 February 2012 the local sanitary and epidemiological service inspected the SIZO in the context of an unspecified investigation. It observed that there was a special cell for women with babies, with all the essential amenities. It was noted in the report that there had been no pregnant inmates or inmates with babies in the SIZO at the time of the inspection. 39. On 24 May 2012 the sanitary and epidemiological service also inspected the drinking water in the SIZO to check that it complied with the relevant standards. No irregularities were found. 40. On 22 October 2012 the Kharkiv Regional Prosecutor’s Office informed the Agent of the Government that there had been no complaints from the first applicant regarding the conditions of detention or the second applicant’s medical care in the SIZO. 41. On 12 November 2012 the first applicant wrote a statement giving a detailed description of her cell in the SIZO similar to that submitted by the Government (see paragraphs 30-37 above). The last paragraph also concerned her stay in the maternity hospital (see paragraph 17 above). 42. On 13 November 2012 one of the SIZO staff wrote to the State Prisons Service to say that the first applicant’s statement had been made freely. 43. During her detention in the Kharkiv SIZO the first applicant received about thirty food parcels from her mother, often with basic foodstuffs such as bread, butter, tea, sugar and milk. 44. The first applicant lodged numerous requests for release with the trial court dealing with her criminal case, subject to an undertaking not to abscond (dated 6 July, 6, 26 and 31 August, 3 September and 9 October 2012). She alleged, in particular, that the conditions in the SIZO were not adequate for her baby. The court rejected those requests. 45. The applicants’ case received some media coverage. For example, in November 2012 the article “Baby as a victim of inhuman treatment” was published online by the Kharkiv Human Rights Group. In December 2012 a television programme was broadcast, in which the first applicant and the State authorities gave accounts, particularly as regards the conditions of the applicants’ detention in the SIZO. The parties did not submit to the Court a copy of the relevant article or video footage or a transcript of the television programme. 46. On 12 December 2012 one of the detainees, Ms B., wrote a statement addressed to the head of the local department of the State Prisons Service. She submitted that in November 2012 she had been held in the same cell as the first applicant and had been satisfied with the conditions of detention there. It was noted in the statement that there had been large windows in the cell, a shower cubicle with hot and cold water and all the necessary furniture and appliances, including a refrigerator and a television. 47. On 19 December 2012 the Kharkiv Regional Department of the State Prisons Service issued a memorandum stating that the first applicant had not submitted any complaints during her detention in the Kharkiv SIZO. 48. The case file contains three statements by detainee Ms M. concerning the conditions of detention in the SIZO. She wrote two of them while detained there (on an unspecified date and on 25 December 2012), and a third on 30 January 2013 when she had already begun serving her prison sentence elsewhere. In the first two statements Ms M. described the conditions of her detention in cell no. 408 as quite satisfactory and comfortable. Her account was similar to that given by the Government (see paragraphs 30-32 above). The first two statements also contained critical remarks regarding the first applicant claiming, in particular, that she had displayed a careless attitude towards her baby and had acted in bad faith in applying to the Court. In her third statement, Ms M. stated that the food in the SIZO had been poor. More specifically, the bread had been stale and the meat had been tinged blue. She also submitted that there had been no hot water in cell no. 408. Lastly, she submitted that on two occasions she had witnessed the first applicant requesting medical care for her baby when he had had stomachache, but her requests had been ignored. 49. On 28 December 2012 a former detainee, Ms Sa., wrote a statement for the first applicant’s lawyer and had it certified by a notary. She stated that she had shared cell no. 408 with the first applicant from an unspecified date in March to 19 April 2012. Ms Sa. had been pregnant at the time. She described the conditions of their detention as follows. The cell was located in a semi-basement and inmates saw practically no daylight. The windows were so high that they could not be opened without the assistance of a guard. There were about seven inmates in the cell, some of them with HIV and some suffering from other illnesses. The toilet was separated from the living area by a waist-high wall and leaked. As a result, there was always a bad smell. The shower also leaked and the cubicle door was broken. It was so humid in the cell that the plaster had fallen off the ceiling and the walls were covered in mould. The cell was infested with mice and lice. There were no household appliances like a kettle or microwave. Nor were there any beds or bedside cabinets as shown by the State Prisons Service on television (see paragraph 45 above). Ms Sa. specified that in fact none of the detainees had ever been held in the cell presented by the authorities on television. There was no hot water and the pressure in the cold water taps was so low that inmates had to store water for their own use. Furthermore, the SIZO administration did not provide them with any tableware. Their daily walk lasted only twenty minutes and took place in a small walking area covered with bars. Furthermore, according to Ms Sa., the food in the SIZO was neither fresh nor tasty. Lastly, she stated that she had been shackled to her bed when undergoing some treatment in the maternity hospital in Kharkiv while pregnant. 50. On an unspecified date Ms Ve., who had also shared cell no. 408 with the first applicant (the exact period is unknown), wrote a statement about the conditions of detention there. Her description was similar to that given by Ms Sa. as regards the leaking toilet, high humidity levels, lack of hot water and irregular supply of cold water, as well as the duration and conditions of the daily outdoor walks and poor nutrition. 51. On 25 May 2012 the applicants were discharged from the maternity hospital. The second applicant was found to be in good health. 52. According to a letter from its chief doctor to the first applicant’s lawyer dated 12 December 2012, on 25 May 2012 the second applicant was transferred to Children’s Hospital no. 19 (“the children’s hospital”). All the other relevant documents in the case file indicate that on 25 May 2012 both applicants were taken to the Kharkiv SIZO. 53. As submitted by the first applicant and noted in a letter by the chief doctor of the children’s hospital to the first applicant’s lawyer dated 6 September 2012, a paediatrician from that hospital had examined the second applicant on 28 May 2012. The baby was found to be in good health but to have phimosis (a condition of the penis where the foreskin cannot be fully retracted). 54. However, according to the second applicant’s medical file kept by the SIZO, the first time a paediatrician of the children’s hospital examined him was on 31 May 2012. He was found to be in an adaptation period and the first applicant received advice regarding childcare. 55. According to the second applicant’s medical file, on 12 June 2012 he was examined again by a paediatrician, who diagnosed him with intestinal colic and recommended Espumisan, massage, feeding on demand and outdoor walks. The doctor also suspected that the boy had a patent (open) foramen ovale (PFO; the foramen ovale allows blood circulation in the fetal heart and closes in most individuals at birth). 56. The second applicant’s next medical examination appears to have taken place on 20 July 2012. It was noted in his medical file that the paediatrician had given advice to the first applicant regarding feeding and care. 57. The first applicant denied that any of the examinations following that on 28 May 2012 had taken place. She alleged that her baby had not been examined by a paediatrician until 10 September 2012. She submitted that the records of her son’s earlier examinations in the medical file had been forged. According to her, the first page of that book referred to an examination on 10 September 2012, whereas the records of his earlier examinations had been written on separate pages and subsequently glued into the file. The case file as it stands before the Court contains a separate copy of each page of the file, which makes it impossible to verify the first applicant’s allegation. 58. On 28 August 2012 the first applicant’s lawyer asked the Kharkiv SIZO administration to provide him with details of when the second applicant had been examined by a paediatrician and whether the conditions of detention had been appropriate for such a small baby. He also requested copies of the relevant documents. 59. On 4 September 2012 the SIZO administration replied that it would be able to provide comprehensive information on the second applicant’s health after a complete medical examination in the children’s hospital, which was due to take place. 60. On 31 August 2012 the first applicant asked the judge dealing with her case to order a medical examination of her son “given that the SIZO administration [was] ignoring her requests to that effect”. It appears that her request was rejected. 61. On 6 September 2012 the chief doctor of the children’s hospital wrote to the first applicant’s lawyer in reply to an enquiry by him dated 5 September 2012. He said that with no paediatrician at the Kharkiv SIZO, a paediatrician from that hospital monitored babies born there. He also indicated that the second applicant had been examined by the hospital paediatrician on 28 May 2012 (see also paragraph 53 above). In so far as the lawyer enquired about the baby’s medical condition at the material time, the chief doctor stated that it was impossible to provide him with such information because the first applicant had not requested any medical care for him until then. 62. On 10 September 2012 a dermatologist, cardiologist, ear, nose and throat specialist, neurologist and paediatrician all examined the second applicant. He was found to have allergic dermatitis, dysplastic cardiomyopathy and phimosis. Furthermore, the patent foramen ovale diagnosis had been called into question (see paragraph 55 above). The doctors concluded that the second applicant did not require any medical treatment, but recommended that the mother follow a hypoallergenic diet. 63. According to the first applicant, the examination was carried out in the context of custody proceedings initiated by the second applicant’s stepfather. She specified that it had been done with her consent so that the second applicant could be taken from the SIZO, where he was not receiving adequate care. 64. On 14 September 2012 the SIZO sent a copy of the second applicant’s medical file to the applicants’ representative, further to a request made by him on 28 August 2012 (see paragraph 58 above). 65. On 18 October 2012 the chief doctor of the children’s hospital wrote to the first applicant’s lawyer, in reply to an enquiry made on 10 October 2012, to say that hospital was in charge of the medical supervision of children in the Kharkiv SIZO where needed, subject to the SIZO administration making the relevant application. It was also noted that the second applicant required an additional examination in the regional cardiology centre, and that the children’s hospital had already requested the SIZO administration’s cooperation in that regard. 66. On 19 October 2012 a paediatrician and a cardiologist examined the second applicant again. He was diagnosed with a patent foramen ovale (a heart condition, see paragraph 55 above for further details) and an additional examination was recommended. 67. On the same date the second applicant underwent an echocardiogram and was found to be healthy. 68. On 14 November 2012 the first applicant refused to allow her son to undergo a paediatrician examination, which she had been offered. 69. The following day the first applicant was released (see also paragraph 75 below). 70. On 30 November 2012 the first applicant’s lawyer enquired with the children’s hospital whether it had kept a medical file in respect of the second applicant and whether he had been vaccinated during his stay with the first applicant in the SIZO. 71. On 4 December 2012 the chief doctor replied that the children’s hospital provided medical care to children residing permanently in its catchment area. As regards children residing there temporarily, a written application by one of the parents was required. The first applicant had never submitted such an application. Accordingly, the hospital had not opened a medical file in respect of the second applicant. At the same time, its doctors had examined him when requested by the SIZO administration. The results of each examination had been reflected in the medical file provided by the SIZO. In so far as the second applicant’s vaccinations were concerned, it was noted that he had always been brought for examinations without his mother, and without her consent no vaccinations had been given. 72. On 12 April, 17 May, 15 June, 2 and 31 August and 15 November 2012 the first applicant participated in court hearings, during which she was held in a metal cage. Her requests not to be placed in a cage were rejected. 73. On 14 March 2013 the judge of the Dzerzhynskyy Court, who had been in charge of the first applicant’s case, wrote to the Agent of the Government, in reply to the latter’s request, to say that the first applicant had indeed been held in a metal cage in the courtroom during hearings. The judge emphasised that it was a legal requirement to place criminal defendants in a metal cage and there were no exceptions to this rule. Furthermore, he considered that allowing the first applicant to remain outside the cage in the courtroom would have been equal to her temporary release, contrary to the custodial preventive measure applied. 74. On 15 March 2013 the Ministry of the Interior confirmed once again to the Agent of the Government that the first applicant had been held in a metal cage in the courtroom during hearings. It further specified that the second applicant had remained with the SIZO medical specialist outside the cage and had been passed to her for breastfeeding when requested. 75. On 15 November 2012 the first applicant was released on an undertaking not to abscond. 76. On 25 December 2012 she complained to the Kharkiv Regional Prosecutor’s Office that she had been shackled to her bed in the maternity hospital at all times, including during the delivery. She also complained that the conditions of detention and nutrition in the SIZO had been inadequate. Lastly, the first applicant alleged that the statement she had written on 12 November 2012 expressing her satisfaction with the conditions of detention had been made under psychological pressure (see paragraphs 17 and 41 above). 77. On 27 December 2012 the State Prisons Service completed the internal investigation it had undertaken following the media coverage of the applicants’ case (see paragraph 45 above). The first applicant’s allegations were dismissed as unsubstantiated. 78. On 2 January 2013 the first applicant complained to the Kharkiv Zhovtnevyy District Prosecutor’s Office (“the Zhovtnevyy Prosecutor’s Office”) that she had not been provided with adequate medical care during her pregnancy and the delivery; that she had been shackled by her wrists and feet to a gynaecological examination chair or her bed in the maternity hospital at all times, including during the delivery; that the conditions of her detention in the Kharkiv SIZO had been poor; and that neither she nor her baby had received adequate medical care there. On the same date her complaint was registered in the Integrated Register of Pre-trial Investigations and the investigation was started. 79. On 18 January 2013 the Zhovtnevyy Prosecutor’s Office ordered a forensic medical examination of the case material with a view to establishing: (i) whether the first applicant had any injuries and, if so, how they had been caused; (ii) whether there was any forensic medical evidence that the first applicant had been handcuffed or shackled between 26 January and 15 November 2012; (iii) whether there was any forensic medical evidence that the applicants had not been provided with adequate or sufficient medical care in the Kharkiv SIZO; (iv) whether there was any forensic medical evidence that the applicants had not been provided with adequate or sufficient medical care in the maternity hospital; and (v) if the applicants had not received adequate or sufficient medical care, whether this had had any negative impact on their health. 80. The aforementioned examination continued from 18 January to 26 March 2013. The answers in the report to all five questions were negative. 81. On 1 April 2013 the Zhovtnevyy Prosecutor’s Office discontinued the criminal investigation for lack of evidence of a criminal offence. 82. Also in April 2013 the State Prisons Service, following an enquiry by the Government’s Agent, undertook an internal investigation as regards the lawfulness of the second applicant’s detention in the SIZO. On 22 April 2013 it was completed, with the conclusion that there had been no violation. It was noted in the report that, although in August 2012 the first applicant had verbally expressed her intention to transfer the custody of her baby to her mother, she had later changed her mind as she had been breastfeeding.
| 1 |
test
|
001-183386
|
ENG
|
ROU
|
COMMITTEE
| 2,018 |
CASE OF SIDEA AND OTHERS v. ROMANIA
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
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4. The facts, as submitted by the parties, are similar to those in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, § 12-41, 24 May 2011). 5. The applicants or their close relatives participated in demonstrations and were injured or killed by gunfire during the events of December 1989 in Bucharest, Brașov and Vișina which led to the fall of the communist regime. 6. In 1990 the military prosecutor’s offices from several cities opened criminal investigations into the use of violence against the demonstrators, including the applicants’ injury or their close relatives’ death during these events. The main criminal investigation was recorded in file no. 97/P/1990 (current no. 11/P/2014). In a number of cases the prosecutor decided between 1991 and 1996 not to open an investigation or to discontinue the proceedings. These cases were further examined in the main criminal investigation file irrespective of a formal decision ordering re-opening, applicants being questioned by the prosecutor and raising civil claims, according to the circumstances of each case. 7. The most important procedural steps were described in Association “21 December 1989” and Others (cited above, §§ 12-41), and also in Ecaterina Mirea and Others v. Romania (nos. 43626/13 and 69 others, §§ 6-15, 12 April 2016). Subsequent relevant domestic decisions are shown below. 8. On 14 October 2015 the military prosecutor’s office closed the main investigation, finding that the complaints were partly statute-barred, partly subject to an amnesty, and partly ill-founded. It also found that some of the occurrences could not be classified as offences and some were res judicatae (see Anamaria-Loredana Orășanu and Others v. Romania [Committee], no. 43629/13, § 11, 7 November 2017). 9. The decision of 14 October 2015 was annulled by a Prosecutor General’s decision of 5 April 2016, confirmed by the High Court of Cassation and Justice on 13 June 2016. It was noted that the investigation in file no. 11/P/2014 was incomplete and that the facts could not be established based on the evidence gathered up to that date. 10. On 1 November 2016 the military prosecutor ordered the initiation in rem of a criminal investigation for the offence of crimes against humanity in respect of the same circumstances of fact. Up to February 2017 further steps were taken in gathering information from domestic authorities, the prosecutor’s office contacting 211 civil parties, questioning members of the political party which took over the presidency at the time of events, planning the hearing of military officers and other participants in the events, verifying the activity of the relevant military units and the audio/video recordings broadcast by radio and television. 11. At the date of the latest information available to the Court (submitted by the parties on 13 April 2017 and 19 May 2017), the criminal investigation was still ongoing.
| 1 |
test
|
001-185031
|
ENG
|
UKR
|
COMMITTEE
| 2,018 |
CASE OF BONDARENKO 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 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonably necessary to prevent fleeing;Reasonably necessary to prevent offence);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
|
Yonko Grozev;Gabriele Kucsko-Stadlmayer
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-166748
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF RUDENKOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
4. The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-163671
|
ENG
|
GEO
|
CHAMBER
| 2,016 |
CASE OF MERABISHVILI v. GEORGIA
| 3 |
No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);No 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 5-3 - Reasonableness of pre-trial detention);Violation of Article 18+5-1 - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5 - Right to liberty and security;Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;Egidijus Kūris;Iulia Motoc;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
|
5. The applicant was born in 1968 and is currently detained in a prison in Tbilisi. 6. Prior to the parliamentary election of 1 October 2012, which resulted in a change of power, the applicant, one of the leaders of the then ruling party, the United National Movement (UNM), exercised, for several months in 2012, the function of Prime Minister of Georgia. Prior to that, between 2005 and 2012, he had held the post of Minister of the Interior. 7. After the political coalition Georgian Dream had won the parliamentary election of October 2012 and formed a new government, the applicant was elected Secretary General of the UNM, which became the major opposition force in the country. 8. Between 1 November 2012 and 21 May 2013, the date when he was charged with criminal offences and arrested (see paragraph 17 below), the applicant had made five business trips from Georgia to various foreign countries, always returning as scheduled. 9. On 30 November 2012, when travelling from Georgia to Armenia to attend an international seminar of the European People’s Party, the applicant attempted to cross the Georgian State border at Tbilisi International Airport using an allegedly fake international passport. 10. After registering the passport in the relevant electronic database, an officer of the Border Police of the Ministry of the Interior of Georgia, Z.D., noticed a discrepancy between the photograph in the passport, which fully matched the applicant’s appearance, and the other data in the travel document, including the name of “Levan Maisuradze”, which differed from the identity information stored about the applicant in the electronic database. The police officer returned the problematic passport to the applicant’s personal assistant, requesting clarification. The assistant immediately brought from the applicant’s office another passport which was issued in the latter’s real name and matched all his other identification data. After checking the authenticity of that second travel document, the applicant was allowed to cross the Georgian border. 11. The same day, 30 November 2012, a criminal investigation was launched by the Border Police of the Ministry of the Interior into the abovementioned incident. The Chief of the Border Police immediately went to Tbilisi airport to interview the officer, Z.D., who had discovered the allegedly fake passport in the applicant’s possession, in person. As subsequently established by the investigation and confirmed by a number of witnesses, when present at the airport the Chief of the Border Police suddenly received a call from the applicant on his mobile phone. The latter attempted to exert pressure on the Chief by using his status and long-standing personal connections within the hierarchy of the Ministry of the Interior. The applicant demanded categorically that no inquiry be conducted with respect to the incident with the passport and that officer Z.D. never be called to testify as a witness. According to statements subsequently given to the investigation by the Chief of the Border Police, the applicant made career and personal threats and used obscene language during their telephone conversation. 12. Interviewed on 1 and 7 December 2012 by investigators from the Ministry of the Interior with respect to the incident, the applicant denied presenting to the Border Police a passport under the name of “Levan Maisuradze”, and stated that he possessed only four passports, two ordinary ones and two diplomatic travel documents, all of them issued under his real name. 13. On 13 December 2012 a new set of criminal proceedings for embezzlement and abuse of official authority were launched against the applicant and the Governor of the Kakheti Region. They both duly appeared before the Chief Public Prosecutor’s Office (“the CPPO”) on the same day, and were interviewed as witnesses. 14. On 18 January 2013 a third set of criminal proceedings was instituted at the Prosecutor’s Office of the Ajarian Autonomous Republic in respect of another instance of abuse of official authority allegedly committed by the applicant. 15. On 13 February 2013 the applicant and the Governor of the Kakheti Region were examined as witnesses in the context of the second set of the criminal proceedings. 16. On 20 May 2013 all three of the above-mentioned sets of criminal proceedings (see paragraph 11, 13 and 14 above) were joined into one criminal case. 17. On 21 May 2013 the applicant and the Governor of Kakheti were summoned by the prosecution authority for another interview. At the end of that examination both were arrested. 18. The applicant’s arrest was linked to a suspicion that he had engaged in vote-buying (Article 164(1) of the Criminal Code), misappropriation of another person’s property (182 § 3 of the Criminal Code), abuse of official authority (332 of the Code of Criminal Procedure), and breach of inviolability of another person’s home (Article 160 of the Criminal Code). As confirmed by the relevant record, the arresting officer duly explained to the applicant, who was assisted by a lawyer of his choice, the nature of the above-mentioned charges against him, as well as his procedural rights. The applicant was also briefed on the reasons for his arrest. Notably, that there existed risks that he, as a particularly influential person who had held several high-ranking State offices in the past, might negatively influence the progress of the investigation, and that, having regard to his previous attempt to cross the State border with a fake travel document, he might abscond from the trial. 19. On the same day, 21 May 2013, the applicant’s wife left Georgia. A judicially authorised search of the applicant’s apartment was conducted later the same day, the results of which confirmed the discovery of large sums of money in cash (see the subsequent paragraph). 20. On 22 May 2013 the prosecutor in charge of the applicant’s case applied to Kutaisi City Court for pre-trial detention of the applicant as a preventive measure. The prosecutor first gave arguments in support of the risk that the applicant would abscond. Thus, because he had held the posts of Minister of the Interior and Prime Minister of the country in the past, he had formed a broad and extensive personal network within the country and abroad. The applicant possessed two valid diplomatic passports under his real name, and those travel documents allowed him to use simplified procedures for entering any foreign country as well as other privileges reserved for diplomats. Furthermore, it appeared that the applicant also had a false passport (see paragraph 10 above). Moreover, the prosecutor continued, the fact that the applicant’s spouse had hurriedly left Georgia on 21 May 2013, after the applicant had been summoned by the investigating authority, also gave rise to a suspicion that the applicant might aim to join his wife outside the country. The prosecutor also emphasised the fact that during a search of the applicant’s apartment on 21 May 2013, large amounts of money in cash – 54,200 euros (EUR), 33,100 United States dollars ((USD, some EUR 28,560) and 29,000 Georgian laris (GEL, some EUR 11,270) – were discovered, which fact further substantiated the suspicion that the applicant might have been preparing to flee the country. 21. The prosecutor then enumerated arguments in support of the claim that the applicant might hamper the investigation. Again, given that the applicant had held various high-ranking State posts, he had therefore directed and supervised numerous State agents employed in various public agencies. Considering that the impugned offences were closely related to his past activities in public office, and the fact that the majority of the important witnesses had worked under the applicant’s hierarchical subordination, there was a well-substantiated risk that the applicant might influence those people. The prosecutor’s argument was confirmed by reference to the incident of 30 November 2012, when the applicant had managed to identify the mobile phone number of the Chief of the Border Police, placed a call and exerted pressure on the latter in a rude and obscene manner by uttering personal and career threats (see paragraph 11 above). 22. By a decision of 22 May 2013 the Kutaisi City Court, after holding an oral hearing with the participation of both the co-accused and their lawyers, decided to release the Kakheti Governor on bail, the amount of which was fixed at GEL 20,000 (some EUR 7,770), and to remand the applicant in custody. Article 205 of the Code of Criminal Procedure was mentioned as the legal basis for imposition of the detention in the reasoning part of the decision. 23. As to the grounds confirming the necessity of the detention measure, the Kutaisi City Court stated that it accepted the prosecution authority’s arguments concerning the risks of absconding and impeding the course of the investigation (see paragraphs 20 and 21 above). Whilst acknowledging that the applicant had proved to be cooperative with the investigation by appearing for interviews, the City Court stated that he could nevertheless use his prominent social position, which emanated from the fact of his having held various high-ranking posts in the past, to hamper the investigation process. The court emphasised that the witnesses who were to be examined had been or still remained under the applicant’s direct hierarchical authority and personal influence. The City Court further specifically noted in that respect that the applicant had already been suspected of an attempt to influence the specific witnesses, the Chief of the Border Police and officer Z.D., within the context of the ongoing criminal proceedings (see paragraph 11 above). 24. In its decision of 22 May 2013, the Kutaisi City Court indicated, pursuant to Article 208 of the CCP, that a pre-trial conference would open on 15 July 2013. 25. The applicant appealed against the decision of 22 May 2013, complaining that the imposition of the pre-trial detention had been unreasonable because the Kutaisi City Court had failed to refer to any specific evidence or arguments in support of the supposed risks of hampering the investigation or absconding the trial. 26. By a decision of 25 May 2013, the Kutaisi Court of Appeal dismissed the applicant’s appeal as ill-founded, confirming that the lower court had correctly assessed the relevant factual circumstances and applied the legal provisions. 27. On 2 July 2013 the prosecutor asked the Kutaisi City Court to postpone the opening of the pre-trial conference until 11 September 2013. The prosecutor substantiated his application by the need for certain additional specific investigative measures to be conducted. Both the applicant, represented by three lawyers, and the co-accused Kakheti Governor agreed with that application in part. By a decision of 5 July 2013 the Kutaisi City Court granted the request in part, postponing the date until 23 August 2013. 28. On 12 August 2013 the applicant’s lawyers sought a further postponement of the pre-trial conference. They argued that the case file was voluminous and more time was needed for the preparation of the defence. The prosecutor objected, indicating that the applicant was attempting to protract the proceedings and leave less time for an examination of the case on the merits. The City Court satisfied, on 14 August 2013, the applicant’s request in full, and a new date for the pre-trial conference was set for 12 September 2013. 29. On 12 September 2013 the Kutaisi City Court opened the pre-trial conference. 30. According to a record of a subsequent session of the pre-trial conference held on 25 September 2013, the applicant asked for his pre-trial detention to be replaced by a non-custodial measure of restraint. In support, he referred to the prosecution authority’s failure to indicate any new arguments arguably capable of substantiating the risks of absconding or impeding the investigation. As additional guarantees for his appearance for trial, the applicant referred to the fact that he was the Secretary General of a major political party, that he had made a public pledge to cooperate with the authorities, and that he had never failed to appear before the investigating authorities in the past. As further revealed by an audio record of the relevant court hearing, the applicant argued that his continued detention was no longer necessary, as all the witnesses had already been questioned by the investigating authority. The prosecution authority replied that since the witnesses still had to testify before the trial court, the risk that the accused would exert undue pressure on them was still present. The authority reminded the City Court of the incident with the fake passport, when the applicant had managed to threaten a high-ranking officer of the Border Police (see paragraph 11 above). 31. The applicant’s request for the termination of the pre-trial detention was examined and rejected by the Kutaisi City Court on the same day, 25 September 2013. Thus, the court, after hearing the parties’ arguments, announced its decision orally, for the audio record. As disclosed by that record, the judge briefly stated, without giving any explanation, that the “request for the termination of the pre-trial detention should be rejected”. 32. By a judgment of 17 February 2014, the Kutaisi City Court convicted the applicant of the majority of the charges brought against him. Thus, he was found guilty of vote-buying (Article 164 § 1 of the Criminal Code), misappropriation of another person’s property in a large amount (Article 182 §§ 2 (a), (d), and 3 (b) of the Criminal Code on several counts), and breach of inviolability of another person’s home (Article 160 § 3 (b) of the Criminal Code). As regards the offence of abuse of official authority (Article 332 § 2 of the Criminal Code), it was dismissed by the court as redundant. The applicant was sentenced to five years’ imprisonment. 33. On 21 October 2014 the Kutaisi Court of Appeal upheld the applicant’s conviction of 17 February 2014 in full. According to the file as it stands to date, the applicant lodged a further appeal on points of law, and the ensuing proceedings are currently pending before the Supreme Court. 34. According to the applicant’s addendum to the case file after the communication of the present case, on 14 December 2013, at approximately 1.30 a.m., he was unexpectedly removed from his prison cell. The accompanying prison guards covered his head with a jacket, put him into a car, and drove him to an unknown destination. The journey lasted some ten minutes, after which he was escorted into a building. When he was brought inside one of the rooms the guards took the jacket off his head, and he saw two people. One of them was allegedly the Chief Public Prosecutor, O.P., and the other was the head of the prison authority, D.D. 35. According to the applicant, the Chief Prosecutor offered him a bargain during that meeting. Notably, the applicant was invited to reveal the “truth” about the circumstances surrounding the death of the former Prime Minister Zurab Zhvania on 3 February 2005 (who, according to an official version of the events, had died in a rented flat from carbon monoxide poisoning caused by an inadequately ventilated gas heater) and, in addition, to provide information about secret offshore bank accounts of the former President of Georgia. The applicant turned down the deal, describing O.P.’s suggestions as a conspiracy theory and nonsense. In reply, the Chief Prosecutor allegedly threatened the applicant that his detention conditions would worsen if he did not agree to cooperate with the authorities. The applicant was returned to his prison cell at around 3 a.m. 36. On 17 December 2013, during a public hearing before the Tbilisi City Court, which was already examining the merits of the criminal case against the applicant in the presence of the prosecuting authority and media representatives, the applicant made a statement about what had happened on 14 December 2013. He described in detail his night-time conversation with the Chief Public Prosecutor. 37. On the same day the Prime Minister of Georgia publicly commented that the applicant’s allegations of the night removal from prison for a meeting with the Chief Prosecutor were a sheer lie, that no investigation would be launched in that respect, and that the applicant should instead “consult a psychiatrist”. Subsequently, paraphrasing another public person’s comment, the Prime Minster made the following remark: “After all, what was this story of abducting [the applicant] from the prison all about? Did [the Chief Public Prosecutor] rape him or what?’” In the same vein, the Chief Public Prosecutor’s Office issued an official statement condemning the applicant’s allegations as “untrue” and “absurd”. 38. On 18 December 2013 the Minister of Prisons publicly stated that “[the applicant] was not taken out of the prison ... No investigation has been launched into such frivolous allegations.” The Minister added that recordings made by the prison surveillance systems, which could shed light on whether or not the latter had been taken out of and returned to his cell at the specified times on 14 December 2013, could be made public only if a criminal probe was launched in respect of the applicant’s allegation. 39. On the other hand, certain other high State officials, such as the President of the Parliament and the Minister of Justice, acknowledged, in the immediate aftermath of the incident of 14 December 2013, that there was a need to launch a thorough and impartial criminal investigation into the issue. On 19 December 2013 the Public Defender of Georgia visited the applicant in prison, where they discussed in detail the incident of 14 December 2013. After the meeting, the Defender made a public statement about the necessity to launch a criminal investigation in order to clarify all the facts, and emphasised that the applicant would be ready to cooperate. 40. On 20 December 2013 the applicant made a formal request to the Ministry of Prisons, of which the Chief Public Prosecutor’s Office and the Tbilisi City Court were also informed, for the video footage from the prison surveillance system covering the night of 14 December 2013 to be provided to his lawyer. Those recordings would prove the need for a criminal investigation into his unlawful removal from the prison on that night. 41. On 15 January 2014 the Public Defender again called upon the authorities to investigate the applicant’s allegations. On the same day the Minister of Prisons stated that the recordings from the surveillance system of the applicant’s prison covering the night of 14 December 2003 could no longer be extracted as they had automatically been deleted within twentyfour hours after being recorded. 42. On 6 March 2014 the applicant submitted a question to the Chief Public Prosecutor’s Office about whether or not a criminal investigation had been launched into the incident of 14 December 2013. On 14 April 2014 the prosecutorial authority informed the applicant that an internal probe carried out by the General Inspection Unit of the Ministry of Prisons had not confirmed the applicant’s alleged irregular removal from the prison. No further details about that probe were given. 43. On 10 May 2014 a Member of Parliament published certain documents showing that high bonuses were paid in December 2013 to a number of officers of the prison where the applicant was detained. The parliamentarian suggested that those officers were financially rewarded for their association with the applicant’s removal from the cell. 44. On 19 May 2014 L.M., a chief advisor to D.D., the Head of the Prisons Department, made a public statement confirming the truthfulness of the applicant’s allegations. She stated: “[E]ven a child knows that [the applicant] was taken from his prison cell by D.D.”. She further stated that she had been in contact with a number of agents of the Prisons Department who had confirmed to her, in private conversation, that they had been instructed by D.D. to hide surveillance camera recordings covering the night of 14 December 2013. 45. On the following day, 20 May 2014, D.D. dismissed L.M. from her position. A few days later, on 23 May 2014, he himself resigned from the post of head of the prison authority. 46. The applicant submitted numerous newspaper articles containing interviews with various high-ranking officials of the current regime in the country (two successive prime ministers, various ministers, Members of Parliament from the ruling coalition, and so on) as a proof that there was politically motivated persecution against him. He also referred to a number of official statements issued by the international community, which conveyed concern over the initiation of criminal proceedings and arrests of a number of former high-ranking Government officials, including the applicant. 47. Thus, for instance, the President of the European Commission made a public statement on 12 November 2012, after his meeting with the Prime Minister of Georgia, which included the following passage: “The elections in Georgia were successfully held, and they were recognised as free and fair ... Democracy is more than elections, it is the culture of political relations in democratic environment. In this respect, situations of selective justice should be avoided as they could harm the country’s image abroad and weaken rule of law.” 48. The European Union High Commissioner for Foreign and Security Policy publicly declared during her visit to Georgia on 26 November 2012 the following: “The European Union calls on all sides in Georgian politics to uphold European values of democracy, freedom and the rule of law. There should be no selective justice; no retribution against political rivals. Investigations into past wrongdoings must be, and must be seen to be, impartial, transparent and in compliance with due process.” 49. As an additional proof that the current Government was engaged in persecution of its political opponent, the applicant referred to the following excerpt from a Resolution adopted by the Parliamentary Assembly of the Council of Europe (PACE) on 1 October 2014: “It has to be noted that two years on, almost the entire leadership of the former ruling party has been arrested or is under prosecution or investigation: former Prime Minister and UNM Secretary General, [the applicant], former Defence Minister, [B.A.], and former Tbilisi mayor and UNM, campaign manager, [G.U.], are in prison (pre-trial detention). The judicial authorities have charged the former President, [M.S.], and ordered pre-trial detention in absentia, as well as for former Minister of Defence, [D.K.], and former Minister of Justice, [Z.A.].” 50. On 12 May 2014 the Commissioner for Human Rights of the Council of Europe published a Report on his visit to Georgia which had taken place from 20 to 25 January 2014. Included in an array of various problematic human rights issues affecting the country the Commissioner also addressed the allegations of undue criminal prosecution of members of the former ruling party, the UNM. The relevant excerpt from the Report as emphasised by the applicant, which passage made a separate reference to the incident of 14 December 2013, reads as follows: “37. The cases of [the applicant], [B.A.], and [G.U.] – all of them members of or associated with the UNM – were discussed by the Commissioner during his visit. [The applicant] was formerly Prime Minister and Secretary General of the UNM at the time of his arrest on 21 May 2013. He has alleged that on 14 December 2013, he was taken away blindfolded from the prison by unknown individuals and brought to the Penitentiary Department of the Ministry of Corrections where he was threatened by the then Chief Prosecutor ... Human rights NGOs have called for an investigation into the foregoing allegations and expressed concerns that the internal inquiry by the Ministry of Corrections failed to clarify the situation and raised more questions, including regarding the unavailability of video footage from surveillance cameras in the prison. In this regard, the Ministry indicated to the Commissioner that due to the fact that [the applicant] made his complaint only on 17 December – three days after the alleged events – the video footage was unavailable because it was automatically overwritten every 24 hours.” 51. Then, in the relevant concluding part of the Report, the Commissioner made the following call upon the Georgian authorities with regard to the above-mentioned allegations of unduly motivated criminal proceedings: “41. The Commissioner wishes to underline that the judicial system should be sufficiently resilient so that its proper functioning is not disrupted by the transfers of power which are characteristic of any true democracy. The persistence of allegations and other information indicative of deficiencies marring the criminal investigation and judicial processes in cases involving political opponents are a cause for concern, as this can cast doubt on the outcome of the cases concerned even when there have been solid grounds for the charges retained and the final convictions. The Georgian authorities must address these issues at the systemic level, in the interests of respecting fair trial guarantees for everyone and in enhancing public trust in the institutions responsible for upholding the law.” 52. In support of his claim of undue political motivation behind the initiation of the criminal proceedings against him, the applicant also referred to a Report published on 9 December 2014 by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) on its trial monitoring activities in Georgia. The ODIHR had started the relevant trial monitoring project in February 2013, focusing on the follow-up of fourteen sets of criminal proceedings unrelated to each other, conducted against senior officials of the previous government, which included the applicant’s criminal case. After having identified, through the prism of all fourteen criminal cases, a number of shortcomings with respect to the fair trial guarantees – such as the principle of equality of arms between parties, the presumption of innocence, the perception of undue influence on the prosecution authority by the executive branch of power, and the unreasonable use of preliminary detention – the ODIHR Report made a number of recommendations to the Georgian authorities on how to improve the system of criminal justice in general. 53. On 18 December 2014 the European Parliament adopted a Resolution on the endorsement of the Association Agreement between the European Union and Georgia. An excerpt from that Resolution, cited by the applicant himself in support of his claim, read as follows: “[European Parliament] expresses concern that numerous officials who had served under the previous government and some members of the current opposition have been charged with criminal offences and are imprisoned or placed in pre-trial detention; expresses concern, also, about the potential, use of the judicial system to fight against political opponents, which could undermine the efforts of the Georgian authorities in the area of democratic reform; recalls that the existence of a valuable political opposition is paramount to the creation of a balanced and mature political system, to which Georgia is aspiring.” 54. Lastly, the applicant referred to the relevant excerpts from the Resolution on Abuse of Pre-trial Detention in States Parties to the European Convention on Human Rights adopted by the PACE on 1 October 2015. These passages read as follows: “7. The following abusive grounds for pretrial detention have been observed in a number of States Parties to the European Convention on Human Rights, namely: 7.1. to put pressure on detainees in order to coerce them into confessing to a crime or otherwise co-operating with the prosecution, including by testifying against a third person (for example the case of Sergey Magnitsky, in the Russian Federation, and certain cases of opposition leaders in Georgia, such as former Prime Minister, [the applicant]); 7.2. to discredit or otherwise neutralise political competitors (for example, certain cases of United National Movement (UNM) leaders in Georgia); ... 11. The root causes of the abusive use of pretrial detention include: ... 11.4. the possibility of “forum shopping” by the prosecution, which may be tempted to develop different strategies to ensure that requests for pretrial detention in certain cases are decided by a judge who, for various reasons, is expected to be “accommodating” (for example in Georgia, the Russian Federation and Turkey).” 55. Subsequent to the communication of the present case, the applicant informed the Court for the first time that four additional sets of criminal proceedings had been launched against him. Those new criminal cases were not linked in any manner to the main set of the criminal proceedings which had served as the basis for the imposition of the pre-trial detention initially contested by the applicant in the present case (see paragraphs 3 and 8-33). 56. In particular, on 28 May 2013 a charge of exceeding of official powers through the threat or use of force (Article 333 § 3 (b) of the Criminal Code) was brought against the applicant in relation to his role, in his capacity as Minister of the Interior, in the planning and supervision of a violent dispersal of a peaceful demonstration by police forces on 26 May 2011. By a judgment of 27 February 2014, the Tbilisi City Court, having established the fact that the applicant had directly given an order to the police forces to dislodge the demonstrators with an excessive use of force, convicted him of the offence. On 11 August 2014 the Tbilisi Court of Appeals upheld the judgment of the first-instance court, and the proceedings are currently pending, according to the applicant’s latest submissions available in the case file, before the Supreme Court. 57. On 8 March 2014 CPPO brought new charges against the applicant under Article 332 § 2 (abuse of authority by a high-ranking State official) and Article 341 (falsification of official records). That new criminal case related to the role of the applicant, in his capacity as Minister of the Interior, in the cover-up of a homicide case which had implicated a number of his close associates, high-ranking officers of the same Ministry, as well as his wife, back in 2006 (see Enukidze and Girgvliani v. Georgia, no. 25091/07, § 15 and onwards, 26 April 2011). On 20 October 2014 the Tbilisi City Court, having established that the applicant had personally contributed to perverting the course of the investigation in that homicide case, convicted the applicant of the two above-mentioned charges, and the criminal proceedings are currently pending before a court of higher jurisdiction. 58. On 28 July 2014 the applicant was charged with a new offence under Article 333 § 3 (b) of the Criminal Code in relation to his role as Minister of the Interior, in the planning and supervision of a police raid on a private television and radio company, Imedi Media Holding, on 7 November 2007 as well as of the subsequent unlawful removal of the broadcasting licence from the company (for more details, see Akhvlediani and Others v. Georgia (dec.), no. 22026/10, 9 April 2013). Finally, on 5 August 2014 yet another charge under Article 333 § 3 (b) of the Criminal Code was brought against the applicant. He was accused of ordering a number of high-ranking police officers to arrange for ill-treatment of a Member of Parliament in retribution for insulting and libellous statements the latter had publicly proffered against the wife of the President of Georgia. The latter two sets of criminal proceedings are, according to the applicant’s latest factual addendum, still pending before the trial court.
| 1 |
test
|
001-163647
|
ENG
|
POL
|
ADMISSIBILITY
| 2,016 |
MURA v. POLAND
| 4 |
Inadmissible
|
András Sajó;George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney
|
1. The applicant, Mr Tadeusz Mura, is a Polish national, who was born in 1957 and lives in Rybnik. He was represented before the Court by Ms A. Krasuska-Terrillon, a lawyer practising in Katowice. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant and his wife run a company which produces and sells construction materials. On 14 March 2005 the applicant’s wife was arrested and remanded in custody on charges of fraud and association with an organised crime group. The applicant and their children protested against the detention by organising demonstrations outside the prosecutor’s office and the prison, contacting the press and writing letters to the authorities. Following the arrest of his wife, the applicant’s family and financial situation deteriorated; their adolescent son underwent psychiatric treatment after a suicide attempt. The applicant’s wife was released on bail on 13 June 2005. In 2009 she was indicted and, according to information received by the Court in 2013 the criminal proceedings against her are still pending. 5. During his wife’s detention, the applicant wrote voluminous letters to her on a daily basis. In them he related the events of recent days in detail and urged his wife to be brave and withstand her situation. The letters contained assurances of his love for her and his trust in God, to whom he had been praying every day. The letters were also full of profanities and abuse directed against the authorities and, most particularly, against the prosecutor, R.P., whom he considered responsible for his wife’s incarceration. Some included passages addressed directly to R.P. or showed that the applicant had been aware that the letters would be read by the prosecutor. In his letters the applicant admitted that he felt angry and full of hatred towards the prosecutor. On few occasions he apologised to his wife for it. It also appears that in her letters to him his wife complained about such behaviour. 6. The applicant often took the letters, addressed to his wife at the Lubliniec Prison, directly to the Registry of the Katowice Appellate Prosecutor in order to speed up their delivery. He must have known that all the letters addressed to his wife were censored by the prosecutor’s office. On at least one occasion he apologised for the fact that a passage of his letter to his wife had not been addressed to her. 7. For instance, in the applicant’s letter to his wife of 30 April 2005 he alleged that the prosecutor made copies of their letters in order to masturbate when aroused by the private passages that they contained. He also stated: “I guess his father must have had syphilis to have made such a product (forgive me)”. Another passage from the letter read: “I love you and I miss you. And with every minute my hatred towards this son of a bitch is growing. I curse him every day, I made myself a doll [resembling him] and I put nails in it every day ... I see the harm being caused to our children and I curse him every day and I hope with all my strength that my cursing will have an effect.” In his letter of 12 May 2005 the applicant referred to R.P. as a prat (dupek), an idiot (debil) and a bandit. He stated: “Our victory will be great. This prat knows that his time is over. The idiot thought that he could lock up innocent people and secure his promotion on this account. But this prat is simply stupid.” In a letter of 20 May 2005 the applicant spoke of their son’s health problems, which had led to his hospitalisation in Kraków. He then stated: “I know you were brave during the [identification parade at the police station] and according to the witnesses that fool (palant) P. was stoned. There was no contact with him. He was clearly stoned. Even the police officers confirmed it. I think that prat is almost finished. I have talked about this case with journalists from the Polish Television and they are going to go after him (the son of a bitch) ... I hope he ends up in prison ... and his friends from the mafia (key witnesses) will be wiping his arse. And if human justice fails to reach him, he cannot escape God’s.” 8. On an unspecified date the Katowice Regional Prosecutor indicted the applicant under Article 226 of the Criminal Code, accusing him of insult of a public official, the Appellate Prosecutor Mr R.P. The latter participated in the proceedings and asked the court to proceed with the case also if the court considered that the offence was subject to private prosecution. 9. On 15 June 2007 the Katowice District Court convicted the applicant of insult (zniewaga) in breach of Article 216, rather than Article 226, of the Criminal Code, considering that the offence had not been committed during or in connection with the carrying out of professional duties by a public official. The applicant was fined 500 Polish zlotys (PLN), calculated as 50 daily rates, each equivalent to PLN 10. He was further ordered to pay the State Treasury PLN 900 for the costs of the proceedings. The court considered that, between April and May 2005, in his numerous letters to his wife, the applicant had used vulgar and insulting language about Mr R.P. In particular, the applicant had stated that the prosecutor had an IQ of below ten, had ridiculed the Polish judicial system and had a mental disorder. He also called him Satan, bastard, bandit, and stupid. The court noted that some of the insults were so vulgar that they should not be quoted in the reasoning of the judgment. The applicant had also stated that the prosecutor had cooperated with the mafia, had accepted money from criminals and had been protecting them. In one of the letters he alleged that the prosecutor had been under the influence of drugs at work. The court considered that the applicant’s statements contained no opinion or actual criticism of the prosecutor. The applicant’s intention was merely to debase the victim and insult him. His statements had not been provoked by any actions of the prosecutor. The court concluded that although the letters had never been published, it had been the applicant’s intention for the insults to reach Mr R.P. The applicant knew that all the letters addressed to his wife were subject to censorship, and thus would be read by Mr R.P. He took the letters directly to the prosecutor’s office and requested that they be censored as a priority. Moreover, in several letters the applicant addressed his insults directly to Mr R.P., stating for example “P., you bandit”. He would also apologise to his wife that parts of his letters were not in fact addressed to her. 10. The applicant and the prosecutor each lodged an appeal against the judgment. 11. On 19 February 2008 the Katowice Regional Court dismissed both appeals. The court upheld the findings and conclusions of the firstinstance court. The appellate court examined the case from the standpoint of Article 10 of the Convention and considered that the applicant had overstepped the limits of permissible criticism. 12. The applicant submitted that he had not been able to pay the fine owing to his difficult financial situation and that it had been commuted to imprisonment. The fine was in the end paid by the applicant’s daughter. 13. Article 216 of the Criminal Code, in so far as relevant, provides as follows: "1. Anyone who insults another person in his or her presence, or publicly in his or her absence, or with the intention that the insult will reach such a person, is liable to a fine or the restriction of liberty. 5. Prosecution is subject to the private procedure." 14. Article 226 § 1 of the Criminal Code, prohibiting insult of a public official, reads as follows: "Anyone who insults a public official, or a person assisting him or her, in the performance of his or her official duties or in connection with such duties is liable to a fine, the restriction of liberty or imprisonment of up to one year."
| 0 |
test
|
001-157757
|
ENG
|
BGR
|
CHAMBER
| 2,015 |
CASE OF ÜNSPED PAKET SERVİSİ SAN. VE TİC. A.Ş. v. BULGARIA
| 3 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Just satisfaction reserved (Article 41 - Just satisfaction)
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev
|
6. The applicant company runs logistics services. On 23 June 2007 one of the company’s lorries was stopped for inspection at the Yambol customs post. The Bulgarian authorities discovered and seized the following substances from the cabin and trailer: 500,060 tablets (with a total value of 24,584.2 Bulgarian levs (BGN) or 12,200 euros (EUR)); 3,564 grams of white tablets (with a total value of about EUR 40) which included ephedrine hydrochloride; and, 6,880 pills which included testosterone enanthate (with a total value of about EUR 15,000). The lorry was also seized as material evidence. Criminal proceedings were opened against the driver of the lorry. 7. On 26 June 2007 the applicant company, as the owner of the lorry, asked the Yambol Regional Prosecutor to return its vehicle. The prosecutor rejected the request on the grounds that the lorry had to be retained as material evidence until the end of the criminal proceedings (see paragraph 23 below). 8. On 3 August 2007 the applicant company again applied to the Yambol Regional Prosecutor’s Office asking that the lorry be returned in accordance with Article 111 of the Code of Criminal Procedure. In particular, the applicant company claimed that: there had been no hidden compartment in the lorry; the driver had abused his position; the holding of the lorry was no longer justified as a forensic expert report had already been prepared; the lorry’s value (around EUR 83,000) was over three times the value of the drugs and therefore the lorry could not be confiscated under Article 242 § 8 of the Criminal Code (see paragraph 16 below); and, lastly, the company faced significant losses because of the lorry’s seizure. At the time of this request the case file was no longer with the prosecution service as it had been transferred to the courts, so the Yambol Regional Prosecutor’s Office did not reply to the request. 9. In the meantime the lorry driver concluded a plea bargain agreement with the prosecutor. The terms of the agreement included a one-and-a-half-year prison sentence for the driver and the forfeiture of the lorry. 10. On 8 August 2007 the applicant company asked the criminal court competent to approve the plea bargain agreement not to confiscate its lorry. The applicant company emphasised in particular its inability to participate in the criminal proceedings against the driver and to state its position. It further pointed out that as the value of its lorry was three times higher than the value of the smuggled goods, according to the relevant national law the vehicle should not be forfeited (see paragraph 16 below). 11. On 14 August 2007 the Yambol Regional Court confirmed the plea bargain agreement in accordance with Article 382 § 7 of the Code of Criminal Procedure (see paragraph 22 below). In the agreement the driver confessed that he was guilty of smuggling under Articles 242 § 1 (d) and 242 § 3 of the Criminal Code and accepted the forfeiture of the transported drugs and the lorry under Article 242 §§ 7 and 8 of the Criminal Code. The decision was not subject to appeal and became enforceable on the same day. 12. On 26 May 2008 the applicant company brought proceedings before the Istanbul Second Enforcement Office (“the Office”) against the lorry driver, seeking damages. The Office found that the driver was liable to pay EUR 110,116.75 to the applicant company for the damage his actions had caused. However, the applicant company could not collect any of this amount as the lorry driver had no assets at the time.
| 1 |
test
|
001-159059
|
ENG
|
HUN
|
COMMITTEE
| 2,015 |
CASE OF BOTA AND OTHERS v. HUNGARY
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
3. The list of applicants, their representatives 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 and of the lack of any effective remedy in domestic law.
| 1 |
test
|
001-164193
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,016 |
M.R. AND OTHERS v. FINLAND
| 4 |
Inadmissible
|
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo
|
1. The applicants, Ms M.R. and her two minor children, are Iraqi nationals who were born in 1980, 2005 and 2008 respectively. They were represented before the Court by Ms Sini Ruutu, a lawyer practising in Helsinki. 2. The Finnish 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 mother is a Kurd from Kirkuk, Iraq, who escaped from Iraq with her husband and two children due to persecution. The applicants claimed that the husband had been threatened by the “Islamic State” for having denounced to the authorities persons who were in possession of firearms. He had subsequently received many death threats, for which reason the family was relocated elsewhere in Northern Iraq. Despite the internal flight, the persecution continued. The family fled first to Turkey, where their persecutors tried to kidnap the children. They then fled to Italy. 5. The applicant mother fell gravely ill after her second pregnancy in 2009. Both of her kidneys were removed and she received a kidney transplant. Due to a lack of proper medication, she was in very poor condition during their escape from Kurdistan and does not even remember being in Italy. 6. The applicants apparently arrived in Finland in July 2015 and sought asylum on 29 July 2015. The applicant mother was immediately admitted to hospital and was thereafter admitted to hospital on a monthly basis for periods of varying length. It appears that her husband has in the meantime been convicted of rape and that she has decided to divorce him. Upon their application for asylum in Finland on 29 July 2015, it was discovered that the applicants had previously been registered in Italy on 11 July 2015. 7. On 2 February 2016 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) rejected the applicants’ application and decided to order their return to Italy. The Service found that, on 31 August 2015, the Finnish authorities had informed the Italian Government about the applicants’ family situation and the scheduled arrival of the applicant mother and her children, and that the Italian authorities had not opposed to receive them. The parents were capable of taking care of their children and removal to Italy was not against the best interest of the children, in whose interest it was to live with their parents. Italy had agreed to comply with the fundamental rights guaranteed by the EU Charter on Fundamental Rights and was to examine the applicants’ asylum application. The applicants had a right to services provided by Italian authorities. In a Dublin transfer decision the substance of the asylum claim is not examined, so the decision regarding the applicants did not deal with the applicant mother’s illness or her factual position as a single mother due to the pre-trial detention of the children’s father. 8. By letter dated 10 February 2016 the applicants appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting also a stay on removal. 9. On 12 February 2016 the Administrative Court decided not to grant a stay on removal. 10. By letters dated 17 February and 8 March 2016 the applicants made their second and third requests for a stay on removal. On unspecified dates the Administrative Court refused these requests. 11. The proceedings before the Administrative Court are still pending. However, a Dublin transfer decision is enforceable, notwithstanding that the case has not been finally determined. 12. The application was lodged with the Court on 11 March 2016. On 15 March 2016 the duty judge of the Court decided to suspend the examination of Rule 39 of the Rules of Court until receipt of information from the respondent Government and to put factual questions to the Finnish Government under Rule 54 § 2 (a), which concerned, inter alia, the guarantees obtained from the Italian authorities in relation to the applicants’ scheduled transfer to Italy. 13. The Finnish Government submitted their reply on 29 March 2016. In their letter, the respondent Government noted that the Italian authorities had informed the Finnish authorities of the guarantees for vulnerable cases, including families with children, by their letters of 8 June 2015 and 15 February 2016. A copy of these circular letters sent by the Dublin Unit of the Italian Ministry of the Interior (Ministero dell’Interno) was attached to the Government’s letter. In these circular letters the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children and provided an updated list of accommodation available to such families. 14. The Finnish Government noted that the Immigration Service would transfer the medical information detailing the special needs of the applicants to the competent authorities in Italy and, accordingly, those needs would be taken care of in such a manner that the applicants would receive any necessary medical care in Italy without interruption. They noted that the Finnish authorities had made sufficient efforts to obtain individual and specific guarantees from the Italian authorities, and that there was no reason to suspect that the applicants would be separated from each other or subjected to any treatment contrary to Article 3 of the Convention upon arrival in Italy. The examination of the applicants’ application by the Court was premature, as no final decision by the relevant domestic courts had yet been made. Accordingly, the Government considered that the applicants’ application should be declared inadmissible by virtue of Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic remedies. 15. On 1 April 2016 the applicants were sent a copy of the Government’s letter for information. 16. On 5 April 2016 the duty judge of the Court decided, under Rule 39, to indicate to the Finnish Government that the applicants should not be transferred to Italy for the duration of the proceedings before the Court. 17. On 22 April 2016 the applicants commented on the information submitted by the Government, maintaining that they had not been informed to date of any individual or specific guarantees concerning their possible removal to Italy. A mere agreement between Finland and Italy to keep families with children together and to arrange accommodation for them could not be regarded as sufficient. The applicants’ situation would be unclear if Italy could give no individual guarantees by the time of the possible removal. According to the applicants, the children’s father had been convicted of rape and sentenced to two years’ imprisonment. The applicant mother was certain that her marriage was over, but acknowledged that the children’s well-being was fully dependent on their father’s presence. Regular family visits to prison had already been arranged for the children. The applicants wished the Court to continue the examination of their case.
| 0 |
test
|
001-144385
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,014 |
DORCA v. ROMANIA
| 4 |
Inadmissible
|
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
|
1. The applicant, Mr Lucian Dorca, is a Romanian national born in 1979 and living in Sibiu. He was represented before the Court by Ms M.M. Țuca, a lawyer practising in Sibiu. 2. 3. On an unspecified date the applicant, who was assisted by a legal representative of his own choosing, brought divorce and custody proceedings against his wife seeking, inter alia, to be granted joint custody of their two-year-old daughter. 4. On 21 November 2011 the Sibiu District Court dismissed the applicant’s action in part, on the basis of testimonial evidence and social inquiry reports, including the report of an inquiry conducted by the Spanish authorities at the child’s mother’s home. The mother was granted sole custody, on the grounds that the child had been born in Spain and had lived there since birth. Furthermore, her mother was in permanent employment there. Given the child’s young age, her hygiene, dietary and medical needs required particular attention, and she could suddenly develop the symptoms of a very serious medical condition. In the circumstances, it would be imperative for the parent to recognise such symptoms and the immediate steps that needed to be taken. It was uncontested by the parties that the child had been left in her mother’s care and that the mother had attended very closely to her needs. According to the testimonial evidence available, the mother was a good cook and was very careful about her health. In addition, separating the child from her current environment, in which she was integrated and which promoted her normal development, was not recommended considering the constant need to maintain her well-being. While it was true that the applicant had optimal living conditions for raising his daughter, these were insufficient given her young age and the particular attention that she required. Consequently, taking into account both moral and material criteria, it was considered that the mother was better placed to raise and educate the child. She had health problems and had been repeatedly hospitalised and kept under medical supervision for bronchitis while in her mother’s care. In addition, she was enrolled in a Spanish preschool, according to whom there was a strong emotional bond between the child and her mother, who attended school meetings and activities, had a good relationship with preschool staff and ensured that her daughter was clean and ate correctly. 5. The applicant appealed against the judgment and argued that the court’s belief that he was unable to raise and educate the child in the same way as his wife amounted to discriminatory treatment. In addition, there was no evidence to suggest that under the relevant provisions of the Romanian Civil Code custody of a child could not be assigned to both parents. Moreover, under the relevant domestic and international legislation, parental authority could not be divided and had to be exercised jointly by both parents. The alleged criminal offences he had been accused of by his wife had simply been allegations, which was clear from the fact that he had no criminal record. Furthermore, his daughter did not have any serious health problems or problems that were unusual for a child of her age. 6. On 2 November 2012 the Sibiu County Court dismissed the applicant’s appeal. It held that the social inquiry report produced by the Spanish authorities confirmed that the mother was able to raise and educate the child in a stable way. In addition, the mother had taken good care of the child, who had health problems and had been repeatedly hospitalised and kept under medical supervision for bronchitis. The child was enrolled and had integrated well in the Spanish schooling system, and her mother had a good relationship with the teachers and was in permanent employment in Spain. In determining who would have custody of the child, the court could not ignore the fact that the applicant had taken his daughter out of Spain without her mother’s consent. Subsequently, the mother had brought criminal proceedings against the applicant for child abduction. Although she withdrew her criminal complaint and the applicant was never convicted, it was uncontested that he had left the marital home in Spain together with his young daughter without his wife’s consent. Consequently, there was a risk that the applicant could repeat his actions if he was awarded joint custody of his daughter. The court could not wait for that risk to occur and considered that it was in the best interests of the child, taking into account her age and health, to enjoy the stability afforded by the mother. The social inquiry report produced by the Spanish authorities contained a recommendation for specialist professionals to monitor the relationship between the applicant and his daughter on account of his prior actions. The best interests of the child were at the heart of the domestic and international legislation referred to by the applicant. Consequently, given his previous behaviour, the decision of the first-instance court to grant sole custody of the child to the mother had been justified. 7. The applicant lodged an appeal on points of law (recurs). He argued that under the relevant domestic and international legislation, joint custody of children served the best interests of the child and was the rule even if parents were divorced. In addition, the consent of the other parent was presumed when parents enjoyed joint custody. Moreover, the first and second-instance courts had wrongfully assessed the evidence put before them and there was nothing to suggest that if he had been granted joint custody of his daughter, he would have attempted to abduct her. Furthermore, the Spanish authorities had cleared him of any charges and their recommendation relied on by the second-instance court would only have been of relevance had he committed an offence. Lastly, there was no evidence to suggest that he had endangered his daughter’s physical and moral development, and there were therefore no well-founded reasons for the courts to award the mother sole custody of their daughter. 8. By a final judgment of 12 March 2013, the Alba-Iulia Court of Appeal dismissed the applicant’s appeal on points of law. It held that under the relevant domestic legislation, parents enjoyed joint custody of children even after divorce, because it was presumed that such a situation served the best interests of the child. However, the same domestic legislation allowed for a departure from that rule, if there were well-grounded reasons to suggest that the best interests of the child would be better served if custody was awarded to only one of the parents. In the instant case, without denying the applicant’s attachment to his daughter, it was relevant that the child’s parents lived in different countries. That would make it difficult for the applicant to enjoy his right to joint custody effectively. Moreover, there was a risk that in certain situations, the absence of the parents’ agreement or a delay in the applicant’s consent might have a negative impact on the child’s development, given that she was so young. A systemic approach to the dynamics of the parties’ interactions should show a relationship that would facilitate the exercise of joint custody. In the absence of such interactions, joint custody of the child may be a source of continuous conflict that would be incompatible with the best interests of the child. In the parties’ case, there was clear proof of an unstable and inharmonious relationship and of serious disagreements concerning the child’s situation. In this context, it was relevant that the applicant, in the absence of a clear agreement with his wife, had travelled with the child to Romania and that in the past few years the parties had been involved in numerous sets of court proceedings. The court therefore considered that there were well-grounded reasons to award sole custody of the child to the mother, and that such a measure would be in the better interests of the child. 9. Articles 397 and 398 of the Romanian Civil Code provide that after divorce, parents are to exercise joint parental authority over their children unless the court decides otherwise. If there are well-grounded reasons, taking the best interests of the child into account, the court may decide for parental authority to be exercised by only one of the parents. The remaining parent reserves his or her right to monitor the way the child is raised and educated, and his or her right to consent to the child’s adoption.
| 0 |
test
|
001-145584
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF KIM v. RUSSIA
| 3 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Non-pecuniary damage - award
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Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
5. The applicant was born in 1962 in the Uzbek SSR of the Soviet Union. Since 1990 he has been living in St Petersburg, Russia. It appears that he did not acquire any nationality following the break-up of the USSR. 6. On 19 July 2011 the police stopped the applicant for an identity check and discovered that he had no identity documents. On the same day a judge of the Sestroretsk District Court of St Petersburg found him guilty of an administrative offence under Article 18.8 of the Code of Administrative Offences (breach of residence regulations in Russia), fined him 2,000 Russian roubles (RUB) and ordered his expulsion from Russia. The court ruled that the applicant should be detained in the detention centre for aliens until his expulsion. 7. Officers of the Federal Migration Service (FMS) interviewed and fingerprinted the applicant, who had no passport or other identity documents. He told them that he had been born in Tashkent and, prior to his arrival in Russia, had had a registered place of residence in the Tashkent Region. 8. On 30 November 2011 the director of the detention centre for aliens asked the Embassy of Uzbekistan to issue travel documents (return certificates) to thirteen individuals, including the applicant, who were described as being Uzbek nationals. No reply was received. 9. Further similar requests sent on 10 February, 29 March, 31 July and 11 November 2012 did not elicit any reply from the Embassy of Uzbekistan either. 10. On 7 June 2012 counsel for the applicant sent an inquiry to the Embassy of Uzbekistan in Russia, seeking to find out whether or not the applicant had Uzbek nationality and whether he could be removed to Uzbekistan. No reply was received. 11. On the same day counsel asked the FMS to inform him what measures had been taken with a view to expelling the applicant from Russia, whether or not his identity had been established and why the applicant had already spent more than eleven months in detention. In reply, the FMS refused to give any information, citing the law on the protection of personal data. 12. On 14 November 2012 counsel applied to the Sestroretskiy District Court for an order discontinuing the enforcement of the expulsion order of 19 July 2011. He pointed out that the enforcement was impossible since the Uzbek authorities would not accept the applicant, who was not a national of that State. 13. On 10 December 2012 a judge of the Sestroretskiy District Court rejected the application, without hearing the parties or the applicant. According to the judge, a failure to take measures with a view to expelling the applicant was not a ground for discontinuing the enforcement of the expulsion order. Counsel submitted an appeal, in which he complained in particular about the absence of a periodic judicial review of the applicant’s detention in breach of Article 5 § 4 of the Convention and about the State authorities’ failure to show special diligence in the conduct of the expulsion proceedings, contrary to the requirements of Article 5 § 1 (f) of the Convention. On 14 March 2013 a judge of the St Petersburg City Court rejected the appeal in a summary fashion. 14. Counsel also attempted to challenge the applicant’s detention as unlawful. By decision of 26 November 2012, the Krasnoselskiy District Court of St Petersburg disallowed the complaint, finding that the decision of 19 July 2011 constituted a sufficient lawful basis for the ensuing detention. It noted in particular that the applicant would remain in custody “until his expulsion from Russia”. On 24 January 2013 the St Petersburg City Court upheld the District Court’s decision. 15. By letter of 5 February 2013, the consular department of the Embassy of Uzbekistan informed the FMS that the applicant was not a national of Uzbekistan and could not therefore be issued with a travel document. On 25 March 2013 the Ministry of Internal Affairs of Uzbekistan sent a further letter to the FMS, stating that the applicant was not an Uzbek national. 16. On 29 July 2013 the applicant was released on the basis of the expiry of the two-year time-limit for enforcement of the administrative-expulsion decision. 17. The detention centre for aliens (Центр для содержания иностранных граждан) is located in Krasnoye Selo in St Petersburg and operated at the material time under the authority of the FMS. 18. The centre, an eight-storey building designed to hold 176 inmates, actually accommodated no fewer than 300 people at any one time and the number rose to 400 in the summertime and during special raids. 19. The applicant was initially held in cells 604 and 605. Each cell measured no more than ten square metres and housed five or six people. In the last ten months of his detention the applicant was held in cell 615, an eighteen-square-metre cell which he shared with four and occasionally up to seven other people. 20. There was no sink or access to drinking water from within the cells; there was one toilet and one shower per floor which were used by approximately forty inmates. 21. Up until March 2013 the applicant was allowed twenty to thirty minutes’ outdoor exercise once every two or three weeks in a tiny yard. 22. The facility did not offer any meaningful activities: no television, radio, newspapers or magazines were available.
| 1 |
test
|
001-155358
|
ENG
|
LTU
|
CHAMBER
| 2,015 |
CASE OF SIDABRAS AND OTHERS v. LITHUANIA
| 3 |
Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
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András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Lech Garlicki;Nebojša Vučinić;Robert Spano
|
6. The first applicant, Mr Juozas Sidabras, was born in 1951 and lives in Kaunas. 7. He graduated from the Lithuanian Physical Culture Institute (currently the Lithuanian Sports University), qualifying as a sports instructor. 8. From 1975 to 1986 he was employed by the Lithuanian branch of the USSR State Security Committee (the KGB). After Lithuania declared independence in 1990, he found employment as a tax inspector. 9. On 31 May 1999 the Lithuanian authorities concluded that the first applicant was subject to the restrictions of Article 2 of the KGB Act (see paragraph 64 below). As a result, on 2 June 1999 he was dismissed by the tax authorities. 10. The first applicant brought an administrative action against the security intelligence authorities, claiming that his dismissal under the KGB Act, and the ensuing inability to find employment, were unlawful. The domestic courts dismissed his claims (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, §§ 14-16, ECHR 2004VIII). 11. On 29 November 1999 the first applicant submitted an application to the Court, alleging that he had lost his job and that his employment prospects had been restricted as a result of the application of the KGB Act, in breach of Articles 8 and 14 of the Convention. 12. By a judgment of 27 July 2004 in the case of Sidabras and Džiautas (cited above), the Court found a violation of Article 14 of the Convention, taken in conjunction with Article 8. It concluded that the ban on the first applicant seeking employment in various branches of the private sector, in application of Article 2 of the KGB Act, constituted a disproportionate measure, despite the legitimacy of the aims pursued (see § 61 of the judgment). The Court ordered the State to pay the first applicant 7,000 euros (EUR) as compensation for pecuniary and non-pecuniary damage and costs. 13. By a letter of 2 November 2004 the Court informed the Lithuanian Government that, as no request had been made under Article 43 of the Convention for the above-mentioned cases to be referred to the Grand Chamber, the judgment of 27 July 2004 had become final on 27 October 2004, in accordance with Article 44 § 2 of the Convention. 14. In 2005 the Committee of Ministers of the Council of Europe discussed the question of whether the Court’s judgments in the cases of Sidabras and Džiautas v. Lithuania (cited above) and Rainys and Gasparavičius v. Lithuania (nos. 70665/01 and 74345/01, 7 April 2005) had been executed. As regards individual measures, the Government informed the Committee of Ministers that the sum awarded to the first applicant had been paid to him. As regards general measures, the Lithuanian Parliament was preparing amendments to the KGB Act, which would be adopted in the near future. Moreover, in order to prevent similar violations of the Convention, the Lithuanian courts and other institutions had been informed about the Court’s judgment and provided with a translation (see also paragraphs 61-63 below). 15. On 8 December 2006 the first applicant started domestic court proceedings against the State of Lithuania, seeking 257,154 Lithuanian litai (LTL) in pecuniary damages, which he counted as ten years of his tax inspector’s salary, and LTL 500,000 in non-pecuniary damages, which he claimed to have suffered because of the continuing violation of his right to respect for his private life under Articles 8 and 14 of the Convention. The first applicant noted that since 1999 he had been unemployed and registered at the Šiauliai Employment Office (Šiaulių darbo birža), a State institution that provides assistance for job seekers. He argued that, even though he had not been in the service of the KGB for more than twenty years, owing to the restrictions imposed by the KGB Act he had been unable to gain employment in certain branches of the private sector as of 1999. 16. The first applicant also maintained that the Republic of Lithuania had disregarded its obligations under international treaties and the Convention. Without referring to specific judgments of the Court, he considered that the common principles developed by the Court required that Lithuania execute the Court’s judgment in his case without undue delay. It was his view that the Court’s judgment in his case obliged Lithuania to amend the KGB Act. However, the Lithuanian Parliament had ignored the Court’s judgment and had been stalling any amendment of the KGB Act, which the Court had found to be incompatible with the Convention. He concluded that since 27 October 2004, when the Court’s judgment in his case had become final, the Republic of Lithuania had continued to violate his employment rights. 17. On 21 February 2007 at the request of the first applicant, the Šiauliai Employment Office issued him with a document to the effect that he had been registered as a job seeker since 14 June 1999, and that between August 2004 and April 2006 he had been turned down a number of times for jobs proposed to him, “for justified reasons”. As it transpires from other documents presented to the Court, those justified reasons included: a lack of professional qualification or work experience for the posts of business manager at a factory producing television sets and at other local companies; another candidate had been chosen for the post of supervisor at a waste management facility; and a lack of English language skills for a job as a hotel manager. Without further explanation, it was also briefly noted in the document of 21 February 2007 that the first applicant “had not been employed because of applicable restrictions (he could not take up jobs which required him to manage people, pedagogical jobs or work in the security sector) (bedarbis neįdarbintas dėl taikomų apribojimų: negali dirbti vadovaujantį, pedagoginį darbą, apsaugoje)”. 18. On 13 March 2007 the Vilnius Regional Administrative Court dismissed the first applicant’s claims as unsubstantiated. It observed that the Strasbourg Court had awarded him compensation for the pecuniary and non-pecuniary damage he had sustained before the Court had adopted its judgment on 27 July 2004. The first-instance court then turned to the first applicant’s claim about the continued discrimination against him after the Court’s judgment. On this point, it observed that the Šiauliai Employment Office’s document of 21 February 2007 stated that he “had not been employed because of applicable restrictions”. Without elaborating any further on the facts, the Vilnius Regional Administrative Court merely observed that that particular document and other materials of the case file did not prove that the first applicant’s right to choose a particular private sector job had been infringed because Article 2 of the KGB Act had not been amended after the Court’s judgment. Accordingly, his claim for damages for the period after the Court’s judgment was dismissed. 19. On 23 March 2007 the first applicant lodged an appeal with the Supreme Administrative Court. In addition to his previous arguments he further maintained that after the re-establishment of Lithuania’s independence, he had fully cooperated with the Lithuanian authorities and helped to disclose the identities of former KGB officers before they infiltrated the Lithuanian authorities. However, notwithstanding his loyalty to the independent Lithuania and the Court’s judgment in his favour, he had been banned from legal, pedagogical or other jobs because the KGB Act had remained in force. He had been unemployed since June 1999 and thus could not take care of his family. As it appears from his appeal on points of law, the first applicant did not mention any particular instance when he had been refused a job because of his status. Yet he reiterated his point of view that the principles of the Court required that States execute the Court’s judgments without undue delay and within the shortest time possible. 20. On 14 April 2008 the Supreme Administrative Court upheld the lower court’s decision. It observed that the Convention formed an integral part of the Lithuanian legal system and that individuals could directly rely on its provisions before the national courts. Moreover, in the event of a conflict between the legal norms of the Convention and national laws, the Convention was to be given priority. The Supreme Administrative Court agreed with the lower court’s reasoning that the first applicant’s request for compensation for pecuniary and non-pecuniary damage sustained before 27 July 2004 (the date of the Strasbourg Court’s judgment in his case) had to be dismissed because an award had already been made by the Court and the applicant had been paid the sum of EUR 7,000. 21. Regarding the first applicant’s claim in respect of the damage allegedly suffered since then, on the basis of the Court’s judgment in Scozzari and Giunta v. Italy ([GC] nos. 39221/98 and 41963/98, § 249, ECHR 2000VIII), the Supreme Administrative Court noted that States undertook to take general and, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible its effects. The States were free to choose how to correct the breach of individual applicants’ Convention rights, provided that the means chosen were compatible with the conclusions set out in the Court’s judgment. Restitutio in integrum was an important aspect of remedying the violation. 22. That being so, even though the legislator had an obligation to ensure legal certainty and to reconcile domestic law with the norms of the Convention, legislative amendment was not the only way to implement the Court’s judgment. The fact that the KGB Act had not been amended had not in itself breached the first applicant’s rights. A person’s rights could also be secured by administrative decisions and domestic court practices. Both the KGB Act and the Strasbourg Court’s judgment were in force in Lithuania. For the Supreme Administrative Court, in the event of a conflict between them, priority was to be given to the Court’s judgment. Consequently, even though the KGB Act was still in force, a refusal to employ the first applicant in the private sector based on the restrictions contained in the KGB Act would be unlawful. Accordingly, the protection of a person’s rights through the direct application of the Court’s judgment and before any legislative amendments had been adopted was to be considered proper execution of the Court’s judgment. 23. Regarding the facts of the case, the Supreme Administrative Court noted that the first applicant had attempted to obtain employment in the private sector. It observed that on 21 February 2007 the Šiauliai Employment Office had issued him with a document certifying that he had been registered as a job seeker since 14 June 1999 and had not been employed because of the restrictions applied to him (see paragraph 17 above). The appellate court noted that in response to its request to explain the reasons for the first applicant’s unemployment in more detail, on 28 December 2007 the Šiauliai Employment Office had provided the appellate court with another document stating that on 14 June 1999 an individual plan for the first applicant’s employment had been prepared with a view to employing him as a lawyer (in-house lawyer; juriskonsultas), because he had more than ten years’ work experience in different companies and institutions in the city of Šiauliai. From 1999 to 2004, more than thirty posts for in-house lawyers had been created in Šiauliai, for which a university degree in law was required and the salary was just higher than minimal salary. The advertisements for those posts had been shown to the first applicant, but he had not been given any of those jobs because the employers considered that he lacked the relevant qualifications. The Šiauliai Employment Office could therefore no longer offer the first applicant other in-house lawyer posts. To increase his chances of finding a job, at the end of 2003 the first applicant had attended computer literacy courses and courses for professional training in the field of administrative work. In 2004 a new individual plan had been compiled together with the first applicant, so that, because he so wished, he could obtain the job of business manager (komercijos vadybininkas). The Šiauliai Employment Office then named six companies which refused the first applicant the job of business manager, administrator and sales manager because other candidates had been chosen or because he lacked knowledge of the English language. 24. The Supreme Administrative Court observed that those two documents were contradictory. The court deemed it proper to rely on the report of 28 December 2007 as it was more recent and, in the court’s opinion, more comprehensive and explanatory. It concluded that the restrictions which the KGB Act imposed on a person’s ability to find employment in certain areas of the private sector had not been applied to the first applicant. The existence of the KGB Act, as such, had not violated his rights and did not entitle him to compensation. The Supreme Administrative Court determined that there was no proof that, after the Court’s judgment of 27 July 2004, the first applicant had been prevented from obtaining a private sector job because of the restrictions related to the KGB Act. Furthermore, he had not provided any particular information as to who had refused to employ him on the basis of those restrictions and when. It followed that the first applicant had not managed to secure a job because of the local labour-market situation. Moreover, there was no information that he had attempted to find a job in another manner, that is to say not only relying on the assistance of the Šiauliai Employment Office, but had been refused a job because of the legislative restrictions. To give rise to a violation of the Convention, a breach of a person’s rights had to be real, and not hypothetical. Given that there was no proof that after the Court’s judgment of 27 July 2004 the first applicant could not obtain a job because the KGB Act remained unchanged, and having concluded that his right to work in the private sector could no longer be restricted because of the direct applicability of the Convention, the first applicant’s claim for damages had to be dismissed. 25. On 18 April 2008, four days after the Supreme Administrative Court’s final decision in his case, the Šiauliai Employment Office suggested that the first applicant contact two specific private companies for a post as a business manager. On 6 May 2008 the first applicant came back to the Šiauliai Employment Office and stated that he had not taken the business manager’s job in one of those companies because he did not like the conditions offered. He planned to take part in the interview for the business manager’s job in the other company. Later in 2008 the first applicant was refused positions of business manager, insurance consultant and other jobs a number of times because he lacked foreign language skills, qualifications, or the relevant work experience. As it transpires from the documents in the Court’s possession, he turned other jobs down simply because he deemed that the salary offered was too low or the work place too far away. On 23 December 2008 the first applicant was appointed as a carer for his mother (paskirtas motinos rūpintoju). The Šiauliai Employment Office therefore discontinued its assistance to him. 26. The second applicant, Mr Kęstutis Džiautas, was born in 1962 and lives in Vilnius. 27. On an unspecified date in the 1980s, he graduated from Vilnius University as a lawyer. From 11 February 1991 he worked as a prosecutor. 28. On 26 May 1999 the Lithuanian authorities concluded that, from 1985 to 1991, the second applicant had been an employee of the Lithuanian branch of the KGB and that he was therefore subject to the restrictions provided for by Article 2 of the KGB Act. As a result, on 31 May 1999 he was dismissed from his job as prosecutor. 29. The second applicant brought an administrative action against the authorities, claiming that his dismissal under the KGB Act, which made it impossible for him to find employment, was unlawful. The domestic courts dismissed his claims (see Sidabras and Džiautas, cited above, §§ 20-23). 30. On 5 July 2000 the second applicant lodged an application with the Court. Like the first applicant, he alleged that Articles 8 and 14 of the Convention had been violated. 31. By a judgment of 27 July 2004 in Sidabras and Džiautas v. Lithuania (cited above), the Court found a violation of Article 14 taken in conjunction with Article 8 of the Convention and awarded the second applicant EUR 7,000 in respect of pecuniary and non-pecuniary damage and costs. 32. On 5 January 2005 the second applicant wrote to the Chairman of the Human Rights Committee of the Lithuanian Parliament, the Prime Minister and the Minister of Justice to enquire whether the State intended to amend the KGB Act and, if so, when. At the same time, he acknowledged that the Lithuanian authorities had already paid him a sum of money awarded to him by the Court. 33. On 11 January 2005 the Government Agent before the Court informed the second applicant that the Ministry of Justice was working on amendments to the KGB Act. On 26 February 2005 the Chairman of the Human Rights Committee of the Seimas informed the second applicant that the Seimas had set up a working group that was also drafting legislative amendments. 34. According to the Government, as of 29 March 2006 the second applicant was registered in the list of trainee lawyers (advokato padėjėjas), which is a precondition to becoming a lawyer. The Government also noted that the second applicant had submitted his traineeship report on 14 May 2009 and was going to take the Bar exam. 35. On 20 October 2006 the second applicant sued the Republic of Lithuania for non-pecuniary damage. He claimed to have lost LTL 100,000 as a result of the State’s failure, since 27 July 2004 (the date of the Court’s judgment in his case), to amend the KGB Act. This in turn had restricted his prospects of finding employment in certain private sector areas. He argued that the common principles governing the execution of the Court’s judgments required the State to execute the judgment without undue delay. 36. On 12 February 2007 the Vilnius Regional Administrative Court dismissed the second applicant’s claim. It noted that the judgment in the Sidabras and Džiautas case did not oblige the State to amend the KGB Act within a specific time-frame and that the Seimas was in the process of discussing the relevant legislative amendments. During the court hearing the second applicant submitted that he had contacted an insurance company and a commercial bank in order to check what the reaction of potential employers would be. He maintained that those employers had replied that they would be unable to employ him because to do so would breach the KGB Act. The first-instance court, however, noted that the second applicant had not provided any evidence to prove that he had actually applied for and been refused any particular job in the private sector. Accordingly, the court had no basis on which to hold that the second applicant had in reality addressed those two employers and that they had refused to hire him. 37. The second applicant appealed. He pointed out in particular that he had not attempted to obtain employment in the private sector so as not to harm the employers, who would have faced administrative liability if they had employed him. That was the reason why he had no proof of having actually attempted to obtain a job barred to him by the KGB Act. 38. On 18 April 2008 the Supreme Administrative Court dismissed the second applicant’s appeal. Its reasoning was similar to that of its decision of 14 April 2008 in the first applicant’s case (see paragraphs 20-22 above). It observed that the second applicant had based his claims for damages on the alleged non-execution of the Court’s judgment of 27 July 2004. However, referring to the cases of Scozzari and Giunta (cited above, § 249) and Vermeire v. Belgium (29 November 1991, § 26, Series A no. 214-C), it observed that under Article 46 of the Convention, Contracting States were free to choose the appropriate individual and general measures to discharge their legal obligation to execute the Court’s decisions, albeit monitored by the Committee of Ministers. Moreover, given the abstract nature of the Convention norms, the domestic courts should follow the Strasbourg Court’s jurisprudence in order better to comprehend their content. 39. As to the facts of the second applicant’s case, the Supreme Administrative Court observed that, because the Court’s judgment in Sidabras and Džiautas prevailed over the KGB Act, the restrictions on working in certain private sector areas could no longer be imposed on the second applicant. Thus, even though the KGB Act had not been amended, a refusal to employ him on the basis of the restrictions provided for in the KGB Act would be in violation of the Convention and consequently unlawful. It was also the court’s view that protecting a person’s rights by direct application of the Court’s judgments rather than by legislative amendments was an appropriate way to execute those judgments. It followed that, because of the direct applicability of the Convention and the Court’s judgments, the State had not failed to act, the latter being a precondition for the State’s civil liability. 40. As to the second applicant, he had failed to prove that, after the Court’s judgment of 27 July 2004, he had attempted to obtain employment in the private sector and had been refused owing to the restrictions of the KGB Act. The Supreme Administrative Court stressed that “the mere existence of contradictions and ambiguities in the legal system did not in itself provide grounds for a violation of a person’s rights and did not harm that person”. Similarly, a mere hypothetical violation and a person’s idea that his rights had been breached, without any tangible facts, were not sufficient. The Supreme Administrative Court therefore dismissed the second applicant’s claim in respect of non-pecuniary damage. 41. The third applicant, Mr Raimundas Rainys, was born in 1949 and lives in Vilnius. 42. From 1975 to October 1991 he was an employee of the Lithuanian branch of the KGB. Thereafter he found employment as a lawyer in a private telecommunications company, Omnitel. 43. On 17 February 2000 the State Security Department informed Omnitel that the third applicant had been a KGB officer and was therefore subject to the restrictions provided for by Article 2 of the KGB Act. As a result, on 23 February 2000 Omnitel dismissed the third applicant from his job. 44. After unsuccessful litigation before the Lithuanian courts for reinstatement in his job and for unpaid salary (see Rainys and Gasparavičius, cited above, §§ 11-13), the third applicant lodged an application with the Court, alleging that he had lost his job and that his employment prospects had been restricted as a result of the application to him of the KGB Act, in breach of Articles 8 and 14 of the Convention. 45. In its judgment in the case of Rainys and Gasparavičius (cited above, § 36) the Court held that the third applicant’s inability to pursue his former profession as a lawyer in a private telecommunications company, and his continuing inability to find private-sector employment because of his “former permanent KGB employee” status under the KGB Act, constituted a disproportionate and thus discriminatory measure, despite the legitimacy of the aims pursued. The Court concluded that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention. 46. By a letter of 15 July 2005, the Court informed the Lithuanian Government that, as no request had been made under Article 43 of the Convention for the above-mentioned cases to be referred to the Grand Chamber, the judgment of 7 April 2005 had become final on 7 July 2005, in accordance with Article 44 § 2 of the Convention. 47. On 25 July 2005 the third applicant requested that the Supreme Administrative Court reopen the proceedings in his earlier case for unlawful actions and reinstatement in his job at Omnitel, on the basis of Article 153 § 2 (1) of the Law on Administrative Court Proceedings (see paragraph 65 below). 48. On 23 February 2006 the Supreme Administrative Court noted that the proceedings in the domestic courts related to the dismissal of the third applicant from his position as a lawyer with a telecommunications company. It observed that the Court’s judgment gave reason to doubt the lawfulness of those domestic decisions. It therefore decided to reopen the proceedings which the third applicant had previously instituted against the State Security Department and his previous employer, the private telecommunications company, Omnitel. For reasons of jurisdiction, the case was subsequently remitted to the Vilnius Regional Court, a court of general jurisdiction, for a fresh examination. 49. On 10 July 2007 the Vilnius Regional Court acknowledged that the third applicant had been dismissed from his previous job at Omnitel unlawfully. As to the question of his reinstatement, the court relied on Article 297 § 4 of the Labour Code (see paragraph 67 below) and noted that more than seven years had elapsed since the telecommunications company had dismissed the third applicant from his job. During that time the third applicant had worked in companies specialising in other fields, such as railways and television. Moreover, the activities of the telecommunications company had also evolved. In the court’s view, because he lacked appropriate qualifications and foreign language skills, after such a long time the third applicant would no longer be competent to work as a lawyer in that company. The court also noted that at that time the third applicant was working in another company, without specifying what that company was, and therefore had a source of income. The Regional Court also noted the continuing conflict between the third applicant and the company, which could be another reason not to reinstate him to his former job at Omnitel. Lastly, the court observed that the KGB Act was still in force. In the court’s view, should the third applicant be reinstated, the question of his dismissal could arise de novo, or his employer would face the risk of administrative penalties. In the light of those circumstances, the court dismissed the third applicant’s claim for reinstatement. 50. The court then turned to the issue of compensation for lost earnings for the period of 23 February 2000 to 23 March 2007, indicated by the third applicant, for which he requested the sum of LTL 136,464. However, it was to be noted that the Court had already awarded him more than LTL 120,000 for both past and future pecuniary loss. Moreover, after his dismissal from Omnitel, the third applicant had worked in different jobs and had received more than LTL 90,000 in salary. Under Lithuanian law, an employee could be awarded no more than three years’ unpaid salary. In the third applicant’s case the salary in Omnitel would amount to LTL 145,440 (LTL 4,040 a month for thirty-six months). Accordingly, the two sums he had already received (LTL 120,000 and LTL 90,000) amounted to more than the award requested. Lastly, the third applicant had acknowledged that since his dismissal from Omnitel, he had continued to receive a pension from another State for his work in the KGB, ranging from LTL 500 to 800 a month. It followed that the claim for pecuniary damage had to be dismissed. 51. Both the third applicant and Omnitel appealed. At the hearing, the third applicant asked to be paid LTL 167,534 for lost earnings as compensation for the fact that he had still not been reinstated with Omnitel. 52. On 11 February 2008 the Court of Appeal rejected both appeals. It upheld the lower court’s conclusion that the third applicant had been dismissed from his previous job unlawfully. Moreover, the circumstances mentioned in Article 297 § 4 of the Labour Code existed. Accordingly, the third applicant could not be reinstated in his former job with Omnitel. The court added that “the laws that provide for the prohibition on former [USSR] KGB employees from working in the telecommunications sector are still in force, so that if the [third] applicant were reinstated in his previous job, certain problems might arise”. Additionally, the applicant was working in another company and receiving a pension for his previous work with the KGB. He therefore had a source of income. The Court of Appeal also endorsed the lower court’s view that the third applicant had been compensated by the Strasbourg Court for the pecuniary damage he had suffered as a consequence of his unlawful dismissal. The sum he now asked for – LTL 167,534 – was lower than the awards of LTL 90,000 and 120,000 he had already received. 53. The third applicant lodged an appeal on points of law, reiterating his claim for reinstatement and for compensation for lost earnings. He argued that Article 42 § 1 of the Law on the Employment Contract was an imperative legal norm and meant that once the court found that an employee had been dismissed unlawfully, that employee was to be reinstated in his or her previous job. It followed that the argument of the Court of Appeal that “if the [third] applicant were reinstated to his previous job certain problems might arise” was arbitrary. 54. Omnitel argued that in 2000 it had dismissed the third applicant from his job merely following the letter of the KGB Act. Article 1876 of the Code of Administrative Law Violations provided that an employer could be fined LTL 3,000 to 5,000 should he not comply with the KGB Act. This was all the more likely to happen since the Constitutional Court had recognised Article 2 of the KGB Act as constitutional in its ruling of 4 March 1999, that is before the third applicant was dismissed. Even though the Court had found a violation in the third applicant’s case, the KGB Act was still in force, and therefore the third applicant’s reinstatement was barred. Furthermore, in the judgment of 17 March 2005 the Court had not ordered Lithuania to amend the KGB Act. Nor had the Court ordered the Lithuanian courts to have the third applicant reinstated in his previous job. In his written reply to this last argument, the third applicant observed that the Republic of Lithuania, by not appealing against the Court’s judgment to the Grand Chamber, had shown its agreement with the interpretation and application of the Convention in the Rainys and Gasparavičius judgment. He therefore insisted that the Court’s judgment was sufficient legal basis for him to be reinstated in his former job at the private telecommunications company, Omnitel, notwithstanding the fact that Article 2 of the KGB Act had not been amended. 55. Lastly, Omnitel maintained that the lower courts had been correct in referring to other circumstances why the third applicant could not be reinstated on the basis of Article 297 § 4 of the Law on the Employment Contract, namely, for economic, technological and organisational reasons, and the fact that it could lead to unfavourable conditions for him (see paragraph 49 above). 56. On 20 June 2008 the Supreme Court held: “The European Convention on Human Rights is an international agreement, ratified by the Seimas. It is therefore an integral part of the legal system of the Republic of Lithuania... The European Court of Human Rights was established to guarantee the observance of the rights and fundamental freedoms guaranteed by the Convention. In ratifying the Convention, the Republic of Lithuania took an undertaking to execute the Court’s final judgments in every case in which it is a party. The Convention norms must be implemented in reality (Konvencijos normos turi būti realiai įgyvendinamos). The State itself establishes the manner in which it will ensure implementation of the Convention norms. One such method is the reopening of proceedings, provided for in Article 366 § 1 of the Code of Civil Procedure. Namely, a case which had been terminated by a final court decision may be reopened if the Court finds that the Lithuanian courts’ decisions are in conflict (prieštarauja) with the Convention or its Protocols, to which Lithuania is a party.” 57. As to the facts of the case, the Supreme Court noted that the third applicant had worked as a lawyer at Omnitel and had been dismissed on 23 February 2000 because of the restrictions provided for in Article 2 of the KGB Act. As the Constitutional Court had held on 4 March 1999, those restrictions were compatible with the Constitution. 58. The Supreme Court nevertheless observed that on 7 April 2005 the Court had found that the third applicant had lost his job as a lawyer in the private telecommunications company on the basis of the application of the KGB Act which the Court had found to be discriminatory, in breach of Article 14 of the Convention, taken in conjunction with Article 8. The Court had also held that the third applicant’s inability to pursue his former profession and his continuing inability to find private sector employment because of his “former KGB officer” status under the Act constituted a disproportionate and thus discriminatory measure, even having regard to the legitimacy of the aims sought (paragraphs 36 and 45 of the Court’s judgment). The Supreme Court then held: “Accordingly, even though the KGB Act, which was the basis for dismissing the third applicant from his job, is in force and even acknowledged as being in conformity with the Lithuanian Constitution, the dismissal from his job on the basis of that Act in essence had been recognised as unlawful by the Court’s judgment, that is to say a violation of Article 14 of the Convention, taken in conjunction with Article 8, had been found. This circumstance is not to be questioned when resolving the dispute in the domestic court. Despite the fact that there was no fault in the actions of [the State Security Department or Omnitel], which were implementing the obligations stemming from the KGB Act, the undertaking to implement the provisions of the Convention constituted a legal ground for the courts of the first and appellate instances to conclude that the applicant’s dismissal was unlawful. It must be emphasised that the ground for such a decision is not the provisions of the Law on the Employment Contract or the Labour Code, which regulate the issue of reinstatement, but the provisions of the Convention and the judgment of the European Court of Human Rights. At the same time it must be emphasised that, while the KGB Act, the compatibility of which with the Constitution had already been verified (kurio konstitucingumas jau buvo patikrintas) is still in force, the question of reinstating the third applicant to his job may not be resolved favourably. In the circumstances of this case the recognition of the fact that he had been dismissed from his job unlawfully is sufficient satisfaction for him (atleidimo iš darbo pripažinimas neteisėtu šios bylos aplinkybių kontekste yra ieškovui pakankama satisfakcija).” 59. The Supreme Court noted that the third applicant had been awarded compensation by the Court for actual and future pecuniary damage. Given that he had been awarded EUR 35,000 [approximately LTL 120,000], the third applicant had already been fully compensated for the disproportionate and discriminatory measure – dismissal from his job at Omnitel. For the court of cassation, “there was no legal ground for repeatedly awarding compensation for the violation, which the Court had not found to be of a continuous nature (pakartotinai priteisti žalos atlygimą už pažeidimą, kurio tęstinumo Europos Žmogaus Teisių Teismas savo sprendime nekonstatavo, nėra teisinio pagrindo)”. 60. The Supreme Court thus fully upheld the lower court’s decisions. It also observed that “in the context of the [third applicant’s] case, other arguments by the parties in the appeals on points of law had no legal relevance for the lawfulness of the lower courts’ decisions”. 61. On 9 February 2005 a working group of the Seimas was set up to prepare amendments to a number of laws, including Article 2 of the KGB Act. According to the documents submitted to the Court by the Government, as of January 2005, the Lithuanian Government submitted a number of reports to the Department for the Execution of Judgments of the Council of Europe, explaining individual and general measures regarding execution of the Court’s judgments in the applicants’ cases. They noted, firstly, that the compensation awarded by the Court had been paid to the applicants. The Government also noted that the Court’s judgments and their translations into Lithuanian had been disseminated to the Lithuanian courts. 62. The Government considered that appropriate execution of the Court’s judgments required setting up legal regulation giving access to employment in the private sector for the former KGB employees, which was in compliance with the Convention requirements. In that connection they indicated that amendments to Article 2 of the KGB Act had been registered in the Seimas and had been presented to its plenary on 14 June 2005. They expected that the law would be amended at the beginning of the Seimas’ autumn session of 2005. The Government also considered that the draft law amending Article 2 of the KGB Act would guarantee the balance between the aims sought and interference with the right to respect for private life. The legislative amendments would also provide appropriate safeguards for avoiding discrimination as well as adequate judicial supervision of the employment restrictions imposed by the KGB Act. In February 2007 the Government informed the Department for the Execution of Judgments that the amendments to the KGB Act had been presented to the Seimas on 16 January 2007. However, voting in Parliament had failed because the necessary quorum had not been reached. They reiterated their previous statement about the importance of having the KGB Act amended and expected that the relevant amendments would be adopted in the spring of 2008. In October 2007 the Government wrote to the Department for the Execution of Judgments that a draft new law, amending the KGB Act in its entirety (not only its Article 2), was included in the Seimas’ working programme for the autumn session. In September 2008 the Government informed the Department for the Execution of Judgments that the KGB Act had still not been amended and, to their regret, would most likely not be amended until the Seimas’ elections in October 2008. However, a number of specific laws, for example, those regulating the professions of lawyers, bailiffs and notaries, had been amended, so that they no longer banned former KGB employees from taking up those professions. The Government also suggested that the judgments of the Court were directly applicable in the Lithuanian legal system. Therefore, the fact that the KGB Act had not been rectified had no legal consequences for former KGB employees as regards their opportunities to obtain employment in the private sector. By a letter of 22 January 2009, the Government informed the Department for the Execution of Judgments that as of 1 January of that year, even formal restrictions enshrined in the KGB Act had ceased to be valid. 63. The KGB Act was never amended and is still a valid law.
| 1 |
test
|
001-147622
|
ENG
|
LVA
|
CHAMBER
| 2,014 |
CASE OF URTĀNS v. LATVIA
| 3 |
Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion;Reasonably necessary to prevent offence);Non-pecuniary damage - award
|
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
5. The applicant was born in 1973 and is currently serving a sentence in Daugavgrīva Prison. 6. On 23 August 2010 criminal proceedings were initiated concerning a burglary. On 1 September 2010 they were joined to another set of proceedings concerning another burglary. 7. On 3 September 2010 the applicant was officially declared a suspect. 8. On 6 September 2010, following a request from the police, an investigating judge of the Daugavpils Court issued a warrant for his arrest and detention. The decision reads as follows: “The judge, having examined the case material, the arguments of the [investigative authority] and the attorney’s opinion, considers that the request is justified and should be granted. Section 241(1) of the Criminal Procedure Law sets out the grounds for the application of a procedural compulsory measure, namely a person’s resistance to the reaching of the aim of criminal proceedings in specific proceedings or to the performance of a separate procedural action, or non-execution or improper execution of his or her procedural duties. In accordance with section 272(1) of the Criminal Procedure Law a person may be detained only if specific factual information obtained in the course of criminal proceedings creates a reasonable suspicion that the person in question has committed a criminal offence, for which the law provides for a custodial sentence, and if no other preventive measure can ensure that they will not commit another criminal offence or obstruct or avoid the pre-trial proceedings, trial or execution of the sentence. Section 12(2) of the Criminal Procedure Law provides that human rights may be restricted only in cases where such restriction is required for public safety reasons and according to the nature and danger of the criminal offence. On 3 September 2013 the [applicant] was declared a suspect of a criminal offence proscribed by section 175(3) of the Criminal Law. Information obtained in the course of criminal proceedings excludes reasonable doubt about his implication in a serious criminal offence. The only possible sanction for commission of this crime is a custodial sentence. It follows from the case material that the [applicant] has declared [to the domestic authorities] his place of residence as [address of Daugavgrīva Prison] in Daugavpils. The case material also contains [a document from another set of criminal proceedings] with [his] signature, whereby he undertakes an obligation to reside at [a particular address] in Daugavpils. On 25 August 2010 the [investigating authority] sent a notice to that address for the [applicant] to appear at a police station on 27 August 2010. On a copy of that notice the investigator has made a note that the [applicant] failed to appear at the allotted time and did not inform [anyone] about the reasons for his absence. On 2 September 2010 a decision was made to forcibly escort the [applicant] to the [investigating authority] on 3 September 2010, but [this decision] could not be executed since the [applicant] was not living at [that particular address]. Police officers verified on several occasions other possible places where the applicant might be, but it was impossible to find him or where he might be; this is evidenced by the police officers’ reports of 4 and 7 August 2010. Information has been obtained in the course of the criminal proceedings that the [applicant] is renting an apartment in the [name of a particular street] area of Daugavpils, but the specific address is unknown. In the circumstances, there are grounds to consider that the [applicant] is hiding and avoiding participation in the investigation, thereby resisting the reaching of the aim of the criminal proceedings and obstructing the normal course of the criminal proceedings and a speedy and fair resolution of issues arising from criminal law. Information obtained from the Penalty Register shows that the [applicant] has been tried on five occasions, [reference to various crimes, including burglary]. Taking into account the time spent in pre-trial detention, he has served the [custodial] sentence imposed and ... is currently [subject to an] additional penalty – police control. In the circumstances, there are reasonable grounds to consider that at liberty, the [applicant] could continue to carry out criminal activities and would commit another criminal offence. Taking into account the aforementioned, the judge concludes that the [investigating authority’s] request is justified and that the security measure [of] detention should be imposed on the [applicant], since imposition of another security measure could not prevent him from committing another criminal offence or from avoiding the investigation. Also, given that the [applicant’s] actual location is not known, it is necessary to issue a search warrant.” 9. The applicant was arrested on 9 September 2010. 10. On 27 September 2010 a judge of the Latgale Regional Court examined an appeal brought by the applicant and upheld the initial detention order. This decision reads as follows: “Having assessed the reasons mentioned in the [applicant’s] complaint and his request, having heard the explanations given during the hearing, having examined the case material of the procedural compulsory measures and of the [instant] case, [and] taking into account the opinion of the [investigative authority], I consider that the decision of the investigating judge of the Daugavpils Court, to impose on the [applicant] the security measure of detention, should be upheld. I exclude from the [6 September 2010] decision a note to the effect that the [applicant] was avoiding participation in the investigation. According to the available information...on 16 July 2010 the [applicant] was convicted of [various crimes, including burglary] and sentenced to six years and three months’ imprisonment, police control for two years and confiscation of property. Taking into account the time spent in pre-trial detention, he has served the [custodial] sentence imposed. That judgment took effect on 7 August 2010... There is no convincing evidence that [he] received the notice to appear [at the police station] or [other] procedural documents sent [to him]... The conclusion made by the investigating judge – that detention had to be ordered for the [applicant] – is correct, since specific factual information obtained in the course of the criminal proceedings has created a reasonable suspicion that he committed a crime proscribed by section 175(3) of the Criminal Law, [for which] the law provides for a custodial sentence. Imposing another security measure could not ensure that the [applicant] would not commit another criminal offence. These reasons correspond to section 272(1) of the Criminal Procedure Law. They are confirmed by the information available within the criminal proceedings. The [applicant] has been sentenced on several occasions for crimes against property. He has also served sentences in prison but he has not drawn the necessary conclusions and has not reformed. He is suspected of an analogous crime committed while under police control [in connection with his previous conviction]. These circumstances are sufficient to conclude that at liberty, the [applicant] could commit another criminal offence. The investigating judge has rightly concluded that imposition of another security measure could not prevent him from committing another criminal offence. The [applicant’s] detention is justified. The public safety (sabiedrības drošība) is more important than the liberty of an individual who is acting contrary to the interests of society.” 11. On 12 November 2010 the investigating judge of the Daugavpils Court carried out a bi-monthly review of the applicant’s detention and adopted a decision in that regard. It reads as follows: “Having heard the arguments of the [investigating authority], the [applicant’s] explanation and the attorney’s position and having examined the case material, the judge concludes that the security measure [of] detention imposed on the [applicant] should continue to be applied. The security measure [of] detention was imposed on the [applicant] to ensure public safety and to prevent other criminal offences being committed. The grounds for detention have not changed. The [applicant] is suspected of two burglaries...a serious crime for which the law only provides for a custodial sentence. Previously, the [applicant] was tried on six occasions; his last conviction on 16 July 2010 concerned [various crimes, including burglary] and he was sentenced to six years and three months’ imprisonment, police control for two years and confiscation of property. Taking into account the time spent in pre-trial detention, he has served the [custodial] sentence imposed and he is suspected of an analogous, serious crime while under police control [in connection with his previous conviction]; therefore, a possibility continues to exist that at liberty, he could continue to carry out criminal activities and would commit another criminal offence, and the grounds for detention under section 272(1) of the Criminal Procedure Law have not disappeared. Pre-trial investigation continues within a reasonable time and there is no unjustified delay. It is not within the investigating judge’s competence to examine and assess the evidence obtained; therefore, the [applicant’s] submission – that the detention [order] should be lifted as there is no evidence of his guilt – is not substantiated. Besides, the [applicant’s] allegations that the [investigating authority] has ignored his requests and has not carried out additional questioning should not be taken into account as they contradict the case material. ... Section 277(6) of the Criminal Procedure Law provides that a person suspected of or charged with a crime may not be held in pre-trial detention for more than six months. The [applicant] has been detained since 9 September 2010, that is, for slightly more than two months. The time-limit for detention has not been exceeded. In the circumstances, the investigating judge considers that the [applicant’s] detention should be continued.” 12. On 9 December 2010 the applicant was officially charged with the two burglaries. On 20 December 2010 the pre-trial investigation was concluded and the case was forwarded for adjudication to the Daugavpils Court. 13. On 12 January 2011 another review of the applicant’s detention was carried out and he was retained in custody. 14. On 18 February 2011 the Daugavpils Court held the first hearing on the merits of the case, during which the applicant asked the court to change the security measure applied to him. In this respect, the court held as follows: “During the hearing, the [applicant] submitted a request that the security measure [applied to him] be changed as there is no evidence for his conviction; the gathering and verification of the necessary evidence requires more than six months, therefore his continued detention is not permitted. The [applicant] undertakes to attend all hearings. Having heard the [applicant’s] explanation [and the] opinions of the victim, attorney and prosecutor, the court considers that [his] request to change the security measure should be dismissed for the following reasons. In accordance with section 249(1) of the Criminal Procedure Law, if during the application of a procedural compulsory measure the grounds for the application of the measure disappear or change, or the provisions for the application of the measure or behaviour of the person change, or if other circumstances are ascertained that determined the choice of the compulsory measure, an [investigating authority] should take a decision to change or lift the measure. It follows from the wording of the decision of 6 September 2010 by the investigating judge of the Daugavpils Court that the [applicant] was detained because he was hiding and avoiding participation in the investigation... Besides, it has been ascertained that there are reasonable grounds to conclude that at liberty, the [applicant] could continue to carry out criminal activities and would commit another criminal offence. Taking into account that the [applicant] has been charged with a serious crime, that the grounds for detention have not disappeared or changed, that the conditions for its application have not changed, and that the legal requirements concerning the length of detention have been met, the court considers that the [applicant’s] request to change the security measure should be dismissed”. 15. The second trial hearing was held on 7 April 2011. The applicant once again requested a review of his continued detention. In this respect, the court held as follows: “During the hearing, the [applicant] submitted a request that the security measure [applied to him] be changed due to changes in the grounds for his detention and for application of the measure. The Latgale Regional Court excluded any reference that the [applicant] would avoid the investigation. Section 59 of the Criminal Procedure Law sets out the [types of evidence] allowing the suspicion that [a person has committed a criminal offence]. However, in the instant case there is no evidence for his conviction. The charges are not justified [as] the [applicant] has not admitted his guilt, therefore there is no reason to consider that he would continue to commit criminal offences...Detention can only be ordered with a view to preparing a judgment, but it is clear that judgment cannot be prepared for 9 September 2011 as all movements and escort (visas kustības un konvojēšanas) needs at least half a year, therefore his continued detention is of a punitive nature, which is prohibited by law. The [applicant] asks to be released, undertakes to attend all hearings and not to commit any offences. Having heard the [applicant’s] explanation [and the] opinions of the attorney and prosecutor, the court considers that his request to change the security measure should be dismissed for the following reasons. In accordance with section 249(1) of the Criminal Procedure Law, if during the application of a procedural compulsory measure, the grounds for the application of the measure disappear or change, or the provisions for the application of the measure or behaviour of the person change, or if other circumstances are ascertained that determined the choice of the compulsory measure, an [investigating authority] shall take a decision to change or lift the measure. It follows from the text of the decision of 6 September 2010 by the investigating judge of the Daugavpils Court that the [applicant] was detained because he was avoiding participation in the investigation... Besides, it has been ascertained that there are reasonable grounds to conclude that at liberty, the [applicant] could continue to carry out criminal activities and would commit another criminal offence. The [applicant] rightly points out that the Latgale Regional Court in its decision of 27 September 2010 excluded any reference to the grounds of the investigative judge’s decision that the [applicant] was avoiding participation in the investigation. However, the grounds for detention – the possibility that at liberty, the [applicant] could commit another criminal offence – have not changed. The [applicant] has been convicted on several occasions, most recently on 16 July 2010. In the instant case, he has been charged with crimes committed on 20 August 2010 and on the night of 22...August 2010; therefore, another security measure could not ensure that the [applicant] would not commit other criminal offences. The court has not yet started proceedings and, accordingly, [its] assessment of the evidence, therefore there is no reason to decide on the lack of evidence for the [applicant’s] conviction; this has to be done when preparing a judgment in the case. When applying detention, the investigating judge and judge of the appellate court found that specific factual information obtained in the criminal proceedings created a reasonable suspicion that the [applicant] had committed a crime proscribed by section 175(3) of the Criminal Law, for which the law imposes a custodial sentence. In the circumstances, it has to be concluded that the grounds for detention under section 272(1) have not disappeared. Taking into account that the [applicant] has been charged with a serious crime, that the grounds for detention have not disappeared or changed, that the conditions for its application have not changed, and that the legal requirements concerning the length of detention have been met, the court considers that the [applicant’s] request to change the security measure should be dismissed.” 16. During a hearing on 6 June 2011 the applicant’s request to be released from detention was rejected for almost identical reasons. 17. On 8 August 2011 the Daugavpils Court decided to release him from detention as the maximum legal length of pre-trial detention (twelve months) was approaching. 18. At the time the parties to the present case finished exchanging their observations, the criminal proceedings against the applicant had not yet been concluded.
| 1 |
test
|
001-175659
|
ENG
|
PRT
|
CHAMBER
| 2,017 |
CASE OF CARVALHO PINTO DE SOUSA MORAIS v. PORTUGAL
| 1 |
Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
|
5. The applicant was born in 1945 and lives in Bobadela. 6. In December 1993 the applicant became a patient of the gynaecology department of the Alfredo da Costa Maternity Hospital (since renamed the Central Lisbon Hospital – Centro Hospitalar de Lisboa Central, hereinafter “the CHLC”). 7. On 9 December 1993 the applicant was diagnosed with bartholinitis, a gynaecological disease, on the left side of her vagina (bartholinite à esquerda). She started treatment, which included drainages (drenagens). After each drainage the Bartholin gland would swell, causing the applicant considerable pain. She would thus require a second drainage and painkillers. 8. She was offered surgery for the condition during a consultation at the beginning of 1995. 9. On 21 May 1995 the applicant was admitted to the CHLC for a surgical procedure to remove the left Bartholin gland. On 22 May 1995 the applicant had both glands, on the left and right sides of the vagina, removed. 10. On an unknown date after being discharged, the applicant began to experience intense pain and a loss of sensation in the vagina. She also suffered from urinary incontinence, had difficulty sitting and walking, and could not have sexual relations. 11. On an unknown date the applicant was informed after being examined at a private clinic that the left pudendal nerve (nervo pudenda do lado esquerdo) had been injured during the operation. 12. On 26 April 2000 the applicant brought a civil action in the Lisbon Administrative Court (Tribunal Administrativo do Círculo de Lisboa) against the CHLC under the State Liability Act (ação de responsabilidade civil extracontratual por facto ilícito), seeking damages of 70,579,779 escudos (PTE), equivalent to 325,050,020 euros (EUR), of which PTE 50,000,000 (EUR 249,399) was in respect of non-pecuniary damage owing to the physical disability caused by the operation. 13. On 4 October 2013 the Lisbon Administrative Court ruled partly in favour of the applicant. It established, inter alia, the following facts: (i) that the applicant had suffered since 1995 from a physical deficiency which had given her an overall permanent degree of disability of 73% and that the disability had resulted from the left pudendal nerve being cut; (ii) after being discharged from hospital, the applicant had complained of pain associated with insensitivity in the part of the body which had been operated on and which had become swollen; (iii) the left pudendal nerve had been injured during the operation, which had caused the pain from which the applicant was suffering, the loss of sensitivity and the swelling in the vaginal area; (iv) the applicant had suffered from a decrease in vaginal sensitivity due to the partial lesion to the left pudendal nerve. 14. On the merits, the Lisbon Administrative Court found that the surgeon had acted recklessly by not fulfilling his objective duty of care, in breach of leges artis, and established that there was a causal link between his conduct and the injury to the applicant’s left pudendal nerve. The Lisbon Administrative Court also established that it was that injury which caused her, among other problems, the pain and loss of sensation in the vagina and urinary incontinence. As a consequence, she had difficulty walking, sitting and having sexual relations, which, all together, made her feel diminished as a woman. Consequently, the applicant was also depressed, had suicidal thoughts and avoided contact with members of her family and friends. For those reasons the Lisbon Administrative Court considered that the applicant should be awarded EUR 80,000 in compensation for non-pecuniary damage. In respect of pecuniary damage, the Lisbon Administrative Court awarded her EUR 92,000, of which EUR 16,000 was for the services of a maid the applicant had had to hire to help her with household tasks. 15. On an unknown date the CHLC appealed to the Supreme Administrative Court (Supremo Tribunal Administrativo) against the judgment of the Lisbon Administrative Court. The applicant lodged a counter-appeal (recurso subordinado), arguing that she should have received EUR 249,399 in compensation and that the CHLC’s appeal should be declared inadmissible. An opinion from the Attorney General’s Office attached to the Supreme Administrative Court (Procuradora Geral Adjunta junto do Supremo Tribunal Administrativo) stated that the CHLC’s appeal should be dismissed because it had been established that there had been a violation of leges artis. As a consequence, the various requirements of the obligation to pay compensation had been verified and the first-instance court had decided on compensation in an equitable and proper way. 16. On 9 October 2014 the Supreme Administrative Court upheld the first-instance judgment on the merits but reduced, inter alia, the amount that had been awarded for the services of the maid from EUR 16,000 to EUR 6,000 and the compensation for non-pecuniary damage from EUR 80,000 to EUR 50,000. The relevant part of the judgment on those points reads as follows: “... with respect to damages related to the charges for the maid ... [the plaintiff] could not show the amount paid under that head. Also ... we consider that the award of EUR 16,000 under that head is manifestly excessive. Indeed, (1) it has not been established that the plaintiff had lost her capacity to take care of domestic tasks, (2) professional activity outside the home is one thing while domestic work is another, and (3) considering the age of her children, she [the plaintiff] probably only needed to take care of her husband; this leads us to the conclusion that she did not need to hire a full-time maid ... Lastly, as regards non-pecuniary damage, it is important to set an amount which compensates the plaintiff for her pain and loss of sensation and swelling in the vaginal area, and for the difficulty sitting and walking, which causes her distress and prevents her from going about her everyday life, forcing her to use sanitary towels on a daily basis to conceal urinary and faecal incontinence and which has limited her sexual activity, making her feel diminished as a woman. In addition, there is no medical solution to her condition. All this has caused her severe depression, expressing itself in anxiety and somatic symptoms manifested in the difficulty she has sleeping, deep disgust and frustration with the situation in which she finds herself, which has turned her into a very unhappy person and which inhibits her from establishing relationships with others and has caused her to stop visiting family and friends, from going to the beach and theatre and which has given her suicidal thoughts. It should be noted, however, that the plaintiff has been suffering from the gynaecological condition for a long time (at least since 1993) and that she had already undergone various kinds of treatment without any acceptable result and that it was that lack of results and the impossibility of curing the condition otherwise that was the motivation for surgery. She had already had unbearable pain and symptoms of depression before [surgery]. This means that the plaintiff’s complaints are not new and that the surgical procedure only aggravated an already difficult situation, a fact which cannot be ignored when setting the amount of compensation. Additionally, it should not be forgotten that at the time of the operation the plaintiff was already 50 years old and had two children, that is, an age when sex is not as important as in younger years, its significance diminishing with age. Thus, having regard to all those aspects, we believe that the compensation awarded at first instance exceeded what could be considered reasonable and, as such, the plaintiff should be awarded EUR 50,000 in compensation [in respect of non-pecuniary damage].” 17. On 29 October 2014 the Attorney General’s Office attached to the Supreme Administrative Court applied to the Supreme Administrative Court to have the judgment of 9 October 2014 declared null and void (nulidade do acórdão) in the part concerning the amount awarded for non-pecuniary damage. It argued that the reasoning in the judgment and the decision on the amount of compensation were contradictory. It further submitted that the compensation award should not have taken account of the applicant’s symptoms before the medical intervention, as if only a worsening of those symptoms had been at stake. The relevant parts of the application read as follows: “... III – In the instant case, we are dealing with surgical intervention which aimed exclusively at extracting the Bartholin glands. ... During that surgical procedure the left pudendal nerve was partly damaged. The pudendal nerve ... is a different organ from the one which was the object of the surgical intervention. Following the extraction of the glands the plaintiff suffered damage which was considered as being established and which specifically arose from the lesion in question. IV- In view of the factual basis of the judgment and having regard to the fact that ‘in the absence of unlikely and unexpected occurrences doctors would have cured the plaintiff’s illness and she could have returned to her normal life’, the decision setting the amount of compensation for non-pecuniary damage should not have taken account of the plaintiff’s pain and symptoms of depression prior to the surgical intervention as if they had worsened. That is because, according to the judgment, they would have disappeared once the Bartholin glands had been removed and the plaintiff’s condition cured by surgery. V – The reasoning in the judgment leads logically to a different decision. That would be to set compensation for non-pecuniary damage on the basis of the fact that the plaintiff would have been cured if the pudendal nerve had not been injured.” 18. On 4 November 2014 the applicant applied to the Supreme Administrative Court to join the Attorney General’s appeal of 29 October 2014, arguing that the judgment of 9 October 2014 should be declared null and void in the part concerning the amount of non-pecuniary damage she had been awarded. 19. On 29 January 2015 the Supreme Administrative Court dismissed the appeals by the Attorney General’s Office and the applicant and upheld its judgment of 9 October 2014. It considered that the causal link between the injury to the pudendal nerve and the alleged damage had been established. However, that injury had not been the only cause of damage to the applicant. In the opinion of the judges of the Supreme Administrative Court, the applicant’s health problems prior to the operation, and her gynaecological and psychological symptoms in particular, could not be ignored and had been aggravated by the procedure.
| 1 |
test
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001-150604
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ENG
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NLD
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ADMISSIBILITY
| 2,014 |
V. AND OTHERS v. THE NETHERLANDS
| 4 |
Inadmissible
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Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
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1. The facts of the cases, as submitted by the applicants, may be summarised as follows. 2. Mr V. is a Netherlands national who was born in 1987. He is currently detained in a custodial clinic in Utrecht. He is represented before the Court by Mr L. van Vliet, a lawyer practising in Amsterdam. 3. On 4 January 2007 Mr V., who was then resident in an institution for persons with developmental problems, sexually assaulted a female member of institution staff, fondling or touching her breasts and lower body against her will. On 22 July 2007, while detained as a suspect in a custodial institution for juveniles, he sexually assaulted a fellow inmate, a fourteenyear-old boy, inter alia by rubbing his crotch. 4. In the course of the criminal proceedings, Mr V. was examined by a psychiatrist and a psychologist. The psychiatrist found the applicant to be suffering from a disorder in the autistic spectrum and mild mental deficiency. The psychologist also found indications of mild mental deficiency, in addition to pervasive development disorder and attention deficit hyperactivity disorder. Neither the psychiatrist nor the psychologist came to the conclusion that criminal responsibility was entirely absent. 5. On 16 December 2008 the Roermond Regional Court (rechtbank) convicted Mr V. of “indecent assault” (feitelijke aanranding van de eerbaarheid, Article 246 of the Criminal Code (Wetboek van Strafrecht)) and “committing lewd acts out of wedlock with a person below the age of sixteen” (met iemand beneden de leeftijd van zestien jaren buiten echt ontuchtige handelingen plegen, Article 247 of the Criminal Code). It ordered him to be placed at the disposal of the Government (terbeschikkingstelling, hereafter “TBS order”) with confinement in a custodial clinic (bevel tot verpleging van overheidswege). The judgment included the following reasoning: “The acts committed by [Mr V.], namely indecent assault and lewd acts with a child, are crimes which according to their statutory definition, carry maximum prison terms of eight years and six years respectively and for which a TBS order may be imposed. In view of the findings of the experts, the nature and seriousness of the acts found proven and the person of [Mr V.], as apparent from the examination of the case at the hearing, the Regional Court considers that a TBS order is justified in this case. [Mr V.] is after all afflicted with a serious disturbance on the basis of which it can be said that the safety of others or the general safety of persons requires the imposition of the measure. Moreover, [Mr V.] has committed criminal acts which admit of the imposition of such a measure. In addition, the Regional Court considers that these grounds justify confinement in a custodial clinic. In view of the above, the Regional Court will follow the advice of the experts and will impose a TBS order with confinement in a custodial clinic. The Regional Court agrees with the public prosecutor and counsel for the defence that it would serve no purpose at all to impose a punitive sentence on [Mr V.] in addition to the TBS order. ...” 6. Neither the prosecution nor the defence appealed against this judgment, which thus became final fourteen days later. The TBS order, which was valid for an initial period of two years, accordingly entered into force on 31 December 2008. 7. On 5 January 2011 the Roermond Regional Court extended the TBS order for a further two years. The decision stated that the crimes committed by Mr V. were indictable offences directed against, or endangering, the physical integrity of one or more persons. No appeal was lodged against it. 8. The TBS order next came up for review two years later, in December 2012. The public prosecutor sought a further extension. Having held a hearing on 13 December 2012, the Roermond Regional Court gave a decision on 27 December 2012 refusing to extend the order further. Its reasoning was as follows: “In order to answer the question whether or not the TBS order is limited in duration, in which event the possibility of indefinite extension does not exist, it is necessary to consider the judgment of the European Court of Human Rights in Van der Velden v. the Netherlands, no. 21203/10, 31 July 2012, and the decision of the Arnhem Court of Appeal of 1 October 2012 (LJN (Landelijk Jurisprudentie Nummer, National CaseLaw Database Number) BX8788). In the present case the TBS order with confinement in a custodial institution was ordered by a judgment of this court of 16 December 2008 in relation to the indictable offences (misdrijven) ‘indecent assault’ and ‘committing lewd acts with a person below the age of sixteen’. This judgment lacks reasoning as referred to in Article 359 § 7 of the Code of Criminal Procedure (Wetboek van Strafvordering). As the European Court of Human Rights held in that judgment, it is not for the court ruling on the extension of the TBS order to determine retrospectively, by interpretation of the judgment of the trial court, whether or not the TBS order was imposed in connection with an indictable offence that is directed against, or endangers, the physical integrity of one or more persons (‘a crime of violence’), and accordingly whether or not the TBS order is limited in duration. If the prescribed reasoning is absent, then the TBS order cannot be unlimited in duration and it must, according to the European Court of Human Rights, be assumed that the TBS order is limited to a maximum duration. The Arnhem Court of Appeal has held in its aforementioned decision that there is no such interpretation if on the basis of the conviction, the qualification and the reasoning of the measure, considered in context (in onderling verband en samenhang bezien), it is self-evident to anyone that the crime in issue is a crime of violence. In view of the latter decision of the Court of Appeal the Regional Court must answer the question whether in this case it is self-evident that the facts for which the TBS order was imposed constitute ‘crimes of violence’. In the present case it is not self-evident from the conviction, the qualification and/or the reasoning that the crimes in issue are ‘crimes of violence’. Since such a conclusion could be reached only by way of interpretation of the judgment of 16 December 2008 and – in view of the further circumstances – it cannot be ruled out that the trial court intended to limit the TBS order in duration to a four-year maximum, the Regional Court considers that in this case the TBS order is limited in duration, so that there is no longer any possibility of extending the order further. The public prosecutor’s request for an extension of the TBS order will therefore be refused. The above findings do not alter the Regional Court’s understanding, which is shared by all concerned, including Mr V. himself, that Mr V. will nonetheless need further treatment and/or assistance.” 9. The public prosecutor appealed to the Arnhem-Leeuwarden Court of Appeal (by this time the successor to the Arnhem Court of Appeal). 10. Having held a hearing on 14 March 2013, the Arnhem-Leeuwarden Court of Appeal, sitting in Arnhem, gave a decision on 28 March 2013 extending the TBS order by a further two years. Its reasoning was as follows: “TBS order limited in duration? In the judgment of the Supreme Court (Hoge Raad) of 12 February 2013, LJN BY8434, the view was taken that the sole fact that the sentencing court in its reasoning has not stated in so many words that the TBS order was imposed in connection with a crime of violence does not entail that the measure can no longer be extended if its total duration exceeds a period of four years. The only condition set by Article 38e § 1 of the Criminal Code for the extension of the TBS order is that the measure be imposed in connection with a crime of violence. Whether such is the case can also be deduced from the other content of the final judgment of the sentencing court – whether it be read in context or not – such as the conviction, the evidence relied on, the qualification, the reasoning of the rejection of any defence put forward and the reasoning of the sanction or sanctions imposed. If, on that basis, it is evident that the crime is one of violence, then at the very least it cannot be said that the possibility of extension of the measure beyond four years was not foreseeable for the person subject to the TBS order. The Court of Appeal finds that [Mr V.] – given the conviction and the qualification – was convicted of: indecent assault; committing lewd acts out of wedlock with a person below the age of sixteen. The Court of Appeal has had regard in this connection to the Regional Court’s considerations in imposing the sentence and the measure. On the above grounds, the Court of Appeal considers that it is implicit in the judgment of the Roermond Regional Court of 16 December 2008 that the TBS order was imposed in connection with crimes of violence and that accordingly it cannot be said that the possibility of extension of the measure after four years was not reasonably foreseeable for [Mr V.]. The defence made by counsel is therefore dismissed. Mental disturbance and danger of reoffending It appears from the case file that [Mr V.] is a mentally deficient man with an autism spectrum disorder. The danger of reoffending is estimated to be high absent present levels of security and care. There has lately been a clearly positive development. The clinic indicates that it has been possible to make follow-up arrangements with P., a work and residential institution for young adults with mild intellectual impairment and serious behavioural disorders. The clinic indicates that it is important to prepare the transfer to the successor institution properly and carry it out painstakingly and gradually, in order to limit as far as possible the loss of structure and control. Extension In view of the danger of reoffending, which still exists, and [Mr V.’s] pathology the Court of Appeal considers that the safety of others or the general safety of persons requires the TBS order to be extended. In view of the expected duration of further treatment and resocialisation work the Court of Appeal considers that a two-year extension is indicated. The Court of Appeal assumes that the resocialisation work now begun will be pursued diligently.” 11. Mr Mohamed Elgouille was born in 1978 and has both Netherlands and Moroccan nationality. He is currently detained in a custodial clinic in Nijmegen. He is represented before the Court by Mr F. Holthuis, a lawyer practicing in The Hague. 12. On 17 January 2004 Mr Elgouille punched his girlfriend in the face. When he was arrested later that day, cocaine was found on his body. On 6 February 2004 Mr Elgouille robbed an acquaintance of his bank card and his bunch of keys, assaulted him and cut him with a razor, and then left him in a helpless condition. The acquaintance was later found dead. On 11 February 2004 Mr Elgouille violently forced another acquaintance to hand him cocaine and money. 13. On 4 November 2004 the Regional Court of The Hague convicted Mr Elgouille of “causing bodily harm” (mishandeling, Article 300 of the Criminal Code), “robbery with violence” (diefstal met geweldpleging, Articles 311 and 312 of the Criminal Code), “manslaughter” (doodslag, Articles 287 and 288 of the Criminal Code) and “attempted extortion” (poging tot afpersing, Articles 45 and 317 of the Criminal Code). It sentenced him to 14 years’ imprisonment. 14. Mr Elgouille appealed against this judgment. On 28 September 2006 the Court of Appeal of The Hague quashed the decision of the Regional Court and acquitted Mr Elgouille of the manslaughter in the absence of a proven causal link. It convicted him of the other offences, sentenced him to five years’ imprisonment and imposed a TBS order with confinement in a custodial clinic. The judgment included the following reasoning: “[Mr Elgouille] has committed a property offence, in which he did not recoil from using brute force against the victim by beating and kicking him, in order to deprive him of his bunch of keys and bank card. Furthermore, some days later, [Mr Elgouille] attempted to extort cocaine and money from a person by beating, kicking and threatening the victim. Acts such as these are generally experienced by the victims as exceedingly threatening and moreover these acts also cause anxiety and feelings of insecurity in society. In addition, [Mr Elgouille] assaulted another person and held cocaine in his possession. Besides, it has been established that, according to an extract from the Criminal Records Register dated 16 August 2006 relating to him, [Mr Elgouille] has been convicted of property offences and violent offences before, which apparently did not deter him from committing the present offences.” 15. Mr Elgouille appealed on points of law to the Supreme Court. On 17 June 2008 the Supreme Court quashed the judgment of the Court of Appeal for technical reasons and reduced the term of imprisonment to four years and seven months in view of the excessive length of the proceedings; for the remainder it endorsed the judgment of the Court of Appeal. 16. The TBS order entered into force on 7 August 2008. 17. The Regional Court of The Hague extended the TBS order by two more years by decision of 28 September 2010. The decision stated that the crimes committed by Mr Elgouille were indictable offences directed against, or endangering, the physical integrity of one or more persons. Appealing against this decision, the applicant asked for a new diagnosis; in the alternative, for a conditional suspension of his compulsory confinement; in the further alternative, for an extension of only one year not two. His appeal was dismissed and the Regional Court’s decision was confirmed by the Arnhem-Leeuwarden Court of Appeal on 2 May 2011. 18. The Regional Court of The Hague extended the TBS order by a further two years on 9 October 2012. The Arnhem-Leeuwarden Court of Appeal confirmed this decision on 25 April 2013. 19. On 9 October 2012 the Regional Court of The Hague reviewed if further extension for two more years was allowed. The court answered this question in the affirmative. Its reasoning was as follows: “The measure of placement in a custodial clinic has been applied in respect of: - theft, preceded and accompanied by violence against persons, committed with the intention of preparing and facilitating this theft; - attempted extortion; - assault; - deliberately acting in breach of the prohibition contained in Article 2, paragraph 1, under C of the Opium Act. Accordingly, crimes (of violence) that are directed against and endanger (the physical integrity of) persons. Pursuant to the foregoing, the court considers that the safety of others and the general security of persons or property demand the extension. Since it appears from the advice and the deliberations in chamber that the treatment involving learning new behaviour is still in the early stages and no start has yet been made with the rehabilitation, the court is of the opinion that the TBS order should be extended for two more years. The court sees no reason to give the clinic indications concerning the way in which the treatment should take place.” 20. The Arnhem-Leeuwarden Court of Appeal confirmed this decision on 25 April 2013. The court considered the following: “Custodial placement not limited in duration The Court of Appeal finds that the judgment of the Court of Appeal of The Hague of 28 September 2006 convicted [Mr Elgouille] of, inter alia: - theft, preceded and accompanied by violence against persons, committed with the intention of preparing and facilitating this theft; and - attempted extortion. In accordance with the judicial findings of fact, the qualification and the reasons given for the imposition of the penalty and measure, considered in their interrelationship, that judgment implies that the TBS order has been imposed in connection with crimes of violence within the meaning of Article 38e § 1 of the Criminal Code and that on that account it cannot be said that the possibility of extension of the measure after four years has not been reasonably foreseeable for [Mr Elgouille]. Moreover, the Court of Appeal takes into consideration that both offences involved physical violence against the victim by among other things beating and kicking the body. Counsel’s defence was rejected.” 21. Mr Edward Cornelis Willem Leonardus Kuiters is a Netherlands national who was born in 1968. He is currently detained in a custodial clinic in Poortugaal. He is represented before the Court by Mr P. Scholte, a lawyer practising in Amsterdam. 22. On 20 June 2007 Mr Kuiters smashed the windows of the house of his neighbour, one Mr de V., with a baseball bat. At the relevant time, Mr de V. was present on the first floor of his house. It is noted that apart from this incident, Mr Kuiters had on an earlier occasion shot through the windows of Mr de V.’s car with a crossbow. 23. The Breda Regional Court convicted Mr Kuiters on 15 October 2007 of “threatening grievous bodily harm” (bedreiging met zware mishandeling, Article 285 of the Criminal Code) and “carrying a weapon” (een wapen dragen, section 27(1) of the Arms and Ammunition Act (Wet wapens en munitie)). As relevant to the case before the Court, it imposed a TBS order with confinement in a custodial clinic. 24. Mr Kuiters appealed against this judgment to the ‘s-Hertogenbosch Court of Appeal. On 20 January 2009 the Court of Appeal quashed the judgment of the Regional Court on a technicality and gave a new judgment. As had the Regional Court, it convicted Mr Kuiters of threatening grievous bodily harm and carrying a weapon. Finding that Mr Kuiters could not be held criminally responsible, it excused him punishment but imposed a TBS order with confinement in a custodial clinic. The judgment included the following reasoning: “The Court of Appeal finds, in view of the circumstances set out above and also taking earlier events into account: that the suspect’s violent behaviour was highly threatening for Mr de V.; that Mr V. had good reason to conclude that if he did not give in to the suspect’s wishes, he ran a serious risk of incurring grievous bodily harm that the suspect’s intent was directed to this end, at any rate inasmuch as he understood that such would be the necessary consequence of his behaviour.” and “Having regard to the foregoing, particularly having regard to [Mr Kuiters’s] fascination with weapons in combination with his long-term mental disorder, the Court considers that the likelihood of reoffending should be estimated high and that, to reduce this chance, clinical psychiatric treatment is required.” and “In the view of the Court of Appeal, [the safety of others and/or the general safety of persons or goods] necessitates a TBS order and also requires [Mr Kuiters] to be confined in a custodial clinic. In so finding, the Court of Appeal has also considered the content of [the various reports] that have been prepared on the subject of [Mr Kuiters’s] personality, in addition to the seriousness of the first criminal act found proven [i.e. threatening grievous bodily harm]. That act is an indictable offence (misdrijf) that, according to its statutory definition, carries a prison sentence of more than four years.” 25. The TBS order entered into force on 4 February 2009. 26. After an initial period of two years, the Breda Regional Court extended the TBS order with two more years on 11 February 2011. Mr Kuiters did not object to such an extension. It is reflected in the decision that the institution in which Mr Kuiters was being held did not expect that it would be possible to terminate the TBS order after the end of that term. 27. The TBS order came up for review again in early 2013. The public prosecutor sought a further two-year extension. 28. Having held a hearing on 12 February 2013, the Zeeland-West-Brabant Regional Court (by this time the successor to the Breda Regional Court) gave a decision extending the TBS order by one year. Its reasoning included the following: “Is the TBS order limited in duration? First of all, the Regional Court must ascertain whether or not the TBS order in the present case is limited in duration. Therefore, the question must be answered whether the TBS order was imposed in connection with a crime of violence within the meaning of Article 38e § 1 of the Criminal Code. The Regional Court will first determine the framework for review on the basis of which this question should be answered. In this respect, recent developments in case-law are of particular importance. Article 38e § 1 of the Criminal Code provides that the total duration of a TBS order with confinement in a custodial clinic shall not exceed a period of four years, unless the TBS order is imposed in connection with a crime that is directed against, or endangers the physical integrity of one or more persons. Article 359 § 7 of the Code of Criminal Procedure provides that, if the confinement in a custodial clinic has been imposed in connection with a crime that is directed against, or endangers, the physical integrity of one or more persons, the judgment shall state the reasons for so doing. The Court of Appeal of Arnhem, referring to the judgment of the European Court of Human Rights (ECHR) of 31 July 2012 [Van der Velden v. the Netherlands], has held in its decision of 1 October 2012 [see below] that it is not for the court ruling on the extension of the TBS order, in the event that the judgment or decision in which the imposition of the TBS order has been given does not contain the reasoning as referred to in Article 359 § 7 of the Code of Criminal Procedure, to determine retrospectively, by interpretation of the judgment of the trial court, whether or not the TBS order was imposed in connection with an indictable offence that is directed against, or endangers, the physical integrity of one or more persons, and accordingly whether or not the TBS order is limited in duration. The Court of Appeal has furthermore considered that it is not a matter of interpretation of the judgment of the court which imposes the TBS order if, on the basis of the judicial finding of facts, the qualification and the reasons given for the imposition of the penalty or measure, it is self-evident that the crime in issue is such as referred to in Article 38e § 1 of the Criminal Code. In its judgment of 12 February 2013, the Supreme Court held that the aforementioned judgment of the Court of Appeal of Arnhem is partly incorrect. The Supreme Court considers, first and foremost, that it is the court which imposes the TBS order that decides whether or not this order is limited in duration. The Supreme Court furthermore considers that it will be relatively simple to establish whether the order has been imposed in connection with a crime of violence if the court which imposed the TBS order, in giving reasons for so doing, has stated that the measure was imposed in relation to a crime of violence. If such explicit reasoning is missing, this does not mean that the measure cannot be extended, if this means that the TBS will last longer than four years. What is important is whether the TBS order has been imposed for a crime of violence. Whether or not this is so can also be deduced from the other contents of the final judgment of the court that imposed the TBS order – considered in context if need be –, such as the judicial findings of fact, evidence, qualification, reasoning of the rejection of defences put forward and reasons given for the sanctions imposed. If on that basis it is evident that the crime was one of violence, it cannot be said in any event that the possibility of extension of the measure after four years was not foreseeable for the person subject to the TBS order. If explicit reasoning is absent and it is not evident from the judgment of the court that imposed the TBS order that it concerns a crime of violence, the court that decides on the request for extension of the TBS order will have to form an opinion about the question whether – having regard to all the facts and circumstances that were known at the relevant time – the crime can be regarded as such a crime of violence. In so doing the court that decides on the request for extension has to take into account all relevant circumstances; in addition, information besides that mentioned in the final judgment can also be taken into account. In the case of a threat the court that decides on the request for extension can take into consideration whether the threat was preceded, accompanied or followed by non-verbal aggressive behaviour towards the threatened person, or was in any (other) way reinforced, and also whether it was plausible at the relevant time that the threat would be carried out. According to the Supreme Court, the point is that the finding of the court that decides on the request for extension that the TBS order was originally imposed for a crime of violence should be reasonably foreseeable and thus should not come as a surprise for the person subject to the TBS order. ... Agreeing on this point with defense counsel, the Regional Court is of the opinion that it is not self-evident from the judgment of the Court of Appeal that the crime in issue was a crime of violence. The Regional Court will interpret the judgment of the ‘s-Hertogenbosch Court of Appeal on the basis of the relevant facts and circumstances. The Regional Court deems the following of importance. The ‘s-Hertogenbosch Court of Appeal, in its special considerations regarding the evidence, held that on 20 June 2007 in Prinsenbeek Kuiters had smashed the windows of the house of Mr de V. with a baseball bat. He had, given the parked car in front of the door, drawn the conclusion that V. was at home and wanted to make a statement. A reporting officer observed that the glass was scattered over a distance of 10 metres. The Court of Appeal has furthermore taken notice of the history between Kuiters and Mr de V. On 16 May 2003 Mr de V. reported attempted manslaughter and destruction. One night a brick had been thrown through his bedroom window, which brick landed next to him on his bed. On 4 February 2007 he furthermore reported destruction and threat, after Kuiters had shot through the windows of Mr de V’s car with a crossbow. Furthermore, the ‘s-Hertogenbosch Court of Appeal has found, inter alia, that [Mr Kuiters’s] violent actions had been highly threatening for Mr de V. and that for him there were good grounds to conclude that, if he did not yield to the desires of [Mr Kuiters], he would run a serious risk of sustaining serious bodily injury. The Regional Court concludes from the foregoing that the Court of Appeal was of the opinion that there was a justified fear that at some point Kuiters would direct his aggression directly against Mr de V. and that the latter would run a risk of sustaining serious bodily injury. In view of that, and the circumstances cited by the Court of Appeal, the history and the terms used, the Regional Court is of the opinion that the Court of Appeal meant to impose the TBS order in connection with an indictable offence directed against, or endangering, the physical integrity of a person as referred to in Article 38e § 1 of the Criminal Code. Having regard to the foregoing, in the view of the Regional Court it cannot be said that, in the light of the judgment of the Supreme Court, it was not reasonably foreseeable that the TBS order was imposed in connection with such a crime of violence. This means that the TBS order with compulsory treatment in the present case is not limited in duration.” 29. Mr Kuiters appealed to the Arnhem-Leeuwarden Court of Appeal. Having held a hearing on 6 June 2013, the Court of Appeal gave a decision on 20 June 2013 endorsing the Regional Court’s decision, including its reasoning, in its entirety. 30. As relevant to the case, the Criminal Code provides as follows: Article 37a “1. The court may impose a TBS order on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if: 1º the offence he has committed is one which, according to its statutory definition, renders offenders liable to a term of imprisonment of four years or more, ... and 2º the said measure is necessary in the interests of the safety of others or the general safety of persons or goods. ... 4. In giving an order under paragraph 1, the court shall take account of the statements contained in the other opinions and reports made concerning the suspect’s personality, and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences.” 31. The offences of which the applicants were variously found guilty include, in each case, at least one indictable offence carrying a maximum sentence of four years or more. Article 37b “1. The court may order that a person who is subject to a TBS order shall be confined in a custodial clinic if this is necessary in the interests of the safety of others or the general safety of persons or goods. ...” Article 38d “1. A TBS order shall remain in force for a period of two years, counting from the day on which the judgment imposing it has become final. 2. Except as provided in Article 38e ..., the duration of the TBS order can be extended, on the application of the public prosecution service (openbaar ministerie), for either one year or two years at a time, if the safety of others or the general safety of persons or goods requires such extension. A second extension is possible only when an order as mentioned in Article 37b ... has been given.” Article 38e “1. The total duration of the TBS order shall not exceed a four-year period, unless the TBS order is imposed in connection with an indictable offence that is directed against, or endangers, the physical integrity of one or more persons. 2. If the total duration of the TBS order is not limited in time, the duration of the TBS order can be extended periodically, if the safety of others or the general safety of persons requires such extension.” 32. As relevant to the cases, the Code of Criminal Procedure provides as follows: Article 359 “1. The judgment shall state the charges and the public prosecutor’s sentence request (vordering). 2. The decisions referred to in Articles 349 § 1 [preliminary issues] and 358 §§ 2 and 3 [substantive issues] shall be reasoned. If the decision deviates from positions explicitly argued by the suspect or the public prosecutor, the judgment shall indicate, in particular, the reasons (geeft ... in het bijzonder de redenen op) for so doing. ... 4. If Article 9a of the Criminal Code [the decision not to impose a sentence or non-punitive measure] or Article 44a of the Criminal Code [reduction of sentence in exchange for giving evidence against another suspect] is applied, the judgment shall state the special reasons (geeft.... in het bijzonder redenen op) that have led to that decision. 5. The judgment shall state, in particular, the reasons (geeft in het bijzonder de redenen op) that have determined the sentence or led to the non-punitive measure. 6. In imposing a sentence or non-punitive measure involving deprivation of liberty, the judgment shall state, in particular, the reasons (geeft ... in het bijzonder de redenen op) which have led to the choice of this type of sentence or non-punitive measure. In addition, the judgment shall indicate, as far as possible, the circumstances taken into account in setting the length of the sentence. 7. If a TBS order with an order for confinement in a custodial clinic has been imposed in connection with an indictable offence directed against, or endangering, the physical integrity of one or more persons, the judgment shall so indicate, giving reasons (geeft het vonnis dit onder opgave van redenen aan). 8. All on pain of nullity.” 33. The following passages are excerpts from the drafting history of Article 38e of the Criminal Code and Article 359 of the Code of Criminal Procedure (Wetboek van Strafvordering): “... I [i.e. the Deputy Minister of Justice (Staatssecretaris van Justitie)] propose to let the court which imposes the TBS order with confinement in a custodial clinic decide whether that order is subject to a maximum or not. That court knows the case file well and is best placed to get an idea of the interaction between the act and the actor (daad-dadercomplex). It will then be determined from the outset whether it is subject to a maximum or not. Moreover, it is desirable both from the perspective of treatment and from that of the legal position of the person subject to the order that it be foreseeable at the time when the TBS order is imposed whether the TBS order is subject to a maximum or not. The treatment plan can be drawn up accordingly. The person subject to the TBS order will then know, if the order is subject to a maximum, what its maximum duration will be. ... The court which imposes the TBS order with confinement in a custodial clinic will have to decide, giving reasons, whether the crime in issue is one that is directed against, or endangers, the physical integrity of one or more persons. ... In opting for this solution it will have to be taken as part of the deal that in a number of cases the question whether the TBS order is subject to a maximum or not will be the object of an appeal or an appeal on points of law.” (page 9) and “The proposed amendment of Article 359 [of the Code of Criminal Procedure] can be seen as a logical consequence (pendant) of the proposed amendment of Article 38e of the Criminal Code. The court which imposes the TBS order with confinement in a custodial clinic must indicate in its judgment, giving reasons, whether it considers that the crime in issue is one that is directed against, or endangers, the physical integrity of one or more persons. It is thus clear from the start whether the TBS order is subject to a maximum or not. As a rule, it will be enough for the court to point to the nature of the indictable offence as found proven and qualified. The prescribed reasoning will therefore not normally be subject to such stringent requirements. However, in certain circumstances the court will have to give reasoning setting out the specific facts or circumstances.” (page 13) “The court which imposes the [TBS order with confinement in a custodial clinic] at the same time decides whether it shall be limited in time or not. The court to which it falls to consider whether the order should be extended or not is dispensed from making that choice.” (pages 1-2) and “The current maximisation arrangement [i.e. the arrangement existing until the entry into force of the legislation here in issue] differs from that proposed as regards the moment at which it is decided whether the duration of the TBS order shall be determined in advance or not. The decision on the question whether the TBS order is subject to a maximum will be taken, pursuant to the proposed Article 38e of the Criminal Code, when the order is imposed and is to be based on the trial court’s view of the nature of the crime. In considering the request to extend the TBS order it is no longer an issue whether the crime belongs to the exceptions enumerated in the first paragraph of Article 38e; the court which imposed the order will already have determined that, giving reasons in accordance with the additional requirements set out in Article 359 [of the Code of Criminal Procedure]. The current arrangement allows the court [which decides on the extension of the TBS order] to express its views on the seriousness of the crime for which the order was imposed in its decision.” (page 5) 34. The Explanatory Memorandum gives a non-exhaustive enumeration of indictable offences for which the maximum four-year term is not intended to apply. Offences listed include, amongst others, rape (Article 242 of the Criminal Code), indecent assault (Article 246 of the Criminal Code); committing lewd acts out of wedlock with a person below the age of sixteen (Article 247 of the Criminal Code); manslaughter (Article 287 of the Criminal Code); murder (Article 289); causing grievous bodily harm (Article 302 of the Criminal Code); and robbery with violence (Article 312 of the Criminal Code). 35. In a decision of 1 October 2012, LJN BX8788, the Arnhem Court of Appeal, reversing its earlier case-law in response to the Van der Velden judgment of this Court, held that it was not for the court called upon to decide on the extension of a TBS measure (on appeal) to supplement the judgment of the trial court by interpretation and decide, retrospectively, whether or not a TBS order had originally been imposed in connection with a crime of violence. 36. However, it was not “interpretation” to find that in view of the conviction, the qualification and the reasoning on which the sentence and/or the TBS order was grounded, considered in context, it was self-evident to anyone that the crime in issue was one of violence. 37. The case itself concerned a person convicted of threatening to kill someone with a knife. 38. The Procurator General (procureur-generaal) to the Supreme Court lodged an appeal on points of law “in the interests of the law” (cassatie in het belang der wet) against the Court of Appeal’s decision of 1 October 2012. 39. The Supreme Court gave judgment on 12 February 2013 (LJN BY8434). As relevant to the case before the Court, it held as follows: “4.1. The points of law argue essentially that the Court of Appeal erred in refusing the request to extend the TBS order or did so on inadequate grounds. 4.2. The Supreme Court notes that the [Van der Velden judgment] concerned a case in which the court which imposed the TBS order (opleggingsrechter) had not expressed a view on the question whether the indictable offence in issue had been one directed against, or endangering, the physical integrity of one or more persons (referred to hereafter, for the sake of brevity, as a ‘crime of violence’), and in which the court which had initially decided on the request for extension of that measure (verlengingsrechter) had found that the crime in issue was not a crime of violence in that sense. It was only the court which was called upon on appeal to consider the extension of the TBS order which came to a different conclusion and found the criminal act in connection with which the measure had been imposed to be a crime of violence. The Supreme Court understands this decision of the European Court of Human Rights, in which the interest of legal certainty is stressed where it concerns deprivation of liberty, in the sense that the conditions which must be met for a deprivation of liberty to be considered ‘lawful’/’régulière’ within the meaning of Article 5 § 1 of the Convention must be clearly circumscribed and that the way in which they are applied must be reasonably foreseeable. This means, in cases such as the present, that the view taken by the court which imposes the TBS order concerning the question whether the TBS order is imposed in connection with a crime of violence is decisive for the question whether the measure is amenable to extension by the court which decides on extension of the measure, as provided for by Articles 38d and 38e of the Criminal Code. It is thus the court which imposes the TBS order which decides – in brief – whether the TBS order imposed by it is limited in duration or not. 4.3. It will, as a rule, be relatively simple to establish that decision if the court which imposed the TBS order, in giving reasons for so doing – preferably in the words of Article 359 § 7 of the Code of Criminal Procedure –, has stated that the measure was imposed in relation to a crime of violence, or not as the case may be. That is of particular importance if the crime in relation to which the TBS order was imposed cannot without further explanation be characterised as a crime of violence – i.e. as an indictable offence that was directed against, or endangered, the physical integrity of one or more persons – as in the case of threatening (bedreiging, Article 285 of the Criminal Code), or stalking (belaging, Article 285b of the Criminal Code), in relation to which the measure here in issue can be imposed pursuant to Article 37a § 1 (a) of the Criminal Code. 4.4. The sole fact that the sentencing court in its reasoning has not stated in so many words that the TBS order was imposed in connection with a crime of violence does not entail that the measure can no longer be extended if its total duration exceeds a period of four years. The only condition set by Article 38e § 1 of the Criminal Code for the extension of the TBS order is that the measure be imposed in connection with a crime of violence. Whether such is the case can also be deduced from the other content of the final judgment of the sentencing court – whether it be read in context or not – such as the conviction, the evidence relied on, the qualification, the reasoning of the rejection of any defences put forward and the reasoning of the sanction or sanctions imposed. If, on that basis, it is evident that the crime is one of violence, then at the very least it cannot be said that the possibility of extension of the measure beyond four years was not foreseeable for the person subject to the TBS order. 4.5. The opinion of the Court of Appeal that, except in cases as referred to above, it is not for the court that decides on the extension of the measure to determine retroactively ‘by interpretation of the judgment of the court which imposed the TBS order’ whether or not the TBS order was imposed in relation to a crime of violence is not, however, borne out by the said judgment of the European Court of Human Rights and moreover cannot be accepted as correct. There is no rule of law that prevents the court which decides on the extension of the TBS order from coming to the conclusion, based also on other information than that contained in the final judgment [of the trial court] – such as the proceedings of the hearing of the court which imposed the TBS order, as apparent from the official record made of that hearing – that the TBS order was imposed in relation to a crime of violence; it cannot, moreover, be ruled out that other documents available to the court which imposed the TBS order are conclusive on this point. 4.6. Consultation of these documents will be indicated especially if the final judgment does not contain sufficiently clear reasoning as referred to in Article 359 § 7 of the Code of Criminal Procedure or otherwise does not give sufficient pointers (aanknopingspunten) to conclude that the fact for which the TBS order was imposed must be characterised ipso facto as a crime of violence, like the threat of lethal violence held proven in the instant case. In such a situation the court that decides on the extension of the TBS order will have to arrive at a conclusion as to whether – in view of all the facts and circumstances that were known at the time – the threat constituted such a crime of violence. In this connection, it is worth noting that – contrary to the point of departure that seems to have been chosen by the Court of Appeal – the court which decides on the extension of the TBS order must take into consideration all relevant circumstances. In so doing it will be in a position to consider, among other things, whether the threat was preceded, accompanied, or followed by non-verbal aggressive behaviour against the person threatened or in some (other) way reinforced, and whether at the time it was likely that the threat might be carried out. There is no rule of law that prevents the court which decides on the extension of the TBS order from considering the finding that the crime in issue was one of violence implicit in the final judgment of the court which imposed the TBS order. In this way, it can be avoided that in those cases in which the court which imposed the TBS order failed to provide adequate clarity, either as prescribed by Article 359 § 7 of the Code of Criminal procedure or in some other way, as to whether the TBS order was limited in duration, this oversight (verzuim) by itself should prevent the measure from being extended, even if it is clear to all concerned that the TBS order was imposed for a crime of violence and it therefore merely concerns an oversight by the court which imposed the TBS order. What is decisive in cases such as the present is that the finding of the court which decides on the extension of the TBS order that the TBS order was at the time imposed in relation to an indictable offence that was directed against, or endangered, the physical integrity of one or more persons should be reasonably foreseeable and therefore should not come as a surprise to the person on whom the order was imposed.”
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test
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001-173088
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ENG
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UKR
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CHAMBER
| 2,017 |
CASE OF ZHERDEV v. UKRAINE
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Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);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);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Legal assistance of own choosing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
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André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev
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5. The applicant was born on 12 May 1988 and at the time of his most recent communication with the Court was detained in Toretsk (previously Dzerzhynsk). 6. Early on the morning of 16 February 2005 Mrs D., a night security guard at a shop in Toretsk, was found dead and partially undressed at her place of work, with injuries on her head and genitals. It was established that a grinder tool had also gone missing. The prosecutor’s office instituted criminal proceedings on the same day and over the following days proceeded to interview a number of witnesses. 7. At about 10 a.m. on 20 February 2005 two police officers arrived at the applicant’s home and asked him, at the time sixteen years of age, and his father to go to the police station with them. 8. Once at the police station, the applicant was separated from his father and questioned as to whether he had any information about the grinder which had disappeared from the shop. According to the applicant, then the police had started urging him to plead guilty to the murder and theft. According to him, as he repeatedly denied those allegations, three officers allegedly beat him on various parts of his body and threatened him that he would be raped in prison. 9. At an unspecified time the same day the applicant’s father and grandfather, who lived in the same house as the applicant, made statements to the police about the presence of the grinder in their house. The father stated that the applicant had apparently brought the grinder home around the time of the murder and had originally told him that a stranger had been offering the grinder for sale. On learning that the police were searching for a grinder, the applicant had told him the story he had told the police (see paragraphs 8 above and 13 below). However, in the applicant’s story as retold by the father, the grinder was found in a different street. On hearing this, the father had hidden the grinder. The grandfather’s account of events was similar to the father’s. On the same day the police also obtained a statement of Mr S., the applicant’s friend, about the time they had spent together on the night of the murder and the circumstances under which they had parted. 10. From 12.30 p.m. to 1.20 p.m. the police went to the place where the applicant’s father had hidden the grinder. The father pointed to where the grinder was and the police seized it. 11. At about 3 p.m. the applicant signed a document explaining his rights as a suspect, including the right to remain silent and to consult a lawyer before his first questioning. When signing the document, the applicant added that he did not object to L. representing him. The applicant alleged that he had mistakenly understood that L. had been asked to appear on his behalf by his parents. In fact, L. had been asked to represent the applicant by the investigator. 12. Subsequently the Qualifications Commission of the Bar of Ukraine, at the time the highest authority in charge of the advocates’ qualifications and discipline, examined the applicant’s parents’ complaint concerning the procedure used in the appointment of L. The Commission established that there was no evidence that L. had been appointed through a bar association, as required by law, in particular there was no order of the bar association or agreement with the client appointing L. It also established that there was no evidence that the investigator had issued a formal decision appointing L. as the applicant’s lawyer, as he had been required to do by law. 13. At 3.20 p.m. the applicant was questioned in the presence of L. He stated that on the night of the murder he had been walking home after a night out with friends. He had observed a stranger running down the street with a grinder and had started running after him. Once the man had dropped the grinder, the applicant had picked it up and run away. When he had brought the grinder home he had said to his father that someone had been offering to sell a grinder. When he had learned the next day that a night security guard had been killed and that grinders had been stolen, he had revealed the truth to his father, who had then hidden the grinder. 14. At 3:55 p.m. the applicant was examined by a forensic medical expert, who concluded that he had several light injuries that had been inflicted two to seven days before the examination. 15. At 4 p.m. the investigator K. drew up an arrest report, whereby the applicant was arrested on suspicion of D.’s murder. According to the report, the applicant was being arrested on the grounds that “eyewitnesses indicate the person who committed the crime”. According to the Government, the applicant’s parents were informed of the applicant’s arrest at that time. According to the applicant, no such notification was made. 16. At the same time most of the applicant’s clothes were seized for a forensic examination. 17. The applicant’s father was taken to the family home to accompany the police during a search. 18. At about 6.20 p.m. the police completed the search of the applicant’s home, seizing some clothes. According to the applicant it was only then that the police officers who had conducted the search brought replacement clothes from the applicant’s home to the police station. 19. According to the applicant, he was left handcuffed at the police station, wearing just his underwear, for the entire period from the seizure of his clothes until the end of the search and return of the police officers who conducted it, feeling very cold and vulnerable. During that time police officers continued urging the applicant to confess to the murder and beat him with plastic water bottles. 20. On the evening of 20 February 2005 the applicant was placed in a cell in the police’s temporary detention facility with two adult detainees, K., born in 1975, and O., born in 1956, who were at the time registered as suffering from drug addiction. O. had also been suffering from tuberculosis and had had a prior conviction (see paragraphs 62 and 63 below). It is unclear whether the applicant knew of the above background of his codetainees at the time he had been held with them. According to the applicant, the two other detainees were secret police informants. They advised the applicant that as he was a minor and if he chose to cooperate the investigative authorities would prosecute him on less serious charges and he would not receive a real prison sentence. K. was diagnosed with tuberculosis in November 2005. O. and K. died in January and December 2006 respectively, the former allegedly of an overdose and the latter of a disease. 21. The applicant continued to be detained in the cell with O. and K. until a court detention order arrived on 23 February 2005 and he was transferred to the remand prison (see paragraph 26 below). 22. According to the applicant, on the morning of 21 February 2005 two police officers took him out of his cell without registering it. They threatened to make sure he got a long prison sentence, to charge him with rape, which would lead to him being raped and harassed in prison by other inmates, and to create “problems” for his family, unless he confessed. Unable to withstand such pressure, the applicant agreed to copy by hand a statement prepared for him by the police officers, acknowledging his guilt for murder in “self-defence”. According to the authorities, on the morning of 21 February 2005 the applicant asked to see the officer in charge of the police detention facility. 23. The applicant then made a handwritten statement of surrender to Officer G., the head of the police detention facility. In his statement, the applicant noted that early on 16 February 2005, while in a state of alcoholic intoxication, he had decided to burgle the shop. Having suddenly run into the victim, who had tried to attack him with a grinder, he had defended himself and had hit her with a brick. When she had become unconscious, the applicant, scared of what had happened, had carried her to a couch and had undressed her to make it look as though there had been a rape. Then he had picked up the grinder and taken it home. 24. Later on the same day the applicant repeated the above confessions in a formal questioning session in the presence of his lawyer, L. 25. On the same day the applicant, unaccompanied by L., was taken to an identification parade, where Y., a shop assistant who had been working on a night shift at a kiosk close to the scene of the crime on the night of the murder, picked the applicant out of a four-person line-up as the person she had seen by her kiosk shortly before D. had been killed. In the course of one of the subsequent trials Y. stated that she had not identified the applicant with total certainty but had merely thought that there was a resemblance between him and the person she had seen that night. 26. On 22 February 2005 the applicant was charged with murder without aggravating circumstances and theft. Accordingly, his procedural status changed from that of “suspect” to “accused”. Questioned on the same day in the presence of L. the applicant repeated his previous confession. 27. On 23 February 2005 the Toretsk Court remanded the applicant in custody pending the completion of the investigation. That decision was not appealed against and became final. 28. On the same day the applicant’s cellmates, K. and O., were released. 29. On 25 February 2005 the applicant was transferred from the police detention facility to the remand prison in Bakhmut (at the time Artemivsk). 30. On 31 March 2005 the applicant was questioned in the presence of B., a lawyer engaged by his parents. He stated that he confirmed his prior statements about the murder. In the course of the subsequent investigation he was again questioned in the presence of the same lawyer and made detailed statements that repeated his confession. 31. On 6 April 2005 a commission of psychologists and psychiatrists produced a report at the request of the investigator concerning the applicant’s mental state at the time of the crime and at the time of his examination by the experts. The experts concluded, in particular, that the applicant, according to his own account, had committed the killing in self-defence, without premeditation and through an unexpected confluence of circumstances. As a result, he had suffered a serious shock and confusion. At the remand prison he had suffered from sleep troubles, fear, and confusion and had displayed inappropriate behaviour. When examined by a prison psychiatrist he had been diagnosed with an acute reaction to stress, put in the prison’s medical wing and treated with sedatives, which had helped. 32. In the course of the trial, conducted in the presence of his lawyer A.Kh. and his mother acting as a lay defender, the applicant confirmed the account of the attack on D. which he had given in the course of the pre-trial investigation. 33. On 21 July 2005 the Toretsk Court convicted the applicant of murder without aggravating circumstances and theft and sentenced him to seven and a half years’ imprisonment. 34. On 5 August 2005 the applicant, represented by his parents and a new lawyer, Y.K., appealed against the judgment. Additional appeals were also lodged by them on later dates. In the appeals the applicant retracted his confessions as false. He and his representatives alleged that the confessions had been extracted from him under physical and psychological pressure from the police, namely that he had been subject to “physical pressure”, “threats and beatings”, “moral and physical influence”, that his statement of surrender “resulted from beatings” (“применены меры силового давления”, “угрозами, избиваниями”, “моральные и физические воздействия”, “выбита явка с повинной” respectively). According to him, he had been told that unless he confessed to murder he would be falsely accused of rape making his life in prison extremely difficult. He stated that two cellmates at the police detention facility also urged him to confess. He also noted that he had kept to his initial confessions until his conviction because his cellmates and the police had told him that the police would make his life difficult in prison if he told anyone of the pressure on him. On the other hand, they had assured him that if he chose to cooperate with the police they would make sure the charges against him were not serious and that he would be released from custody right after his trial. Accordingly, he had said nothing to his lawyers about his ill-treatment. 35. The prosecutor also appealed, in particular arguing that the sentence was excessively lenient. 36. On 4 October 2005 the Donetsk Regional Court of Appeal (“the Regional Court”) quashed the judgment of 21 July 2005 and returned the case for further investigation. The court noted that the judgment had been poorly reasoned. As far as the motives for the applicant’s actions were concerned, it had also been based heavily on the applicant’s confessions, without sufficient corroboration from other evidence. The description of the crime scene, for instance that the lock had been sawn off rather than broken off, had not matched the trial court’s conclusion, based on the applicant’s account, that the applicant had simply been exploring the shop out of curiosity. The victim had also had unexplained injuries on her genitals. 37. On 19 December 2005 and on several subsequent occasions the investigators attempted to question the applicant within the framework of the further investigations. However, he refused to answer any questions and denied any involvement in the crimes he had been charged with. 38. On 11 and 12 January 2006 the investigator reclassified the charges against the applicant from simple murder to aggravated murder for gain, and from theft to robbery. The applicant was also charged with theft of a friend’s cell phone. 39. On 17 February 2006 the Regional Court released the applicant from custody, finding that a further extension of his detention would be in breach of the applicable procedural time-limits. 40. On 21 April 2006 the applicant’s case was submitted for a retrial. 41. On 10 May 2006 the Toretsk Court again remanded the applicant in custody. It held that while the applicant had no prior convictions and had positive character references, he had no employment and had been charged with grave offences. Accordingly, it held that detention was necessary to prevent the applicant from absconding or interfering with the investigation and to ensure his compliance with procedural decisions. No time-limit for his detention was fixed in that decision or in those made on 30 November 2006, 21 May 2007, 24 July and 30 December 2008, and 27 May 2009 (see below). 42. On 30 November 2006 the Toretsk Court returned the case for further investigation and ruled that the applicant should remain in custody. The court based its decision on the gravity of the charges which, according to the court, made the applicant likely to abscond. 43. On 21 March 2007 the applicant’s case was submitted to the Regional Court for a retrial. 44. On 21 May 2007 the Regional Court again sent the case back for further investigation and, without giving reasons, ruled that the applicant should remain in custody. 45. On 25 January 2008 the Regional Court convicted the applicant of robbery and the murder of D. 46. On 24 July 2008 the Supreme Court quashed the conviction, returning the case for further investigation. The Supreme Court also ruled that the applicant should remain in custody. It gave no reasons for the latter part of its decision. 47. On 30 December 2008 the Regional Court returned the case, which in the meantime had been re-submitted to it, for further investigation. It also ruled that the applicant should remain in custody. By way of reasoning it stated that there were no grounds to order his release given that, in view of the gravity of the charges against him, it could not be ruled out that the applicant would attempt to abscond. On 9 April 2009 the Supreme Court quashed that decision. 48. On 27 May 2009 the Regional Court committed the applicant for trial and ruled that he should remain in custody for the same reasons as given in the order of 10 May 2006 (see paragraph 41 above). 49. In the course of the final retrial the applicant denied any involvement in the attack on D. and said that he had found the grinder, describing essentially the same circumstances as on 20 February 2005 (see paragraph 13 above). To explain the presence of his fingerprint in the shop where the victim had been killed he stated that he had bought cigarettes there on 15 February 2005. 50. On 11 November 2009 the Regional Court convicted the applicant of robbery and aggravated murder and sentenced him to thirteen years’ imprisonment. In particular, it made the following findings. (a) It found established that the applicant had broken into the shop intending to burgle it, had discovered D. sleeping, had repeatedly hit her on the head with a brick and then, after she had become unconscious, had inserted the neck of a vodka bottle into her vagina. (b) In finding the applicant guilty, the court referred to various pieces of evidence, including forensic examinations, witness statements and the applicant’s confessions “given by him when questioned as a suspect and as an accused” (see paragraph 26 above), and the presence of the applicant’s fingerprint at the crime scene. In particular, the trial court referred to the pre-trial identification of the applicant by witness Y. and to the testimony of V.B., who had seen the applicant near the shop around the time of the murder. The court considered the applicant’s explanation for the presence of his fingerprint in the shop unconvincing since he had first mentioned the supposed visit to the shop on 15 February 2005 in the course of the retrial and had not previously mentioned that visit. (c) The court rejected the applicant’s argument that his confessions had been inadmissible because they had been obtained under duress. It noted in particular that there was no evidence that the applicant had suffered any physical injuries at the hands of the police. Moreover, the applicant had consistently repeated his confessions in the presence of his lawyers, mother, and psychiatric experts in the course of the first investigation and trial. His parents had voluntarily paid the victim’s burial costs. Still, the applicant’s confessions had only partially reflected the truth. In particular, according to the forensic and other evidence, D. had been raped with a vodka bottle, which was not in line with the applicant’s initial statements that he had accidentally killed her after being surprised by her and had then run away almost immediately. (d) The absence of the applicant’s lawyer from the identification parade on 21 February 2005 had not breached the applicant’s defence rights since he had not made any statements on that occasion and had simply been physically shown with other men in the line-up to the witness Y. through a one-way glass partition. It had been Y., and not the applicant, who had actively participated in that investigative measure, and therefore it had not had any impact on his chosen defence strategy. Moreover, contrary to the applicant’s submissions, Y.’s statements concerning the applicant’s presence near the crime scene on the night of the murder had been consistent with the statements of other witnesses. (e) On an application by the defence the court ruled certain expert evidence inadmissible. (f) While the statement in the arrest report that “eyewitnesses indicate the person who had committed the crime” (see paragraph 15 above) had been technically incorrect in the applicant’s case, the discovery of the grinder in the applicant’s home had in fact constituted an independent legal basis for his arrest. Accordingly, the Regional Court refused to declare the applicant’s arrest unlawful. 51. In an appeal to the Supreme Court the applicant gave the account of alleged ill-treatment by the police set out above. He stressed, however, that he had managed to withstand most of the pressure from the police. What had made him finally agree to plead guilty to a murder he had not committed had been the threat that he would be charged with rape and that that would lead to him being raped in prison. That threat had had a particularly strong impact on him given that he had already been made to spend several hours in a state of undress and vulnerability. He had chosen the false confession as a lesser evil. He had then maintained his confession throughout the trial because he had been assured by the lawyer B., who had good relations with the investigator in charge of the case, that the trial court would reclassify the charges against him from murder to a lesser charge of a “killing committed while exceeding the limits of legitimate defence”. He had hoped that such a reclassification would allow him to get probation instead of an actual prison sentence. It was not true that, as stated by the Regional Court, he had repeated his confession to psychiatrists. In fact the investigator had assured him that the psychiatric assessment was prearranged to allow for reclassification and its results would be worded accordingly. The applicant had not talked to the experts and his mother assured him that she had arranged for the psychiatrists’ report to be worded in such terms that it may justify reclassification of charges against him. 52. On 3 June 2010 the Supreme Court upheld the above judgment and it became final. 53. It would appear that the applicant first raised his allegations of illtreatment in his appeals against his first conviction (see paragraph 34 above). In those appeals his allegations were framed in rather general terms and were limited essentially to allegations of “beatings” and “psychological pressure”. He also stated, more specifically, that he had been told that, unless he confessed, charges of rape would be brought against him and this would make his life in prison extremely difficult. Afterwards the applicant’s parents also lodged complaints about his alleged ill-treatment with the prosecutor’s office. It appears that the applicant’s mother lodged first such complaints on 23 December 2005 and 16 January 2006. The Court has not been provided with copies of those complaints. 54. On 26 January 2006 the Toretsk prosecutor’s office, in response to the applicant’s mother’s complaint of 16 January 2006, refused to institute criminal proceedings in relation to the applicant’s complaints for lack of a corpus delicti in the police officers’ actions, concluding that there was no evidence of any physical or psychological illtreatment. The prosecutors referred essentially to the lack of medical evidence of any injuries suffered by the applicant at the time of the alleged ill-treatment and the lack of any complaints from him before his first conviction. The prosecutors also stated that there had been no irregularities in the applicant’s placement and holding in the police detention facility and that O. and K. with whom the applicant had been placed at that facility had had no prior convictions. 55. In the course of examination of the case against the applicant, on 14 June 2006, the applicant complained to the trial court about the beatings, handcuffing, stripping and the threats of prison rape he had allegedly been subjected to by the police. On 15 June 2006 the trial court ordered the prosecutor’s office to investigate the allegations. 56. On 29 June 2006 the prosecutor’s office again refused to institute criminal proceedings essentially on the same grounds. No mention was made of the applicant’s placement with adults in the detention facility. 57. On 26 September 2006 the applicant’s mother complained to the regional prosecutor’s office, reiterating her allegations that the applicant had been physically ill-treated by the police, left in a state of undress and handcuffed and threatened that he would be charged with rape and would, therefore, be raped in prison. She referred to her previous complaint of 23 December 2005 on the same subject and complained that she had received no satisfactory answer to it. 58. On 16 October 2006 the regional prosecutor’s office overruled the decisions of 26 January and 29 June 2006. 59. On 3 November 2006 the Toretsk prosecutor’s office again refused to institute criminal proceedings, essentially on the same grounds as in its previous decisions. The prosecutors stated, with no further explanation, that there were no irregularities in the course of the applicant’s placement and holding in the police detention facility. On 25 June 2007 the regional prosecutor’s office overruled that decision as premature. 60. On 10 July 2007 the Toretsk prosecutor’s office again refused to institute criminal proceedings essentially on the same grounds. No mention was made of the applicant’s detention with adults. On 8 February 2008 the regional prosecutor’s office upheld that decision. 61. Subsequently, other decisions refusing to institute criminal proceedings were taken, the most recent one on 31 December 2008. The copies of those decisions have not been provided to the Court. 62. On 6 January 2011 the Toretsk prosecutor’s office wrote to the applicant’s father in response to his complaint. It said that the records of local medical institutions showed that at the time the applicant had been placed in the cell with O. the latter had been registered as suffering from tuberculosis but, according to his file, he had not posed a danger of infection to others. He had been admitted to hospital in March 2005 to treat his tuberculosis. O. had had a conviction at some point in the past but his conviction had been considered sufficiently old to have been considered expunged by time the applicant had been detained with him. 63. On 14 March 2011 the Toretsk prosecutor’s office wrote to the applicant’s father, again in response to his complaint, stating that the placing of adult arrestees in the same cell with the applicant, a minor, had been in breach of domestic law (section 8 of the Pre-Trial Detention Act) and had constituted a disciplinary infraction on the part of the police officers who had taken that decision. However, they could not be disciplined because the six-month limitation period for disciplinary measures had expired. The prosecutor’s office also confirmed that the applicant’s cellmates were at the time registered as drug users.
| 1 |
test
|
001-161759
|
ENG
|
ESP
|
CHAMBER
| 2,016 |
CASE OF GÓMEZ OLMEDA v. SPAIN
| 3 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);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;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1967 and lives in Plasencia. 6. On 3 January 2011 following a trial, the Plasencia criminal judge (juez de lo penal) no. 1 sentenced the applicant to six months’ imprisonment for serious disobedience to public authority (desobediencia grave a la autoridad). The applicant was acquitted of other charges against him, namely false accusation of a crime (calumnias), defamation (injurias) and concealment (encubrimiento). 7. The judge established that the applicant was the webmaster of an Internet forum on which defamatory messages against the complainants in the proceedings had been published, and that he had deliberately disregarded the request made to him by a police officer within the framework of the criminal investigation not to alter the messages in question. In fact, the applicant had proceeded to have the forum webpage removed altogether, despite the police officer’s request to leave it unchanged. As regards the charges for defamation and false accusation of a crime, the judge held that there were reasonable doubts as to whether the applicant had been aware of the messages in question before his police interview and that he should therefore be acquitted in that regard. It was also alleged that he had protected the individuals who had made the defamatory statements; however, the judge considered that he could not be found guilty of concealment as it had not been proved that he had been aware at the time of his police interview that it had been possible for him to have access to the Internet Protocol (IP) numbers of the participants on the forum. 8. Both the prosecution and defence appealed against the judgment before the Cáceres Audiencia Provincial. The applicant did not request a hearing, nor did the Audiencia Provincial order one. Instead, the court watched a video-recording of the trial. 9. On 16 May 2011 the Audiencia Provincial upheld the applicant’s conviction for serious disobedience to public authority and, unlike the first-instance judge, found him guilty of continuous and false accusation of a crime (delito continuado de calumnias). His punishment was a daily fine of 15 euros (EUR) for a period of eighteen months. He was also required to pay damages. In finding the applicant guilty, the appellate court stated that it had relied on the facts established by the first-instance judge and on the testimony given by the complainants, the applicant and the witnesses in the earlier trial. The court stated: “Fourth. The facts declared proved in the first-instance judgment constitute continuous and false accusation of a crime and defamation regulated and punished by section 205 and seq. of the Criminal Code in relation to section 74 of the same Code for which the defendant Jorge Gómez Olmeda should be declared guilty as a principal pursuant to sections 28 and 30 of the Code with the mitigating factor of undue delays pursuant to section 21 paragraph six of the Code. ... It is undisputed that documentary evidence does not require judicial immediacy for its assessment because it is written down and can be read and interpreted in the ’ brief and proved in the hearing, both with respect to what was written on the forum and the people against whom those expressions were directed. Those expressions imputed the commission of crimes to the complainants (sexual assault, sexual slavery of a person) and were detrimental to their fame and reputation to the extent that it is obvious that the imputations were serious in themselves and related to public understanding, which is an open-ended concept of which interpretation depends on the particular facts of the case. It is worth remembering that we are speaking here of a small town where everybody knows each other, where everybody runs into each other, where everybody attends the same places, where everyday life is routine and there is little room for novelties, where anything breaking the monotony is something which attracts public attention, where the genealogy of every inhabitant is known to the rest. For these reasons we find the applicant guilty of the crime of continuous and false accusation of a crime ...which he had been acquitted of at first instance. The applicant states that he was the administrator of the forum; that he did not log onto it very often; that he lacked computer skills and that he had removed some phrases and messages which in his view might be considered insulting for the purposes of the case now before us. We disagree with the accused when he states that he was unaware of what was written on the forum, the argument on which the first-instance judge relied to acquit him of false accusation of a crime and defamation. And we disagree for the following two reasons. Firstly, because it was part of his duties as the administrator of the forum to be aware of what was written on it, to the extent that he was its ‘censor’, so to speak, on account of the fact that he had created it; and secondly, because it is untrue that he was unaware of what was written on it, since he had removed some phrases and messages which were insulting to the complainants, thus proving that he had read what was written on the forum in question and demonstrating that he had regarded what was written there as insulting to a specific individual or individuals, which led him to the decision to remove what he regarded as defamatory or insulting.” 10. The applicant applied to the Audiencia Provincial to have the previous proceedings before it declared void. His application was dismissed on 29 September 2011 on the grounds that no legal provision had been infringed and none of his rights had been breached in those proceedings. 11. The applicant lodged an amparo appeal with the Constitutional Court. He cited Article 24 of the Constitution (right to a fair hearing), complaining that the Audiencia Provincial had convicted him on appeal without giving him the opportunity to plead his case in open court. 12. By a decision served on 13 March 2012 the Constitutional Court declared the applicant’s amparo appeal inadmissible as it had no special constitutional significance.
| 1 |
test
|
001-153481
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF NJEŽIĆ AND ŠTIMAC v. CROATIA
| 3 |
No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
|
5. The applicants were born in 1956 and 1957 respectively and live in Zagreb. 6. On 16 October 1991 the Gospić police learned that seven civilians had been killed that day in the village of Bukovac. Their bodies were transported to the Pathology Department of the Gospić Medical Centre by the members of the Croatian Army who had found them. Two of the bodies were identified as the applicants’ parents, Mile and Ana Pocrnić, and the third as their grandmother, Marija Pocrnić. An investigating judge of the Gospić County Court was informed of the killings. The investigating judge decided that it was not possible to carry out an on-site inspection because of the danger of further attacks by unidentified persons from Široka Kula. 7. On the same day a pathologist performed an autopsy on the corpses and drew up a post-mortem report. He established that the applicants’ parents and their grandmother had been shot dead. 8. On 28 December 1991 the Gospić police lodged a criminal complaint with the Gospić County State Attorney’s Office against persons unknown on charges of murder in connection with the killing of seven inhabitants of the Bukovac village on 16 October 1991, including the applicants’ parents, Mile and Ana Pocrnić, and their grandmother Marija Pocrnić. 9. On 11 September 1992 the Gospić police interviewed I.P., who had been living in Podlapača, a village near Bukovac, during the critical period. On an unspecified date in December 1991 three members of the Serbian paramilitary forces, M.B., R.Š. and J.G., had fired at him, but he had escaped into the woods. While visiting one of his neighbours on 26 October 1991 he had met B. and Č., who had said that they had killed some people in Bukovac. When the police showed him photographs of some members of the Serbian paramilitary forces he recognised B.G. and Č.B. as B. and Č., the persons he had met at his neighbour’s house. 10. On 14 September 1992 the police interviewed P.J. and I.J., who were brothers. P.J. said that he had met B.G., Č.B. and another man in a prison in Knin. When he had asked B.G. why they had been imprisoned he had told him that they had killed some civilians in Korenica. However, I.J. and P.J. thought that this had not happened in Korenica but in one of the Croatian villages near Lički Osik. 11. On 15 September 1992 the Gospić police sent a report to the Karlovac Military Prosecutor stating that B.G. and Č.B may have been among the perpetrators of the killings in Bukovac. 12. Immediately before the Croatian Army military action “Storm” which started on 4 August 1995, the vast majority of the Serbian paramilitary forces fled Croatia, firstly to Bosnia and then to Serbia in some cases. 13. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”). On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began. 14. On 19 March 1996 the second applicant handed the police a letter sent to her by her relative D.P. 15. In 2001 the police interviewed the second applicant. 16. On 23 August 2001 the Service for the Protection of the Constitutional Order (Služba za zaštitu ustavnog poretka) sent a report to the Ministry of Justice and the Gospić County State Attorney’s Office on the killing of the applicants’ parents and grandmother, allegedly by members of the Serbian paramilitary forces. The report stated that the only survivors who had any information about the killings were D.P. and J.P., who both lived in Canada. A letter of 19 March 1996, drafted by D.P., was also enclosed, as well as a letter drafted by D.P. and his father J.P. on an unspecified date and sent to the Service for the Protection of the Constitutional Order. D.P. alleged that on 16 October 1991 a group of members of the Serbian paramilitary forces from Široka Kula had come to their village, Bukovac, and killed several people. He named D.L., M.Su., M.O., D.V., M.Se., Bo.K., Da.M., N.M., Du.M., Br.K., Ma.U., S.G., Mi.U. and T.G. as those personally known to him. He openly named commanders of various formations of these forces as: P.R., M.O., S.Č. or Ɖ., Mi.Se. and M.K. The only survivors had been himself and his parents. They had been taken from Bukovac to a prison in Korenica. His mother had died in the meantime while he and his father J.P. had emigrated to Canada after the war. 17. On 1 October 2001 the Gospić County State Attorney’s Office lodged a request for an investigation with the Gospić County Court and asked that D.P. and J.P. be heard as witnesses. 18. On 15 January 2004 the police interviewed S.Ɖ. and D.S., former members of the Serbian paramilitary forces, in the Zagreb Prison Hospital. S.Ɖ. said that a formation of Serbian paramilitary forces under the command of Mi.S. and D.L. had carried out “actions”, inter alia, in the area of Bukovac. He named several members of that formation. D.S. described various actions in which members of Serbian paramilitary forces had killed civilians in Croatian villages in the broader area of Široka Kula and Lički Osik, including Bukovac, but had no information about the killing of the applicants’ relatives. 19. On 23 January 2004 the police interviewed B.Č., also a former member of the Serbian paramilitary forces, who described various actions in which members of Serbian paramilitary forces had killed civilians in Croatian villages in the broader area of Široka Kula and Lički Osik, including Bukovac, but had no information about the killing of the applicants’ relatives. 20. On 2 May 2006 an investigating judge of the Gospić County Court asked the Gospić County State Attorney’s Office whether they still insisted on interviews with D.P. and J.P. since their address was “uncertain”. On 29 June 2006 the investigating judge asked the Gospić Counter-Information Service for the address of D.P. and J.P. On 9 August 2006 the Centre provided the investigating judge with the address of D.P. and J.P. in Canada. 21. On 16 September 2008 the Department for War Crimes of the Ministry of the Interior sent a detailed report about the possible suspects to the Ličko-senjska Police Department. 22. On 16 July 2010 the Gospić County State Attorney’s Office sent a report to the State Attorney’s Office on the killing of seven civilians in Bukovac in 1991. The Gospić County Court had informed them that the Canadian Ministry of Justice had invited D.P. and J.P. on three occasions to give their statements, which they had refused to do with the explanation that they had already given their statements in writing. They had almost certainly been referring to a letter to their relatives in Croatia and the one sent to the Service for the Protection of the Constitutional Order. 23. On 14 September 2010 an investigating judge of the Gospić County Court heard evidence from M.Ć., who confirmed that members of the Serbian paramilitary forces had captured D.P. in 1991. As to the killing of the seven persons in Bukovac, he had heard about that from one I.K., who had died in the meantime. 24. On 24 October 2011 the police interviewed M.P., I.J. and P.J. M.P. had no relevant information about the killing of the civilians in Bukovac. I.J. and P.J. repeated their earlier statements (see paragraph 10 above). 25. On 25 October 2011 the police again interviewed I.P., who repeated his statement of 11 September 1992 (see paragraph 9 above). On the same day the police also interviewed N.P., a neighbour of I.P., who admitted that B.G. and Č.B. had visited him in 1991 but said that they had not mentioned the killing of civilians in Bukovac. 26. On 26 October 2011 the police noted that in March 2011 B.G. and Č.B. had been convicted of war crimes in connection with the killing of R.’s family in Lički Osik, Croatia, and sentenced to twelve years’ imprisonment by a court in Belgrade. 27. In 2011 the police interviewed the second applicant again. 28. On 20 January 2011 the police interviewed D.M., one of the Croatian soldiers who had found the bodies in Bukovac. He had no relevant information about the killing of the civilians in Bukovac. 29. On 21 January 2011 the police interviewed B.Č., a former member of the Serbian paramilitary forces. He repeated his earlier statement (see paragraph 19 above). 30. On 22 August 2011 the Belgrade Interpol Office informed the Zagreb Interpol Office that one of the suspects, D.V., had been placed in pre-trial detention in connection with a different set of criminal proceedings. He had in the meantime become a Serbian citizen. 31. On 2 February 2012 the Ličko-senjska Police Department sent a report to the Karlovac County State Attorney’s Office informing it that two of the persons mentioned in D.P.’s letter (see paragraph 14 above), namely D.L. and M.S., had died. A report drawn up by M.Š., a member of the Serbian paramilitary forces was enclosed. It stated that on 16 October 1991 “they had killed seven people”. A list of the members of the paramilitary forces from the Teslingrad area was also enclosed. 32. On 21 September 2012 the Rijeka County State Attorney’s Office sent a criminal complaint against B.G. and Č.B. to the Serbian Prosecutor for War Crimes and asked him for the address of another suspect, M.Š., indicating that he should be questioned about the report he had allegedly drawn up on the events of 16 October 1991 in Bukovac. 33. On 28 January 2013 the Rijeka County State Attorney’s Office forwarded a report on the interviews with B.G., Č.B. and M.Š., carried out by the Serbian authorities, to the Ličko-senjska Police Department. They denied any involvement in the killing of the applicants’ relatives. 34. Between 21 February and 5 March 2013 the Ličko-senjska Police Department interviewed P.J., I.J., D.P., M.P., I.P. and N.P., M.P. and D.P. had no relevant information about the killing of the applicants’ relatives. The others repeated their earlier statements. 35. On 27 February and 8 March 2013 the Ličko-senjska Police Department sent a report to the Rijeka County State Attorney’s Office listing the suspected perpetrators of the killings in Bukovac on 16 October 1991. Four of them had died, fourteen had moved to Serbia, three to the United States and in respect of two of them there was no relevant information. 36. On 15 March 2013 the Rijeka County State Attorney’s Office sent the report of 8 March 2013 to the Serbian Prosecutor for War Crimes and asked him to interview the suspects living in Serbia. 37. In April 2013 the police learned that one of the suspects, I.S., had died.
| 0 |
test
|
001-159570
|
ENG
|
POL
|
ADMISSIBILITY
| 2,015 |
MUSIAŁ v. POLAND
| 4 |
Inadmissible
|
András Sajó;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
1. The applicant, Mr Sławomir Musiał, is a Polish national, who was born in 1978. He is currently serving a prison sentence in Strzelce Opolskie Prison. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. In its judgment Sławomir Musiał v. Poland of 20 January 2009 (app. no. 28300/06), the Court found a violation of Article 3 of the Convention on account of the cumulative effect of the inadequate medical care and inappropriate conditions in which the applicant, who had a history of mental disorder, was held throughout his pre-trial detention. 4. In the operative part of the judgment the Court held that the respondent State was to secure at the earliest possible date adequate conditions of the applicant’s detention in a specialised institution capable of providing him with necessary psychiatric treatment and constant medical supervision (see also § 108 of the judgment). 5. The Government requested that the case be referred to the Grand Chamber; however, their request was rejected and the Chamber’s judgment became final on 5 June 2009. 6. The execution of this judgment is pending before the Committee of Ministers in the framework of enhanced procedure but only with respect to the general measures. The applicant’s judgment belongs to a group of cases against Poland concerning issues of adequacy of medical care provided to prisoners. According to the information submitted by the Government to the Committee of Ministers in February 2013, the applicant, who is now serving a prison sentence, has been provided with appropriate medical care. The Committee of Ministers decided at its 1164th meeting (5-7 March 2013) that no other individual measures appeared necessary in the light of information submitted by the Government, according to which the applicant’s conditions of detention were compatible with his state of health. 7. The facts of the present case, as submitted by the parties, may be summarised as follows. 8. The Government submitted that the applicant had a long criminal record. In the period subsequent to the Court’s judgment of 20 January 2009, the applicant’s criminal record included, inter alia, the convictions for: a) causing bodily injury, aggravated assault, punishable threat, armed robbery and aggravated theft - the Myszków District Court’s judgment of 21 April 2010, case no. II K 42/06; b) aggravated assault – the Zawiercie District Court’s judgment of 29 February 2012, case no. II K 475/11; c) punishable threat, trespass and aggravated theft - the Myszków District Court’s judgment of an unspecified date, case no. II K 1049/11; d) aggravated assault, two counts of armed robbery and property damage - the Jędrzejów District Court’s judgment of 7 March 2013, case no. VIII K 13/13; e) assault on a public official - the Myszków District Court’s judgment of an unspecified date, case no. II K 1438/10. 9. The applicant served various terms of imprisonment and was released in 2008. In 2011 he was imprisoned again. The applicant was detained in the following establishments: a) Łódź Prison No. 2 (psychiatric ward): 22 November 2011 – 13 June 2012; b) Częstochowa Remand Centre: 16 June 2012 – 17 October 2012; c) Przemyśl Prison: 18 October 2012 – 30 October 2012; d) Częstochowa Remand Centre: 30 October 2012 – 5 December 2012; e) Przemyśl Prison: 6 December 2012 – 12 December 2012; f) Częstochowa Remand Centre: 12 December 2012 – 5 January 2013; g) Herby Prison: 15 January 2013 – 30 October 2013; h) Nowy Sącz Prison: 30 October 2013 – 11 March 2014; i) Przytuły Stare Prison: 13 March 2014 – 1 April 2014; j) Kielce Remand Centre: 2 April 2014 – 9 July 2014; k) Herby Prison: 9 July 2014 – 18 September 2014; l) Strzelce Opolskie Prison: 18 September 2014 – present. 10. The applicant submitted that has been suffering from severe mental disorders. He claimed that in 2003 he had been diagnosed with paranoid schizophrenia. The applicant relied, in particular, on three medical opinions of 18 September 2009, 26 June 2011 and 30 May 2014. 11. The Government rebuffed the applicant’s assertion. They maintained that the applicant had been inaccurately diagnosed with paranoid schizophrenia. The Government submitted that the applicant did not mention at least nineteen opinions (twelve psychiatric and seven psychological) which concluded that he was not suffering from schizophrenia or any other mental disorder. The applicant further concealed the fact that at last six opinions (five psychiatric and one psychological) established that he was feigning his mental illness. 12. The Government submitted a complete list of psychiatric and psychological opinions regarding the applicant issued between 2003 and 2014 in the course of various criminal proceedings against him. 13. The Government submitted that four opinions confirmed the applicant’s alleged mental disorder (opinions of 9 August 2007, 18 September 2009, 26 June 2011 and 30 May 2014). However, in their view, these opinions were imprecise; short (1, 3, 4 and 6-page long respectively); based on a short (less than one day) consultation; prepared without reference to opinions in which no mental disorder had been diagnosed and without adequate access to all medical data; and based on documents submitted by the applicant and his suggestions. 14. Due to the discrepancies in the assessment of the applicant’s mental health, the relevant courts and prosecutor’s offices, at least on three occasions, ordered the applicant to undergo a psychiatric observation in hospital. The applicant’s hospital observation took place in the following periods: from 6 June to 18 July 2005; from 4 February 2008 to 17 March 2008 and from 24 November 2011 to 13 June 2012. All opinions issued following the hospital observations (dated 18 July 2005, March 2008, 14 April 2008, 25 June and 29 October 2012) excluded that the applicant was mentally ill. The Government asserted that the above opinions were detailed; long (5, 7, 8, 14, 34 and 41-page long respectively); prepared after a prolonged hospital observation; based on all previous opinions and on a various medical data. 15. The Włoszczowa District Court requested a psychiatric opinion as to whether the applicant could participate in the trial against him (case no. II K 192/08). The applicant was examined on 11 August 2009. In an opinion of 18 September 2009, two psychiatrists noted that verbal contact with the applicant was difficult and that he had difficulties in concentrating. The applicant stated that he had hallucinations and could not sleep well. The psychiatrists concluded that the applicant suffered from a mental disorder similar to paranoid schizophrenia. He did not have acute psychotic symptoms, but anxieties persisted. The psychiatrists concluded that the applicant could not take part in the trial for a period of six months. 16. The Government submitted that the above opinion was one-page long. The opinion also stated that the applicant had refused to be hospitalised in the Opole Psychiatric Hospital. In two previous opinions issued in the course of the same criminal case the psychiatrist opined that the applicant was not suffering from any mental disorder and that his psychiatric treatment between 2004 and 2006 was without prejudice to his ability to recognise his criminal acts. 17. The Częstochowa Regional Court requested a psychiatric opinion on the applicant’s mental condition for the purposes of the appellate proceedings (case no. VII Ka 550/10). In their opinion of 15 November 2010, the two psychiatrists opined that the applicant has suffered from paranoid schizophrenia from his teenage years. Currently his mental condition was relatively stable; however in the last few months, despite regular treatment, he had some psychotic spells leading to self-harm. His condition was chronic and there was a possibility that it will become more acute at any time. However, the psychiatrists concluded that the applicant could take part in the appellate proceedings. 18. On 21 June 2011 the Zawiercie District Disability Evaluation Board declared the level of the applicant’s disability as “moderate”. It noted that the applicant was unfit for work and needed assistance of social services in his daily life. The decision was in force until 30 June 2013. 19. The Zawiercie District Prosecutor’s Office requested a psychiatric opinion on the applicant’s mental condition, including whether he could be held criminally responsible (case no. 1 Ds 884/11). The applicant was examined on 14 June 2011. In their opinion of the same day, the two psychiatrists opined that there were no grounds to diagnose the applicant with mental disorder. They took note of the applicant’s medical records and the two opinions, produced by the applicant, in which he had been diagnosed with paranoid schizophrenia. However, they noted that these opinions did not establish the presence of psychotic symptoms at the time of the applicant’s examination; these symptoms had only been related by the applicant. In the course of the current examination, the applicant did not show any symptoms present in schizophrenia. The psychiatrists concluded that the applicant was not mentally disabled, having regard to the history of his schooling, his subsequent activities and the quality of contact during his examination. They found that the applicant had features of antisocial personality. In their conclusion, the applicant could be held criminally responsible and participate in the proceedings against him. 20. The Myszków District Court requested a psychiatric opinion as to whether the applicant suffered from a mental illness preventing him from serving his sentence (case no. II K 42/06). In their opinion of 26 June 2011, the psychiatrists diagnosed the applicant with acute psychotic disorder in the form of paranoid schizophrenia. His intellectual ability was assessed to fall within a norm. The experts concluded that the applicant’s current mental condition made him unfit for serving a prison sentence. 21. The Government submitted that the above opinion was two-and-a-half page long. It was issued after one day of examination. It corroborated that the applicant, regardless of several referrals to psychiatric hospitals, had refused to be hospitalised in connection with his alleged mental disorder. Furthermore, two weeks earlier, on 14 June 2011 the psychiatrists examining the applicant in connection with another set of criminal proceedings had declared him mentally fit. The psychiatrists disproved the two psychiatric opinions produced by the applicant which attested to his mental illness. They underlined that in the course of the examination leading to the issuance of those two earlier opinions no symptoms of mental disorder had been noticed and that the mental disorder had only been reported by the applicant. 22. The Włoszczowa District Court requested a psychiatric opinion on the applicant’s mental health in connection with the proceedings in which the applicant had been charged, inter alia, with robbery and assault (case no. II K 379/11). The applicant was interviewed at the Łódź Prison Hospital No. 2. In their opinion of 16 January 2012, the two psychiatrists (T.N. and J.M.), having analysed the medical documentation, stated that they were unable to determine the question of the applicant’s sanity at the time of the alleged offences. They noted that in the past the applicant had been diagnosed with paranoid schizophrenia, and that this diagnosis raised doubts and could not have been properly verified during a short stay at the hospital. The applicant’s mental condition did not indicate any psychotic process, but his “rich” medical documentation gave rise to difficulties in making a diagnosis. The psychiatrists requested the district court to order the applicant’s psychiatric observation in hospital and requested access to various medical and penitentiary documentation in order to assess the applicant’s mental health. 23. In a note dated 27 February 2012 the Łódź Prison informed the Włoszczowa District Court that the applicant had been admitted to the psychiatric ward on 24 November 2011 in the light of pharmacological treatment related to suspected schizophrenia. During his stay there, doctors did not notice any symptoms of schizophrenia or other mental illness and it was decided to stop administering antipsychotics. After that the applicant’s mental condition remained good. It was noted on the basis of existing documentation that the applicant had been frequently consulted by psychiatrists, who had diagnosed him with schizophrenia basing themselves solely on the applicant’s “stories”. The most comprehensive opinion on the applicant’s mental health was prepared in 2005 following his observation at the Rybnik Psychiatric Hospital. The psychiatrists of that hospital did not observe any psychotic symptoms. They found that the applicant suffered only from a personality disorder which corresponded to the conclusions of the current observation at the Łódź Prison Hospital. The psychiatrists of the Łódź Prison Hospital requested access to extended medical and penitentiary documentation on the applicant, to which previous experts had no access. It was noted during the applicant’s observation at the Łódź Prison Hospital that in situations which were uncomfortable for the applicant (i.e. when he was summoned to a hearing) he immediately began simulating symptoms of mental illness. 24. The Częstochowa Regional Prosecutor’s Office requested a psychiatric opinion on the applicant’s mental condition in connection with the proceedings in which the applicant had been charged, inter alia, with robbery, punishable threats, insult of a public official, participation in an organised gang and extortion (case no. V Ds 71/11/s). The psychiatric opinion was prepared by the same experts (T.N. and J.M.) who prepared the opinion of 16 January 2012, following the applicant’s observation at the psychiatric ward of the Łódź Prison between 24 November 2011 and 16 June 2012. The psychiatrists verified the applicant’s medical documentation and carried out a number of tests and examinations. They discovered no organic dysfunctions. The psychiatrists noted that the applicant had attempted to feign the symptoms of mental illness. For example, he related in a stereotypical manner that “voices are calling him to commit suicide”. The results of various tests showed no symptoms which could have even suggested the presence of depressive or manic disorders, either at present or in the past. During the examination, the applicant could not say anything about his symptoms and changed the subject of conversation. It was visible that the questions put to him in this respect were distressing. The experts carried out a test to determine the symptoms of schizophrenia, but this proved negative. The experts noted that: “Sławomir Musiał’s behaviour hid a clear motive and intentional effort to achieve a defined goal which was to mislead the experts and, consequently, to avoid his criminal responsibility. To this end, he feigned his mental illness.” The experts further noted that the applicant was unwilling to undergo certain tests. The applicant complained about problems with sleep or anxieties, but his observation at the psychiatric ward did not confirm his assertions. The experts found that the applicant displayed no typical behaviour for a person suffering from psychotic disorders, such as being suspicious vis-à-vis the other patients and staff. The applicant demanded to take anti-psychotic drugs, whereas in reality the mentally-ill avoid taking them. The applicant’s ostentatious behaviour and tendency to focus attention on the alleged hallucinations were also reported. The experts noted that the symptoms showed by the applicant did not correspond to any known illness. 25. In conclusions of their opinion of 29 October 2012, the psychiatrists stated: “1. We conclude that Sławomir Musiał shows no symptoms of mental illness or of mental disability. 2. We conclude that Sławomir Musiał has an antisocial personality and that he feigns his mental illness (...).” They lastly established that the applicant could be held criminally responsible and to participate in the proceedings. 26. The Częstochowa Regional Prosecutor’s Office also requested a psychological opinion on the applicant. The opinion was prepared on the basis of interviews and tests carried in the course of the applicant’s observation in the Łódź Prison. In his opinion of 25 June 2012, the psychologist T.M. concluded that the applicant’s intellectual ability fell within a broad norm and that he had no organic dysfunctions. The psychologist noted that the applicant did not function as a mentally disabled person. This was demonstrated by his ability to adapt, the manner of functioning in a group and of formulating his thoughts orally and in writing. The expert was unable to determine the applicant’s genuine intellectual ability since the latter had not properly participated in the tests. The expert also concluded that the applicant’s personality was improperly developed. In this respect, he noted that the applicant poorly internalised socio-moral norms. 27. The Włoszczowa District Court requested a psychiatric opinion on the applicant’s mental health in connection with the case against him (no. II K 379/11). The opinion was prepared by the same experts in psychiatry as the earlier opinion of 29 October 2012 (T.N. and J.M.) and based, in addition, on the applicant’s examination on 20 September 2012. In their opinion of 22 November 2012, the experts confirmed their earlier findings made in the opinion of 29 October 2012. In addition, they found that the applicant could be transported to court and noted that his earlier behaviour during transport resulted from him feigning a mental illness. 28. The Włoszczowa District Court also ordered a psychological opinion in connection with the same case. In his opinion of 22 November 2012, the psychologist T.M. reached the same conclusions as those presented in his earlier opinion of 25 June 2012. 29. On 4 September 2012 the applicant was consulted by a psychiatrist at the Częstochowa Remand Centre. She noted that the applicant was undergoing psychiatric treatment and had been frequently hospitalised in psychiatric hospitals in Lubliniec, Czeladź and Opole in connection with his schizophrenia. The psychiatrist expressed negative prognosis for the applicant given the chronic nature of his condition which was characterised by remissions. 30. It appears that on 15 January 2013 the applicant was transferred to Herby Prison. On 24 May 2013 the applicant was consulted by a doctor of the prison. Her findings were similar to those made by a psychiatrist on 4 September 2012. 31. In the course of the civil proceedings against the applicant which concerned a claim for increase of child maintenance, the Kraków-Podgórze District Court requested a psychiatric opinion on the applicant. The applicant was interviewed on 30 May 2014 by a psychiatrist in a court building. In his opinion of the same day, based on the interview, the case file of the civil case and some medical documentation, the psychiatrist established that the applicant suffered from chronic mental illness: paranoid schizophrenia. The applicant displayed low level of intellectual ability, hyperactivity and claimed to have hallucinations. It transpired from the medical documentation that despite a pharmacological treatment (large doses of antipsychotics) his condition did not improve and he often showed psychotic symptoms and agitation. There were also attempts to commit suicide. The expert concluded that the applicant was unable to work in prison due to his chronic mental illness. 32. The provisions pertaining to medical care in detention facilities and general conditions of detention, and the relevant domestic law and practice are set out in the Court’s judgments in the case of Kaprykowski v. Poland, no. 23052/05, §§ 36-39, 3 February 2009. More recent developments are described in the Court’s decision in the case of Łatak v. Poland (dec.) (no. 52070/08, §§ 25-54, 12 October 2010).
| 0 |
test
|
001-154595
|
ENG
|
ROU
|
CHAMBER
| 2,015 |
CASE OF FĂLIE v. ROMANIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
|
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
5. The applicant was born in 1951 and lives in Bucharest. 6. In 1999 he purchased a house and the land on which it was built, located in Bucharest. The applicant’s parcel of land was adjacent to a parcel of land purchased by two other third parties in 1948. 7. On 13 November 2001 the applicant lodged a civil action against the two third parties, seeking to obtain the demarcation of the adjacent parcels of land and an order requiring the defendants to return to him an 11 sq. m parcel of land which was allegedly being illegally occupied by them. 8. In a judgment of 4 April 2002 the Bucharest District Court held that the defendants had been illegally occupying a parcel of 10.78 sq. m of the applicant’s land since 1965. It established the boundaries of the properties on the basis of a technical report prepared by an expert and ordered the defendants to return the land in question to the applicant. 9. The defendants lodged an appeal with the Bucharest County Court. The court ordered a new expert report. On 22 May 2003 the court dismissed the appeal as ill-founded endorsing the reasoning of the first-instance court. 10. The defendants lodged an appeal on points of law on the ground that the courts had misinterpreted the facts and the applicable legal provisions. 11. In a final decision of 26 November 2003 the Bucharest Court of Appeal allowed the appeal on points of law, quashed the decisions of the first two courts and dismissed the applicant’s action. It held that both the applicant and the defendants had in their possession smaller areas of land than those mentioned in their respective contracts of acquisition, and invited the parties to reach a friendly settlement. It also held that the parties could bring a fresh action only if they could not reach an agreement.
| 1 |
test
|
001-150240
|
ENG
|
MDA
|
CHAMBER
| 2,015 |
CASE OF RIMSCHI v. THE REPUBLIC OF MOLDOVA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
|
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
5. The applicant was born in 1952 and lives in Chişinău. At the time of the events he was an academic and member of the Moldovan Academy of Science. 6. On 21 July 2009 the applicant was arrested and charged with the offence of producing and putting into circulation counterfeit money. Since then he has remained remanded in custody pending criminal investigation and trial. The detention warrants were prolonged every month initially and every three months once the case had reached the Ialoveni District Court. Each time the reasons given for the detention were that the applicant had been accused of a serious offence punishable with imprisonment of up to fifteen years, that the criminal case was complex and that, if released, he might interfere with the investigation or collude with other co-accused, or abscond or reoffend. 7. The last two extensions of the applicant’s detention before the lodging of the present application took place on unspecified dates in May and August 2011. The applicant argued that there was no risk of his interfering with the investigation since all the witnesses and the parties to the proceedings had already been heard and all the evidence had been examined by the court. He also submitted that there were no reasons to believe that he would abscond or re-offend and agreed to be placed under house arrest if he could not be released. The applicant also argued that according to Article 186 § 8, once the case had been referred to a court, the detention could not last longer than six months, other than in exceptional cases. 8. The Ialoveni District Court dismissed the applicant’s arguments and, relying on the same grounds as before, extended his detention for a further three months. The court stated that the case was exceptional within the meaning of Article 186 § 9 of the Code of Criminal Procedure. The decisions of May and August 2011 contain similar wording. The applicant’s appeals against them were rejected by the Court of Appeal. 9. On 30 January 2012 the applicant was convicted and sentenced to twelve years’ imprisonment. His appeal was dismissed by the Court of Appeal on 10 April 2013 and the Court has not been informed about the proceedings before the Supreme Court of Justice.
| 1 |
test
|
001-161060
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF NAVALNYY AND OFITSEROV v. RUSSIA
| 3 |
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra
|
5. The applicants were born in 1976 and 1975 respectively and live in Moscow. 6. The first applicant is a political activist, opposition leader, anticorruption campaigner and popular blogger. He is a lawyer and was, before his criminal conviction, a member of the Moscow bar association. The second applicant, a businessman, was at the material time a director of the limited liability company OOO Vyatskaya Lesnaya Kompaniya (ООО «ВЛК» – hereinafter “VLK”). 7. In 2007 the Kirov region’s Property Management Department founded the State unitary enterprise Kirovles (КОГУП «Кировлес»). According to its incorporation documents, Kirovles’ commercial activities were woodcutting and timber processing. It owned thirty-six timber mills registered as its operational branches. It appears that by 2009 the company was in substantial debt and continued to make losses. 8. In January 2009 the Governor of the Kirov region, Mr Belykh, invited the first applicant to be a volunteer consultant on enhancing transparency of the region’s property management. At first, Mr Navalnyy carried out this role de facto, before being officially appointed on 21 May 2009. One of his projects was to help steer the region’s loss-making timber industry out of crisis. 9. In early 2009 the first applicant discussed Kirovles’ financial and logistical problems with its director, X. He suggested that the company join forces with a timber trading company to bring in customers and, in particular, curtail the Kirovles timber mills’ practice of direct sales for cash bypassing Kirovles’ accounts. X agreed, and the first applicant invited the second applicant, who he knew would be interested in working in the industry, to set up the timber trading company. The second applicant created VLK and registered it in March 2009. 10. On 15 April 2009 Kirovles, represented by X, concluded a framework contract with VLK, represented by the second applicant. The contract provided for non-exclusive sales by Kirovles to VLK, who would then sell the goods on to the customers at 7% commission. The timber specifications and prices were set out in thirty-six annexes to the contract, which were signed in the period 15 April to 13 July 2009. In accordance with the contract, from 12 May to 31 August 2009 Kirovles supplied VLK with timber worth 16,165,826 Russian roubles ((RUB), the equivalent of approximately 330,000 euros (EUR) at the material time). 11. On an unidentified date X’s stepdaughter, Ms B., the then director of Kirovles’ commercial department, was employed by VLK part-time as its deputy director general. 12. Between July and August 2009 the first applicant commissioned Kirovles’ audit. In view of its results, the Governor’s office set up a working group for restructuring Kirovles, to which the first applicant was appointed. 13. On 17 August 2009 the property management department suspended X as Kirovles’ director, and on 17 October 2009 he was dismissed for mismanagement. 14. On 1 September 2009 Kirovles terminated the contract with VLK. 15. In the course of 2010 the first applicant pursued an anticorruption campaign and published a number of articles and documents exposing high ranking officials’ involvement in large-scale fraud. In particular, on 16 November 2010 he published an article claiming that at least four billion US dollars of State funds had been misappropriated during the construction of the East Siberia-Pacific Ocean oil pipeline. In the article, he referred to a 2007 audit report and suggested that the President, Vladimir Putin, and the Deputy Prime Minister, Mr Igor Sechin, had both been personally implicated. 16. On 9 December 2010 the Kirov Regional department of the Prosecutor’s Office (later replaced by the Investigative Committee of the Russian Federation – “the Investigative Committee”) opened an inquiry on suspicion that the applicants had defrauded Kirovles by inducing its director to enter into a loss-making transaction. When questioned, X stated that he had met Mr Ofitserov and Mr Navalnyy at the Governor’s office and had complained to them that Kirovles was making losses because of falling timber prices and a lack of customers, among other reasons. Mr Navalnyy had later returned to him with the idea of setting up a trading intermediary, VLK, to bring customers to Kirovles, and they had concluded the contract. He indicated that although VLK had paid average market prices for the timber, he had later realised that their commission and the terms of supply had cost Kirovles extra, making it unprofitable. He had therefore terminated the contract. X further stated that when concluding the contract he had been under the impression that Mr Navalnyy had been acting in his official capacity at the Governor’s office, and that as a State enterprise director he had to comply with the decisions of regional government. Two other former Kirovles employees were questioned, Ms B. and its deputy director Z. They confirmed that although VLK had paid average market prices, Kirovles could have increased its margins by selling the timber directly and it had therefore made a limited profit on these sales. They also claimed that the contract had been entered into under pressure from both applicants, whom their director had perceived as acting for the Governor. 17. The Investigative Committee also questioned the second applicant. He stated that he had approached X directly because he knew that Kirovles needed customers and he had offered to act as an intermediary. The other party had not been subjected to pressure or deception, the prices had been fair, and the first applicant had not been involved in the negotiations. The first applicant was not questioned because “his whereabouts could not be established”. 18. On 11 January 2011 the Investigative Committee decided not to open a criminal investigation against either applicant for lack of corpus delicti. 19. On 12 January 2011 criminal proceedings were instituted against X for alleged abuse of his official position, unrelated to VLK; he was suspected of preferential treatment of a different private company he was affiliated with through his family. 20. On an unidentified date the inquiry resumed in respect of the applicants. The investigator questioned X, Ms B., Kirovles’ deputy director Z., the Deputy Head of the Kirov Regional Government, S., and both applicants. The first applicant stated, in particular, that after X had reported to the Governor on Kirovles’ losses and lack of customers, the Governor had made an appeal to businesses interested in a commercial partnership with Kirovles. VLK had responded, along with others; the Governor’s office had not asked Kirovles to show any preference for VLK or taken part in the contract negotiations. The sales to VLK amounted to only 2% of the total volume of Kirovles’ sales. 21. On 28 January 2011 the Investigative Committee decided not to open a criminal investigation against the first applicant for lack of corpus delicti. As regards the second applicant, they decided to transfer the inquiry file to the Kirov Regional Department of the Interior, which had competence to decide whether there were grounds to open a criminal investigation. 22. On 2 February 2011 the first applicant gave a radio interview with a strong anti-corruption message, describing the ruling party of United Russia as “a party of crooks and thieves”. 23. On 7 February 2011 the inquiry resumed. The investigators questioned both applicants, X, two other former Kirovles employees, Ms B., two other former VLK employees and its then director (the second applicant’s brother), as well as five high-ranking officials of the Kirov region, including its Governor. He stated that in 2008 Kirovles had been in a difficult financial situation and had substantial debt. He had therefore assigned the first applicant to study ways of restructuring Kirovles, and the latter had participated in working groups and working meetings concerning this matter. He explained that the first applicant had not been able to put pressure on X or influence the commercial activities of the timber industry, including Kirovles. It was he himself who had ultimately taken the decision to terminate the contract between Kirovles and VLK as a result of a series of working meetings between him, X and both applicants. 24. On 9 February 2011 the Commercial Court of the Kirov region placed Kirovles in administration. 25. On 3 March 2011 the Privolzhskiy Federal Circuit Investigative Committee decided not to open a criminal investigation in respect of the applicants for lack of corpus delicti. 26. On 10 May 2011 the acting Chief of the investigation division of the Investigative Committee decided to open a criminal investigation in respect of both applicants. They were suspected of deception and abuse of trust of Kirovles director, an offence under Article 165 § 3 (b) of the Criminal Code. 27. During the investigation, which lasted for eleven months, both applicants were questioned, as well as X, Ms B., two former Kirovles employees and nineteen timber mill directors. Kirovles and VLK’s accounts were examined, and three reports were ordered from experts in accounting, finance and economics. It follows from the parties’ submissions that the following witnesses were also questioned. Witness Mr A., Chief of the Kirov Regional Forestry Department, made a statement about how the contract between VLK and Kirovles had been concluded and how the first applicant and X had been at odds. Witness Mr K., Deputy Chief of the Kirov Regional Forestry Department, stated that the first applicant had insisted on an independent audit of Kirovles and proposed restructuring it to prevent financial manipulation by X. Seven other witnesses, all managers of VLK, gave details about VLK’s work to find customers for Kirovles in accordance with the contract. Based on this evidence, the investigators found that there was no case against the applicants. 28. On 10 April 2012 the Investigative Committee closed the criminal investigation in respect of both applicants for lack of corpus delicti. 29. On 25 April 2012 the Investigative Committee reversed that decision. 30. On 5 July 2012 the Chief of the Investigative Committee, Mr Bastrykin, spoke at its general meeting and condemned, in particular, the decision to close the criminal investigation in respect of the first applicant. In the extract broadcasted on Russia’s main TV channels he stated: “You have got a man there called Mr Navalnyy. The criminal case, why have you terminated it without asking the Investigative Committee superiors? Today the whole country is discussing [this fraud], the talks [between Mr Navalnyy and Mr Belykh] have been published, and we cannot hear anything except grunting. You had a criminal file against this man, and you have quietly closed it. I am warning you, there will be no mercy, no forgiveness if such things happen again. If you have grounds to close it, report it. Feeling weak, afraid, under pressure – report! We will help, support you, take over the file, but quietly, like that – no ...” 31. On 26 July 2012 the first applicant published an article accusing Mr Bastrykin of breaking laws imposing restrictions on high-ranking public servants. The article included copies of documents stating that he held a Czech residence permit and owned a private business during his tenure at the Investigative Committee. 32. On 30 July 2012 the Investigative Committee’s investigator for high profile cases decided to open a criminal investigation against X on suspicion that he had conspired with unknown individuals to dissipate Kirovles’ assets through VLK, thus committing an offence under Article 160 § 4 of the Criminal Code. 33. On the same day the case against X was joined with the criminal case against the applicants. 34. On 31 July 2012 charges were formulated against the first applicant under Article 160 § 4 of the Criminal Code. On 3 August 2012 the same charges were formulated in respect of X, and on 6 August 2012 in respect of the second applicant. They were all suspected of conspiring to dissipate Kirovles’ assets. 35. On 26 September 2012 the Deputy Prosecutor General granted X’s request to conclude a plea-bargaining agreement and to have his criminal case examined in accelerated proceedings. 36. On 1 October 2012 the plea-bargaining agreement was signed by X and the Deputy Prosecutor General. Among other conditions, X undertook to “actively provide the investigation with information” about “Mr Ofitserov and Mr Navalnyy’s involvement in the misappropriation [of assets], their roles in the commission of the crime, the specific steps taken to implement the criminal plan, including at the stages of preparation and conclusion of the sales contract and demonstration of its feasibility and utility.” On 17 October 2012 the criminal case-file against X was disjoined from the applicants’ case. 37. On 19 October 2012 the first applicant learned of the pleabargaining agreement from the press and filed a complaint with the Investigative Committee and the Prosecutor General, alleging that it had breached his procedural rights in the criminal case against him. He requested that X’s case, if it had been severed, be joined with their case again. 38. On 21 November 2012 the prosecutor’s office replied that the pleabargaining agreement had been concluded lawfully. 39. On 5 December 2012 the first applicant served the Leninskiy District Court of Kirov (“the District Court”) with a complaint challenging the decision to sever X’s criminal case and examine it in accelerated proceedings. On the same day he filed another complaint with the Prosecutor General, challenging the decision to disjoin X’s criminal file from his own. 40. On 10 December 2012 the Investigative Committee dismissed the request to join X’s criminal case with the applicants’ case. 41. On 18 December 2012 the prosecutor’s office replied that the cases had been disjoined lawfully. 42. On 24 December 2012 the District Court gave judgment in X’s case, after examining it in accelerated proceedings, without an examination of evidence. The court found X guilty of dissipating Kirovles’ assets (Article 160 § 4 of the Criminal Code) and handed him a four-year suspended sentence with three years’ parole. The judgment indicated that X had conspired with two others, “N.” and “O.” and contained, in particular, the following findings: “... at the end of December 2008 [to the] beginning of January 2009...the Governor of the Kirov region ... met the directors of the big State enterprises, including [X] ... and introduced his volunteer consultants including N., who was officially appointed to this role ... on 21 May 2009. ... In approximately January to February 2009 N. ... developed a criminal plan to misappropriate Kirovles’ assets in favour of a newly created entity under his control, to be founded and led by O. ... In approximately February to March 2009 N. continued to implement his criminal intent to dissipate Kirovles’ assets, ordered the commission of the crime ... informed [X] about the forthcoming creation of an intermediary enterprise ... aimed at dissipating the assets in [X’s] charge. [X] ... did not take any steps to prevent N.’s unlawful acts [and] agreed with him, thus entering into a criminal conspiracy with N. and O. aimed at large-scale dissipation of the assets ... entrusted to him. To implement N.’s criminal plan, O., acting in agreement with him, created in March 2009 ... the limited liability company “OOO VLK” ... thus facilitating the commission of the crime ... ... Later, [X] ... acting deliberately and in agreement with N. and O., signed a sales contract with VLK ... in full realisation of the damaging consequences ... because of [VLK’s ]lack of adequate collateral ... ... In doing so, [X], N. and O. had sound knowledge that OOO VLK would pay for the goods under the terms of the contract and its annexes at a price known to be lower than that Kirovles could have received without an intermediary ... ... In the period 15 April 2009 to 13 July 2009 ... [X] and O., in conspiracy with N., who had organised the crime and ordered its implementation, signed [thirty-six] annexes to the contract ... which stipulated ... a price which was deliberately reduced by all [of the] partners in crime without any economic need compared to the price Kirovles could have sold its products for if it supplied the VLK customers of directly. ... While doing so, N. and O. realised that [X] was unlawfully depriving Kirovles of the possibility of independent sales of its timber products at market prices and was thus placing its timber products at VLK’s disposal without a sufficient and equivalent reimbursement of its market value. In the period 15 April 2009 to 30 September 2009 in Kirov, [X], acting in abuse of his official position, and O., in conspiracy with and on the instructions of N., deliberately implemented the terms of the sales contract ... and its annexes ... ... [X], acting in premeditated conspiracy with N. and O., out of acquisitive motives therefore abused his official position, ... unlawfully dissipated the assets he was in charge of ... for the benefit of third parties – partners in crime and OOO VLK under their control, thus causing significant damage to the assets of their owner, Kirovles. The Deputy Prosecutor General ... proposed [using] accelerated proceedings for the judicial hearing and issuing the judgment ... in respect of [X] ... The accused [X] has pleaded guilty to the entirety of charges, accepted the indictment and the proposal ... of accelerated proceedings on the basis of the concluded plea-bargaining agreement. ... Information stated by [X] in compliance with the terms of the concluded pleabargaining agreement, is full and true and corroborated by the evidence gathered in the case. The court therefore concludes that [X] has complied with the obligations set out in the plea-bargaining agreement, and that judgment may therefore be given in respect of the accused without an examination of evidence, in accordance with the procedure set out in Article 316 of the Code of Criminal Procedure as required by Article 317.7 ...” 43. On 3 January 2013 the first applicant lodged an appeal against the judgment given in X’s case. He challenged, in particular, the use of accelerated proceedings in that case, the fact that it had been disjoined from the case against him and the second applicant and alleged that the judgment had been prejudicial to the outcome of their case. 44. On 9 January 2013 the judgment against X acquired legal force. 45. On 17 January 2013 the District Court informed the first applicant that he could not appeal against the judgment in X’s case because he had not been a party to those proceedings. He was denied access to the transcript of the court hearing for the same reason. 46. On the same day the charges under Article 165 § 3 (b) of the Criminal Code were lifted in respect of both applicants. The charges under Article 160 § 4 of the Criminal Code were maintained, although they were reformulated in respect of the second applicant. 47. On 20 February 2013 the first applicant filed a complaint with the Kirov Regional Court (“the Regional Court”) about the refusal to consider his appeal. 48. On 13 March 2013 the Deputy President of the Kirov Regional Court replied, stating that his appeal could not be examined because he had not been a party to the proceedings. Moreover, he indicated that the judgment against X could not be prejudicial to the applicant; his guilt had not been established, he had not participated in those proceedings and his name had not been mentioned in it. 49. On 20 March 2013 the indictment was issued in respect of both applicants. 50. On 3 April 2013 the District Court fixed the hearing in the applicants’ case for 13 April 2013. 51. On 10 June 2013 the applicants filed a request with the District Court to have the judgment given in X’s case excluded from evidence. They argued, in particular, that admitting it would prejudice the outcome of their case. 52. On 11 June 2013 the court dismissed the request on the grounds that the judgment against X did not predetermine the applicants’ guilt and, moreover, their names had not been mentioned in it. 53. During the hearing, X was called and examined as a witness. He was first questioned by the public prosecutors, who then asked to read out his statements given during the investigation on the grounds that he could not remember some details and had given contradictory answers to some questions. The applicants objected on the grounds that during the investigation X had made the statements in his capacity as an accused, and an accused had the right to make false statements, not being under oath. Moreover, reading out his previous statements, especially in full, would hinder his cross-examination by the defence as it would remind the witness of the “correct” version of events he had accepted during his trial but could not remember at the applicants’ hearing. The court dismissed these objections and allowed the statements made by X during the investigation to be read out. The applicants and their defence team questioned X afterwards. 54. The court also allowed, despite the applicants’ objections, the statements of Ms B. and six other witnesses to be read out. They were each first questioned by the prosecutor, then their previous testimony and statements were read out in their presence. Only then could the defence question them. 55. On 10 June and 2 July 2013 a challenge by the applicants to the trial judge was rejected. 56. On 11 June 2013 the court dismissed the applicants’ request to have material obtained by interception of the applicants’ telephone calls excluded. On 3 July 2013 it admitted this material as evidence. 57. On 18 June and 2 July 2013 the court rejected the applicants’ requests to have several people called and examined as witnesses, including Mr A., Chief of the Kirov Regional Forestry Department, Mr K., Deputy Chief of the Kirov Regional Forestry Department, and the seven VLK managers who had been questioned during the investigation, as well as three expert witnesses. 58. On 2 and 3 July 2013 the court rejected the applicants’ request for the following evidence: documents relating to Kirovles’ insolvency proceedings, Kirovles’ financial reports, an approved list of standard minimum prices for timber, complete records of intercepted telephone calls between the applicants, material relating to the criminal proceedings against X instituted on 12 January 2011 and the criminal case file relating to X’s conviction in the Kirovles case. 59. On 3 July 2013, at the applicants’ request, the court admitted as evidence a report issued by a trade specialist indicating that the prices paid by VLK to Kirovles were above average. On the same day it rejected their request for the court to order expert reports by finance, economics and merchandising experts. 60. On 17 July 2013 the first applicant was registered as a candidate for the Moscow mayoral elections. 61. On 18 July 2013 the District Court gave judgment, finding the first applicant guilty of organising, and the second applicant of facilitating, large-scale embezzlement. The court relied on the testimony of X and his statements made during the investigation. It also relied on the testimony of forty-four witnesses and statements made by eight of them during the investigation, material obtained by way of operational-search activities, in particular intercepted email correspondence and telephone calls between the applicants, accounting documents and expert reports. As regards the judgment in respect of X, the court said: “It follows from the judgment of the Leninskiy District Court of Kirov given on 24 December 2012 that [X] was found guilty of dissipation [and] embezzlement, that is stealing Kirovles’ assets entrusted to [X], on an especially large scale, committed by abuse of his official position in conspiracy with N. and O. ... a criminal offence under Article 160 § 4 of the Criminal Code.” 62. The court further noted that it found X’s testimony, as well as his statements made during the investigation, truthful and concordant with other evidence; it also found that they were admissible and had been lawfully obtained. 63. The court dismissed the first applicant’s allegations of political persecution or revenge by individuals who had lost their jobs at Kirovles or were otherwise disconcerted with his role in reforming the timber industry in the Kirov region. It also dismissed the objection to admitting X and Ms B.’s testimony and statements on the grounds that X had a vested interest in the proceedings, finding the objection unfounded and illogical. It explained the discrepancies between the testimony and pre-trial witness statements by the passage of time that had elapsed since the events in question and held that, in any event, the witnesses at the trial had confirmed the validity of their previous statements. 64. The court noted that X had treated the first applicant as an official from the Governor’s office and that the applicant knew this. However, it stressed that the first applicant had not been accused, or convicted, of any abuse of his official position at the Governor’s office: “Mr Navalnyy [is not suspected of] committing a crime by abuse of his official position; consequently, the defence’s arguments that the Governor’s volunteer consultant had no powers to give binding instructions to the companies’ management do not refute the accusation [or] prove that it was impossible for Mr Navalnyy to commit the crime and order its execution.” 65. As regards the legal classification of the applicants’ offences, the court held: “The court finds that the arguments put forward by the defence about the absence of unlawfulness, a necessary element of theft, because a regular civillaw transaction has been concluded by persons with legal capacity, are unfounded. The Kirov region’s Property Management Department, acting on behalf of the owner of Kirovles, has provided in the certificate of incorporation and [X’s] employment contract that [X was under an] obligation to carry out his duties in good faith, reasonably and in accordance with the applicable legislation. In accordance with Article 10 §1 of the Civil Code, it is not permitted to exercise one’s civil rights with the exclusive purpose of causing damage to another person, act in circumvention of the law with unlawful intent, [or any other] intentional exercise of civil rights in bad faith (abuse of rights). The court has established that contrary to the said provisions of the certificate of incorporation, the employment contract and the law, [X], acting on behalf of the company directed by him, has entered into a sales contract ... with OOO VLK represented by Mr Ofitserov to exclusively facilitate stealing Kirovles’ property and transferring [it] for the benefit of OOO VLK ... The conclusion of this sales contract has resulted in material damage [being caused] to Kirovles. ... The court notes that neither Mr Navalnyy nor Mr Ofitserov is charged with organising and facilitating the conclusion of a legally invalid sales contract. On the contrary, what the [applicants are suspected of] is organising and facilitating the dissipation of Kirovles’ assets by concluding a sales contract with OOO VLK intended exclusively to create the impression that Kirovles had civil-law obligations towards OOO VLK to transfer timber goods to shipment recipients, as if for collateral, whereas in reality the goods would be transferred without OOO VLK [having] equivalent and sufficient collateral. ... According to the ruling of the Plenary of the Supreme Court of the Russian Federation no. 51 dated 27 December 2007 “On Court Practice in Cases of Fraud, Misappropriation or Embezzlement”, a perpetrator of misappropriation or embezzlement may only be someone entrusted with the assets of another legal person or individual, based on legal grounds for a specific purpose or for a defined activity. Based on the provisions of Article 34 § 4 of the Criminal Code, those who do not possess these special subjective characteristics qualifying [them] for misappropriation or embezzlement, but who directly participated in stealing assets in prior agreement with the person entrusted with the assets, must be criminally liable under Article 33 in conjunction with Article 160 of the Criminal Code in their capacity as organisers, inciters or facilitators. It follows from the judgment of the Leninskiy District Court of Kirov given on 24 December 2012, which has acquired legal force, that the perpetrator of the crime Mr Navalnyy and Mr Ofitserov [are suspected of] was found to be [X], who had been entrusted with Kirovles assets as its director general. [X’s] acts were classified by the court as falling under Article 160 § 4 of the Criminal Code.” 66. The court estimated that the damage caused to Kirovles amounted to RUB 16,165,826. It concluded that the first applicant was guilty of organising the theft of Kirovles’ assets by X (Article 33 § 3 in conjunction with Article 160 § 4 of the Criminal Code), and the second applicant of facilitating that theft (Article 33 § 4 in conjunction with Article 160 § 4 of the Criminal Code). They were sentenced to five and four years’ imprisonment respectively, to be served in a correctional colony. In addition, they were both fined RUB 500,000. 67. The applicants were taken into custody immediately after the hearing. 68. On the same day the prosecutor’s office of the Kirov region asked the court to release the applicants pending appeal, particularly since the first applicant was a registered candidate in the Moscow mayoral elections. 69. On 19 July 2013 the Regional Court granted the request and released the applicants on parole. 70. On 26 July 2012 both applicants lodged an appeal against the judgment of 18 July 2013. They challenged their conviction, insisting that it was unlawful and unfounded and that the first-instance court had relied on the judgment of 24 December 2012 against X in violation of the rules of criminal procedure. They also complained about the court’s assessment of evidence and the manner in which it had examined the witnesses. 71. On 8 September 2013 the first applicant stood as a candidate in the Moscow mayoral elections. He came second, securing approximately 27% of the votes. 72. On 13 September 2013 the applicants questioned the accuracy of the transcript of the first-instance hearing. The requested amendments were set out in an eighty-nine page document. 73. On 27 September 2013 the District Court accepted a small number of amendments but rejected the rest. 74. On 2 and 3 October 2013 the applicants filed additional grounds of appeal elaborating on those lodged previously. 75. On 16 October 2013 the Regional Court dismissed the applicants’ appeal and upheld the first-instance judgment in substance. It amended their sentence and gave them both suspended prison terms on an undertaking not to change their place of residence. 76. On 7 February 2013 the applicants each lodged appeals on points of law. On 1 and 2 April 2014 the Regional Court, sitting in a single judge formation, refused to give them leave to appeal. 77. On 28 February 2014 the Basmannyy District Court ordered that the first applicant be placed under house arrest pending another, unrelated, criminal case against him. To justify the application of this preventive measure the court referred to, among other factors, the first applicant’s prior criminal conviction in the Kirovles case. The conditions of the house arrest included a number of restrictions, in particular a ban on communicating with anyone other than his immediate family and legal counsel, a ban on using the Internet and a ban on making public statements or comments to the media. The first applicant remained under house arrest for ten months.
| 1 |
test
|
001-165751
|
ENG
|
LVA
|
CHAMBER
| 2,016 |
CASE OF UPĪTE v. LATVIA
| 3 |
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal)
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
5. The applicant was born in 1945 and lives in Riga. 6. In the summer of 2007 a book called “Kitchen of Litigation” (Tiesāšanās kā ķēķis) was published, which contained transcripts of allegedly authentic telephone conversations between the lawyers of a wellknown law office in Latvia and judges working in various courts, including the Senate of the Supreme Court. The judiciary’s allegedly unlawful and unethical behaviour provoked considerable public debate and attracted wide media coverage. The Supreme Court and the Prosecutor General’s Office launched an inquiry (pārbaude). 7. On 17 September 2007 the Supreme Court established a working group consisting of five judges. The working group was tasked with carrying out an assessment of whether “the judges of the Supreme Court who were purportedly involved in the telephone tapping scandal, which raises doubts about the independence of the judiciary and the honesty of judges” had violated the Code of Ethics of Judges. On 8 October 2007 the working group received transcripts of the alleged telephone conversations from the Prosecutor General’s Office. 8. On 7 November 2007, during the annual conference of judges, the chairman of the Supreme Court made a speech about the effects of the book and the public debate which followed. He stated: “More than two months have passed since information emerged about alleged telephone conversations between judges and a particular lawyer. That event further confirmed the conviction of at least some people in society that doubts about the impartiality and the independence of courts, and therefore the lawfulness of their judgments, are justified. Society sees the information that was published as credible, irrespective of whether it was obtained lawfully or unlawfully and no matter what the result of the investigation carried out by the Prosecutor’s Office will be, and it undermines trust in the judiciary. ... ... I think that the information about the alleged conversations between judges and the lawyer [...] should be treated as a signal or a call to look at the problems in the judiciary in a wider context ... ... In relation to this particular situation, I think it was caused by the attitude to the rule of law and the code of ethics which regulate judges’ behaviour. The superficial, irresponsible and perhaps even the unlawful behaviour of certain judges has fundamentally affected trust in the judiciary ... Therefore [we] should also talk about the responsibility of judges, [we] should be conscious of the fact that a lack of self-criticism and an inability to apply ethical standards properly pose a threat to the independence of the judiciary ....” 9. On an unknown date the inquiry carried out by the Prosecutor General’s Office concluded that the alleged telephone conversations had taken place between November 1998 and April 2000. As there were no audio records of the conversations, the authenticity of the content of the transcripts could not be established. In the course of the inquiry the Prosecutor General’s Office questioned several judges mentioned in the book. 10. With regard to Judge O.D.J., a judge of the Senate of the Supreme Court, the Prosecutor General’s Office observed that the book had referred to a brief telephone conversation of 24 November 1999 in which the lawyer A.G. had arranged a meeting in the Judge O.D.J.’s office. The impugned conversation had not referred to any specific civil case so the Prosecutor General’s Office concluded that there were insufficient grounds to investigate Judge O.D.J.’s activities. 11. On 30 November 2007 the working group established by the Supreme Court published a report on their inquiry into alleged ethical wrongdoing by judges. The working group identified that two of the fifteen judges, whose conduct had been assessed, had violated the Code of Ethics of Judges, but that Judge O.D.J., whose conversation with the lawyer had been published in the book, had not. It stated: “... [12.5] In his submissions [5.5] O.D.J. did not deny that he might have had conversations [with the lawyer] but that they had only concerned German compensation claims, however in those cases [the lawyer] had not been representing any of the parties, and therefore the working group concluded that O.D.J. had not violated the Code of Ethics.” 12. In 2004 the applicant and another person brought a civil claim against a third party. On 25 January 2005 the Riga Regional court, as a firstinstance court, dismissed the claim and on 21 November 2006 the Supreme Court, acting as an appellate court, dismissed an appeal by the applicant. 13. In June 2007 the Senate of the Supreme Court granted leave to the applicant to appeal on points of law. The hearing before the cassation court was held on 29 August 2007. The Senate sat as a panel of three judges, including O.D.J. The applicant’s representative raised objections to O.D.J., arguing that the applicant had reasonable doubts as to his impartiality on the grounds that the judge was under several inquiries at the time for allegedly unethical or unlawful behavior. The applicant also alleged that the defendant’s representative was a former employee of the Supreme Court. 14. On 29 August 2007 the other two judges, referring to Article 19(1)(4) of the Civil Procedure Law (see paragraph 16 below), dismissed the objections. They noted that the applicant’s doubts were based only on an assumption and that the objection did not contain evidence allowing to conclude that the applicant’s doubts about the impartiality of Judge O.D.J. in the particular case were reasonable in the terms of the above provision. On the same day the Senate of the Supreme Court upheld the appellate court’s judgment on the merits by which the applicant’s claim was dismissed and it became final in that part, but referred the case back for reconsideration in part on the implementation of the judgment.
| 0 |
test
|
001-150800
|
ENG
|
TUR
|
CHAMBER
| 2,015 |
CASE OF GÖZÜM v. TURKEY
| 3 |
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award
|
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
|
5. The applicant was born in 1966 and lives in Istanbul. 6. In a decision of 22 May 2007, which became final on 20 July of that year, the Üsküdar Family Court (Istanbul) authorised the applicant, who was then single, to adopt a child, E., born on 5 November 2003 to Ms S.Ö. Consequently, under Article 314 §§ 2 and 3 of the Civil Code (no. 4721), “Gözüm” was registered as the surname of E. in the register of births and on the child’s identity documents. However, the registrar refused to indicate the applicant’s forename under the heading “mother”, where the name “S.” was retained, this being the forename of the child’s biological mother. 7. On 23 November 2007 the applicant applied to Üsküdar District Court seeking the replacement of the forename “S.” by her own. In her view, the fact that her forename had not been given as that of the mother of her adopted son was both discriminatory and unconstitutional, likely to undermine their personal, family and social development, and thus constituting a violation of, among other provisions, Articles 8 and 14 of the Convention. She argued that in relation to single-parent adoptions there was a lacuna in the Civil Code which required the court to make provision for such a situation of its own motion, pursuant to Article 1 of that Code or, failing that, to request a preliminary ruling of the Constitutional Court. 8. On 26 February 2008 the court dismissed the applicant’s request on the ground that it had no legal basis. It found that the Civil Code, in choosing to regulate only two-parent adoptions – those granted to a couple jointly –, intended to treat the legal relationship between the adoptive parents and the adopted child as “a biological relationship”, which was not possible in the case of single-parent adoptions, where either a mother or a father was absent. Thus the legal situation obtaining in the present case could not be regarded as unconstitutional. On 14 April 2008 the applicant appealed on points of law. 9. On 15 March 2009, when those proceedings were still pending, a new regulation entered into force entitled “Regulation on the implementation of mediation services for the adoption of minors” (“the Regulation”), enabling a single adoptive parent to have his or her forename registered in the place of that of the biological parent ... 10. On 5 November 2009 the Court of Cassation upheld the decision of the court below in a judgment which made no mention of the legislative reform. 11. On 14 December 2009 the applicant was notified of that judgment. 12. On 9 November 2010 she applied to the registry office for the registration of her forename as that of the mother of E., relying on Article 20 § 4 of the new Regulation. That request was granted on the same day and the record entries concerning the child were consequently amended with immediate effect. ...
| 1 |
test
|
001-164910
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF BADRETDINOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
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
|
001-158500
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF CHUKAYEV v. RUSSIA
| 3 |
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance;Insufficient means);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;Dmitry Dedov;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
5. The applicant is a Russian national who was born in 1960 and lived before his arrest in Vatazhnoe, a village in the Astrakhan region. 6. On or around 22 December 2003 the applicant sold drugs to B. and O. 7. On 1 March 2004 B. and O. sold a quantity of those drugs to Su., a police officer taking part in an undercover operation. 8. In March 2004 the Voronezh branch of the Federal Drug Control Service (“FSKN”) instituted criminal proceedings against B. and O. When questioned they submitted that they had purchased drugs from the applicant, who lived in Astrakhan. 9. On 20 May 2004 the FSKN instituted criminal proceedings against the applicant and ordered a “test purchase” from him, to be carried out with the help of B. and two undercover police officers, Sh. and P. 10. The covert operation took place between 3 and 5 June 2004 in a hotel in Astrakhan, where Sh. had booked a room. Audio recording devices were installed in the room and the hotel was placed under surveillance. The applicant alleged that during the operation the police had poisoned him with an unknown substance, which had resulted in him being admitted to a prison hospital. 11. According to the arrest record drafted at 3.30 p.m. on 5 June 2004, police arrested the applicant in the hallway of the eighth floor of the hotel on the grounds that “witnesses and eyewitnesses indicated that the applicant had committed a criminal offence”. The record also indicated that immediately after his arrest the applicant had been apprised of his right to be assisted by counsel and that he had been searched. The search and its results were described as follows: “... Mr Chukayev was asked to hand over of his own free will any powerful narcotic substances ... he had been keeping on himself unlawfully, money acquired illegally... In reply to the investigator’s request, Mr Chukayev explained that he had none of those things except money, which he had made illegally from selling a narcotic substance, heroin, in a quantity of approximately 38-50 grams. He also explained that the money he had made illegally was in his bag, and submitted that he wished to give it [to the investigator] of his own free will. As a result of the personal search, Mr Chukayev took the money out of his bag voluntarily ...” 12. According to the applicant, investigator L. refused to provide him with a lawyer immediately after his arrest on the grounds that no investigating activities were being carried out in respect of him, therefore he did not need a lawyer. The applicant also stated that he had not been questioned on the day of his arrest. 13. According to the arrest record, which he had signed, the applicant had made no comments concerning its contents or any other matters, and his wife had been notified of his arrest over the telephone. 14. Following the personal search, the investigator seized other money found in his pockets along with his identity papers, mobile phone and some other items. The personal search was photographed. 15. On the same day the investigator ordered fingerprint and palm print chemical expert reports. The applicant’s fingerprints and palm prints were taken. The applicant alleged that he had not been informed of the request for these reports or their results. He had only learnt of the expert analyses while reviewing the criminal case file in March 2005. 16. On 6 June 2004 the investigator started questioning the applicant as a suspect. According to the interrogation report, lawyer Or. was present during questioning. The applicant alleged that he had refused to give a statement for health reasons, whereas the interrogation report stated that he had invoked his right not to incriminate himself and refused to testify. According to the interrogation report, which he had signed, the applicant had no comments concerning its contents or any other matters. 17. On 6 June 2004 the Kirovskiy District Court of Astrakhan (“the District Court”) remanded the applicant in custody. He alleged that counsel Or. had not represented him properly at that hearing. His detention was extended on several subsequent occasions. He remained in detention until his conviction on 14 October 2005. 18. On 11 June 2004 the applicant was charged with drug offences and questioned in the presence of counsel I. It is apparent from the record of that interview duly signed by him that he had understood the charges against him and denied all of them. He refused to make a statement. 19. On 16 August 2004 new charges were brought against the applicant in the presence of his counsel. He was charged with two counts of drug trafficking, namely unlawfully acquiring, transporting and possessing drugs with intent to sell, and selling drugs to B. and O. in December 2003 and Sh. on 5 June 2004. 20. On 17 February 2005 the District Court returned the criminal case to the prosecutor because the applicant had not had sufficient time to review the criminal case file. In March 2005 he finished doing so. 21. The trial took place in the District Court between April and October 2005. The applicant was represented by counsel M. and I. The court heard him and several witnesses, and examined the pre-trial statements of absent witnesses as well as physical evidence. 22. The applicant denied all the charges against him. He testified, in particular, that he had met B. in November 2003 and had helped him to buy fish wholesale. On 5 June 2004 they had met because B. had brought some money he had owed him and had wanted to arrange another purchase of fish from him with Sh. 23. During the examination of the first set of charges against the applicant, namely unlawfully acquiring and possessing drugs and selling drugs to B. and O. in December 2003, the District Court heard, and the applicant questioned, O., Av., Le., Sv., Iv. and Yu. as witnesses. 24. Witness O. testified that in November 2003 he and B. had gone to Astrakhan from Voronezh and had bought fish from the applicant. Later, the applicant had contacted them and said that he could supply more fish. They had gone to Astrakhan again, where B. had bought drugs from someone. At the end of the investigation of the criminal case against him and B., the police had asked them, in exchange for a more lenient sentence, to go to Astrakhan again and incite the applicant to sell them drugs. He had refused, whereas B. had agreed. 25. O.’s testimony in court contradicted his earlier statements made during the pre-trial investigation and the prosecutor asked to have his pretrial statement read out in court. The applicant did not object to this request and it was granted. 26. It was apparent from O.’s pre-trial statement that he and his business partner B. had been buying fish in Astrakhan and selling it in Voronezh. In November 2003, during their stay in Astrakhan, B. had met the applicant, who had promised to help them purchase some fish. In December 2003 they had again been in Astrakhan, where they had bought heroin from the applicant and transported it to Voronezh. 27. Witness Av., a police officer, testified that he had taken part in the planning of the covert operation in June 2004 and had been present at the time of the applicant’s arrest and personal search. He had heard the applicant say at the time of his arrest that he had made money from selling drugs. 28. Witnesses Le. and Sv., police officers from the Voronezh police department, submitted that they had taken part in B. and O.’s arrest in March 2004 after they had tried to sell drugs to an undercover police officer. 29. Witness Iv. submitted that in March 2004 police had asked him to be an attesting witness during a search of B.’s apartment in Voronezh. 30. Witness Yu. submitted that in March 2004 police had asked him to be an attesting witness in the covert operation. 31. The prosecutor submitted two requests to have B. summoned as a witness; however, according to medical documents submitted to the District Court, B. could not attend the hearing because he had a serious oncological condition (cancer) and accompanying speech problems. The District Court then granted the prosecutor’s request, despite the applicant’s objections, to have B.’s pre-trial statement read out and admitted as evidence. 32. Witness B. testified in his pre-trial statement that his business partner O. had introduced him to the applicant in November 2003. The applicant had agreed to be an intermediary in his business, which involved supplying fish in Voronezh. On or around 15 December 2003 B. and O. had come to Astrakhan to buy fish. The applicant, however, had not had enough fish for them. B. had serious financial difficulties so O. had suggested buying drugs from the applicant. O. had assured B. that he had an established drug distribution network in Voronezh and that he would help B. to sell drugs within three days to resolve his financial troubles. That had been the first time B. had learnt that the applicant sold drugs. On or around 18 December 2003 the applicant had sold 1.5 kilograms of heroin to B. and O. They had then transported it to Voronezh. The police had arrested them there when they had been trying to sell heroin. 33. The District Court also read out and admitted pre-trial statements of five prosecution witnesses as evidence. 34. Witness R. testified in his statement that in March 2004 he had organised and supervised the covert operation during which B. and O. had sold drugs to undercover officer Su. 35. Witness Su. testified that he had gone undercover to buy drugs from B. and O. during the covert operation in March 2004. He described the manner in which it had been carried out. 36. Attesting witnesses M., D. and Z. testified in their statements that in March 2004 the police had asked them to serve as attesting witnesses in the undercover operation, during which they had observed the manner in which the test purchase had been carried out in respect of B. and O. 37. During the examination of the second set of charges against the applicant the District Court questioned three police officers (Sh., K. and Sha.) and two attesting witnesses. 38. Witness Sh. submitted that in June 2005 he had taken part in the test purchase from the applicant. B. had identified the applicant as the dealer. During the covert operation he and B. had met the applicant several times in the hotel room. At their last meeting the applicant had sold Sh. about 50 grams of heroin. 39. Witness K. testified that he had been responsible for monitoring the undercover operation in respect of the applicant in the summer of 2004. 40. Witness Sha. testified that he had arrested the applicant immediately after the test purchase, and that he had said at the time of his arrest that he had made money from selling drugs. 41. Witnesses Shi. and Ba. testified that the police had asked them to serve as attesting witnesses in the undercover operation, during which they had observed the manner in which the test purchase had been carried out in respect of the applicant. 42. The District Court also read out a pre-trial statement of absent witness B. 43. B. testified that he had agreed to take part in the test purchase from the applicant. A police officer, Sh., had been designated as the buyer. In late May B. had called the applicant to inform him that he had already sold the drugs to a certain person, someone who was interested in buying more drugs from him, but as wished to do so in person he would come to Astrakhan. The applicant had agreed and said that he would arrange the deal. 44. B. then described in detail how the covert operation had been carried out between 2 and 5 June 2004. In particular, he had called the applicant several times over those days to arrange a meeting with him. On 3 June 2004 the applicant had come to their hotel and B. had introduced him to Sh., who had asked the applicant to supply him with 2 kilograms of heroin and discussed other terms of the deal. The applicant had said that he could only get 1.2 kilograms of heroin and they had agreed to meet the following day. On 4 June 2004 the applicant had come to their hotel and said that he had contacted the dealers and that they would call him back. They had all stayed in the hotel room until the applicant had received a telephone call. The applicant told them that he would bring the heroin the next day. On 5 June 2004 the applicant had come to their hotel with about 38 grams of heroin. When Sh. had asked him about the remaining amount, the applicant had explained that he could bring more in two days. However, he had 9 grams on him for personal use so Sh. had agreed to buy that too. Sh. had handed money over to the applicant, who had said that he would go downstairs to get change. When he had left the room he had been arrested by the police. 45. On 14 October 2005 the District Court sentenced the applicant to nine years’ imprisonment, after finding him guilty of drug offences, in particular the sale of drugs to B. and O. in December 2003 and Sh. on 5 June 2004. The court admitted the following material as evidence: (i) the statements made during trial by O., Av., Le., Sv., Iv. and Yu. and the pre-trial statements of B., R., Su., M., D. and Z; (ii) the statements made during trial by Sh., K., Sha., Shi. and Ba. and the pre-trial statement of B. (iii) a record of the examination of the banknotes used to buy drugs from the applicant; (iv) the test purchase record; (v) the arrest record of 5 June 2004; (vi) a transcript of the audio recording made in the course of the test purchase; (vii) forensic chemical examination reports of substances seized at the crime scene; (viii) a forensic examination report of the applicant’s palm prints. 46. The court did not examine the forensic report of the applicant’s fingerprints or admit it as evidence. 47. The forensic examination report of the applicant’s palm prints showed that the applicant had had no drug residue on his palms. 48. The District Court did not use the applicant’s interrogation report of 6 June 2004 as evidence. 49. In his appeal against the conviction the applicant complained, among other things, that the trial court had not ensured the presence of a key prosecution witness, B. 50. On 2 March 2006 the Astrakhan Regional Court (“the Regional Court”) upheld the applicant’s conviction. It held that according to medical certificates, B. was suffering from cancer and could not speak. The trial court had therefore lawfully decided that his situation could be considered to be “other exceptional circumstances” which had prevented him from appearing at the hearing, and that his testimony could be read out in accordance with Article 281 of the Code of Criminal Procedure (see paragraph 77 below). 51. On an unspecified date in 2006 the applicant applied to the Presidium of the Regional Court for a supervisory review of his conviction. 52. On 29 August 2006 it examined the applicant’s case by way of supervisory review. Neither the applicant nor his counsel were present at that hearing. The Presidium amended the judgment of 14 October 2005 as upheld on 2 March 2006 in so far as the applicant’s actions on 5 June 2004 had been classed as a drug offence, and held that his actions should have been classed as an attempt to commit a drug offence. It upheld the remainder of the judgment of 14 October 2005. 53. On 6 March 2009 a judge of the Supreme Court of the Russian Federation (“the Supreme Court”) referred the case to the Presidium of the Supreme Court for examination on the merits, at the request of the Prosecutor General of the Russian Federation. 54. On 2 April 2009 the Supreme Court quashed the decision of 29 August 2006 by way of supervisory review, on the grounds that the applicant had not been duly informed of the date of the hearing, and had therefore been unable to attend. It remitted the case to the Presidium of the Regional Court for fresh examination. 55. On 19 May 2009 the applicant requested the Presidium of the Regional Court (“the Presidium”) to provide him with legal aid counsel for the hearing before it. He claimed that he had insufficient means to pay for a lawyer. 56. On 2 June 2009 the Presidium examined the criminal case against the applicant by way of supervisory review. He was present at the hearing and was assisted by legal aid counsel K. 57. The applicant objected to the panel of the Presidium on the grounds that it had already examined his case by way of supervisory review on 29 August 2006. The Presidium dismissed this objection, finding that the decision of 29 August 2006 had been quashed on procedural grounds. There was therefore no reason to exclude these judges from the new examination of the case. 58. The applicant submitted on the merits of the case that at the time of his arrest he had not been informed of his rights or provided with a lawyer and that the record of his arrest had been forged. He also had not received a copy of the arrest record or been able to question key prosecution witness B. at the trial. 59. Having examined the case file, the Presidium found that the applicant’s grounds of appeal were unsubstantiated. In particular, it held that the arrest record of 5 June 2004 had been duly authenticated and signed by the applicant, who had been informed of his rights, including the right to be represented by counsel. He did not however request that counsel be instructed or make any comments in the record. The Presidium also noted that statements by prosecution witnesses had been read out at trial in accordance with the law. 60. The Presidium amended the judgment of 14 October 2005 as upheld on 2 March 2006, held that the applicant’s actions on 5 June 2004 should have been classed as an attempt to commit a drug offence, and upheld the remainder of the judgment of 14 October 2005. 61. By a decision issued on the same day the Presidium ordered the recovery of counsel’s fees in the amount of 1,485.85 Russian roubles (RUB) (about 30 euros (EUR)) from the applicant for the representation in the supervisory review proceedings. 62. In the course of the criminal proceedings the applicant was detained in remand prison IZ-30/1 in Astrakhan during the following periods: (a) between 6 and 9 June 2004; (b) between 9 July and 16 December 2004; (c) between 28 December 2004 and 11 April 2006; and (d) between 27 February and 26 March 2008. 63. During the first three periods the applicant was detained in different cells. All of them were overcrowded and infested with insects. They measured about 25 square metres each and contained six bunk beds. He did not have an individual sleeping place and inmates had to take turns to sleep. Some cells were not equipped with ventilation system, while in others it was not working. The electric lighting was always on. The toilet was not separated from the rest of the cells. 64. During his last period of detention the applicant was detained in cell 5 located in the basement. He was not provided with any bedding or cooking utensils. Remand prison officers told him that he should have brought his own bedding. The cell was very cold and damp. Since he did not have any bedding he was obliged to sleep in his clothes. The windows were closed all the time and let in no daylight. The cell was never ventilated. The toilet was in the corner of the cell and offered no privacy. The dining table was very close to the toilet. The cell was infested with insects. Detainees could take a fifteen-minute shower once a week. 65. On an unspecified date the applicant was transferred to correctional colony IK-2 in the Astrakhan region to serve his sentence. It appears that in 2010 he was transferred to correctional colony IK-6, also in the Astrakhan region. 66. The applicant submitted that the authorities of IK-2 and IK-6 had opened and read a number of the Court’s letters to him, in particular one dated 13 September 2006 acknowledging receipt of his application and giving him further information on the conduct of the proceedings before the Court, and others dated 21 November 2006, 15 January, 20 February, 22 and 29 May 2007, and 26 February 2008. The applicant provided the Court with copies of these letters. All of them had been stamped by the colony authorities. 67. The applicant also submitted that the colony authorities had delayed in sending the Court’s letters to him. 68. The Government claimed that during his detention in IK-2 and IK-6 the applicant had sent one letter to the Court and had received 11 letters from the Court. The receipt and dispatch of letters had been properly recorded in the prison log book. Some letters addressed to the applicant had been opened for registration purposes only. They had not been censored and had been handed over to the applicant in their entirety. One letter had been forwarded to the applicant after a four-day delay due to an omission by one of the prison employees who had been duly reprimanded in the intervening period.
| 1 |
test
|
001-178904
|
ENG
|
MNE
|
CHAMBER
| 2,017 |
CASE OF ANTOVIĆ AND MIRKOVIĆ v. MONTENEGRO
| 3 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
|
5. The applicants were born in 1969 and 1961 respectively and live in Podgorica. 6. On 1 February 2011 the Dean of the School of Mathematics of the University of Montenegro (Prirodno-matematički fakultet), at a session of the School’s council, informed the professors teaching there, including the applicants, that “video surveillance has been introduced” (da je uveden video nadzor) and that it was in the auditoriums where classes were held. 7. On 24 February 2011 the Dean issued a decision introducing video surveillance in seven amphitheatres and in front of the Dean’s Office (ispred dekanata). The decision specified that the aim of the measure was to ensure the safety of property and people, including students, and the surveillance of teaching (praćenje izvršavanja nastavnih aktivnosti). The decision stated that access to the data that was collected was protected by codes which were known only to the Dean. The data were to be stored for a year. 8. On 14 March 2011 the applicants complained to the Personal Data Protection Agency (Agencija za zaštitu ličnih podataka, “the Agency”) about the video surveillance and the collection of data on them without their consent. They relied on the Personal Data Protection Act (see paragraphs 2427 below).The applicants submitted, in particular, that the amphitheatre where they taught was locked both before and after the classes, that the only property there was fixed desks and chairs and a blackboard, that they knew of no reason to fear for anybody’s safety and that, in any event, there were other methods for protecting people and property and monitoring classes. They requested that the cameras be removed and the data erased. 9. On 21 March 2011 two Agency inspectors issued a report (zapisnik) after visiting the School of Mathematics, stating that the video surveillance was in accordance with the Personal Data Protection Act. According to them, there had been cases of destruction of university property, the bringing in of animals, drink and tobacco, and the presence of people who were not students. They also noted that the cameras provided “a picture from a distance without clear resolution, that is people’s features [could not] be easily recognised”, that they could not zoom in and out and did not record any audio (ne reprodukuju audio zapis). While the decision on introducing video surveillance had provided that data would be stored for a year, the servers’ capacity was such that the data was stored for thirty days and then automatically erased by new recordings. The inspectors also noted that information on a “plan to introduce video surveillance” (planiranje uvođenja video nadzora) had been given at a session of the School Council on 1 February 2011. 10. On 22 March 2011 the applicants filed an objection to the report, submitting, inter alia, that they were not aware of any of the alleged incidents and that, in any event, it was unclear how such cameras could ensure the safety of people and property. They agreed that cameras over the entrances and exits from the university building might perhaps be an adequate form of ensuring such security. They also submitted that employees had not been “notified in writing on the introduction of video surveillance before it started” (nijesu bili obavješteni o uvođenju video nadzora u pisanom obliku prije početka vršenja istog). Notably, the decision had been issued on 24 February 2011 whereas surveillance had commenced a few weeks before. They did not specify when exactly but referred to the minutes of the session of 1 February 2011 (see paragraph 6 above). 11. On 28 April 2011, after the applicants’ objection to the report, the Agency’s Council (Savjet Agencije za zaštitu ličnih podataka) issued a decision (rješenje) ordering the School of Mathematics to remove the cameras from the auditoriums within fifteen days as the video surveillance was not in accordance with the Personal Data Protection Act, notably sections 10, 35 and 36 (see paragraphs 24, and 26-27 below). In particular, the Council held that the reasons for the introduction of video surveillance provided for by section 36 had not been met, given that there was no evidence that there was any danger to the safety of people and property in the auditoriums, still less to confidential data, and that the surveillance of teaching was not among the legitimate grounds for video surveillance. None of the parties initiated an administrative dispute in court against that decision. 12. On 25 January 2012 the School of Mathematics was served with the Agency Council’s decision of 28 April 2011. The cameras were removed by 27 January 2012 at the latest. It appears that the data that had been collected was also erased on an unspecified date. 13. On 19 January 2012 the applicants brought a compensation claim against the University of Montenegro, the Personal Data Protection Agency and the State of Montenegro, for a violation of their right to a private life, notably by the unauthorised collection and processing of data on them. They submitted in particular that such an interference with their private lives, without any possibility to control that process, was not provided for by any piece of legislation and that therefore it had not been in accordance with the law, within the meaning of Article 8 § 2 of the Convention. They also maintained that it had not pursued any legitimate aim and had not been necessary in a democratic society. They relied on the relevant provisions of the Personal Data Protection Act, Article 8 of the Convention and the relevant case-law of the Court. 14. On 27 December 2012 the Court of First Instance (Osnovni sud) in Podgorica ruled against the applicants. The court found that the notion of private life certainly included activities in the business and professional spheres. It also held, however, that the university was a public institution performing activities of public interest, teaching being one of them (poziv redovnog profesora [je] takođe javan), and that it was thus not possible for video surveillance of the auditoriums as public places to violate the applicants’ right to respect for their private life. It was a working area, just like a courtroom or parliament, where professors were never alone, and therefore they could not invoke any right to privacy that could be violated. The data that had been collected could thereby also not be considered as personal data. The university’s failure to remove the cameras immediately had been unauthorised, but it could not be classed as an interference with the applicants’ private life and was therefore irrelevant. The court further held that such a conclusion was in accordance with the Court’s case-law given that the monitoring of actions taking place in public was not an interference with a person’s private life when those means just recorded (bilježi) what others could see if they happened to be in the same place at the same time. The court also held that the monitoring of the actions of an individual in a public place by the use of photographic equipment which just instantaneously recorded visual data did not give rise to an interference with that individual’s private life, which could arise once any footage of such material became publicly available. It concluded that the installation and use of video surveillance and the collection of data thereby had not violated the applicants’ right to privacy (pravo na privatnost) and had therefore not caused them any mental anguish. During the proceedings one of the witnesses stated that there had been cases of theft and of damage to the interior of the building and that on one occasion five laptops had disappeared from a laboratory. Those events had led to the hiring of a private security agency two or three years earlier. According to the witness, the police had suggested installing video surveillance equipment on the School’s premises. The court, for its part, did not deal with those issues. 15. On 31 December 2012 the applicants appealed. They relied, inter alia, on Article 8 of the Convention. They maintained, in particular, that the interference with their right to respect for their private lives had not been in accordance with any law and had therefore been contrary to Article 8 § 2 of the Convention. It had also not been necessary in a democratic society. Furthermore, the Court of First Instance had not relied on any legal provision in ruling against them and had failed to assess their arguments. 16. On 17 July 2013 the High Court (Viši sud) in Podgorica upheld the first-instance judgment, endorsing its reasons in substance. The High Court held in particular that the applicants had not proved that their right to privacy had been violated and found that the first-instance court had “sufficiently related the Court’s case-law to the case at issue (dao jasan osvrt na odnos prakse Evropskog suda za ljudska prava i konkretnog slučaja) ... The court considered the [applicants’] other arguments and found that they did not justify ruling otherwise in the present case...”. 17. The applicants did not file a constitutional appeal.
| 1 |
test
|
001-158865
|
ENG
|
CYP
|
ADMISSIBILITY
| 2,015 |
CHAKKAS AND OTHERS v. CYPRUS
| 4 |
Inadmissible
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
1. The common feature of these three applications is that they are brought by Cypriot nationals who complain that the children of women displaced from the north of Cyprus after 1974 were not entitled to refugee cards (and thus the benefits to which the holders of such cards were entitled), whereas the children of displaced men were entitled to such cards. The difference in treatment was removed in 2013, that is, after the introduction of the present applications: see relevant domestic law and practice at paragraph 7 below. 2. The applicants are all either displaced women or the children of displaced women. A list of the applicants is set out in the appendix. The applications were lodged on 29 July 2009, 8 April 2010 and 25 May 2011 respectively. The applicants in application nos. 43331/09 and 27877/10 are represented by Mr Loukis G. Loucaides. The applicants in application no. 36144/11 are separately represented by Mr Andreas S. Angelides. Mr Loucaides and Mr Angelides both practise in Nicosia. 3. The legislative provisions which, at the material time, granted refugee cards to the children of displaced men but not the children of displaced women were unsuccessfully challenged before the Supreme Court in Vrountou v. the Republic (appeal no. 3830): see paragraphs 8 and 9 below. The final judgment of the Supreme Court in that case was given on 3 March 2006. 4. Following the Supreme Court’s judgment in Vrountou v. the Republic, Evangelia and Markella Chakkas, the applicants in application no. 36144/11, brought their own challenge to the refugee card scheme, lodging that challenge with the Supreme Court on 7 August 2006. They too alleged that, in according preferential treatment to the children of displaced men over the children of displaced women, the scheme was discriminatory and contrary to Article 14 of the Convention. That challenge was rejected by the Supreme Court at first instance on 19 January 2007 and on appeal to the revisional jurisdiction of the court on 1 December 2010, in each case for the reasons the court had given in its Vrountou v. the Republic judgment. 5. A scheme of aid for displaced and other affected persons was introduced by the Council of Ministers by decision no. 13.503 of 19 September 1974. Under the scheme, displaced persons were entitled to refugee cards. The holders of such cards were (and still are) eligible for a range of benefits including housing assistance. For the purposes of the scheme the term “displaced” was determined by the Council of Ministers as being any person whose permanent residence is in the occupied areas, or in an inaccessible area or in an area which was evacuated to meet the needs of the National Guard. 6. A circular on the implementation of the scheme was issued by the Director of Care and Rehabilitation of Displaced Persons Service (“SCRDP”) on 10 September 1975. In relevant part it reads: “(a) When a displaced woman marries a non-displaced man, the husband and children cannot be registered or considered as displaced persons; (b) When a displaced man marries a non-displaced woman, the non-displaced wife will be registered on the refugee identity card of the husband. The children will be considered as refugees and will be registered on the refugee identity card of their father.” 7. Although the scheme was progressively extended, it was not until the passage of the Census Bureau (Amendment) (No. 2) Law of 2013 (N. 174(I)/2013) that children of displaced women became entitled to refugee cards on the same terms as the children of displaced men. 8. The pre-2013 scheme was unsuccessfully challenged before the Supreme Court by Maria Vrountou: Vrountou v. the Republic (appeal no. 3830). Ms Vrountou was the daughter of a displaced woman; she was refused a refugee card on 6 March 2003. Before the Supreme Court she claimed, inter alia, that the decision was in violation of the principle of equality safeguarded by Article 28 of the Constitution of Cyprus and in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No 1. She claimed that the scheme also breached Article 13 of the Convention. 9. That challenge was dismissed at first instance on 12 May 2004 and on appeal by the Supreme Court (revisional jurisdiction) on 3 March 2006, the latter finding that it was unable to extend the application of the scheme to the children of displaced women when the legislature had not done so. Ms Vrountou lodged an application (33631/06) with this Court on 25 July 2006 and the Court gave judgment in her case on 13 October 2015.
| 0 |
test
|
001-151000
|
ENG
|
FIN
|
CHAMBER
| 2,015 |
CASE OF KIIVERI v. FINLAND
| 3 |
Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice;Criminal offence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
5. The applicant was born in 1960 and lives in Tampere. 6. The applicant owns 90% of the shares in a limited liability company which is active in the construction and decoration business. The applicant is the managing director and a member of the board of directors of the company. 7. In 2005 the tax authorities carried out a tax inspection of the company and concluded that it had failed to declare and pay a considerable amount of taxes and that it had, inter alia, paid salaries off the books and undertaken other fraudulent activity. 8. On 8 September 2008 the tax authorities imposed additional income tax and also tax surcharges (veronkorotus, skatteförhöjning) both on the company and on the applicant for the tax years 2002, 2003, 2005 and 2006. The applicant apparently did not appeal against those decisions and the bailiff seized the imposed sums. The period set for appeal in tax matters is five years counted from the beginning of the calendar year following the year when the initial taxation decision was taken. Therefore the taxation concerning the tax years 2002, 2003 and 2005 became final on 31 December 2008, 31 December 2009, and 31 December 2011 respectively. The period for appeal for the tax year 2006 elapsed on 31 December 2012. 9. In June 2007 the police started a criminal investigation into the applicant’s activities. On 6 March 2009 the prosecutor brought charges against the applicant for accounting offence (kirjanpitorikos, bokföringsbrott) and aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) on two counts. The first count concerned the tax years from 2000 to 2006 and the applicant’s activities as the managing director and a member of the board of directors of the company. The applicant was accused of aggravated tax fraud as he had deducted fabricated receipts, failed to declare the company’s real income, paid salaries off the books and, consequently, the tax imposed on the company had been too low. The second count concerned the tax years from 2000 to 2003 and from 2005 to 2006. The applicant was accused of aggravated tax fraud as he had failed to declare his own income and, consequently, the tax imposed on him had been too low. The tax authorities joined the charges and presented a compensation claim totalling approximately the amount of avoided taxes. 10. On 9 September 2009 the District Court of Tampere (käräjäoikeus, tingsrätten) convicted the applicant of two counts of aggravated tax fraud as charged and of accounting offence. He was sentenced to imprisonment for three years and ordered to pay the tax authorities 685,080.66 euros (EUR) plus interest as compensation. It was noted that the sums already seized from the applicant in the administrative proceedings could be deducted from the compensation. In addition, he was banned from undertaking business activities for six years. 11. By letter dated 9 October 2009 the applicant appealed to the Court of Appeal of Turku (hovioikeus, hovrätten), requesting that the District Court’s judgment be quashed and the charges dismissed. He relied also on the principle of ne bis in idem and the Court’s case-law in that respect. 12. On 15 September 2010 the Court of Appeal, after having held an oral hearing, upheld the judgment for the most part, but considered in part that the accounting offence was aggravated and ordered the applicant to pay EUR 20,000 more compensation to the State. The court considered that, as long as the time-limit for appeal had not elapsed with regard to the tax years 2003, 2005 and 2006 at the moment of bringing the charges against the applicant in 2009, there was no issue of ne bis in idem. Furthermore, it considered that, as concerned the tax year 2002, the time-limit for appeal had elapsed on 31 December 2008 and thus the taxation had become final before the charges were brought against the applicant. However, as there still existed another kind of tax appeal which the applicant could have used, the Court of Appeal finally considered that the ne bis in idem principle did not prevent the examination of the charges against the applicant also concerning the tax year 2002. 13. By letter dated 12 October 2010 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal. He also requested an interim order staying the execution of the lower court’s judgment. 14. On 27 February 2012 the Supreme Court dismissed, without examining the merits, that part of the criminal conviction that concerned the tax year 2002 as it considered that the fact that the tax surcharges imposed on the applicant had become final in 2008, that is, before the charges had been brought against the applicant in March 2009, prevented the examination of the matter. Otherwise the lower court’s judgment was upheld. The court considered that as long as the time-limit for appeal had not elapsed with regard to the other tax years at the moment when the charges were brought against the applicant, there was no issue of ne bis in idem. As a part of the applicant’s conviction was dismissed without examining the merits, his sentence was accordingly also lowered to imprisonment for 2 years and 10 months. 15. On 21 August 2012 the applicant lodged an extraordinary appeal with the Supreme Court, requesting the reopening of the case on the basis of incorrect application of the law and the prohibition on self-incrimination. 16. Apparently in March 2013 this extraordinary appeal was refused by the Supreme Court.
| 1 |
test
|
001-164456
|
ENG
|
SVK
|
CHAMBER
| 2,016 |
CASE OF BUKOVČANOVÁ AND OTHERS v. SLOVAKIA
| 4 |
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)
|
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
6. The applicants were born in 1952, 1947, 1973 and 1980 respectively and live in Bratislava. 7. They are co-owners of a residential house located in the Bratislava-Staré Mesto municipality. The house was built in 1929 by their familial predecessors, who during the previous regime donated it to the State under circumstances that would later be accepted as constituting duress. The ownership of the house was restored to the first and second applicants on 10 December 1991 under special legislation on restitution. Consequently, each of them acquired a 4/12 share of the ownership of the house. The third and fourth applicants each acquired a 2/12 share of the ownership of the house on 25 January 1995 and 29 March 1999 respectively. 8. At the time the applicants acquired the ownership of the house five flats were inhabited by tenants with regulated rent. Under the relevant legislation this meant that (i) the applicants had to accept that their flats were occupied by these tenants, (ii) they could charge them no more than the maximum amount of rent fixed by the State, (iii) they could not unilaterally terminate the leases, and (iv) they could not sell the flats other than to the tenants (“the rent-control scheme”). 9. The rent-control scheme applies, or has applied, to the flats in question, as follows: a four-room flat with a surface area of 129 sq. m which had been subject to rent control until January 2006 (“the first flat”); a four-room flat with a surface area of 130 sq. m which had been subject to rent control until September 2008 (“the second flat”); a two-room flat with a surface area of 87 sq. m and two four-room flats measuring 126 sq. m each (“the third, fourth and fifth flats”), to which rent control still applies. 10. The monthly rent chargeable for the flats under the applicable legislation was equivalent to some 10 to 17.5 euros (EUR) between 1992 and 1999. After several increases in the regulated rent, in June 2007 the applicants were able to charge some EUR 73.5 monthly in respect of the two-room flat and approximately EUR 125 monthly in respect of the fourroom flats. According to the Government’s calculations the regulated rent reached EUR 236 and EUR 400 respectively in 2014. 11. The parties provided differing figures as to the market rent. The applicants relied on data from the National Association of Real Estate Agencies (“the NAREA”) and claimed that the monthly market rent for comparable tworoom flats in the area reached around EUR 662 and for comparable fourroom flats some EUR 1,296 between 2004 and 2007. The Government submitted an expert valuation according to which the monthly market rent for the applicants’ flats in 2010 amounted to EUR 561 and EUR 772 to EUR 797 respectively.
| 1 |
test
|
001-144997
|
ENG
|
LVA
|
CHAMBER
| 2,014 |
CASE OF PETROVA v. LATVIA
| 3 |
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
5. The applicant was born in 1955 and lives in Riga. She is the mother of Mr Oļegs Petrovs (the applicant’s son), a Latvian national who was born in 1979 and who died on 29 May 2002. 6. On 26 May 2002 at approximately 7 a.m. the applicant’s son sustained very serious injuries in a car accident near Bauska. At approximately 8.45 a.m. he was taken to hospital in Bauska. Later, at 2.45 p.m., he was transferred to Riga’s First Hospital (Rīgas 1. slimnīca – “the Hospital”) – an entity that was registered as a “non-profit municipally-owned limited-liability company” (Rīgas pašvaldības bezpeļņas organizācija sabiedrība ar ierobežotu atbildību) at the material time – where surgery was carried out on his head. Following the operation his condition remained very serious; he remained in the emergency department of the Hospital (reanimācijas nodaļa) and did not regain consciousness. 7. At 11.50 p.m. on 28 May 2002 a call from the Hospital was received by the transplantation centre of Pauls Stradiņš Clinical University Hospital – an entity that was registered as a “non-profit State-owned joint stock company” (bezpeļņas organizācija valsts akciju sabiedrība) at the material time – providing information about a potential donor who was undergoing resuscitation. A coordinator from the transplantation centre, together with another doctor, went to the Hospital. 8. At 0.45 a.m. on 29 May 2002 the applicant’s son’s condition was noted in his medical record as being fatal. It was noted that medical resuscitation had been started. The death of the applicant’s son was recorded at 1.20 a.m. in his medical record at the Hospital. 9. Between 1.35 a.m. and 3.45 a.m. a laparotomy was performed on the body, in the course of which the kidneys and the spleen were removed for organ transplantation purposes. This operation was carried out by the transplantation centre’s transplant surgeon, urologist and operating nurse, in the presence of the coordinator and the Hospital’s resuscitation specialist. On the death certificate the time of death was recorded as 2.45 p.m. on 29 May 2002 (probably by mistake – see 15 below). 10. According to the applicant, during her son’s stay in the Hospital she was in permanent contact with the doctors there. On 29 May 2002, although her son’s condition was deteriorating, the applicant was not informed of it. She was also not asked whether her son had consented to being an organ donor and whether she would consent to organ transplantation in the absence of any wishes expressed by her son. 11. According to the Government, the Hospital did not have information on record providing the contact details of any relatives, and they had informed the police about the son’s hospitalisation by dialling the emergency telephone number for the police. It had therefore, not been possible to contact any relatives. In this regard the Government referred to information provided by the Hospital which stated that “given the fact that no telephone numbers of any relatives were recorded on the patient’s medical card ... there was apparently no contact with the applicant”. 12. On 30 May 2002, in the context of criminal proceedings against the person held liable for the car accident, a forensic (post-mortem) examination on the applicant’s son’s body was carried out. It was noted, inter alia, that on 29 May 2002 between 1.35 a.m. and 3.45 a.m. a laparotomy had been performed on the body. The applicant obtained a copy of the forensic report on 11 February 2003 and realised only then that nine months earlier certain organs had been removed from her son’s body for transplantation purposes. 13. In response to a complaint lodged by the applicant, on 12 March 2003 the Hospital stated that the transplantation had been carried out by the transplant doctors in accordance with domestic law. It was noted that the applicant had not been informed of her son’s health condition because she had not visited the doctors at the Hospital. 14. In response to further complaints by the applicant to the police and the prosecutor’s office, several examinations were carried out. 15. In response to a query by the Security Police (Drošības policija), the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) analysed the medical file and met with doctors and managers from the two medical institutions involved – Riga’s First Hospital and Pauls Stradiņš Clinical University Hospital. On 7 May 2003 it completed the examination and informed the Security Police of its conclusions. The MADEKKI provided an answer to the question of whether the medical practitioners had complied with the applicable domestic law in the following terms: “In taking the decision [to remove organs] and in carrying out the removal of organs, the medical practitioners have complied with section 10 of the Law on Protection of the Body of a Deceased Person and Use of Human Organs and Tissue and provisions of regulation no. 431 (1996) ... There is no information at the MADEKKI’s disposal as to whether there was a stamp in Mr Petrovs’ passport signifying his objection to the use of his body tissue and organs. [The applicant] was not informed about the possible removal of organs (the kidneys and the spleen) for transplantation purposes.” The MADEKKI also explained in their letter to the Security Police that the time of biological death was 1.20 a.m. on 29 May 2002 and not 2.45 p.m. as recorded, probably by mistake, on the death certificate. 16. On 27 May 2003 the Security Police replied to the applicant on the basis of the MADEKKI report that the organs of her son had been removed in compliance with domestic law. They relied on section 10 of the Law on Protection of the Body of a Deceased Person and Use of Human Organs and Tissue (“the Law”) and regulation no. 431(1996). The applicant was forwarded a copy of the MADEKKI’s letter to the Security Police. 17. On 17 June 2003 the prosecutor’s office forwarded the applicant’s complaint to the Security Police with a view to instituting an additional inquiry. 18. On 15 July 2003 the MADEKKI replied to questions put by the Ministry of Health, which had been contacted by the National Human Rights Bureau further to a complaint by the applicant. They answered that there was no information at their disposal as to whether, at the time of her son’s death, any refusal of or consent to the use of his body, organs or tissue after his death had been recorded in the Population Register (Iedzīvotāju reģistrs). They also answered that the applicant had not been informed of the possible removal of organs (the kidneys and the spleen) for transplantation purposes. There was no information at the MADEKKI’s disposal as to whether there had been a stamp in Mr Petrovs’ passport signifying an objection to the use of his body tissue and organs. On 13 August 2003 the Ministry of Health, replying in turn to the National Human Rights Bureau, concluded on the basis of the information provided by the MADEKKI that, because the applicant had not been informed about the possible transplantation, she had neither consented to it nor refused it. 19. On 29 July 2003 the Security Police informed the applicant that her complaint was still being examined. 20. On 12 November 2003 the Security Police adopted a decision not to institute criminal proceedings. For the same reasons as were given in the above-mentioned reports, it was concluded that the transplantation had been carried out in compliance with domestic law. The reports indicated that in his lifetime Mr Petrovs had not indicated any objection to the use of his body tissue and organs after death and that no objection to the use of his organs had been received from his relatives before the start of the transplantation. The coordinator of the transplantation centre had been responsible for informing the relatives about the issues pertaining to transplantation, and for obtaining records, consent, signatures and other relevant information. Taking into account the fact that the relatives had not been at the hospital at the time of the son’s biological death and that the removal of organs in such cases has to be performed immediately, it had not been possible to obtain their consent or refusal in relation to the organ removal. 21. On 14 November 2003 the applicant was informed of this decision. 22. On 23 January 2004 the National Human Rights Bureau replied to the applicant. According to the information at their disposal, there was nothing on record in the Population Register indicating whether Mr Petrovs would have allowed or refused the use of his body, tissue and organs after his death. According to the information provided by the Ministry of Health and on the basis of the conclusions established by the MADEKKI, the applicant had not been informed about the imminent removal of her son’s kidneys and spleen, and she had therefore neither consented to it nor refused it. Finally, the applicant was advised that she should contact the prosecutor’s office because the Security Police had not indicated any procedure or time-limits for lodging an appeal. 23. On 4 March 2004, further to a subsequent complaint, a meeting was convened at which the Minister for Health discussed with the representatives of the Hospital and the transplantation centre the case of the removal of the applicant’s son’s organs. The Minister for Health was of the opinion that the relatives should have been informed about the organ removal and that their consent should have been obtained. The representatives stated that the organ removal had been conducted in compliance with the applicable law. The meeting record contained a note to the effect that in autumn 2003 a working group which had been established by the Ministry of Health had prepared amendments to the above-mentioned Law in order to define its provisions more clearly. They had made two proposals. The first proposal was to include in the Law a provision stating that on all occasions inquiries were to be made about the deceased person’s wishes with his or her closest relatives. The second proposal was to rely on the person’s wishes as expressed during his or her lifetime and, in the absence of any such wishes, to presume consent (no inquiries made with the closest relatives). It was also noted that the relevant committee of the Parliament had opted for the second option (see paragraph 41 below for the adopted text). It was also noted that once the proposed amendments were passed by the Parliament, the occurrence of such “problematic situations would be practically ruled out”. On 17 March 2004 the applicant received reply from the Ministry of Health to this effect. 24. On 6 May 2004 a prosecutor dismissed the applicant’s complaint concerning the refusal of 12 November 2003 to institute criminal proceedings. She relied on section 11 of the Law and indicated that consent from parents or from a legal guardian was required only in cases relating to the removal of organs for transplantation purposes from a dead child’s body. Accordingly, the actions of the medical practitioners did not constitute a crime and the 12 November 2003 decision had been lawful. 25. On 29 June 2004 a superior prosecutor dismissed the applicant’s complaint concerning the prosecutor’s decision of 6 May 2004. He stated that – according to the information provided by the Ministry of Health – the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (see paragraph 28 below) had not been ratified by the Latvian Parliament and that Latvia had not even signed the Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin; Latvia was therefore not a party to this Convention. The prosecutor relied on Article 17 of the Additional Protocol and indicated that at the relevant time (May 2002) in Latvia these issues were regulated in sections 4 and 11 of the Law. These provisions did not require consent from close relatives unless the removal was from the body of a dead child. The rules relating to transplantation coordinators obliged them to obtain relatives’ consent only in cases prescribed by law. The prosecutor concluded that there were no grounds to consider that the medical practitioners, in taking the decision to remove organs and in carrying out the removal of those organs, had infringed legal provisions. Therefore, there were no grounds to charge them with a crime under section 139 of the Criminal Law; at that time no other person had been charged with the crime. At the same time, the applicant was informed about the 2 June 2004 amendments to sections 4 and 11 of the Law, in which it was specified that the organs of a deceased person might be removed for transplantation purposes if there was no information recorded in the Population Register indicating any objection and if the relatives of the deceased had not, before the start of the transplantation, informed the hospital in writing of the deceased person’s objection – expressed during his or her lifetime – to the use of his or her organs and tissue after death. 26. On 23 August 2004 the Prosecutor General in a final decision dismissed the applicant’s complaint concerning the decision of 29 July 2004. He also referred to sections 4 and 11 of the Law and noted that these provisions prohibited removal in cases where a refusal or objection had been received but not in cases where wishes of the closest relatives had not been established. These provisions, as in force in May 2002, therefore did not oblige medical practitioners to actively search for and inform the closest relatives of a deceased person about the possible removal for transplantation purposes of his or her body tissue and organs unless that person was a child. On 29 May 2002 the medical practitioners did not have any information at their disposal concerning a refusal of or objection to the removal of Mr Petrovs’ organs. He concluded that the organ removal had been performed in accordance with domestic law. The Prosecutor General also observed that activities performed on the body of a deceased person could not be treated as interference with his or her private life.
| 1 |
test
|
001-177126
|
ENG
|
UKR
|
COMMITTEE
| 2,017 |
CASE OF MAKEDON v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)
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Nona Tsotsoria;Gabriele Kucsko-Stadlmayer
|
4. The relevant details of the application are set out in the appended table. 5. The applicant complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.
| 1 |
test
|
001-148679
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,014 |
RITCHIE AND OTHERS v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
|
1. The 16 applicants are the widows and children of seven fishermen who died at sea in 1974 whilst fishing in Scottish waters in their trawler called the Trident. A list of the applicants is set out in the attached appendix. 2 3. The Trident was built in 1971-3 and handed over to its owners, Mr David Tait and Mr Alexander Ritchie (the latter of whom died in the accident), on 31 March 1973. The construction of the ship was financed by a loan from the White Fish Authority, a public authority established to reorganise, develop and regulate the white fish industry. Although the contract required that the Trident should meet the stability standards recommended by the Inter-Governmental Maritime Consultative Organisation (IMCO) and that on completion it should undergo an inclining test to establish this, no such test was carried out. 4. From 31 March 1973 onwards, the Trident was engaged in group fishing in all weathers off Scotland. Later in 1973 the captain of another trawler, the Silver Lining, which had been built by the same firm with a similar, but not identical, design to the Trident, reported his concerns about the “rolling” motion of his vessel to the White Fish Authority. He was issued with a stability booklet by the White Fish Authority advising that further ballast be used to improve stability, as was the captain of the Trident. 5. On 3 October 1974 Trident disappeared without having given any distress signal. An exhaustive search was carried out of the area where, based on the last radio contact, it was assumed that it had run into trouble, but no trace of the crew or any wreckage, save for a quantity of fish boxes and a few other loose articles, were found. 6. Following the loss of the Trident, the Silver Lining was withdrawn from service and given a stability test. It was found to be fractionally below the minimum stability recommendations and modifications were made to its structure before it was returned to fishing. 7. A formal investigation under the Merchant Shipping Act 1894 into the loss of the Trident was held by a sheriff and two assessors in June 1975, with the report published on 12 September 1975. The Department of Trade; the White Fish Authority, the liquidator of the company which had built the Trident, the ship’s designer, Mr Tait (the part-owner), and the personal representatives of Mr Ritchie and the other deceased crew members were parties to the investigation and legally represented. The court proceeded on the basis that the Trident had been lost in an area where, at the time in question, there had been no significant weather problems. It concluded that the lack of any distress call indicated that the Trident must have foundered suddenly, probably as a result of a large and unexpected wave depositing a heavy weight of water on deck. The inquiry considered whether any other factor might have contributed to the casualty and identified inadequate stability as the only likely cause. Evidence was taken from the parties and other witnesses, including experts, based on what was known about the stability of the Trident’s sister ship (the Silver Lining) and of hypotheses about the amount of fuel and ballast likely to have been carried by the Trident at the time of the accident. Having reviewed all the evidence, the court reached the conclusion that: “reliance cannot be placed on the soundness of the design of the Trident; that she was probably of inadequate stability; that the last radio conversations with her indicated that in her then state of loading and in the prevailing weather conditions, her deficiencies were showing up markedly; that in all the circumstances it would be unrealistic to conclude that her loss was due solely to the action of the sea; and finally, that inadequate stability is the factor most likely to underlie her foundering in conditions which would not normally have overwhelmed a ship of her size. In the course of the Inquiry, attempts were made to suggest that one or others of the parties should be held responsible for the loss of Trident. None of these cases was established. In particular, the Court is entirely satisfied that no case was made out against Mr Tait, part owner of the vessel. His experience of Trident at sea gave him no reason to suppose her at risk ... An attack was also made on the White Fish Authority, but this was based on an erroneous view of their interest and function (no doubt encouraged by the terms of their letters). Lastly, the builders ... were criticised for their failure to carry out an inclining test. While this undoubtedly led to great difficulty at the Inquiry in investigating the characteristics of Trident, no attempt was made in evidence to show that at the time in question it, or any aspect of the design of Trident, involved ‘wrongful neglect’. The Court cannot embark on this subject without evidence. The problem of standards of stability of trawlers generally is under active consideration and it is understood that the design of Trident and Silver Lining will be the subject of detailed tests. This Inquiry can contribute nothing new to these studies.” 8. On receiving the results of the formal investigation the applicants took legal advice as to whether it would be possible to bring civil proceedings for damages for negligence against any person. In 1977 the son of one of the crew members who died on the Trident applied for legal aid to bring a case against the Department of Trade, but his application was refused. 9. As part of the investigation into the loss of the Trident, the National Maritime Institute (NMI) was requested by the Department of Trade to carry out experiments with models in an effort to discover whether there were any obvious hydrodynamic reasons for the casualty. The experiments were carried out in a water tank with a wave-maker using two model boats, one of which was similar in design to the Trident and the other of which was different in that it had a round stern. The results of the tests were published in the NMI report, dated 22 October 1976. It found that once circling manoeuvres were attempted in breaking waves of modest severity, the model similar to the Trident was immediately at risk of capsize whereas the comparison model did not capsize. The report concluded that the Trident-type vessel had insufficient stability at rest and that even boats of this type constructed to comply with the IMCO minimum standards (see paragraph 3 above) were at risk of capsize. The applicants were not made aware of the NMI report at the time it was published. 10. In June 2001 amateur divers found the Trident intact on the seabed. The Marine Accident Investigation Branch of the Department of Transport commissioned a video survey by a remotely operated vehicle. The survey was completed early in August 2001. 11. On 28 March 2002 the Secretary of State ordered a rehearing of the formal investigation into the loss of the Trident, as required under section 269(1) of the Merchant Shipping Act 1995 where new and important evidence which could not be produced at the original investigation was discovered. The applicants were invited to become parties to the investigation and the Department of Transport agreed to make public funds available to cover their reasonable and necessarily incurred legal costs and expenses, including representation by solicitors and counsel, and by a QC from February 2010. A preliminary hearing at Aberdeen Sheriff Court was held in 2002 and a Joint Panel of Experts (JPE) appointed to assist the court. The JPE consisted of independent technical experts appointed by the Advocate General for Scotland and others appointed by the persons who had indicated their intention to appear as parties to the investigation, namely Mr Tait, the Trident’s designer, the Seafish Industry Authority (which had taken over the responsibilities of the White Fish Authority) and the applicants. 12. For the purposes of the investigation, a detailed underwater survey was undertaken in June 2006, which involved cutting open some parts of the wreck. The applicants had requested that the Trident be lifted so as to enable an inclining test for stability to be carried out, to preserve the evidence and to recover the remains of the crew, but the request was refused by the Department of Transport. It was planned to use a video camera mounted on a remotely operated vehicle to film inside the wreck, but problems with the equipment rendered this impossible, with the result that no information was obtained as to the settings of the various controls on board or the existence and position of any human remains. In addition to the underwater survey, an independent expert report on the wind and sea conditions operative at the site of the wreck on the day in question was prepared and the Maritime Research Institute in the Netherlands was asked to carry out physical scale model tank tests and computer simulations to attempt to determine what caused the ship to capsize. 13. A first draft of the JPE report was submitted on 14 May 2009 and a final draft was agreed by the JPE on 4 September 2009. The expert instructed by the applicants disagreed with some of the JPE’s findings and filed a separate report. 14. A copy of the NMI report (see paragraph 9 above), which had not previously been provided to the families of the Trident’s crew, was sent to the applicants’ solicitor on 13 May 2004. Further copies were provided to the JPE in 2006 and lodged by the Advocate General for Scotland as part of the court file in September 2009. Also in September 2009, the applicants lodged their written submission, in which they alleged that the Trident was built in breach of IMCO recommendations on stability and that an inclining test which would have discovered this was not undertaken (see paragraph 3 above). The applicants further alleged that the Trident’s designer, its partowner and the White Fish Authority were at fault. 15. The substantive court hearing commenced on 19 October 2009 before the Sheriff Principal of Grampian, Highland and Islands and two assessors with backgrounds in the fishing industry. The investigation sat for a total of 55 days over four sessions, with the final session taking place on 14 July 2010. Following the first session, the applicants changed their legal representatives. The NMI report came to the attention of the applicants themselves for the first time when one of them saw it in the internet file of material for the reopened formal investigation shortly before the start of the third session on 25 May 2010. On that date, the applicants challenged the view taken by their legal representatives that the NMI report was unimportant and did not need to be brought to the court’s attention. The applicants’ counsel then withdrew from the case and the applicants addressed the court directly. They expressed the view that the NMI report provided the complete answer as to why the Trident sank and that the reopened formal investigation had, in consequence, been a waste of time and money. The applicants then withdrew from the hearing. They subsequently lodged a letter with the court, urging the sheriff principal to take the NMI report into account and to find that the Trident had capsized because of a structural lack of stability. 16. In June 2010 the applicants lodged a freedom of information request with the Department of Trade and discovered that the first draft of the NMI report, together with a file of data used to prepare it, entitled “intact stability in relation to the Trident”, had been destroyed in February 2005 as part of a routine exercise to dispose of old documents. 17. The report of the rehearing of the formal investigation was published on 21 February 2011. The sheriff observed that the position of the wreck showed that the Trident was lost some eleven nautical miles south-east of the position estimated at the original formal investigation, and nearly an hour later. The prevailing sea and wind conditions were, therefore, different from what had previously been assumed; in particular, the evidence suggested that the waves were much higher. During the tank tests, the model designed to replicate the Trident capsized suddenly on a number of occasions when it encountered a deep trough followed by a large wave. Both the tank tests and the computer simulations indicated that the Trident had “specific seakeeping characteristics” that resulted in a measurable and significant probability of capsize in the prevailing weather conditions. 18. Based on the JPE report and the evidence taken during the hearing, the sheriff took the view that the Trident had complied with most, but not all, of the IMCO stability criteria (see paragraph 2 above). In any event, even if it had fully complied with these criteria, this would not have affected the outcome. In particular, in order to counteract the strong capsizing forces, a righting mechanism far greater than that required for compliance with the IMCO recommendations would have been needed. What had happened to the Trident on the day of her loss was not reasonably foreseeable to anyone in the light of the knowledge and understanding of the construction of seagoing vessels available at the time and still was not fully understood. The accident could not be attributed to the fault or omission of any person. The sheriff added that, while he could understand the disappointment of the family members who might have expected the JPE to identify precisely what it was about the Trident that caused her to capsize, he could also understand why the JPE did not embark on such a study, given that “even now the precise considerations that bear upon the dynamic stability of a vessel at sea appear not to be fully understood, and much high level research needs to be done before this gap in understanding can be filled”. 19. The sheriff observed that, in the course of preparing his written reasons, he had noticed that the figures used by the NMI report and the JPE respectively, in relation to the Trident’s metacentric height (the measurement of the initial static stability of a floating body), were significantly different and that he could not find any explanation for this. He then continued by expressing the view that NMI report was of no assistance in explaining the loss of the Trident, since the manner in which the waves were generated in the NMI tank test was crude and haphazard in comparison with the methodology used in the tests carried out under the oversight of the JPE and since the NMI’s conclusions were based on visual observations rather than precise measurements. Finally, the tests carried out for the rehearing of the formal investigation were designed to mirror exactly the conditions which obtained when the Trident was lost, including in particular the sea state, the vessel’s loading condition, speed and course relative to the direction of the waves. By contrast, in the NMI tests the vessel was seen capsizing several times when carrying out circling manoeuvres, which was not what the Trident was doing when it was lost. 20. The Merchant Shipping Act 1995 did not provide for any appeal against the sheriff’s findings. 21. In 2011 the applicants approached a number of solicitors to ask whether they would be prepared to act for them on a no-win no-fee basis in a civil claim against the persons they considered at fault for the capsize of the Trident (see paragraph 14 above). None of the solicitors approached by the families were prepared to take on the case. 22. The applicants sought legal advice as regards grounds of challenge by way of judicial review in respect of the proceedings before the sheriff and his findings. In advice dated 28 February 2011, senior counsel concluded that it might be possible to found an argument based on the absence of material evidence before the sheriff and the absence of opportunity for the applicants properly to present their case as a result of failures by their legal team, but underlined that he needed more information about the underlying facts before he could give a more definite assessment. Additional advice was sought. The counsel instructed on this occasion expressed the view that it might be possible to challenge the rehearing of the formal investigation on the ground that the sheriff did not give adequate reasons for his conclusions. She identified two issues, the absence of an incline test on completion of the Trident and the fact that the NMI and JPE reports used different measurements of metacentric height to calculate the initial static stability of the Trident, as relevant considerations which the sheriff should have addressed. Counsel concluded, however, that “it may well be that the relevant court may not find these matters sufficiently persuasive to grant a review”. 23. In May 2011 the first applicant sought legal aid to bring an application for judicial review of the findings of the investigation. This application was refused on 25 July 2011 on the ground that counsel’s opinion did not adequately address the issue of prospects of success or the practical benefit to the applicant in seeking judicial review. The applicant appealed against this decision in September 2011. Her application was again refused on 22 December 2011, on the following grounds: “The test of reasonableness is not met. The letter from the Office of the Solicitor to the Advocate General for Scotland dated 30 June 2011 advises that the total cost of the investigative process and the re-hearing of the formal investigation including the legal and technical costs of all the parties throughout the process of the joint panel of experts and during the course of the re-hearing of the formal investigation cost approximately £6m all funded by the Department of Transport. It is not known what the position is likely to be in relation to further costs in the event of the judicial review being successful and the matter being referred back for further investigation and reporting. It is not known whether funding will be made available to the applicant. The legal costs of a judicial review are not insubstantial. £30,000 has been mentioned by the applicant’s solicitors. It is not satisfactorily demonstrated that a privately funded person of modest means would reasonably be advised to pursue this matter further. It is suggested on review that in the event of eventual success the applicant will then have the opportunity of pursuing avenues of compensation for her losses. The applicant is 71 years of age. She was 34 years old when her father and husband died. There is no indication about the possible value of any claim she may have in the event that it is eventually determined that any individual or body is at fault. It is not possible to assess whether the potential costs involved in bringing any future claim to a conclusion from the present position can be justified. It should be noted that even if the two principal grounds for judicial review are eventually addressed (the tribunal’s failure to address itself to the failure of the White Fish Authority to ensure that an incline test was conducted on the Trident and the failure of the formal investigation to consider the discrepancy in various figures relating to the stability of the Trident) there is nothing to demonstrate that had the Trident been constructed in a manner compliant with best practice at the time the accident would not have occurred.”
| 0 |
test
|
001-159789
|
ENG
|
HRV
|
CHAMBER
| 2,016 |
CASE OF TRESKAVICA v. CROATIA
| 4 |
No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
Egidijus Kūris;Helen Keller;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković
|
5. The applicants were born in 1943, 1975 and 1969, respectively, and live in London, the United Kingdom. 6. During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over Krajina. The operation was codenamed “Storm” (Oluja) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina, and also to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000. 7. On 5 November 1997 Croatia ratified the Convention. 8. The documents submitted by the parties reveal the following facts. 9. The applicants lived in Knin, within the territory of Krajina. During Operation Storm the town of Knin was shelled by the Croatian army. During the shelling the applicants hid in the basement of their building. J.T. was found dead near a petrol station in Knin after one of the shelling attacks. It appears that he was buried at a cemetery in Knin. 10. On 25 April 2001, during the exhumations at the “New Cemetery” (Novo groblje) in Knin, the first applicant approached the police and said that her husband, J.T., had been buried at that cemetery. The Šibenik-Knin Police Department, Knin Police Station (Policijska uprava šibensko-kninska, Policijska postaja Knin), then interviewed the first applicant about the circumstances of the death of her husband. She stated that her husband had died on 5 August 1995 near a petrol station in Knin. Given that Knin had been under artillery attack, the first applicant assumed that her husband had been killed by a shell. She further stated that she had seen her husband’s dead body lying on the pavement near the above-mentioned petrol station. She gave a detailed description of his appearance and of the clothes he had been wearing. Members of the Croatian army appeared at the crime scene and took the first applicant to a UNPROFOR (United Nations Protection Force) camp in Knin. She had obtained no further knowledge of the whereabouts of her husband’s body. She assumed that he was buried at a cemetery in Knin. 11. A number of remains were exhumed during May and June 2001 at the cemetery in Knin. The process was conducted under the auspices of the International Criminal Tribunal for the former Yugoslavia (Međunarodni kazneni sud za bivšu Jugoslaviju) and the County State Attorney’s Office in Šibenik (Županijsko državno odvjetništvo u Šibeniku). After they were exhumed, the remains were examined at the Institute for Forensic Medicine in Zagreb (Zavod za sudsku medicinu i kriminalistiku) but J.T.’s remains were not identified at that time. On 20 June 2001 the International Criminal Tribunal for the former Yugoslavia issued an autopsy report which concluded that the probable cause of the death for the remains which were only in 2010 identified as being those of J.T., was a gunshot to the neck. 12. On 26 November 2001 the Knin Police Station submitted to the Šibenik-Knin Criminal Police Department (Odjel kriminalističke policije, Policijska uprava šibensko-kninska) its official notes of the interviews which it had conducted with the families of the people killed during and after Operation Storm. The above-mentioned interview with the first applicant was also submitted. 13. On 28 November 2003 the Institute for Forensic Medicine in Zagreb extracted a genotype from J.T.’s remains and compared it with DNA samples from its database. However, they failed to find a match and could not establish the identity of the remains. 14. After the applicants on 26 February 2007 filed with the State Attorney’s Office a claim for damages in connection with the killing of J.T. (see paragraph 25 below), the Knin police opened an inquiry into the circumstances of his death. 15. On 5 December 2007 the Knin Police Station interviewed M.T., who stated that the first applicant had told her about the events in Knin during Operation Storm and the death of her husband, J.T. She had no further useful information. 16. On 13 February 2008 the Šibenik-Knin Criminal Police Department interviewed Lj.M. She described the events of 5 August 1995 as follows. During the artillery attack on Knin she and her family had hidden in a basement. After the attack they had left the basement. The Croatian army had led the civilians to a furniture shop, from where they had been taken to the barracks known as “southern camp” (južni logor). The first and the second applicants had also been in this group of civilians. As they had been passing through Knin, the witness had seen the dead body of J.T. He had been dressed in civilian clothes and had had no visible injuries. Lj.M indicated that she had no recollection of seeing J.T. wearing the military uniform of the Republic of Serbian Krajina (RSK: Republika Srpska Krajina). Lj.M’s statement was confirmed by her mother-in-law, Z.M. 17. On 19 February 2008 the Šibenik-Knin Criminal Police Department interviewed I.M., a neighbour of the Treskavica family. She stated that J.T. had not been a member of the army or the police of the Republic of Serbian Krajina and that she had never seen him wearing a military uniform. During Operation Storm her family and the Treskavica family had been hiding in the basement of their residential building. J.T. had occasionally come to the basement, but he had not been present all the time. The last time that I.M. had seen him alive had been on 5 August 1995, between 10 and 11 a.m. After they had all left the basement, she had seen the dead body of J.T. lying on the street. She had no further information. 18. On 20 February 2008 the Šibenik-Knin Criminal Police Department informed the County State Attorney’s Office in Šibenik that the case had not yet been registered and that it had failed to determine whether J.T. had been a member of the army or the police of the Republic of Serbian Krajina. The police indicated that they had conducted interviews with Lj.M. and I.M. However, it was not possible to conduct an interview with the first applicant, since she resided in England. The police indicated that J.T. had most likely been buried at the cemetery in Knin. His remains had been exhumed and transferred to the Institute for Forensic Medicine in Zagreb, where they were still being identified. 19. On 13 November 2009 P.T., J.T.’s brother, provided information about J.T.’s ante-mortem physical features to the Red Cross of Serbia (Crveni Krst Srbije) in order that his post-mortem remains might be identified. On the same day P.T. requested that a search be undertaken for the post-mortem remains of J.T. 20. On 14 February 2010 family members provided blood. After a DNA analysis was conducted, the Institute for Forensic Medicine in Zagreb issued a report dated 16 April 2010, which stated that the post-mortem remains were those of J.T. 21. On 24 May 2010 the family of J.T. was invited to the final identification of the post-mortem remains. On 16 June 2010 the first applicant confirmed the preliminary identification of the remains. 22. On 8 July 2010 the Šibenik-Knin Criminal Police Department submitted a list of missing persons to the Knin Police Station, together with a request for an inquiry into their disappearance and for interviews to be conducted with their families and neighbours. J.T. was listed as one of those missing persons. 23. On 19 July 2010 the remains of J.T. were buried at the local cemetery in Knin, in accordance with the wishes of the applicants. 24. On 10 August 2010 the Knin Police Station issued an official note about the inquiry into J.T.’s disappearance. After interviewing the first applicant, the police determined that J.T. had died on 5 August 1995 and had been buried on 19 July 2010 at the cemetery in Markovac. On 6 September 2010 the Knin Police Station notified the Šibenik-Knin Criminal Police Department of those findings. 25. On 7 July 2014 the Ministry of War Veterans (Ministarstvo branitelja) replied to a request of the War Crimes Department of the Ministry of the Interior (Ministarstvo unutarnjih poslova, Služba ratnih zločina) concerning the case of J.T. The Ministry of the Interior notified the police of the exhumation and identification of J.T.’s remains. 26. On 26 February 2007 the applicants submitted a claim for damages with the State Attorney’s Office in respect of the death of J.T. The request was refused. 27. On 14 June 2007 the applicants brought a civil action against the State in the Knin Municipal Court (Općinski sud u Kninu), seeking damages in respect of the death of J.T. under the 2003 Liability Act. 28. On 17 December 2008 the municipal court dismissed the claim on the ground that there was “no evidence that J.T.’s death had been a result of terror or violence aimed at gravely disturbing public order.” That judgment was upheld by the Šibenik County Court (Županijski sud u Šibeniku) on 1 March 2010 and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 21 February 2012. 29. The applicants’ subsequent constitutional complaint was dismissed on 3 October 2012 by the Constitutional Court (Ustavni sud Republike Hrvatske).
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test
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001-150216
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ENG
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LTU
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CHAMBER
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CASE OF MANIC v. LITHUANIA
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Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
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András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
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5. The applicant was born in 1971 and lives in London. 6. The applicant met V.T., a Lithuanian citizen, in the United Kingdom in 2005. They lived together in London. 7. On 18 September 2007 a son, A.M., was born to them. A.M. is a Lithuanian citizen. 8. In March 2008 V.T. went with the child to visit her family in Lithuania. After a month, the father went to Lithuania to fetch them. They all returned to the United Kingdom. In June the mother and their son went back to Lithuania for the summer. In July the mother wrote to the applicant stating that their relationship was over. She went to the United Kingdom shortly afterwards to collect their son’s belongings and returned to Lithuania, where she remained with the boy. On 17 July 2008 V.T. registered her and her son’s permanent residence at her parents’ address in Kuktiškės village, Utena district in Lithuania. 9. The applicant claimed that his son had been abducted and held in Lithuania without his consent. He initiated proceedings before the Vilnius Regional Court, asking that the child be returned to the United Kingdom, which was his son’s usual permanent place of residence. 10. By a decision of 6 March 2009, the Vilnius Regional Court dismissed the applicant’s request. The applicant, V.T., two of her lawyers and representatives of the Lithuanian child care authorities were present at the hearing. The child care specialist asked the court to resolve the issue of the child’s return to his country of birth as it saw fit. This notwithstanding, the authorities observed that the child had good living conditions in Lithuania and was growing up in a secure environment among loving people. 11. The court acknowledged that since his birth the boy’s parents had taken care of him together and that consequently his permanent place of residence was the United Kingdom. Both of the parents had custody rights in respect of the boy. The Vilnius Regional Court also dismissed V.T.’s allegation that the applicant had agreed that the child could settle permanently in Lithuania. Moreover, V.T. had no legal basis on which to decide to change the child’s permanent place of residence on her own. Her refusal to return the child to the country of his birth after the holidays in summer 2008 could not be recognised as being justified. 12. The Vilnius Regional Court nevertheless ruled that the child should stay in Lithuania. In setting out its reasons, the court held that before arriving in Lithuania the child had lived in London for some seven months. It was therefore his mother, who did not go out to work, who had predominantly taken care of him during that time. Moreover, his living conditions in the United Kingdom were worse than those in Lithuania. In particular, the boy and his parents had lived in London in one small room, with construction work going on close by. By contrast, in Lithuania the child lived at V.T.’s parents’ house where, according to a child care representative, the boy felt happy and was spry, active, communicative and loved. The court also observed that the boy’s mother had taken care of him the entire time since birth, that they were very close and that the boy had never been left with a nanny or any other person. Furthermore, even though there was no evidence that the applicant had ever behaved improperly in front of the child, or that he had abused alcohol, used drugs or resorted to violence, the applicant had not demonstrated that he had the skills to take care of such a small child. Accordingly, the boy’s separation from the mother and transfer to the father would not be in the child’s interests. It followed that the child could be returned to the United Kingdom only with the mother. Given that the mother could not survive financially in London on her own and that the applicant refused to guarantee having enough money to maintain the child’s mother or to guarantee living conditions for her if she were to come back with the child to the United Kingdom, the applicant’s request that the child be returned to the United Kingdom had to be denied. 13. The applicant then started new court proceedings in the High Court of Justice in England and Wales (hereinafter – “the HCJ”). In summer 2009 that court appointed a guardian ad litem for A.M. 14. In January 2010 the boy’s guardian recommended that he remain in the care of his mother. The guardian also recommended to the HCJ that there be a period of contact between the father and his son, so that they could rebuild their relationship. During these proceedings, the applicant appeared in person, and V.T. gave evidence in person; she was also represented by her lawyers. 15. On 28 April 2010 the HCJ ruled that the child should permanently reside in Lithuania with his mother. The option for V.T. to come to the United Kingdom and take up a job there was not in the child’s best interests, given that the child would be placed in a nursery and would have two parents who were emotionally distant. Moreover, V.T. did not wish to live in England, even if she were to be supported by the applicant. Having acknowledged that the father had a genuine and serious interest in his son, the court held that the “central underlying problem” thus related to the promotion and preservation of a good relationship between the two of them. 16. The HCJ accepted that the applicant felt vulnerable in Lithuania but rejected his allegations about concerted attempts by the Lithuanian authorities to act against him. That notwithstanding, the HCJ also held: “99. (...) it seems to me that in Lithuania [the applicant] will have very real difficulties in engaging in the contact in an appropriate way because of the pressures he will have in Lithuania. (...) I see real advantage in the contact being here [in London] so that the child gets to know his father in the father’s own environment.” 17. The HCJ thus considered that the correct place for their contact would be England. Furthermore, the preferred timing was “clearly as soon as possible”. 18. Accordingly, the child’s mother was to come to the United Kingdom and spend up to six weeks there, during which time a regime of contact between the father and the child would take place. Afterwards the mother was free to return to Lithuania with the child and to live there permanently. The HCJ also “wished to make it abundantly clear” to both parents that “albeit the issues relating to the welfare of children could change with circumstances, it was going to take a very significant change for there to be any re-visiting of the overarching plan described above”. 19. Once the child had settled permanently in Lithuania, the applicant would have a right to ongoing contact: essentially, four times a year there would be seven to ten days’ residential contact between him and his son. The first two meetings would take place in the United Kingdom, once the mother had brought the child there. That was contingent upon the father paying a sum to fund the trip, namely 600 pounds sterling (GBP) for each visit. Thereafter the father would have the choice as to where this contact was to take place and he could travel to Lithuania, pick up the child and communicate with him in any location worldwide that he wished. 20. The applicant attended the court hearing. At the end thereof the judge informed the applicant that the judgment would be enforceable in Lithuania subject to applications being made there in respect of the contact order after the child had returned to live there permanently. 21. On 18 June 2010 the HCJ adopted a revised judgment and order, reiterating that the applicant and V.T. were not on good terms with each other and that it had thus had to take a difficult decision on 28 April 2010 when it ruled that the mother should have permission to take the child to live in Lithuania permanently. There was a risk, as portrayed by the applicant, that the applicant could be shut out of the child’s life by the mother’s family. However, in the meantime no significant or dramatic change of circumstances had occurred which would necessitate amending the custody decision. On this point the HCJ also expressed its confidence in the Lithuanian courts: “An additional point is that it seems to me that it is not open to me to proceed on the basis that the Lithuanian courts will do anything other than deal with this matter pursuant to [child’s] welfare principle. They are subject to Brussels II revised. Albeit I understand that the father was unhappy with the conclusions reached in the Lithuanian court, to my mind I cannot accept his submission that even if the mother and her family demonstrate the hostility he asserts, the Lithuanian court will join in and will not seek to promote the underlying theme of my judgments, namely, that there should be a contact between this father and son”. 22. As regards the jurisdiction of the Lithuanian courts for further examination of issues relating to parental responsibility and thus contact, the HCJ held: “(a) recognising and intending that, subject to Article 9(1) of Council Regulation (EC) No 2201/2003, upon the Child, A.M., leaving the jurisdiction of England and Wales to live permanently in Lithuania pursuant to paragraph 3 of this Order, the courts of Lithuania will have jurisdiction in matters of parental responsibility, and thus contact ...” 23. The contact order established by the HCJ on 28 April and revised by it on 18 June 2010 set out three stages of contact: – the first stage covered the period from 19 June until 14 July 2010, when the mother was to bring the child to the United Kingdom for paternal contact, subject to and conditional upon the applicant paying the sum of GPB 3,000 to the mother of the child; – the second stage of the parental contact covered two periods of contact – 18-25 September and 11-18 December 2010 within the jurisdiction of England and Wales; two weeks before they were to take place, the applicant was to pay GBP 600 to the mother’s solicitors for the purpose of meeting the costs incurred by the mother when travelling with the child to the jurisdiction of England and Wales; – the third stage covered two periods of paternal contact from 19-28 March and 18-27 June 2011, when the applicant was to pick up his son at the Romanian Embassy in Vilnius and was allowed to choose any location worldwide to be with his son; as of July 2011, the applicant could take his son from Vilnius and travel with him worldwide four times a year, for ten days on each occasion. 24. Lastly, the applicant raised the argument that from a practical point of view it would be easier for him to travel with his son if the boy had a passport from the same country. The HCJ thus ordered that after 1 September 2010 V.T. would provide the Romanian and/or Moldovan authorities with relevant documents and information to enable the applicant to obtain Romanian and/or Moldovan passports and/or travel documents for the child. Should the mother fail to comply, the applicant could lodge a complaint with the HCJ, which retained jurisdiction on this sole issue of passports/travel documents. 25. The applicant sought leave to appeal against the HCJ judgment and order of 18 June 2010, but on 16 September 2010 the Court of Appeal of England and Wales refused his application. 26. The first stage of the contact order adopted by the HCJ was implemented. The applicant paid V.T. the sum of GPB 3,000 for the costs incurred by her when taking their son to the United Kingdom, and V.T. took the child to London for four weeks’ paternal contact, which should have lasted from 19 June until 14 July 2010. 27. During that visit, on 8 July 2010 the boy’s guardian ad litem informed the HCJ that she was concerned about the risk factors in relation to ensuring the boy’s safety and his return to his mother’s care in the light of their imminent return to Lithuania. The guardian noted that she had been made aware that the applicant had made an application to the Court of Appeal for leave to appeal against the HCJ judgment and order of 18 June 2010. In the words of the boy’s guardian, the applicant had made abundantly clear his “obdurate attitude” to the judgment and order issued by the HCJ and his “steadfast view” that his son should live in the United Kingdom, irrespective of the child’s needs and best interests, which, as agreed by the HCJ court and the child care specialists, were best met on a day to day basis by his mother. The guardian also noted that the previous month the applicant had informed the United Kingdom authorities of his intention to leave the United Kingdom following the last session of his July 2010 contact period. Furthermore, the HCJ order of 18 June 2010 had allowed for the applicant to apply for a Romanian or Moldovan passport. In that connection, in June the applicant’s solicitor had urged V.T.’s solicitor to sign her son’s Romanian passport application form immediately. For the above reasons, the boy’s guardian ad litem had serious concerns that there was an increased risk of A.M. being abducted by his father. She thus recommended that the order of 18 June 2010 be varied and that the court suspend the last session of contact scheduled for 10 July to 13 July, allowing the boy and his mother to return to Lithuania before the expected time. 28. In addition to that, in an email of 9 July 2010 to the applicant from the Children and Family Court Advisory and Support Service (hereinafter – “Cafcass”) of England, a Cafcass lawyer wrote: “Dear Mr Manic I understand you have been served with the passport and tipstaff orders. I am concerned to note that you initially informed the tipstaff you only had one passport but after further discussions handed over two passports. The tipstaff have also reported to us that you had several passport photos of A.M., again this is of concern. I realise you are not legally represented and I think it would be advisable for you to obtain legal advice before we next attend court. I can however impress upon you that if you breach the current orders and A.M. is not returned to his mother at the conclusion of contact then there will be very serious implications on your future contact with A.M. I therefore hope that you enjoy the following four days of contact and that you return him to his mother at the appropriate time and date.” 29. On 9 July 2010 the HCJ found the Cafcass communication ill-advised. The Moldovan and Romanian embassies were nonetheless ordered to advise V.T.’s solicitors if the applicant had made any application for travel documents in respect of the child and to refrain from issuing any such document. Having in the following days been informed by those two embassies that they had not been approached for a passport for the boy, the HCJ then ordered that V.T. make the boy available for the full visit in July. The boy’s mother afterwards took the boy to live with her in Lithuania. 30. On 16 September 2010 V.T.’s lawyer wrote to the applicant stating that V.T. was not proposing to bring their son to the United Kingdom so that the boy could see his father. V.T. believed that it would be too stressful for the boy and that the child was not ready to spend a week away from his mother. The applicant was also informed that jurisdiction over contact arrangements had now passed to the Lithuanian courts. V.T.’s lawyer also enclosed a cheque for GBP 600 by way of reimbursement of the sum the applicant had paid in relation to V.T.’s travel and accommodation expenses for the staying contact in September 2010. 31. On 7 October 2010 the applicant contacted the International Child Abduction Unit, the Central authority within the meaning of Council Regulation (EC) No. 2201/2003 in England, as regards the non-enforcement of the second stage of the HCJ mandate of 18 June 2010. The applicant noted that even though the GBP 600 for the September visit had been returned to him, he was ready to pay it again at any time should the contact go ahead. 32. On 18 October 2010 the aforementioned United Kingdom authority contacted the Child Rights Protection and Adoption Service in Lithuania (Valstybės vaiko teisių apsaugos ir įvaikinimo tarnyba, hereinafter – “the Service”) regarding the non-enforcement of the HCJ judgment and order. All the relevant documents ‒ including the HCJ contact order of 18 June 2010, the letter from V.T.’s solicitor (see paragraph 30 above) and the application form where the applicant stated that he was ready to pay GBP 600 so that a future visit would take place ‒ were transferred to the Lithuanian authority. 33. On 25 October 2010 the Service informed the International Child Abduction Unit in England that certificates issued in EU member states were directly enforceable in Lithuania, and they had therefore been submitted to a bailiff for execution (see paragraph 73 below). The Service also provided its counterpart in England with a list of the bailiffs acting in Utena region, where V.T. and the applicant’s son lived, and advised the applicant to contact one of the suggested bailiffs directly so that the HCJ order could be executed. The Service also noted that the procedural activity of the bailiff responsible for the enforcement of a foreign contact order was supervised by a regional court. 34. On 30 October 2010 the applicant contacted a bailiff working in Utena district of Lithuania. As is evidenced by the documents in the Court’s possession, between 30 October 2010 and 10 February 2011 the applicant wrote twenty six emails to the bailiff. The emails were written in English, with a Google translation into Lithuanian. In his very first email to the bailiff, the applicant noted that he had a certificate for a contact order under Article 41 of Regulation (EC) No. 2201/2003. As explained in his emails of 2 and 4 November 2010, he attached the enforcement certificate, a letter to the Lithuanian Central authority, the letter from V.T.’s solicitors (see paragraph 30 above) and proof that he had paid 130 Lithuanian litai (LTL, approximately 37 euros (EUR)) for the execution of the HCJ judgment in Lithuania, and promised to send other relevant information. The applicant also asked the bailiff to notify him if she was missing any documents and to inform him about the enforcement procedure. In his email of 2 November 2010 the applicant also indicated that, if it made it easier for the bailiff, she could reply to the applicant in Russian, a language he declared that he could understand. 35. In those emails to the bailiff, the applicant wrote, in particular, that he had sent the documents needed for the execution of the HCJ judgment by post (email of 5 November), and that Cafcass had assured him that the documents as posted by him to Lithuania were in order (email of 19 November, also attaching his email correspondence with Cafcass). It is apparent that the applicant and the bailiff spoke on the phone on 19 November, when the bailiff confirmed to the applicant that she had received the documents by DHL delivery the day before, but stated that the documents were not “original”. On 23 November the applicant again sent the documents to the bailiff via DHL post. He explained that the courts in England used black ink for the stamps but that, even so, the documents were marked as “original”. The same day the bailiff emailed the applicant saying that she needed the original paperwork, not photocopies. The applicant then asked the court in England to seal the HCJ order and posted the documents to the bailiff again. 36. By emails of 3 and 7 December the applicant asked the bailiff to inform him how the bailiff’s meeting with the child’s mother had gone, as regards the execution of the HCJ order, and mentioned that he was ready to make the payments according to the HJC order, so that the next visit [that of December 2010] would take place. By email of 9 December the applicant asked the bailiff to update him in writing about the steps she had taken to enforce the contact order. He mentioned that time was passing and this would cause damage to his relationship with his son. The applicant also asked the bailiff a number of times at what stage the enforcement procedure was (email of 13 December). In the applicant’s view, even though the bailiff’s assistant had told him over the phone that the matter had been passed over to the Lithuanian court, the applicant had received no explanation in writing as to which court that was and when the Lithuanian court decision was to be taken. The applicant wrote that “the blackout of information was leading me to believe that there was something wrong in the middle. I do not want to speculate and would be grateful if you wrote me a few lines to explain what is going on” (email of 15 December 2010). Later on, the applicant wrote that the bailiff’s “silence was agonising” (email of 5 January 2011). On 27 January the applicant reiterated his complaint that the bailiff had not informed him why the case was “dragged out”. He also asked the bailiff to provide him with answers in writing as well as with information about what he named “Complaints and Procedures”. Further, as is evident from the applicant’s emails of 1 and 7 February, the bailiff had told him over the phone that the Lithuanian court wanted the applicant to be present in the courtroom in Lithuania. He asked the bailiff what would be the reason for his appearance in court, but the bailiff did not respond. In an email of 8 February the applicant also wrote that, according to the bailiff, V.T. had not complied with the contact order because he had not paid her the GBP 600. The applicant explained however, that he had paid that sum, as mentioned in the letter of 16 September from 2010 V.T.’s lawyers, and asked the bailiff whether that evidence had been put before the Lithuanian court. Lastly, by an email of 10 February the applicant wrote that he could not understand the bailiff’s silence and why his emails went unanswered. He asked whether the bailiff had received instructions from her superiors or from Government agencies not to engage in any correspondence with him. 37. On 20 December 2010 the bailiff established that V.T. had not delivered the child for paternal contact which, in accordance with the order of the HCJ, was due to take place between 11 and 18 December 2010. For that reason, on 27 December 2010 the bailiff initiated court proceedings against V.T. concerning the non-enforcement of the United Kingdom court’s order. 38. On 26 January 2011 the Utena District Court sent to the applicant’s address in London a notification that court proceedings regarding non-execution of the HCJ judgment about his contact rights had been opened in Lithuania. The court wrote to the applicant that his “participation in the oral court hearing was not obligatory”. It was also explained to the applicant that he should nominate a representative in Lithuania on whom all the procedural documents could be served. Failing that, all procedural documents intended for the party residing abroad would remain in the case file and would be deemed to have been served. 39. In April 2011 the Lithuanian authorities granted the applicant legal aid for one year for the proceedings concerning non-execution of the HCJ order in Lithuania. On 22 April 2011 the State-appointed lawyer wrote to the applicant that she had become acquainted with the case regarding the non-execution of the HCJ judgment. She wrote that V.T. had not taken the son for the visit [of December 2010] because the applicant had not transferred GBP 600, and asked him to explain the situation and send her a copy of the document confirming the transfer of that sum. The same day the applicant wrote to the State-appointed lawyer stating that both the bailiff and the Utena District Court had the relevant documents. The applicant also attached to the letter some documents detailing the facts. He further attached the letter of 16 September 2010 (see paragraph 30 above) as proof that the child had not been taken to England in September, even though he had sent the money for that visit to materialise. Lastly, the applicant expressed his willingness to provide any other information, if needed. 40. On 27 April 2011 the Utena District Court dismissed the bailiff’s complaint. The applicant did not take part in that hearing, but had a State-appointed lawyer. As the court decision reads, “from V.T.’s explanations, information existing in the case-file, the explanations of the bailiff, and those of the [applicant’s] lawyer, it is clear that [V.T.] failed to execute the [HCJ] judgment, i.e. between 11 and 18 December 2010 she did not take the child A.M., born on 18 September 2007, for the contact visit with his father, because the father of the child had not paid GBP 600, and V.T. is unemployed and has no funds to take the child to England”. The Utena court also noted that by interim protective measures (laikinosios apsaugos priemonės) of 1 March 2011 imposed by the same court, the applicant was prohibited from removing the child from Lithuanian territory (see paragraphs 47-49 below). The decision stated that it could be appealed against within seven days. 41. On 2 May 2011 the Panevėžys State legal aid office informed the applicant by email about the court decision of 27 April 2011 and sent him its unofficial translation into English. Later that day the applicant emailed the State-appointed lawyer asking for an explanation as to what had happened in the courtroom on 27 April 2011. In an email of 2 May he asked that lawyer to appeal against the decision of 27 April, so that the seven days’ time-limit to appeal was not missed. On 16 May 2011 the lawyer acting under the legal aid scheme posted the decision of 27 April 2011 to the applicant. The Government stated that the applicant had not appealed against the 27 April 2011 decision. 42. According to the medical documents dated 19 July, 2 August and 30 September 2010, after the child’s and his mother’s visit to England for the contact visit, the boy returned very anxious, he could not sleep at night and he was afraid of people. The boy was also very active, irritable and required exceptional attention from his mother. As of 9 September 2010 the boy had been visiting a mental health centre. He had been diagnosed with emotional disorder, manifested as increased anxiety and frequent mood change. 43. On 13 December 2010 V.T. addressed to the Utena District Court a request that the child contact arrangements as set out in the HCJ judgment of 18 June 2010 be changed and that she be awarded child support and child support arrears (skola už vaiko išlaikymą) by the applicant. In support of her request, V.T. included the aforementioned medical records. 44. She submitted a modified claim on 9 February 2011. On that day she also applied to the court for interim protective measures to suspend execution of the contact order of the HCJ, and not to allow the applicant to be alone with his son. V.T. stated that the applicant had not paid the sum of money mentioned in the HCJ judgment and that the contact visits between him and the child had therefore not taken place. It was also her belief that the child did not recognise his father. Moreover, it was not in the child’s interests to communicate with the applicant in England, as the HCJ had ordered, because that environment was unfamiliar to the boy. She attached to her request what appears to be the Cafcass email of 9 July 2010 and the HCJ decision of the same day. V.T. insisted that the boy should never communicate with his father without her being present. 45. On 22 February 2011 the Utena District Court accepted for examination V.T.’s request for the change of parental contact. On the same day the court decided to examine V.T.’s request for interim protective measures on 1 March 2011, and not to inform the applicant about that oral hearing, without indicating in the text of the decision the reason why the applicant should not know about the hearing beforehand. The child care authority and V.T. were invited to attend the hearing. Moreover, the court deemed V.T.’s participation at the hearing to be obligatory. The court further held that, as the applicant resided in England and the question of interim protective measures had not yet been decided, for reasons of procedural economy any procedural decisions should be sent to the applicant only once the issue of interim protective measures had been examined. This procedural ruling was not appealable. 46. On 28 February 2011 V.T. submitted to the Utena District Court further written clarifications as to the necessity of interim protective measures. She claimed that the applicant might kidnap and not return their son should the boy be taken to England for a contact visit. She also stated that the applicant had also been prohibited from having contact with the boy for four days of the contact period in July 2010. It is apparent that V.T. relied on an email of 9 July 2010 from Cafcass to the applicant as evidence (see paragraph 28 above). V.T. also stated that after his last meeting with his father, the boy had been nervous and afraid of other people. 47. By a decision of 1 March 2011 the Utena District Court granted in part V.T.’s request for interim protective measures. At the hearing the child’s mother was present, as was a representative of the child care authorities, who observed that the applicant ought to retain the right to have contact with his son in Lithuania. The authority nevertheless took the view that the applicant should not be allowed to remove the child from Lithuania for fear that he might flee with his son. In Lithuania, the boy was spry and V.T. took good care of him. As the record of the hearing reads, V.T.’s request was essentially based on her fear that the applicant would not return the child to her if he was allowed to take his son from Lithuania. She also stated that after the staying visit of July 2010 the boy had been nervous and exhausted and would not leave her side. 48. The Utena District Court noted a conflict between the applicant and V.T. over the child’s contact arrangements. On the basis of the email from Cafcass dated 9 July 2010 (see paragraph 28 above), the Utena District Court found: “The documents submitted prove that the [applicant] was going to take the son away from the United Kingdom and prepared other personal documents for him for that purpose; during his contacts with the child, the latter’s personal documents were therefore taken from him and he was prohibited from removing the child from the jurisdiction of England and Wales. Taking this into account, there is a real risk that the execution of the [Lithuanian] court decision might become more complicated (if it were to become necessary to apply to a national court of a foreign State for acknowledgment and permission to execute a Lithuanian court decision, if one were to be made in V.T.’s favour) or even impossible (if, for example, the applicant were to conceal the child’s whereabouts or change them periodically). The risk that the execution of the court decision might become more complicated or even impossible constitutes a basis for ordering interim protective measures (...). It was also taken into account that the child’s domicile is in Lithuania, where he attends a kindergarten, and a sudden change in the environment might therefore have a negative impact on a child.” 49. The Utena District Court nevertheless acknowledged that a child whose parents were separated had the right to have constant and direct contact with both parents irrespective of their places of residence. It was also of paramount importance to avoid the alienation of the child from his father. Given that the applicant resided outside Lithuania and this could make it problematic for him to have contact with his son on certain days, the court determined that the applicant had the right to have contact with the child on any day on the premises of the Utena region child care authorities and in the presence of their representative. With prior notice, the applicant could see the child every day from 4 p.m. to 6 p.m. V.T. was obliged to make the child available for the contact. 50. On 3 March 2011 the Utena District Court sent a notice to the applicant’s address in London about the pending civil case for maintenance of his son, the establishment of the new contact order and the applicant’s right to respond to V.T.’s claim. The court further reiterated the applicant’s duty to appoint a representative living in Lithuania, on whom all the procedural documents would be served by the court (Article 805 of the Code of Civil Procedure). On the same day V.T.’s lawyers informed the applicant by email about the district court’s decision to apply interim protective measures and sent him an electronic copy of that decision, in Lithuanian. It was explained to the applicant that the court decision would be translated and served on him as soon as possible by the Utena court itself or by post. The lawyer also explained to the applicant that by the decision of 1 March 2011 the Utena District Court had decided to apply interim protective measures and to prohibit the applicant from removing his son from the territory of Lithuania. The applicant was informed that the decision had entered into force on the day it was issued. The next day the applicant wrote an email to the Utena court acknowledging that he had received a court decision, but complaining that the content was in Lithuanian, and therefore he could not understand it. The decision of 1 March was translated into English and on 14 March 2011 the Utena court posted it to the applicant’s address in London. Because of technical problems, the decision was served on the applicant on 1 June 2011. The 1 March 2011 decision could be appealed against within seven days from the day it had been served. As established on 4 March 2014 by the Panevėžys Regional Court, the applicant did not appeal against the decision of 1 March 2011. 51. On 29 July 2011 the Utena District Court sent a written notice to the applicant informing him that on 29 September 2011 it was going to consider V.T.’s claim for changing the child contact arrangements and awarding the child support. The applicant was also informed that, in accordance with Article 805 of the Code of Civil Procedure, when a party living abroad does not designate any authorised person, all procedural documents intended for the party living abroad will remain in the case file and will be deemed to have been served. 52. The Utena District Court held the planned preparatory meeting on 29 September 2011, which the applicant did not attend. Nor did he take part in a subsequent hearing on 24 November 2011, even though he had been informed about it by that court. 53. At that subsequent hearing, about which the applicant was informed but which he did not attend, the Utena District Court asked the English judicial authorities to question the applicant as a witness so that it could be established what property he owned in England in connection with the claim for child support. Later on, the Utena District Court postponed hearings scheduled for 12 January and 23 February 2012 until such time as it had received, from the United Kingdom authorities, information about the property the applicant owned in England. 54. In December 2011, the applicant asked the Lithuanian child care authorities about the well-being of his son. In reply, the Lithuanian child care authorities described the child’s living conditions in Lithuania: he had a room of his own in V.T.’s parents’ house and V.T. paid for his kindergarten, food and clothes. In sum, the boy’s living conditions were good and the child care authority had no concerns about his well-being. 55. On 2 April 2012 the applicant gave evidence about his property in England. The Utena District Court received that evidence at the end of April. On 8 May 2012 the court scheduled a preliminary hearing in the civil case for maintenance and contact rights for 6 June 2012. The parties to the case, including the applicant, were informed about that future hearing. 56. On 26 June 2012 the Utena District Court adopted the decision regarding the maintenance of the applicant’s son and the order for the establishment of the contact between the applicant and the child. The court also noted that judicial documents had been served on the applicant, he had been granted the right to file a statement of defence with regard to the claim, and he had been informed about the preparatory hearing; moreover, he was obliged to submit details about his financial situation but he had neither filed any statement of defence, nor submitted the requisite details about his financial situation. Neither had the applicant expressed his opinion regarding V.T.’s claim in his written explanations. The court established that V.T. had taken all the measures necessary to satisfy her son’s interests so that he could grow up in a healthy environment. Having assessed the parties’ financial situations, the Utena District Court ordered the applicant to pay LTL 400 (EUR 115) per month in child support. 57. As to the child contact arrangements, the Utena District Court held: “The details of the case show that the child contact arrangements were established by the Order issued by the United Kingdom High Court of Justice, Family Division, on 18 June 2010 and under this Order the defendant was expected to have contact with his son on the following dates: from 18 September 2010 to 25 September 2010; from 11 December 2010 to 18 December 2010; from 19 March 2011 to 28 March 2011; from 18 June 2011 to 27 June 2011, and thereafter four times a year for a period of ten days each time. After the first two contact sessions the father was to have the right to choose any place in the world for all further contact sessions and to travel with his child without being accompanied by his mother. The [applicant] has not submitted any details proving that he had any contact with his child on the aforementioned dates or stating what the reasons were if he did not have such contact. [V.T.] stated that the last time the father saw his child was June 2010. The email submitted shows that no payment was received with regard to the contact that was due to occur on 11 December 2010 ... During the period of examination of the case, the [applicant] was allowed to contact his son in Lithuania in the presence of the representative of the Department for Protection of Children’s Rights ... According to the information provided by the representative of the Department for Protection of Children’s Rights ... no contact sessions between father and son took place during the period of application for interim protective measures lasting from 1 March 2011 to June 2012. As there is no evidence that there has been any contact between father and son since June 2010, there are no reasonable grounds to state that the [applicant] considers the meetings with his son significant and that there exists a close relationship between him and his son so it is indeed probable that the sudden departure of the child with his father and his removal from his habitual environment would not enhance the child’s sense of security or his emotional stability and might be harmful to him. Therefore the approach in this matter should be more cautious. The court agrees with the argument put forward by [V.T.] that the overriding interest regarding the child is to develop in a healthy, safe and quiet environment where he would not experience psychological tension, fear and perpetual conflict. It would appear from [V.T.’s] explanations and from email communications that there are reasonable grounds for stating that there is conflict in the relationship, personal discord, and an absence of tolerance between the parties, making communication between the respondent and his child complicated. However, according to medical documents submitted it cannot be unequivocally asserted that the child’s irritability is purely a consequence of the respondent’s contact sessions with the child. The medical reports state that the child is especially active and demanding of exceptional attention from his mother and that this condition was recorded on 30 August 2010 but ‒ as stated by [V.T.] ‒ the last time the [applicant] saw his child was June 2010. This condition could therefore be caused by strained relations between [V.T.] and [the applicant]. On the other hand, it should be noted that a child who is a minor cannot be a hostage of his parents’ conflict and the conflict relationship between the parties is not a circumstance justifying a need to restrict the [applicant’s] contacts with his child. During the proceedings it is permissible for a child to be questioned, unless this cannot be done due to his age or degree of maturity. A.M. was born on 18 September 2007, i.e. his age allows it to be concluded or to express his opinion, and he was therefore not questioned during the hearing. In circumstances such as these, the court determines the procedure for the father to have contact with the child by taking into consideration the child’s interests and by creating a possibility for the separated father to be involved in the child’s upbringing (...). At the same time, the period during which a close emotional bond between the [applicant] and the child might be restored should be established as lasting until the child is seven years old.” 58. Accordingly, for the first six months after the date when the Utena District Court decision came into effect, the applicant was to communicate with his son for no more than two hours per working day for ten days per month, in an environment to which the child was accustomed – at the child’s home or the child care authority’s premises, in the presence of his mother, a psychologist and a child care specialist. During the following six months the applicant could communicate with his son no more than four hours per day for twelve days per month, either in the child’s accustomed environment or in another place, in the presence of the child’s mother or without her, if she so agreed. Lastly, during the period starting from the thirteenth month and until his son’s seventh birthday, the applicant could see him on a daily basis for twelve days in March, June, September and December, in the child’s accustomed environment, as agreed by the applicant and V.T., but without her being present. The applicant also had the right to visit his son unimpeded whenever his child was sick. The parents were to ensure that the possibility existed for each of them to communicate with the child by telephone (or other electronic means) or some other form of communication. 59. The applicant acknowledges that he received the Utena District Court decision on 13 August 2012. 60. In response to the applicant’s request for information, on 28 August 2012 the Utena District Court sent the applicant a letter concerning his right to appeal against the decision of 26 June 2012 within thirty days. The court also informed the applicant about his right to restore a missed procedural time limit, if that time limit had been missed for serious reasons. The court further reiterated that the applicant had not appointed a representative living in Lithuania for dealing with contact rights and child maintenance, and on whom all the procedural documents would be served by the court. That being so, pursuant to Article 805 of the Code of Civil Procedure, all procedural documents addressed to a party residing abroad were left in the case file and were deemed to have been served. 61. On 13 February 2013 the applicant asked the Utena District Court to reopen the court proceedings. He argued that he had missed the statutory three-month time-limit for such reopening because he was a Romanian citizen residing in the United Kingdom and did not speak Lithuanian. 62. By a ruling of 14 June 2013 the Utena District Court refused the applicant’s request for reopening. The court first pointed out that a judge’s notice dated 3 March 2011 had explained the applicant’s duty to appoint a representative or an authorised person and the consequences of the failure to fulfil that duty (see paragraph 50 above). However, the applicant had not appointed any such representative. Furthermore, although the applicant acknowledged that he had been served with the 26 June 2012 decision (translated into English and containing the provisions as to how it could be appealed against) on 13 August 2012, he had not asked for a re-opening of the proceedings until 13 February 2013, that is nearly six months after receiving it. In reply to the applicant’s argument that he was a foreigner, the Lithuanian court noted that the applicant knew the rules regulating State-provided legal aid and could have asked for it in a timely fashion, because in earlier proceedings for non-enforcement of the HCJ contact order, he had been provided with State-provided legal aid by a decision dated 24 March 2011 (see paragraph 39 above). 63. On 4 March 2014 the Panevėžys Regional Court dismissed another request by the applicant to reopen the civil proceedings and to review the Utena District Court’s decision of 26 June 2012 concerning the contact order between the applicant and his son. The court reiterated that the applicant had not communicated directly with his son since June 2010. Similarly, there was no evidence of the applicant ever having visited his son either after the court decision of 1 March 2011 regarding interim protective measures or after the subsequent decision of 26 June 2012, both of which allowed the applicant to see his child for several hours each day. As to the applicant’s plea that the Lithuanian court order would cause him inconvenience – especially the necessity of travelling to Lithuania ‒ this did not mean that the contact as established by the Utena District Court on 26 June 2012 had established was negligible. According to the contact order, the applicant could see his son on workdays, ten to twelve days a month. Knowing about such a contact order, the applicant could plan his work and income accordingly. It was also significant that, according to the contact order issued by the HCJ on 18 June 2010, the child had to be collected from the Romanian embassy in Vilnius. Consequently, the applicant would in any case have to leave his place of residence and job in England and come to Lithuania. He would also inevitably have to invest time and money. Accordingly, taking into account the child’s interests – his age, state of health, need for mother’s attention, and the fact that the applicant had not directly communicated with his son since June 2010 ‒ the contact order as set by the Utena District Court on 26 June 2012 reasonably gave priority to the child’s interests whilst not neglecting the applicant’s right to be in contact with his son. 64. Lastly, the Panevėžys Regional Court noted that V.T. had moved to Lithuania in the summer of 2008. The child’s residence had been declared to be Lithuania in July 2008. V.T. had lodged the request that the child contact order be modified with the Utena City District Court when more than three months had passed after the move to Lithuania (see paragraphs 22 and 43 above). It followed that ‒ pursuant to Articles 8 and 9 of the Regulation (EC) No. 2201/2003 ‒ in 2011 the United Kingdom courts were no longer able to consider decisions concerning the modification of contact orders, as those cases fell within the jurisdiction of the court of the Member State where the child was habitually resident, in this case Lithuania. 65. By a ruling of 12 May 2014 the Supreme Court refused to examine the applicant’s appeal on points of law. 66. On an unknown day, V.T. asked the Utena District Court to permanently restrict the applicant’s parental rights. She argued that the applicant did not communicate with his son. In turn, the applicant asked the Lithuanian court to suspend the proceedings until the Court had examined his application against Lithuania (no. 46600/11). On 10 June 2014 the Utena District Court suspended the proceedings in Lithuania until the applicant’s case is decided by the Court.
| 1 |
test
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001-182274
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ENG
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TUR
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ADMISSIBILITY
| 2,018 |
CİDDİ v. TURKEY
| 4 |
Inadmissible
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Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
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1. A list of the applicants is set out in the appendix. 3. On 3 October 2001 the applicants’ father was hit by a car while he was crossing a street. On the same date, he succumbed to his injuries and died. 4. Criminal proceedings were brought against M.S.A., who had hit the applicants’ father while driving his company car, for causing death by negligence. 5. According to an expert report dated 25 April 2002 prepared by a university professor who was a former traffic expert at the Forensic Medicine Institute (Adli Tıp Kurumu Trafik İhtisas Dairesi), the driver had been 37.5% responsible for the accident, and the remaining responsibility lay with the applicants’ father, who had been hit when crossing the street while the pedestrian “don’t walk” red light was showing. 6. In a report subsequently prepared by the traffic branch of the Forensic Medicine Institute on 16 October 2002, the driver was found to have been only 25% responsible for the accident. 7. On 27 December 2002 the Istanbul Criminal Court of First Instance found M.S.A. guilty of causing death by negligence, and imposed a fine on him. 8. Following an appeal by the parties, on 8 June 2005 the Court of Cassation quashed that judgment on procedural grounds and remitted it to the Istanbul Criminal Court of First Instance. 9. On 24 March 2006 the Istanbul Criminal Court of First Instance again sentenced M.S.A. to a fine; that judgment was also quashed by the Court of Cassation on 17 April 2008 on procedural grounds. 10. On 25 May 2009 the Istanbul Criminal Court of First Instance decided to discontinue the proceedings, as the prosecution of the offence in question had become time-barred. On 14 March 2012 the Court of Cassation upheld that judgment. The applicants claim to have learned of that decision on 30 October 2012. 11. On 18 July 2002 the applicants, together with their mother Vasfiye Ciddi, lodged a claim before the Istanbul Civil Court of First Instance for compensation against (i) the driver, M.S.A., (ii) M.S.A.’s employer (that is to say, the company that employed him), which owned the car which M.S.A. had been driving at the time of the accident, and (iii) the latter’s insurance company. They requested a total of 25,000,000,000 Turkish liras (TRL) in respect of non-pecuniary damage, and TRL 25,000,000,000 in respect of pecuniary damage. 12. On 29 May 2003 the Istanbul Civil Court of First Instance decided to suspend the compensation proceedings pending the outcome of the criminal proceedings. 13. An expert report submitted to the Istanbul Civil Court of First Instance on 29 September 2009 found the driver M.S.A. to have been 25% responsible for the accident, in line with the reports submitted to the criminal case file. 14. On 5 October 2010 the Istanbul Civil Court of First Instance accepted the applicants’ claim in part and, having regard to the limited degree of M.S.A.’s responsibility for the accident, awarded them a total of 12,500 Turkish liras (TRY) in respect of non-pecuniary damage and TRY 2,490 in respect of pecuniary damage, plus interest on both amounts running from the date of the accident. 15. On 4 October 2011 the applicants’ mother, Vasfiye Ciddi, died, leaving the three applicants as her sole heirs. 16. On 12 and 17 October 2011 the applicants received TRY 43,000 (approximately 17,160 euros (EUR) at the material time) and TRY 7,523 (approximately EUR 2,950 at the material time), respectively, from the defendants in respect of pecuniary and non-pecuniary damage, in accordance with the judgment of the Istanbul Civil Court of First Instance. 17. On 15 February 2012 the Court of Cassation upheld the judgment of the first-instance court. That decision was served on the applicants on 12 June 2012. 18. On 8 April 2014 the Court decided to declare the applicants’ complaint under Article 6 § 1 concerning the length of the compensation proceedings inadmissible for failure to exhaust the available domestic remedies, in the light of its conclusions in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-58). 19. Accordingly, the applicants applied to the Compensation Commission established by Law no. 6384 in respect of their complaints concerning the length of the compensation proceedings. 20. On 1 July 2015 the applicants were paid TRY 8,300 (approximately EUR 2,760 at the material time) by the Ministry of Justice in respect of nonpecuniary damage arising from the undue lengthiness of the compensation proceedings.
| 0 |
test
|
001-157709
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF L.M. AND OTHERS v. RUSSIA
| 3 |
Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Syria);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Syria);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Respondent State to take individual measures (Article 46-2 - Individual measures)
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András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
6. The applicants are Syrian nationals or had their habitual residence in Syria. At the time of lodging their applications they were detained at a detention centre for foreign nationals in the town of Maloyaroslavets, Kaluga Region (ОСУСВИГ – “the detention centre”), run by the local Federal Migration Service (“FMS”). 7. The applicant L.M. (application no. 40081/14) was born in 1988. He entered Russia on 9 February 2013. He was detained on 14 April 2014. He is a stateless Palestinian who had his habitual residence in Syria. He was not in possession of a valid national ID at the time of detention, and his identity was established by an immigration officer in Russia in 2014. 8. The applicant A.A. (application no. 40088/14) was born in 1987. He entered Russia on 21 April 2013. He was detained on 15 April 2014. 9. The applicant M.A. (application no. 40127/14) was born in 1994. He entered Russia on 21 April 2013. He was detained on 15 April 2014 and has a brother, Mr Akhmad A., who received temporary asylum in Russia and is married to a Russian national, Albina A. 10. On 14 and 15 April 2014 (see Appendix) the applicants were detained by the police and officers of the FMS at a clothing factory in Maloyaroslavets. 11. On 15 and 16 April 2014 (see Appendix) the Maloyaroslavets District Court (“the District Court”) examined the applicants’ administrative files, found them guilty of administrative offences (breach of immigration rules and working without a permit) and ordered them to pay fines of between 2,000 and 3,000 Russian roubles (RUB) and their expulsion to Syria, in line with the procedure under Article 3.10 § 1 of the Code of Administrative Offences. The applicants all stated in court that they feared for their lives if returned to Syria and referred to information about the ongoing and widespread conflict there. The court found these statements to be general in nature and unsupported by any relevant evidence. The applicants also referred to the absence of work in Syria and the fact that in Russia they had been able to work illegally. The District Court then focused on the economic motives of their arrival and illegal stay. Pending expulsion the court ordered their detention at the detention centre. 12. The lawyer representing the applicants before the Court lodged appeals for all three of them, describing in detail the general situation in Syria and the danger of returning there, and citing and attaching the relevant country reports produced by the UNHCR and FMS. She also cited a circular letter issued by the Federal Bailiff Service on 30 August 2013 to its regional branches, according to which no entry was possible into Syrian territory in view of the hostilities and problems that would arise with the execution of court judgments ordering expulsion there. The lawyer argued, in detail, that the decisions to expel the applicants could not be implemented; in such circumstances their detention lost any purpose and became indefinite. The lawyer further cited an FMS circular letter of 23 January 2013 entitled “On the situation in Syria and the work with persons originating from Syria”, which stated that “in the current difficult political situation, when the Syrian authorities are unable to provide effective protection of their citizens from the illegal actions of the armed opposition ... most of the applicants ... have fled the country as a result of the armed conflict. ... Individuals who cannot not safely return [to Syria] and have a well-founded fear of ill-treatment, including torture, should be given temporary asylum”. The statements of appeal further referred to the fact that the applicants had sought asylum in Russia; their expulsion would therefore be contrary to the relevant legislation. The UNHCR Office in Moscow produced a letter to the Kaluga Regional Court (“the Regional Court”) in respect of L.M., reiterating its position in respect of returns to Syria and arguing that any decision relating to expulsion there while his asylum request was pending would be in breach of domestic and international legislation. Similar letters were produced in respect of the two other applicants. The applicants also referred to a decision of the Leningrad Regional Court taken earlier in 2014 relating to a Syrian national in a similar situation (see paragraph 72 below). 13. The Kaluga Regional Court rejected all three appeals on 27 May 2014, following which the expulsion orders entered into force. It stressed the applicants’ illegal stay in Russia and their reference to economic difficulties as their reason for departure from their home country. It found that the alleged danger to the applicants’ lives as a result of the ongoing conflict did not in itself constitute sufficient grounds to exclude expulsion in respect of those guilty of administrative offences in the sphere of immigration. 14. In respect of L.M., in a separate decision of the same date, the Regional Court refused to amend the expulsion order. The court noted that he had not applied for asylum in Russia until 21 May 2014, a fact which “did not affect the lawfulness of the decision taken by the District Court concerning the applicant’s administrative offence and expulsion”. 15. On 17 June 2014 the Kaluga Federal Bailiff Service asked the District Court to stay execution in respect of M.A., pointing out that the European Court of Human Rights had applied Rule 39 and therefore the expulsion could not be carried out at that time. On 30 June 2014 the District Court found that the Code of Administrative Offences did not provide for stays of expulsion as opposed to the payment of fines and dismissed the request. 16. On 4 July 2014 the District Court issued a similar decision in respect of L.M., pursuant to a request by the Bailiff Service on 1 July 2014. None of the parties were present at the hearing, including L.M. 17. It appears from the letter of 8 July 2014 sent by the Kaluga Federal Bailiff Service to the applicants’ lawyer that it was unaware at that date of the District Court’s decisions. From the same letter it appears that a similar request had been made for a stay of execution in respect of A.A. 18. Since 15 and 16 April 2014 the applicants have been detained at the detention centre. 19. According to the Government’s observations received in December 2014, A.A. escaped on 25 August 2014. An internal report was prepared by the head of the Kaluga FMS the same day, describing the events as follows: “In the early hours of 25 August 2014, between 3 and 4 a.m., a group of foreign nationals and stateless people detained pending administrative deportation from the [detention centre] escaped from the premises ... The group included ... [A.A.], a Syrian national, born on 15 January 1987 ... An investigation has established that the people used an unfinished ventilation shaft located between the ground and first floors of the building. Having reached the first floor, the people jumped out of the window onto a pile of construction rubbish and, having covered the surveillance devices ... with a blanket, left the grounds of the centre with the aid of construction materials stored in the courtyard. The exact circumstances of the escape are being established. An internal investigation is being held in respect of the staff who had allowed the seven foreign nationals to escape. The local police have been told to organise a search for the people who have escaped.” 20. The applicants’ representative claimed to have had no knowledge of the escape prior to receiving the Government’s observations, expressing her concern that they had not submitted the information earlier, for example when making their observations of 2 September 2014. 21. In reply to the Court’s further questions in this regard, in their observations of 24 April 2015 the Government explained that no administrative or criminal proceedings had been initiated, as an escape from a detention centre for foreign nationals pending deportation was not an offence under any legislation. While the police continued to search for the detainees, their whereabouts, including those of A.A., remained unknown. 22. The Government further submitted that since their observations had been based on the replies of the competent State authorities prepared on 4 and 8 August 2014, no information about A.A.’s escape had been provided at that stage. They also submitted that the detention centre had been under no obligation to inform detainees’ representatives of the escape, hence why it had not done so in A.A.’s case. 23. The applicants’ representative confirmed that she had not been aware of A.A.’s escape prior to the meeting with the two other applicants on 17 December 2014 and submitted that she had no knowledge of A.A.’s current whereabouts. 24. From the documents submitted by the Government in December 2014, it appears that A.A. sought refugee status in Russia on 5 March 2014 by applying to the Moscow Region FMS. On 11 March 2014 this request was accepted for consideration on the merits and the applicant was questioned and issued with an appropriate document. 25. On 26 March 2014 A.A.’s application for refugee status was dismissed. The decision of the FMS stated that he had submitted no information to support his claims of persecution in Syria. His family remained in that country and he could have used the “internal flight alternative” to another part of Syria, or claimed asylum in a transit country. He reasoned his request to remain in Russia by his wish to work there and did not therefore fall under the definition of refugee. 26. The applicant did not obtain a copy of that decision and did not appeal against it. 27. After their arrest the three applicants applied for refugee status. They submitted the relevant applications to the local FMS in Kaluga; M.A. and A.A. on 14 May 2014 and L.M. on 21 May 2014. 28. On 28 May 2014 the three applicants also submitted requests for temporary asylum in Russia, which were drawn up in Russian and translated by Z.A. 29. In June 2014 the three applicants were questioned by the Kaluga FMS. They indicated that the reasons for their departure from Syria were the war and danger to their lives. A.A. stated that he was from Aleppo and had lost contact with his family, parents and siblings after his departure in 2013. M.A. stated that he had fled Aleppo after his neighbourhood had been taken over by “terrorists” who had killed dozens of people there, including his close male relatives, which he had witnessed. He had also lost contact with his family after December 2013. L.M. had been in Damascus but had no right of return as he was a stateless Palestinian. He had also lost contact with the members of his family who had remained in Syria. All applicants stressed that they were afraid to go back because of the hostilities which had caused their departure, and said that they feared being forcibly drafted into the armed forces. 30. On 16 June 2014 the Kaluga FMS decided that their applications for refugee status should be considered on the merits and issued appropriate certificates to them. 31. In parallel proceedings, also in June 2014, the three applicants were questioned by the FMS in order to obtain temporary asylum in Russia. 32. On 17 July 2014 L.M. signed a paper in Russian stating that he had asked for his request for “temporary asylum in Russia dated 28 May 2014” not to be considered since he “intended to return to his home in Syria”. The paper was also signed by a translator, Z.A. 33. On the same date a similar paper was signed by A.A. which stated that “he and his wife intended to go to Turkey”. The paper was also signed by Z.A. 34. According to the Government’s observations of 3 December 2014, these requests served as the basis of the FMS decisions to terminate the proceedings in respect of these two applicants, both in respect of their request for refugee status and temporary asylum. No documents were submitted in this regard. 35. On 16 September 2014 the Kaluga FMS decided to refuse M.A.’s request for refugee status. It considered that he faced no threat of persecution on the grounds set out in the Law on Refugees. On 17 September 2014 the Kaluga FMS, for the same reasons, refused him temporary asylum. 36. On 28 November 2014 the Regional Court reviewed M.A.’s appeal against the decision not to grant him temporary asylum. He was not taken to the trial even though the decision stated that he had been notified, and he did not have a representative. A representative of the FMS appeared before the court, which briefly restated the reasons for the FMS decision to refuse the applicant both refugee and temporary asylum status and confirmed that there were no reasons to regard him as in need of protection. Neither the general situation in Syria nor the applicant’s submissions about the situation in Aleppo had been raised or discussed. This decision was sent to M.A. on 5 December 2014. It is unclear if he appealed against it. 37. On 30 September 2014 M.A. and L.M. submitted new written requests for refugee status, which were accepted for consideration by the Kaluga FMS on 7 October 2014. On 15 October 2014, however, both applicants signed papers in Russian stating that they had asked for their requests for “temporary asylum in Russia dated 28 September 2014” not to be considered. The papers stated that they had been translated and written by Z.A. 38. The Government, in their observations of 2 December 2014, explained that the contradictory position taken by L.M. prevented the FMS from considering his new application on the merits. M.A.’s new application was not considered either. 39. The applicants submitted that severe restrictions had been placed on them meeting with their representatives. As a result, despite numerous attempts and complaints, M.A. and L.M. only had one meeting with them on 17 December 2014. M.A. had one meeting with his brother and Albina A. on 22 October 2014, which lasted about ten minutes. A.A. did not meet with a representative prior to his escape from the detention centre (see paragraphs 20-23 above). 40. The applicants submitted copies of their exchange with various officials in the Kaluga FMS and prosecutor’s office regarding their detention and access to representatives. From these letters it appears that on several occasions the applicants’ two lawyers, Ms Golovanchuk and Ms Yermolayeva, a lawyer of the Kaluga Bar Association, Mr P.K., a member of the Kaluga branch of the Human Rights Centre Memorial who had assisted the applicants with their complaints, Ms Lyubov M.-E., as well as M.A.’s brother and his wife, wrote to these agencies regarding a lack of access to the detention centre and the conditions of detention of people detained there. Their exchanges may be summarised as follows. 41. On 3 March 2014 the head of the detention centre responded to Ms Lyubov M.-E., stating that visits by lawyers and human rights defenders were possible daily between 11.30 a.m. and 12.30 p.m. On 14 April 2014 the Kaluga FMS informed the regional prosecutor’s office that visits by representatives, relatives and human rights defenders were possible upon the written request of detainees, or upon the written request of their representatives or human rights defenders if accompanied by a written request by the detainee for legal assistance from them. Visits outside of normal visiting hours had to be agreed in advance with the detention centre administration, to ensure the proper functioning of the centre. If a detainee requested in writing to be represented by anyone, the centre would consider the issue of ensuring a visit from the representative, accompanied by a notary, to certify a power of attorney. 42. On 25 April 2014 L.M.’s lawyer wrote to the Kaluga regional prosecutor’s office. She pointed out that the applicant had been refused access to his representatives, and that the conditions of detention at the detention centre were harsher than for people who had been detained on criminal charges. Detainees were kept in their rooms for most of the day; they had no means of communication with anybody and could not contact each other or their representatives. The letter further stressed the absence of any flight connection with Syria and the impossibility of expelling the applicant there. 43. On 17 May 2014 the Kaluga FMS informed the regional prosecutor’s office that on 24 April 2014 Ms Lyubov M.-E. had asked to be allowed to meet with the three applicants and an Uzbek national, T. The staff of the centre had refused to allow her to meet with the applicants, since she had not had an interpreter present and could not communicate with them. She had attempted to pass documents in Russian to the applicants (complaints against the domestic court decisions) through T., but they had been found by the detention centre staff. Ms Lyubov M.-E. had been reminded to come back accompanied by an interpreter. Furthermore, the detainees had signed documents refusing to meet with Ms Lyubov M.-E. since she had asked them for money for her services. 44. On 26 May 2014 the head of the NGO Civic Assistance wrote to the Moscow FMS. She pointed out that the applicants’ confinement in the detention centre appeared unlawful in the absence of any time-limit or purpose, since the expulsion could not be carried out. She further pointed to the fact that the applicants had submitted applications for temporary asylum, and that their conditions of detention were inhuman and degrading, since the food was of poor quality and they had little access to fresh air, outdoor exercise, meaningful activities or information. The letter further stated that the detention centre staff had threatened and harassed detainees, and that the applicants had been pressed to withdraw their applications for asylum. The letter also referred to the difficulties in meeting the inmates. 45. On 10 June 2014 the applicants’ lawyers submitted a letter to the Prosecutor General’s Office, with copies to the Kaluga regional prosecutor’s office and FMS. They pointed out that the applicants’ conditions of detention amounted to inhuman and degrading treatment. M.A. had been diagnosed with pneumonia, but had not received adequate medical help. The applicants had been unable to meet with their relatives and representatives. The food was of poor quality, consisted mostly of cereals and was often served cold. The applicants complained that they had been harassed and threatened by the staff, threatened with reprisals if they complained, and encouraged to withdraw their applications for asylum and discharge their representatives. In the absence of any real possibility of expelling the applicants to Syria, their detention had turned into an open-ended punishment without any possibility of review. 46. On 11 June 2014 the Kaluga FMS wrote to the Kaluga regional ombudsman, noting that on 27 May 2014 the Regional Court had rejected the applicants’ appeals (see paragraph 13 above) while they were assisted by a lawyer and interpreter. In their letter of 29 July 2014 the Kaluga FMS informed the regional prosecutor’s office that the detainees’ rights had not been infringed. The court hearing of 30 June 2014 relating to staying execution of the expulsion order (see paragraph 15 above) had not required the applicants’ presence, and an interpreter had been invited to the detention centre on 17 July 2014, who had translated the court decision to the applicants. On the same day M.A. had decided to withdraw his application for temporary asylum and refuse any further assistance from Ms Lyubov M.-E., signing the relevant documents. 47. Writing to the applicants’ lawyer on 29 July and 12 August and the regional prosecutor’s office on 30 July 2014, the Kaluga FMS provided information about the medical assistance given to the applicants. In respect of M.A., the letters stated that he had been examined by a doctor upon arrival, that an interpreter had assisted him on 9 June 2014 in communicating with the detention centre doctor, who had administered treatment, and that on 14 and 25 June he had again been examined by a doctor and sent for a chest X-ray. His condition had been described as “satisfactory” and improved. The letters went on to state that the detention rooms had a ventilation system installed, that the shower and toilets, although not in the rooms, were undergoing renovation so that they would all be on one floor, that there was a courtyard for walks, and that the detention centre staff had treated detainees with respect and never allowed any behaviour which could escalate into arguments. The staff included a doctor, a psychologist and a medical disinfection specialist. On 17 July 2014 M.A. had signed a paper refusing any further assistance from Ms Lyubov M.-E. On the same day the remaining two applicants had also expressed their wish to withdraw their requests for asylum. 48. On 22 October 2014 M.A. signed a letter in Russian addressed to the Kaluga FMS stating that its officers had forced him to sign documents in Russian he could not understand and which, as it turned out, had cancelled his asylum request and prevented him meeting with his representative, Ms Lyubov M.-E. As a result, he had not met with her, and the only meeting he had attended had been with his brother and sister-in-law on 22 October 2014, which had only lasted about ten minutes. The applicant further stated that he and L.M. were under constant surveillance, had received threats from the staff and were unable to write and send letters or make complaints. The treatment was allegedly because of their application to the Court. The papers signed by the applicants about their unwillingness to have their asylum requests considered had been obtained under duress and they had had no idea what they had signed. The applicant’s requests to meet with his relatives and representatives had not been granted. He further complained that he had not been given any personal hygiene products and could not shave or cut his hair, and that he and L.M. were being kept in isolation and had very little contact with other detainees, allegedly because they had applied to the Court. They had also been told that their expulsion to Syria would take place anyway and that their complaints would have no effect. The letter ended with a request to be allowed unrestricted meetings with his relatives and representatives, including Ms Lyubov M.-E. 49. On 27 October 2014 Albina A., M.A.’s sister-in-law, wrote to the Moscow-based human rights NGO Civic Assistance. On the same day she and her husband Mr Akhmad A., M.A.’s brother, produced affidavits to the applicant’s lawyers in Moscow. From these documents it appears that both brothers had left Aleppo in Syria because of the hostilities there, that their neighbourhood had been destroyed, that many of their relatives had been killed, and that they had no contact with the surviving family members. They had been unable to meet with M.A. at the detention centre, with the exception of one brief visit on 22 October 2014. The visit had lasted about ten minutes and a detention centre officer had been present. When M.A. had started to write down a complaint in Arabic, it had been taken away by the officer who had said that it was not allowed. M.A. had not been aware that he had signed a withdrawal of his asylum request prior to the meeting with his relatives. He had said that he had signed the papers under pressure from the FMS staff. His brother had managed to covertly obtain his signature on a complaint and a request to be allowed visit from his relatives and representative, Ms Lyubov M.-E. M.A. had also told them that on 21 October he had been visited by an FMS officer from Kaluga (Ms Marina Vladimirovna), accompanied by an interpreter, who had told him that he would be expelled to Syria as soon as his travel documents were issued by the Syrian Embassy. 50. On 27 October 2014 Mr P.K. of the Kaluga Bar Association submitted a complaint to the Kaluga regional prosecutor’s office. He stated that he had arrived at the detention centre and had produced an order for representing M.A. and a copy of his bar membership card that day; however, its staff had refused to allow him to meet with his client, referring to the absence of any signed agreement to represent him or permission for the meeting issued by the Kaluga FMS. The FMS had further informed him that the review of his request would take a month. Mr P.K. referred to the provisions of domestic legislation which permitted a lawyer to meet with his client and asked for his client’s right to legal aid to be restored. 51. On 17 December 2014 lawyers Ms Golovanchuk and Ms Yermolayeva met with the two applicants and took affidavits from them regarding their detention and asylum request situation. 52. L.M. stated that he was detained in a spacious room with three other detainees; it had a toilet and running cold water. A hot shower could be taken daily on another floor upon request. The room was clean and had sufficient natural and artificial lighting, which was switched off during the night. There were no hygiene problems with insects and the bed linen was changed once a week. Detainees spent their time in their rooms, day and night, except when they went for walks. There were four nurses who administered medical treatment as necessary. He insisted that he wanted his asylum claim to be considered and unrestricted access and the ability to communicate with his representative, including in writing. When asked, L.M. stated that he had been assaulted by the staff on 27 August 2014 after some of the detainees had escaped; one of the wardens had twisted his hand painfully. 53. M.A. stated that while at the detention centre, he had been beaten twice, in July 2014, when the staff had found him to be in possession of the Koran, and on 25 August, when one of the Syrian detainees had escaped. He had been beaten so that he would disclose details about the escape. After the beatings he had stayed in bed for three days and could not eat. He stated that he had not been allowed to make complaints or send letters, and had been denied access to his representatives and relatives. He had not been allowed to attend the court hearing on 28 November 2014 (see paragraph 36 above) even though he had asked to. He also confirmed that he had wanted to meet with his representatives, including Ms Lyubov M.-E. and had expected his claim for asylum to be processed. He stated that the FMS staff had threatened him and told him that his complaints would not help and that he would be spending two years in prison anyway. 54. Following these submissions, on 17 December 2014 the applicants’ lawyers wrote a letter to the Kaluga regional prosecutor’s office pointing at the illegal nature of the applicants’ detention, since their expulsion could not be carried out and there were no terms or possibility of review of the detention. They also stressed that the applicants’ conditions of detention were similar to people in pre-trial detention, while the restrictions on visits and correspondence were illegal and in direct contradiction to the information contained in the letters from the detention centre administration. The letter stressed that the absence of contact with relatives, lawyers and representatives amounted in itself to inhuman treatment since it had serious psychological effects on the applicants. 55. On the same day M.A. signed a request addressed to the Kaluga FMS to be allowed meetings with his representatives, Ms Golovanchuk, Ms Yermolayeva and Ms Lyubov M.-E., as well as his brother Mr Akhmad A. and sister-in-law Ms Albina A. 56. In reply to the Court’s additional questions, in April 2015 the Government submitted more detailed information about the applicants’ conditions of detention. 57. On 30 March 2014 the head of the Kaluga FMS ordered that meetings with people detained in the detention centre could be authorised for close relatives by its head upon presentation of documents proving they were related. Visits by representatives and human rights defenders could be authorised by the head of the Kaluga FMS, and the detainee could submit a written request to the head of the detention centre. 58. According to the detention centre’s daily routine issued by its head on 15 November 2014, daily walks were to last no less than an hour per inmate. An hour a day was set aside for telephone contact and another hour between 11.30 a.m. and 12.30 p.m. for meetings with visitors and receiving parcels. An hour every day was set aside for meetings with the administration. 59. The Government submitted extracts from the applicants’ medical files, from which it appears that they had been examined upon arrival at the centre and found to be in good health. A.A. had been treated for bronchitis and pneumonia in June 2014, and on 14 July 2014 his health was improving. He had also had an incident of high blood pressure on 10 June, which had been successfully treated. L.M. had been diagnosed with pulpitis and gastric problems and had received treatment. He had seen the doctor on five occasions between 10 May 2014 and 17 February 2015. M.A. had not consulted the medical staff. 60. According to the Government, L.M. and M.A. were detained in room no. 15 on the first floor of the two-storey building, which measured 47 square metres and accommodated six people. A toilet was accessible from the room, and there was a shared bathroom on the ground floor. The outdoor exercise yard measured 180 square metres. The Government provided photos of the rooms, sanitary facilities, canteen and the yard.
| 1 |
test
|
001-178946
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF IBRAGIMOV v. RUSSIA
| 4 |
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
Alena Poláčková;Helen Keller;Pere Pastor Vilanova
|
6. The applicant was born in 1953 and lives in Katyr-Yurt, the Chechen Republic. He is the father of Mr R., who died of tuberculosis in a prison hospital. 7. In 2004 Mr R. arrived at correctional colony no. 4 in the Arkhangelsk Region where he was to serve his twelve-year sentence. On admission to that facility, he underwent a general medical check-up permed by a prison doctor who concluded that he was healthy. Two routine chest X-ray examinations in March and October 2004 confirmed that conclusion. 8. On 10 March 2005 Mr R. complained to the prison medical authorities of fatigue and a cough. Acute rhinopharyngitis was diagnosed and a standard treatment for that condition was prescribed, but the symptoms persisted. Eleven days later, the prison doctor diagnosed acute pneumonia of the left lung. Mr R. was admitted to the prison medical unit and prescribed medication and a special dietary regime. 9. On 6 April 2005, in view of the absence of any positive changes in Mr R.’s health, he was moved to a prison tuberculosis hospital. A chest Xray examination performed on the day of his admission showed a massive infiltration in the lungs. 10. The next day Mr R. underwent a sputum test, which revealed his affliction with tuberculosis combined with pneumonia. Treatment with five first-line drugs was prescribed. It was started about two weeks later, but had no effect on Mr R.’s health. 11. On 12 April 2005 a drug susceptibility test was performed. The test result was only received on 18 July 2005 (see paragraph 15 below). An additional chest X-ray examination on 18 April 2005 indicated further progress of the diseases. 12. In the light of the above, on 23 April 2005 Mr R. was transferred to the Arkhangelsk regional prison tuberculosis hospital (“regional prison hospital”), where his treatment continued as previously prescribed. 13. According to the applicant, Mr R. was unsatisfied with the quality of his treatment. In early May 2005 both the applicant and Mr R. unsuccessfully sought the latter’s transfer to a medical facility located in a southern region, where Mr R. could have been provided with adequate treatment in a more suitable climate. 14. In the meantime, regular chest X-ray examinations showed that Mr R.’s health was continuing to deteriorate. By mid-July 2005 pulmonary cavities had appeared, and his condition had become serious. 15. On 18 July 2005 the regional prison hospital received the result of the drug susceptibility test of 12 April 2005. It revealed that Mr R.’s tuberculosis was resistant to four antibiotics being used in his treatment. 16. According to a medical entry made at the top of a page outside the related fields in Mr R.’s medical file, on 28 July 2005 he was prescribed treatment with advanced antibiotics. There are no regular entries showing the actual intake of the new drugs. 17. In August 2005 Mr R.’s condition was assessed as “of medium gravity”, but on 10 September 2005 he died. According to an autopsy report drawn up two days later, the cause of death was cardio-respiratory insufficiency provoked by tuberculosis. 18. In September 2006 the applicant asked for criminal proceedings to be instituted into the circumstances leading to his son’s death. He alleged that the authorities responsible for protecting the life and wellbeing of his son had failed to comply with their obligations. 19. On 21 October 2006 the Primorskiy Inter-District Prosecutor’s Office refused to open a criminal case. Its page-long decision was based on the autopsy report and general information on Mr R.’s treatment submitted by the prison medical authorities. The investigator concluded that Mr R. had died of tuberculosis for which he had received medical treatment, and that the patient’s detention in a northern region had not breached Russian law. 20. In November 2006 the applicant repeated his request, having argued that the custodial authorities bore responsibility for his son’s death because they had failed to protect him from tuberculosis and to ensure prompt diagnosis of the disease. 21. By a letter of 9 January 2007 a prosecutor informed the applicant that a criminal inquiry had established that his son had contracted tuberculosis in early March 2005. The correctional colony had promptly identified the disease and had ensured treatment keeping the disease under control. The investigating authorities did not assess the quality of the medical services provided between late April and September 2005. 22. The applicant appealed against the decision of 21 October 2006, insisting that the investigator’s finding had not been supported by expert evidence. He further argued that the detention authorities had failed not only to diagnose his son’s tuberculosis promptly, but also to provide him with adequate care in the regional prison hospital. 23. On 3 July 2007 the Isakogorskiy District Court of Arkhangelsk examined the claim. Ms B., the head of the regional prison hospital’s unit responsible for Mr R.’s treatment, was heard. She stated that Mr R. had been admitted to the hospital on 23 April 2005. Shortly thereafter he had undergone medical testing. Ms B. stressed that the testing had been complex and that the hospital had only received the test result in August 2005. On 26 August 2005 the doctors had learned that Mr R.’s tuberculosis had been drug resistant. They had prescribed treatment with advanced antibiotics. However, by that time pathological changes in the patient’s body had already become irreversible. 24. Having regard to the investigation file, the court noted that the investigating authorities had solicited neither the autopsy report nor medical documents concerning Mr R.’s treatment and that they had not interviewed any doctor involved in the treatment. The court thus concluded that the criminal inquiry had not been thorough. It overruled the prosecutor’s decision of 21 October 2006 not to open a criminal case. 25. On 14 August 2007 the Arkhangelsk Regional Court quashed the District Court’s decision on appeal. It noted that it was not for the investigative authorities to assess all possible versions of the events and that there was no obligation on them to resolve each inconsistency in the case. The court found that the documents obtained by the firstinstance court and the statement by Ms B. had remedied the alleged shortcomings in the investigation. The case was remitted to the District Court for a fresh examination. 26. Ten days later the District Court re-examined the case. It concluded that the criminal inquiry had been carried out in compliance with the requirements of the Russian Code of Criminal Procedure, and that the impugned decision of 21 October 2006 had been based on sufficient evidence duly assessed by the investigating authorities. The applicant’s claim was accordingly rejected. 27. On 23 November 2007 the Regional Court upheld the abovementioned decision on appeal.
| 1 |
test
|
001-158528
|
ENG
|
BIH
|
ADMISSIBILITY
| 2,015 |
STOJNIĆ v. BOSNIA AND HERZEGOVINA
| 4 |
Inadmissible
|
Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
1. The applicant, Mr Slavko Stojnić, is a citizen of Bosnia and Herzegovina, who was born in 1961 and lives in Banja Luka. 2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić. 3. The applicant was an officer of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“the SFRY”). The present case concerns his attempt to repossess his pre-war flat in Sarajevo. 4. The detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia in Herzegovina is provided in Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-17, 27 May 2010 and Mago and Others v. Bosnia and Herzegovina, nos. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, §§ 5-8, 3 May 2012. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In 1983 the applicant was allocated an occupancy right to a military flat in Sarajevo. 6. On an unknown date in 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 182,953 Yugoslav dinars (approximately 2,152 German marks (DEM) at the time). 7. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 1998. 8. On 29 January 1999 the applicant applied for the restitution of his flat in Sarajevo. On 4 April 2001 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. On 23 November 2001 the competent Ministry of the Sarajevo Canton rejected his appeal as submitted out of time. 9. On 8 February 1999 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the Dayton Peace Agreement) about his inability to repossess his pre-war flat. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. 10. On 8 March 2005 the Human Rights Commission (the legal successor of the Human Rights Chamber) found a violation of Article 6 of the Convention because of the length of the restitution proceedings and awarded the applicant 1,000 convertible marks (BAM; approximately 500 euros (EUR)) for non-pecuniary damage in this connection. As regards the complaint under Article 1 of Protocol No. 1, the Commission concluded that the interference with the applicant’s right to the peaceful enjoyment of his “possessions” had been justified. However, it ordered the Federation of Bosnia and Herzegovina to secure the applicant’s right to compensation envisaged under section 39e of the Privatisation of Flats Act 1997, without further delay and at the latest within three months from the delivery of that decision. 11. On the same date, the applicant initiated proceedings before the Sarajevo Municipal Court (“the Municipal Court”) seeking to establish the validity of a purchase contract and to register his title to the flat in the land register. On 1 October 2007 the Municipal Court declared the purchase contract legally valid. However, it rejected the applicant’s claim to have his title registered. The court held that under the Privatisation of Flats Act 1997 those who served in foreign armed forces after the 1992-95 war, like the present applicant, were not entitled to repossess their pre-war military flats and to register their title, but were entitled to compensation. On 19 November 2008 the Sarajevo Cantonal Court upheld that judgment. 12. On 28 December 2005 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to M.H., a member of the Army of the Republic of Bosnia and Herzegovina. 13. On 4 December 2013 the Ministry for Defence of the Republic of Serbia informed the Government of Bosnia and Herzegovina that the applicant’s right to allocation of a military-flat in Serbia had been established by the competent authorities. 14. The Government did not dispute the facts submitted by the applicant. However, they provided additional information as follows. 15. On 19 April 2007 the applicant received BAM 15,979.68 (approximately EUR 8,170) in compensation for his prewar flat in Sarajevo in accordance with section 39e of the Privatisation of Flats Act 1997, as ordered by the Commission for Human Rights (see paragraph 10 above). 16. The relevant domestic law and practice were outlined in Aleksić v. Bosnia and Herzegovina (no. 38233/05, §§ 16-18, 3 February 2015).
| 0 |
test
|
001-146392
|
ENG
|
HRV
|
CHAMBER
| 2,014 |
CASE OF BLJAKAJ AND OTHERS v. CROATIA
| 3 |
Preliminary objection dismissed (Article 34 - Victim);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
|
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The first applicant was born in 1948, the second applicant was born in 1976, the third applicant was born in 1980 and they all live in Slatina. The fourth applicant was born in 1956 and lives in Osijek, and the fifth applicant was born in 1949 and lives in Josipovac. 6. The first applicant is the husband, the second and third applicants are children, and the fourth and fifth applicants are sisters of the late M.B.B., a lawyer who was based in Slatina. 7. M.B.B. represented M.N. in divorce proceedings instituted in December 2001 in the Slatina Municipal Court (Općinski sud u Slatini) against her husband, A.N. 8. A first hearing in those proceedings was held on 12 February 2002, attended by the parties and the lawyer M.B.B. The court heard the parties’ arguments and decided to request a report from the local social services. It then adjourned the hearing until 9 April 2002. 9. According to A.N.’s police records, he had a history of alcohol abuse, violent behaviour and unlawful possession of firearms. In May 1993 the Slatina Police (Policijska Postaja Slatina – hereinafter “the police”) instituted minor offences proceedings against him for beating up his daughter and wife under the influence of alcohol and making serious threats using firearms. On that occasion, the police seized from A.N. a rifle with a dozen bullets and a hand grenade. There is, however, no further information on the outcome of these proceedings. Furthermore, between 2000 and 2002 A.N. was reported three times for family violence and twice for a breach of the peace and public order, and in May 2001 the police lodged a criminal complaint against him with the State Attorney’s Office for making serious death threats to his wife. 10. On 16 October 2000 the Slatina Minor Offences Court (Prekršajni sud u Slatini) found A.N. guilty of the minor offence of family violence and fined him 500 Croatian kunas (HRK). During the proceedings, M.N. explained that the divorce proceedings were pending before the courts and that A.N. had contested them. She also explained that she had ended up in hospital after having been severely beaten by A.N. 11. On 25 July 2001 the Slatina Municipal Court found A.N. guilty of the criminal offence of making serious death threats to his wife and sentenced him to two months’ imprisonment, suspended for one year. 12. According to a police report drawn up on 25 March 2002, M.N., accompanied by A.N., attended the police station on 21 March 2002, alleging that her husband had been harassing her. She made no other complaints of possible threats or violence. She further explained that A.N. had previously beaten her up and had been convicted in the minor offences and criminal courts. She also pointed out that their divorce proceedings were pending and that a hearing was scheduled for 9 April 2002. On the same occasion, A.N. argued that he did not want his wife to see other men. The police officer who interviewed the couple, Ž.J., warned A.N. to stop harassing his wife and instructed them to settle all their disputes in the divorce proceedings. The report also contains a note suggesting that during the interview, A.N. and M.N. showed no signs of aggression, alcohol abuse or agitation. 13. Afterwards, police officer Ž.J. informed his superior officer, M.Kr., of the interview. He was told to make a short note of the event in the logbook and that it was not necessary to draft a report or take any further action. 14. According to further police reports, at around 7 a.m. the following day, A.N. went to a bank in Slatina with the intention of withdrawing all his money. He told a bank employee, D.K., whom he had met before, that they would not see each other again. While speaking to the bank employee, A.N. was in tears. When she asked him what was troubling him, he said that “it will be talked about”. He also shook hands with several other people who then told the bank manager, F.S., to contact the police. F.S. followed A.N. out of the bank and asked him what was troubling him. A.N. responded that he was sick of everything; his wife, who was having affairs with other men, and his son, who was a drug addict, and that he was going to do something and nobody could stop him. 15. At 7.15 a.m. F.S. informed the police of the event, saying that he was afraid that A.N. could do something to himself or others. 16. At 7.17 a.m. an on-duty commanding officer, T.S., sent a patrol of two police officers, M.L. and I.B., to the bank. At the same time he checked A.N.’s police records and saw that he had a violent background. He therefore informed the police chief, M.Ko., who ordered a police patrol to be sent to A.N.’s home address. At 7.38 a.m. M.L. and I.B. were sent to look for him there. 17. The report submitted by police officers M.L. and I.B. indicates that they found A.N. at home. He approached them at the front of his house and said that he was sick of everything, and that he had withdrawn the money for his funeral because he was going to kill himself either that day or the next by jumping under a train, and that there was nothing they could do about it. He also said that he had already written a suicide note, and complained that the day before he had been at the police station because his wife had been seeing another man. The police officers noted in their report that A.N. had appeared sober and had not shown any signs of aggressiveness, and had not mentioned his wife or anybody else or that he might hurt anybody. They therefore advised him that everything was going to be fine and left. 18. Upon their arrival at the police station at 8.06 a.m. the police officers reported on the interview to the on-duty commanding officer M.T., who had taken over from T.S. (see paragraph 16 above) in the meantime. 19. According to a report drawn up by M.T. on 22 March 2002, M.L. and I.B, the police officers who had visited A.N. at his home (see paragraph 17 above), had reported to him that A.N. was contemplating suicide because of his family problems, and that he had mentioned his divorce and said that nobody could stop him. At 8.12 a.m. M.T. informed the deputy police chief for the criminal police, M.B., of the event who instructed him to immediately inform the Slatina Health Centre (Dom zdravlja Slatina – hereinafter “the hospital”) and Slatina Social Care Centre (Centar za socijalnu skrb Slatina). He informed the hospital doctor, I.F., at 8.15 a.m. and the Social Care Centre at 8.18 a.m. The doctor had said that he would see with a nearby psychiatric hospital whether they could admit A.N. for treatment, while an official from the Social Care Centre had said that she had known A.N.’s situation very well and told the police to contact the hospital. 20. Later during the investigation the police found that officer M.T. had falsified his report, as he had actually informed doctor I.F. at 9.40 a.m., not 8.15 a.m. as indicated, and had informed the Social Care Centre at 9.37 a.m., not 8.18 a.m. as indicated (see paragraph 19 above and paragraphs 35 and 46 below). 21. Meanwhile, sometime after 8.00 a.m., A.N. returned to the bank, shouting at F.S. for having called the police. He then went to a nearby bar for a drink and at around 9.00 a.m. went to the police station. He met the on-duty commanding officer M.T. there, and demanded to know why the police had been to see him. M.T. explained that the police had had information that he had been having some problems. A.N. replied that he was going to solve his problems himself and that he was going to do what he intended. He then left the police station. 22. A.N. then went in search of his wife, who started work in a bakery shop at 10 a.m. He waited for her in a nearby street he knew she had to pass when going to work. When A.N. saw her, he approached her and kicked her in the head, knocking her to the ground. He then fired one shot at her and went to leave, but then returned to shoot her a further three times. She survived, despite receiving serious injuries to her head, stomach and arm. 23. After shooting his wife, A.N. went to M.B.B.’s office, which was only some three hundred metres away. M.B.B. was in the office at the time with her secretary and a client, A.R. Immediately upon entering the office A.N. fired a shot in M.B.B.’s direction, but hit her desk. The client attempted to talk him round, but when A.N. threatened to kill him, he ran away. A.N. then attempted to shoot the secretary, who was calling the police, but his pistol jammed and she managed to escape. A.N. then approached M.B.B. and shot her dead by firing three bullets at her, of which two were fatal. 24. In the meantime, some onlookers had informed the police of the incidents and several police units were sent to search for the gunman. 25. At around 10.35 a.m. the police arrived at A.N.’s house and ordered him to surrender and go with them to the station in connection with the investigation into the shootings. He refused, before throwing two hand grenades at the police officers and starting to shoot at them. 26. When special police units stormed into A.N.’s house at around 3.26 p.m., they found him with a self-inflicted head wound, the type of weapon that had been used for the shootings, and a suicide note. He was immediately taken to hospital, but died the next day. 27. On the same day as the incidents occurred, an investigating judge of the Bjelovar County Court (Županijski sud u Bjelovaru) and a Deputy County State Attorney conducted crime scene investigations with the assistance of police forensic scientists. In A.N.’s house the police found another suicide note, a number of different bullets and an empty hand grenade cartridge. They also discovered that the weapon used by A.N. had been reported missing and that its owner had died in 1997. 28. The investigating judge ordered a forensic examination of the bodies which confirmed that M.B.B. had suffered a violent death as a result of the gunshots. 29. During the investigation the police interviewed a number of people who provided information concerning A.N. and the course of the events in which he had killed M.B.B. and attempted to kill his wife. The police drew up reports of the interviews but they were not signed or otherwise attested by the witnesses. 30. According to the police reports, A.N. and M.N.’s children, E.N. and M.B., provided information about the problems in their family and the frequent violent incidents mainly caused as a result of A.N.’s alcohol abuse. The incidents were confirmed by M.N. in her interview with the police. She also stated that he had been angry at her lawyer M.B.B., but had not threatened to kill her. 31. M.B.B.’s secretary described the course of events in which A.N. had attempted to shoot her and killed the lawyer M.B.B., which was also confirmed by the client A.R. who had been in the office at the time (see paragraph 23 above). Another witness, N.M., a waiter in a nearby bar, described how he had heard gunshots and later found M.B.B. dead in her office. 32. The police also interviewed the bank employees D.K. and F.S., who provided information about A.N.’s behaviour in the bank (see paragraph 14 above), and two other witnesses, I.T. and A.K., who had also been in the bank when A.N. was there. The two bank customers stated that A.N. had seemed disturbed and looked as though he had needed some help, but had not said he was going to kill anybody. 33. An acquaintance of A.N., Ž.M., told police that for the past year A.N. had been saying that he was going to kill his wife. After the incidents at issue, A.N. called him and said that he killed his wife and shot her lawyer. Information to that effect was also provided by another acquaintance of A.N., I.Š., who said that when he got drunk A.N. would say that he was going to kill somebody but without specifying whom. On the morning in question he had seen A.N., who had shown him a handful of bullets. 34. A.N.’s brother-in-law, L.Z., stated that A.N. had complained that during a hearing in the divorce proceedings M.B.B. had prevented him from raising all his arguments before the court, and that he should do something about it but without specifying what. He had never mentioned that he was going to kill anybody. His other brother-in-law, F.Z., stated that a couple of days before the incidents his wife Ž.Z. had told him that she had seen A.N., who had told her that he was going to kill his wife and her lawyer, but she had not thought that he had really meant it. This was confirmed by Ž.Z. herself in her statement to the police. 35. During the investigation the police interviewed doctor I.F. who had taken the police’s call to the hospital on the morning of the incidents (see paragraph 19 above). He stated that he had received the call at around 9.40 a.m., not 8.20 a.m. as reported in the media. He also provided evidence to that effect because his telephone had the ability to record times and dates of calls. Based on the information he had received, he had attempted to contact a nearby psychiatric hospital to arrange for A.N.’s possible hospitalisation. However, he had not managed to speak to any of the doctors, as he had been told by a nurse that they had all been in a meeting which she had not been allowed to interrupt. 36. The results of the investigation were submitted to the Slatina Municipal State Attorney’s Office (Općinsko državni odvjetništvo u Slatini) to assess whether the police could be held liable for their actions in connection with the incidents at issue, particularly with regard to the application of section 24 of the Protection of Individuals with Mental Disorders Act. That provision stated that an individual could be admitted to a psychiatric institution where there was a reasonable suspicion that the individual posed an immediate threat to his life or health, or the life or health of others (see paragraph 81 below). 37. On 16 August 2002 the Slatina Municipal State Attorney’s Office issued the following statement: “A.N. was a violent person against whom a criminal complaint had been made for making serious death threats to his wife and on several occasions was reported for the minor offences of family violence, abusive behaviour and inappropriately addressing police officers. On the day in question A.N., without any further elaboration, told police officers that he was going to kill himself because of his family problems. The police officer on duty, M.T., omitted to inform the hospital and Social Care Centre of the whole situation. Had there been coordination between the doctor and social worker, who had known the situation in A.N.’s family better, measures for the prevention of suicide could perhaps have been taken. In the circumstances, at the relevant time the police officers had no reason to treat A.N. as a mentally disturbed person within the meaning of section 24 of the Protection of Individuals with Mental Disorders Act. ...” 38. On 22 March 2005 the applicants, through their lawyer, lodged a criminal complaint against police officer M.T. with the Slatina Municipal State Attorney’s Office, alleging that he had falsified the police records indicating the exact time he had contacted the hospital and Social Care Centre (see paragraphs 19 and 20 above). They also lodged a criminal complaint against police chief M.Ko. for abuse of power and authority, because he had failed to institute criminal proceedings against police officer M.T. 39. On 30 May 2005 the Slatina Municipal State Attorney’s Office rejected the criminal complaints against the police officers on the grounds that their actions did not constitute criminal offences. 40. On 10 June 2005 all five applicants and K.B., the mother of M.B.B., took over the prosecution as subsidiary prosecutors and lodged an indictment against the police officers in the Slatina Municipal Court. 41. During the proceedings police officer M.T. stated that after officers M.L. and I.B. had returned from their interview with A.N. (see paragraph 19 above), they had told him that A.N. had been agitated and had mentioned problems in his family, but had not made any threats. Sometime at around 8 a.m. he had therefore attempted to contact police chief M.Ko. to seek further instructions. After having failed twice to reach M.Ko., who had been out of his office, he had called the deputy police chief for the criminal police, M.B., who had instructed him to contact the hospital and Social Care Centre. He had then telephoned the hospital, but the number he had dialled had not been valid, so he had only managed to get the right number later when he had spoken to doctor I.F. When he had called the hospital for the first time he had written down the exact time on a piece of paper and then later had just taken that time for his report. 42. Doctor I.F. also gave his oral evidence during the proceedings. He testified that after he had received the information from the police about their interview with A.N., he had told the police that he would need to examine A.N. and then decide whether compulsory psychiatric treatment would be necessary. However, the police had not known where A.N. was at the time, so he had told them to find him. Approximately fifteen minutes later the hospital had received information about the shootings. 43. On 3 May 2006 the Slatina Municipal Court acquitted police officer M.T. on the grounds that there had been no evidence that he had deliberately falsified his report. The court also dismissed the charges against police chief M.Ko. on the grounds that the prosecution had become time-barred. 44. The judgment was confirmed on appeal by the Virovitica County Court (Županijski sud u Virovitici) on 21 September 2006. 45. On 18 April 2002 the Ministry of the Interior opened disciplinary proceedings against police officer M.Kr. for failing to report on the interview with A.N. and his wife on 21 March 2002 even though A.N.’s background and the information concerning their relationship warranted that such action be documented (see paragraphs 12 and 13 above). 46. On 27 May 2002 disciplinary proceedings were also opened against police officer M.T. for failing to immediately report the situation concerning A.N. on the morning of 22 March 2002 to the hospital as he had been instructed to do by his superior, and for falsifying his report about the times he had contacted the hospital and Social Care Centre (see paragraphs 19 and 20 above). 47. The first-instance Osijek Disciplinary Panel of the Ministry of the Interior (Prvostupanjski disciplinski sud u Osijeku) found police officer M.Kr. guilty on 10 October 2002 and sentenced him to a 15% reduction of salary, to be applied for one month. 48. On 5 November 2002 the disciplinary panel found police officer M.T. guilty and sentenced him to a 10% reduction of salary, to be applied for two months. 49. On 22 March 2005 the five applicants and K.B. lodged a civil action against the State in the Slatina Municipal Court, seeking damages for the authorities’ failure to protect their relative’s right to life. They relied on section 13 of the State Administration Act, which provides that the State is liable to compensate damage caused to a citizen, legal entity or other party for the unlawful or wrongful conduct of a State authority (see paragraph 83 below). 50. A first hearing was held on 6 July 2005, at which the trial court heard evidence from bank employees F.S. and M.S. 51. F.S. testified that after he had seen A.N. crying, he had asked him what had happened and A.N. replied that it would be talked about. He had then called the police, who arrived soon after. When he had told them what had happened, the police had just replied that they had known A.N. very well. A.N. had appeared totally unstable that morning, which had been noticeable to F.S. because he worked with people. Everybody in the bank had noticed that A.N. had been totally crazy, and F.S. had therefore called the police because he had thought that A.N. was a danger, primarily to himself, and should get medical treatment. When A.N. had entered the bank for the second time he had not calmed down and had been yelling at F.S. for calling the police about him. This version of events was confirmed by M.S. 52. At a hearing on 14 September 2005 the trial court heard evidence from doctor I.F. He testified that on the morning of 22 March 2002 at around 9.45 a.m. he had been informed by the police that A.N. had been behaving strangely and that he might do something bad. The police officer had not however known where A.N. was at the time. Doctor I.F. explained that the usual practice in such cases was to examine the person and then decide whether admission to hospital was necessary. He also specified that the police officer who had called him had said that A.N. could kill somebody or do something bad. This had prompted him to believe that his and the police’s intervention had been necessary, and that A.N. should be taken to the psychiatric hospital. Had the police managed to trace A.N., he would have examined him, because that had been the practice in similar cases and also in cases where somebody had threatened suicide. 53. At the same hearing the trial court questioned police chief M.Ko., who explained that A.N. was known to him because he had once been held at the station for violent behaviour. On the day in question he had given orders to the on-duty commanding officer to send a police patrol to A.N.’s home address and had then left the police station to attend to some other business. He had returned to the police station at around 9.55 a.m. and had been told of the shootings. 54. The next hearing was held on 23 November 2005, where the trial court heard evidence from M.N. She stated that A.N. had previously had a rifle, a handgun and a bomb which had been, at some point, confiscated from him by the police. He would also say that he was saving money to buy a handgun to kill her and two other people, but she had never known exactly whom. A.N. had had a problem with alcohol and when he would get drunk he would be violent. She had called the police on more than a hundred occasions, but sometimes they would come and sometimes they would not. A.N. had contested the divorce and the day before the incidents had threatened to kill her. She had reported that on the same day to the police, but they had done nothing about it. At the same hearing the trial court questioned bank employee D.F., who explained the course of the events in the bank (see paragraph 14 above). 55. A further hearing was held on 18 January 2006, at which the police officers M.L., M.T. and I.B. gave evidence. 56. M.L. testified that on the morning of the incident, he and police officer I.B. had been ordered to go to the bank because A.N. had been there and had been behaving strangely. In the bank, they had met someone who had called the police, who explained that A.N. had gone to the bank, had withdrawn all his money and while in tears had said “it will be talked about”. When M.L. and I.B. had reported on their findings to the on-duty commanding officer, they had been instructed to find A.N. at his home address. They had found him there and interviewed him. A.N. had not been drunk or aggressive. He had said that he was going to kill himself because of problems with his wife and son and that he would do it either that day or the next, and that nobody could stop him. He had appeared normal and calm. They had not searched him because there had been no grounds to take such action, nor had there been any reason to take him to hospital in accordance with the Protection of Individuals with Mental Disorders Act. M.L. also explained A.N. was known to him and that before seeing him, he had been informed by the on-duty commanding officer that he had already threatened to kill his wife. 57. In his statement I.B. confirmed M.L.’s version of events, explaining that the police could take an individual to hospital or a police station and have a doctor examine him, but they had not considered A.N. to be a danger so had not taken any such action. 58. Police officer M.T. stated that when officers M.L. and I.B. had returned from the bank they had said that A.N. had not been drunk or aggressive but merely agitated, and that he had threatened suicide. M.T. had then attempted to contact his superiors and had managed to get in touch with the deputy chief for the criminal police M.B., who had instructed him to inform the hospital and Social Care Centre. He had attempted to contact the hospital several times and at some point had managed to reach doctor I.F, who had said that he would try to find a place for A.N. in a psychiatric hospital. He had also asked where A.N. was, but at the time M.T. had not known. M.T. further explained that he had been familiar with the Protection of Individuals with Mental Disorders Act, which enabled the police to take a mentally disturbed individual to a psychiatric hospital, but he had considered the police to have done everything they could, although with hindsight, it would have been possible to do more, but the police could not have predicted what would happen. He had known that A.N. had a violent background but stressed that he had not been registered as insane. 59. At a hearing on 15 March 2006 the deputy chief for the criminal police M.B. gave his oral evidence. He explained that he had been informed that A.N. had gone to the bank where he had been behaving strangely. Later, he had been informed that the police had interviewed him and that he had appeared calm and normal but had threatened suicide. At around 8.05 to 8.10 a.m. M.B. had instructed the on-duty commanding officer, M.T., to inform the hospital and Social Care Centre. He considered the police to have done everything they could, but there had been no grounds to take any further measures given the findings of the police patrol that had interviewed A.N. at his home. He also explained that the usual practice in similar cases was to inform the hospital, who could call the police if they needed assistance. 60. A further hearing was held on 10 May 2006 at which police officers Ž.J. and T.S. and a customer from the bank, I.T., gave evidence. 61. Ž.J. stated that the day before the incidents M.N. had arrived at the police station followed by her husband A.N. Police officer Ž.J. had interviewed them but had found no grounds for the police to take further action, so he had told them to resolve their marital problems in their court proceedings. M.N. had also mentioned that after A.N. had been handed a suspended sentence, he had stopped making threats and beating her up. Ž.J. had not reported on the interview because his superior officer M.Kr. had not requested it. 62. Police officer T.S. had no specific knowledge about the incident. He had been off-duty at the time although he had, early in the morning, just before leaving the police station, sent a police patrol to the bank to check what had happened there and why A.N. had been behaving strangely. 63. The bank customer I.T. testified that he had seen A.N. in the bank on the morning in question, who had told him that he had been having some problems and that it would be talked about. He had been behaving strangely, as he had been walking around the bank in circles. He had looked nervous, and I.T. had thought that he had been ill and in need of medical attention. 64. On 15 September 2006 the trial court obtained a psychiatric report certifying that the first, second and third applicant and M.B.B.’s mother had all experienced mental suffering after the events. The report was confirmed by the expert at a hearing held on 21 February 2007. 65. On 5 March 2007 the Slatina Municipal Court allowed the civil action and ordered the State to pay damages for failing to protect the life of the applicants’ relative. The trial court held that the State’s responsibility under section 13 of the State Administration Act was objective, and that it was only necessary to establish whether the death had been a result of the unlawful or wrongful conduct of the State authorities. The relevant part of the judgment reads: “... It is not disputed between the parties that F.S. called the police a little after 7 a.m. F.S. informed the police of what had happened in the bank and about A.N.’s appearance. This court fully accepts the statements of F.S., M.S., D.F. and I.T. as credible when they testified about A.N.’s state of mind [in the bank]. They stated that A.N. had appeared totally unstable. The conclusion of the police officers M.L. and I.B. that A.N. had been normal and calm and had not been a danger cannot be accepted as logical. They reached such a conclusion after being informed by A.N. that he had withdrawn the money for [his] funeral, and that he was going to kill himself and nobody could stop him. Taking this into account, [this court considers that] the average person could have reached the conclusion about A.N.’s state of mind referred to by witnesses [F.]S., M.S., D.F. and I.T. The police officers who needed to act with particular diligence should have also reached [this] conclusion about A.N.’s state of mind, which they failed to do. They thus failed to act in accordance with sections 22 (1), 23§(1) and 24 of the Protection of Individuals with Mental Disorders Act ... The defendant considers that there is no connection between the failures of the police and [M.B.B.’s death] and that there is therefore no liability on the Republic of Croatia. This court considers differently. Had police officer M.T. complied with the order of the deputy chief for the criminal police M.B., and informed the hospital and Social Care Centre at 8.15 a.m., as noted in the report, it is highly probable that the outcome would have been avoided, particularly taking into account the statement of witness I.F ... As the liability of the State is objective; it was for it to prove that the damage occurred as a result of a cause which could not have been avoided (vis major), or that the damage resulted exclusively from the actions of the aggrieved party or a third party which could not have been predicted and where the outcome could not have been avoided (section 177(1) and (2) of the Civil Obligations Act). Nothing of [the sort] has been proven by the defendant. ...” 66. The Slatina Municipal State Attorney’s Office, representing the State in the proceedings, lodged an appeal with the Virovitica County Court on 26 April 2007. 67. On 19 November 2007 the Virovitica County Court quashed the first-instance judgment and ordered a retrial on the grounds that the first-instance court had erred in its findings that the liability of the State was objective as it was based on the existence of a fault, namely unlawfulness. That court further found that, irrespective of the fact that A.N. had threatened suicide, there had been nothing requiring police officers M.L. and I.B. to treat the case as particularly urgent and to take A.N. to a psychiatric hospital. It also accepted the police officers’ statements that A.N. had appeared calm during the interview. The Virovitica County Court instructed the first-instance court to question witnesses I.F. and M.T. again to establish what actions doctor I.F. had intended to take, since it was not clear whether he had intended to examine A.N. or just to see whether he could be placed in a psychiatric hospital, as could be inferred from the statement of police officer M.T. 68. In the resumed proceedings, at a hearing held on 27 February 2008, the Slatina Municipal Court heard doctor I.F. and police officer M.T. 69. Doctor I.F. testified that the usual practice in similar cases was to immediately respond at the scene and to examine the person if he or she was available. The medical response team consisted of a doctor, a driver and medical technician and a nurse. They first had to examine the person and then the doctor could decide whether hospitalisation in a psychiatric hospital was necessary. Police intervention was only sought if the person could not be apprehended for the examination. As regards the case at issue, doctor I.F. explained that he had been called by a police officer who had told him that A.N. had been behaving strangely and that he could do something bad. The police officer had not known where A.N. was. Had he known, he would have immediately responded at the scene and examined him. Doctor I.F. also explained that he had to first examine the person and only then he could make a prescription for that person’s admission to hospital. There had been no reason for him to check whether there had been a place in the hospital because it was for the hospital to decide what they wanted to do with his prescription and the person in question. In the present case, the information he had received from the police suggested that it had been necessary to examine A.N. at the scene. 70. Police officer M.T. stated that on the day in question he had informed doctor I.F. that the police had had a person who was seriously disturbed and who should be given an injection in order to calm down. As to his further conversations with the doctor, M.T. stated: “I cannot remember any more what doctor [I.]F. told me when I contacted him. I don’t remember exactly, but I think he told me that he would see whether [A.N] could be placed in the psychiatric hospital and then would ask for police intervention if he needed it. ... I would like to change my statement in the part where I said that doctor [I.]F. was going to first find a place in [the psychiatric hospital] and that he would then consult the police chief. Doctor F. actually told me that he would first examine [A.]N. and that he would call the police if necessary. ... In reply to the question from the defendant’s representative, I cannot explain why I changed my statement as regards what doctor [I.]F. had told me.” 71. On 7 March 2008 the Slatina Municipal Court obtained a police report describing the course of events later on the day of the shooting, and on 9 April 2008 concluded the trial. 72. On 22 April 2008 the Slatina Municipal Court dismissed the civil action as ill-founded, and ordered the applicants to pay HRK 80,700 in costs and expenses. The relevant part of the judgment reads: “... The liability of the defendant is based on the principle of fault (section 154(1) of the Civil Obligations Act). Unlawful conduct is conduct which is contrary to the law or an omission in the application of the law, which is committed deliberately or by accepting that it might cause damage to a third party. ... The purpose of section 13 of the State Administration Act is to provide for the liability of the State where there is a wilful act contrary to the law with the intent of causing damage ... Acceptance [of that outcome] is conduct or an omission of a State official in the performance of his or her official duties where he or she was able to, according to his or her individual capability, take into account the objective requirements with due diligence, and which he or she failed to do. In the particular circumstances, there is no causal link between the damage and the omissions of police officer M.Kr., in his capacity as on-duty commanding officer, to report the day before [the shootings] about M.N.’s complaint that she had been followed by A.N. This court finds nothing to suggest that the police officers who intervened at the bank, and who had had no knowledge of this, would have acted differently even if they had had such information. The plaintiffs also refer to the omissions of police officers M.L. and I.B ... Under section 24 of the Protection of Individuals with Mental Disorders Act the police may, in particularly urgent cases, take a mentally disturbed individual to a psychiatric hospital without prior medical examination, provided there is a reasonable suspicion that the individual poses an immediate threat to his life or health, or the life or health of others ... The events [in the bank] suggest that the police had an obligation to act under section 23 of the Protection of Individuals with Mental Disorders Act and to secure A.N.’s medical examination, after which the doctor could decide whether to take to a psychiatric hospital. But in the particular circumstances police officers M.L. and I.B. could not have been expected to recognise that there was any particular urgency or that A.N. should be taken to a psychiatric hospital without prior medical examination ... The omission of police officer [M.T.] to inform the hospital about A.N.’s behaviour is an irregularity in the performance of his official duties. However, the dispute between the parties is whether there is a causal link between this irregularity and the event ... Even if M.T. had informed the hospital at 8.15 a.m., it is doubtful whether the doctor would have carried out an examination because at that time he had not known where A.N. was. It follows that at the time A.N. was no longer available to the police and according to the evidence [submitted by] F.S. was in the bank sometime between 8.30 and 9 a.m. There is therefore no causal link between the incidents and the omissions of police officer M.T ... “ 73. The first, second and third applicants and K.B. lodged an appeal against the above judgment with the Virovitica County Court, arguing that the State authorities had failed to prevent the killing of their relative, and that in accordance with the relevant domestic law they should have been awarded damages. 74. On 7 May 2009 the Virovitica County Court dismissed the applicants’ appeal and upheld the first-instance judgment. It held, however, that the first-instance court had erred in concluding that at 8.30 a.m. the police had not known A.N.’s whereabouts, because around that time the police had interviewed him at his home. In any event, the police could have informed the hospital immediately after 7.15 a.m. when they had received the call from the bank. Nevertheless, the court held that the police had done everything they could and that it could not be concluded that only intervention by the doctor in the first few hours after the information had been received from the bank would have prevented the incidents. The court also found that, irrespective of A.N.’s violent background and the indications that he was mentally disturbed, he had not acted violently on the day of the incidents or the day before. It was true that police officers M.L. and I.B. had omitted to examine A.N. under section 49 of the Police Act, but he had not been behaving violently, so that omission could not be characterised as an irregularity in their work. Moreover, it was not certain whether A.N. had a gun at the time and therefore it was in doubt whether such a police search could have prevented the incidents. 75. On 29 June 2009 the first, second and third applicants and K.B. lodged an appeal on points of law against the above judgment before the Supreme Court (Vrhovni sud Republike Hrvatske). 76. On 11 May 2011 the Supreme Court dismissed the appeal on points of law as ill-founded and upheld the Virovitica County Court’s judgment. It found that the lower courts had misinterpreted the relevant domestic law by holding that the liability of the State was based on the principle of fault because it was in fact based on the objective principle. It was thus sufficient to establish that there was unlawful or irregular conduct on the part of the State administration and the causal link to the damage thereby caused. In the case at issue, the Supreme Court held that there had been no causal link between the irregular work of the police officers and the killing of the applicants’ relative. 77. On 5 January 2012 the applicants (including the fourth and fifth applicants, who had taken over the proceedings from K.B. following her death on 14 June 2010) lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) challenging the decisions of the lower courts. 78. On 15 March 2012 the Constitutional Court dismissed the applicants’ constitutional complaint, endorsing the reasoning of the Supreme Court. The decision of the Constitutional Court was served on the applicants’ representative on 27 April 2012.
| 1 |
test
|
001-147025
|
ENG
|
MKD
|
COMMITTEE
| 2,014 |
CASE OF ŠTERJOV AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
|
4. The applicants’ personal details are listed in the appendix below. 5. On 16 March 1982 five people (“the predecessors”), the ninth and the twenty-second applicants initiated civil proceedings for determination of title to plots of land. 6. Between 1984 and 2001 the predecessors died. The first, second, third and fourth applicants stepped in the proceedings on behalf of their late predecessor. The fifth to eighth and the tenth to twenty-first applicants did not step in the proceedings on behalf of their late predecessors. 7. On 12 May 2004 the ninth applicant died. 8. On 23 April 2005 the twenty-second applicant died and his heirs, Mr Stojan Kostov and Mr Mite Kostov, applied to continue the application in his name. 9. On 17 April 2009 the fourth applicant died and her heirs, the second and third applicants, applied to continue the application also in her name. 10. The impugned proceedings, which were reconsidered on one occasion, ended on 31 August 2007 when the final decision of the Štip Court of Appeal was served on the applicants. This decision listed the following as plaintiffs: the first, second, third, fourth, ninth and twenty-second applicants as well as the predecessors of the remaining applicants.
| 1 |
test
|
001-165369
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF SYUSYURA AND OVECHKIN v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
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.
| 1 |
test
|
001-154534
|
ENG
|
UKR
|
COMMITTEE
| 2,015 |
CASE OF IGNATKINA v. UKRAINE
| 4 |
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)
|
André Potocki;Ganna Yudkivska;Vincent A. De Gaetano
|
4. On 17 December 1999 the applicant brought a criminal complaint to the Zhovtnevyy District Police Office of Dnipropetrovsk (“the District Police”) that on 16 December 1999 Z. had beaten her on the street near his office and inside his office. 5. The District Police, having questioned Z., who had denied that he had beaten the applicant, refused to institute criminal investigation into the applicant’s criminal complaint on 22 December 1999. 6. On 18 January and 1 February 2000 the applicant renewed her criminal complaint. 7. On 22 March 2000 the District Police ordered a forensic medical examination of the applicant. The examination revealed that she suffered from head injury, concussion, haemorrhage in the right temporal area, post-traumatic right-side cocleite, haemorrhage on the left and right thighs and the right leg’s shin. The medical experts concluded that these injuries could have been inflicted on her by Z. on 16 December 1999. 8. On 5 April 2000 an investigator of the District Police instituted criminal investigation into the infliction of the bodily injuries on the applicant. 9. On 20, 24 and 29 April, 5 and 10 May 2000 respectively, the investigator questioned: i) Zub., Kyb. and Nos. who had been in Z.’s office on 16 December 1999; ii) St. and Krav. who had been near the office on that date. St. stated that he had seen Z. having beaten the applicant while Krav. stated that she had seen the applicant having been punched by an unknown man on 16 December 1999. 10. On 9 August 2000 the second medical examination of the applicant confirmed findings of the previous examination. 11. On 14 February 2001 the Dnipropetrovsk Prosecutor’s Office informed the District Police that the investigation into the applicant’s beating was ineffective and urged the police to accelerate it. 12. In 2001-2003 the District Police repeatedly questioned the applicant and persons whom it had already questioned earlier. During the same period of time it issued several decisions to suspend the investigation which were all quashed as being unfounded by the higher police department, prosecutors or by a court. 13. On 24 June 2003 the medical examination of the applicant ordered by the District Police revealed that she suffered from closed head injury, concussion, post-traumatic encephalopathy, hearing deterioration and circle vestibular disorder. According to the medical report, these health problems could have been caused by the beating on 16 December 1999. 14. On 17 August 2003 the District Police completed the pre-trial investigation and sent the case to the Zhovtnevyy District Court of Dnipropetrovsk (“the District Court”) for trial. The pre-trial investigation included the examination of thirteen witnesses, four confrontations between the persons involved in the case, one examination of the crime scene and four reconstructions of events. 15. On 6 October 2003 the applicant lodged a civil claim in the criminal proceedings seeking Z. to pay her UAH 5,000 (EUR 787) in compensation for non-pecuniary damage and UAH 5,346.7 (EUR 842) to compensate her for pecuniary damage. 16. On 10 November 2003 the District Court found itself unable to rule on Z.’s guilt based on the material in the case-file and sent the case to the Prosecutor’s Office for additional investigation. The prosecutor referred the case to the District Police instructing it to carry out specified investigative measures. 17. On 11 December 2003 the applicant requested the District Police to order forensic medical examination of her health condition. On 16 December 2003 her request was granted. 18. On 26 December 2003 the Ministry of the Interior informed the applicant that police officer A. of the District Police had been disciplined for having committed a number of procedural violations while investigating her case. 19. On 10 January 2004 the medical examination of the applicant confirmed the conclusions of the previous examinations. 20. On 19 January 2004 the applicant requested another forensic medical examination but she was refused it. 21. On 10 March 2004 the State authorities issued Z. with a passport for travelling abroad. 22. On 9 April 2004 the District Police completed the pre-trial investigation and sent the case to the District Court for trial. 23. On 13 April 2004 the applicant requested the police to carry out additional investigative measures, but this request was refused on the ground that the measures in question had already been performed earlier. 24. On 11 May 2004 the District Court received the criminal case. On 17 May 2004 it decided that further investigation was needed and remitted the case to the District Police. 25. On 1 June 2004 Z. left the country to live on a permanent basis in Germany. 26. On 10 August 2004 investigator A. from the District Police established that Z. had absconded and placed him on a list of wanted persons. The proceedings were suspended until establishing Z.’s whereabouts. 27. On 29 December 2004 the Ministry of the Interior informed the applicant that Z. had been able to leave Ukraine because the District Police had failed to inform migration authorities that Z. was an accused in a criminal case. On 3 February 2005 the Prosecutor’s Office instituted criminal proceedings against State employees who had unlawfully issued Z. with the passport for travelling abroad. 28. In 2005 Ukrainian authorities informed German authorities that Z. had left the country to live in Germany and requested that his whereabouts be established. 29. On 15 May 2005 the Dnipropetrovsk Regional Police Department informed the District Police that the investigation into the applicant’s beating was ineffective. The District Police was ordered to carry out a number of additional investigative actions. 30. In 2005-2008 the District Police questioned the applicant, St., Zub., Kyb., Nos. and Krav. and ordered forensic medical examination of the applicant which established that the injuries inflicted on 16 December 1999 led to her deafness. 31. On 17 January 2008 the Ministry of the Interior informed the applicant that Z.’s whereabouts had been known to the police since 2006, but due to negligence of the District Police his extradition had not been sought. 32. On 26 May 2008 the District Police terminated the criminal proceedings against Z. 33. On 24 June 2008 a prosecutor quashed the above decision as unfounded and sent the case back to the police. 34. On 21 August 2008 the District Police suspended the proceedings against Z. until “establishment of his whereabouts”. 35. On 29 October 2008 the Dnipropetrovsk Regional Prosecutor’s Office quashed that decision noting that the District Police had been aware of Z.’s place of residence, but for unknown reasons had not sought his extradition. 36. On an unspecified date the same office informed the applicant that a district court had ordered Z.’s detention pending trial and that his extradition had not yet been sought because Sh. and V., officers of the District Police, had failed to prepare documents necessary for extradition. 37. On 27 October 2009 the General Prosecutor’s Office of Ukraine requested German authorities to extradite Z. 38. On 25 December 2009 forensic medical experts examined the applicant and established that due to the beating she lost 50 % of her working capacity. From December 1999 she had been periodically not fit for work and from 2004 onwards – permanently not fit for work. 39. On 22 June 2010 Z. was extradited to Ukraine. On 2 July 2010 he gave undertaking not to abscond. 40. On 21 January 2011 the pre-trial investigation into the applicant’s beating on 16 December 1999 was completed and the case was sent to the District Court for trial. 41. On 31 January 2011 the applicant modified her civil claim seeking to be paid UAH 400,000 (EUR 36,226) in compensation for non-pecuniary damage. 42. On 16 February 2011 the trial was postponed until 4 March 2011 because of the applicant’s request concerning recording of the hearings. 43. On 27 January, 6, 14, 23 February and 6 March 2012 the court adjourned the hearings due to the applicant’s absence. 44. On 4 April 2012 the applicant again modified her civil claim seeking to be paid UAH 550,000 (EUR 50,686) in compensation for non-pecuniary damage. 45. In a judgment of 14 May 2012 the District Court convicted Z. of having inflicted serious bodily injuries on the applicant and sentenced him to three years’ imprisonment. It also ordered Z. to pay the applicant UAH 50,000 (EUR 4,745) and UAH 5,346.7 (EUR 5,346) respectively, in compensation for non-pecuniary and pecuniary damage. 46. On 19 July 2012 the Dnipropetrovsk Regional Court of Appeal quashed the first instance judgment and remitted the criminal case for additional investigation to the Prosecutor’s Office. The court noted, in particular, that the District Police had failed to assess all the relevant facts of the case and that the length of the pre-trial investigation was excessive. 47. On 7 November 2012 the Prosecutor’s Office noted that the District Police had committed serious violations of procedural law while investigating the applicant’s beating. The prosecutor ordered the head of the District Police to conduct an internal investigation into this matter and punish those who were responsible. 48. On 8 November 2012 the head of the District Police disciplinarily punished investigators Sh. and T. for the excessive length of the investigation and numerous procedural violations. 49. On 14 November 2012 the pre-trial investigation was again completed. 50. On 19 November 2012 the District Court received the criminal case against Z. for consideration on the merits. 51. On 12 December 2012 it terminated the criminal proceedings against Z. as time-barred. On 31 January 2013 the Dnipropetrovsk Regional Court of Appeal upheld this judgment. 52. On 5 September 2013 the Higher Specialized Court quashed the lower court’s judgments and remitted the case to the District Court for a fresh consideration. It noted that the prosecution was not time-barred and the case had to be examined on its merits. 53. On 17 September 2013 the District Court received the criminal case. 54. On 17 October 2013 it discovered that Z. had absconded, placed him on the list of wanted persons and suspended the proceedings until establishing his whereabouts. 55. The proceedings have remained suspended.
| 1 |
test
|
001-161061
|
ENG
|
HRV
|
CHAMBER
| 2,016 |
CASE OF PAJIĆ v. CROATIA
| 3 |
Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
|
6. The applicant was born in 1973 and lives in Brčko, Bosnia and Herzegovina. 7. On 29 December 2011 the applicant lodged a request for a residence permit in Croatia on the grounds of family reunification with her partner, Ms D.B., who was living in Sisak. She submitted that she had been educated in Croatia and that she had lived in Zagreb for seventeen years. She also explained that she wanted to live with D.B., with whom she had been in a relationship for two years, and with whom she wanted to establish a household and start a business. 8. By a letter dated 28 December 2011 D.B. stated that she owned a house in Sisak where she wanted to live with the applicant. She explained that she had been in a relationship with the applicant for two years and that they wanted to live together so as to avoid constant travelling and the distance between them. 9. During the proceedings the Sisak Police Department (Policijska uprava Sisačko-moslovačka) found that the applicant and D.B. had been in a relationship since October 2009 and that in order to maintain their relationship they had been travelling to see each other. It was also established that the applicant had recently stayed with D.B. in the period between 16 September and 4 December 2011. 10. On 24 February 2012 the Sisak Police Department dismissed the applicant’s request with a summary reasoning indicating that all the relevant requirements under the Aliens Act had not been met. 11. The applicant appealed against that decision to the Ministry of the Interior (Ministarstvo unutarnjih poslova; hereinafter: the “Ministry”), arguing that it could be inferred from the decision of the Sisak Police Department that her request had been dismissed because the Aliens Act did not allow family reunification for same-sex couples. She considered that there had been no grounds for a difference in treatment based on sexual orientation and that the relevant law should not be construed in a manner that allowed for such a possibility. She relied, inter alia, on the Constitution and the Prohibition of Discrimination Act, arguing that even if she was not to be considered as D.B.’s “immediate family member”, within the meaning of the Aliens Act, she should in any case be considered as her “other relative” within the meaning of that Act. 12. On 8 June 2012 the Ministry dismissed the applicant’s appeal and upheld the decision of the Sisak Police Department. The relevant part of the Ministry’s decision reads: “Concerning the family reunification, based on which the request for the regularisation of the status of an alien in Croatia has been submitted in the case at issue, [it is to be noted that] the case file shows that the appellant relies on the existence of a same-sex relationship with the Croatian national D.B., which has allegedly lasted for two years ... The impugned decision shows that the [first-instance body], other than citing the [relevant] provisions of the Aliens Act, also cited section 3 of the Family Act, according to which the effects of an extramarital relationship, that is to say the rights and obligations following from its existence, relate to a union between an unmarried woman and man which has lasted for at least three years, or less if a child was born of [the union]; and section 2 of the Same-Sex Union Act ... which defines a same-sex union as a union between two persons of the same sex (partners) who are not married, or in an extramarital relationship or other same-sex union, which has lasted for at least three years and which is based on the principles of equality of partners, mutual respect and assistance as well as the emotional bonds of partners. ... It follows that the [Same-Sex Union] Act does not define a same-sex union as a family and the Family Act does not cover same-sex unions. It should also be taken into account that the provisions of the Aliens Act concerning temporary residence for family reunification do not provide for a possibility of regularisation of the status of an alien on the grounds of [the existence of] a same-sex union, nor does such a union fall within the scope of [the term] ‘immediate family member’ incorporated in that Act, which makes it clear that there is no legal ground for granting the request of the appellant. Therefore, the appellant wrongly considers that the first-instance body should have applied section 56 § 4 of the Aliens Act in her case ... because that provision clearly provides that exceptionally to the provision defining immediate family members, ‘other relative’ could be so considered if there are specific personal or serious humanitarian reasons for a family reunification in Croatia.” 13. On 24 July 2012 the applicant lodged an administrative action with the Zagreb Administrative Court (Upravni sud u Zagrebu), arguing that she had been discriminated against in comparison to different-sex couples who had a possibility to seek family reunification under the Aliens Act. She relied on the domestic anti-discrimination legislation, including the Prohibition of Discrimination Act, as well as the Convention and the Court’s case-law. 14. The Zagreb Administrative Court dismissed the applicant’s action on 30 January 2013. The relevant part of the judgment provides: “The cited section 56 § 3(1) and (2) of the Aliens Act provides that the immediate family members are spouses or persons who live in an extramarital relationship in accordance with Croatian legislation. The cited sections 3 and 5 of the Family Act show that marriage and extramarital relationship are unions between a man and a woman. Thus, union between two same-sex persons cannot be considered under the relevant legal provisions as marriage or an extramarital relationship. Union between two same-sex persons can be considered under the legal term same-sex union under the conditions provided for in section 2 of the Same-Sex Union Act. However, given the limited legal effects of a same-sex union, the possible existence of such a union does not represent a basis for family reunification. It should be noted that section 56 of the [Aliens] Act explicitly enumerates persons who are to be considered immediate family members or who are to be exceptionally considered [so], which leads to a conclusion that it cannot be extended to cover persons living in a same-sex union. Accordingly, the granting of a request for temporary residence of an alien on the grounds of family reunification depends on the satisfaction of the requirements under sections 52 and 56 of the Aliens Act. In the case at issue the plaintiff is neither married nor in an extramarital relationship with the Croatian national D.B., which is not in dispute between the parties. It therefore follows that the plaintiff cannot be considered an immediate family member within the meaning of section 56 § 1(1) and (2) of the [Aliens] Act and thus she did not justify the purpose (in the concrete case: family reunification) for which a temporary residence of an alien in Croatia can be granted ... In view of the cited legal provisions, and the facts of the case, this court finds that in the concrete case it was not possible to grant the plaintiff’s request.” 15. On 8 March 2013 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), contending that she had been discriminated against on the basis of her sexual orientation. She relied on the Convention and the relevant domestic anti-discrimination legislation, and she cited the Court’s case-law on the question of discrimination related to sexual orientation. 16. On 29 May 2013 the Constitutional Court dismissed the applicant’s constitutional complaint, endorsing the reasoning of the lower bodies. The relevant part of the decision reads: “8. The Constitutional Court reiterates that discrimination under Article 14 of the Constitution does not have an independent standing for a constitutional complaint but must be submitted in conjunction with another (substantive) constitutional right. Discrimination means difference in the treatment of persons in the same or relevantly similar situations without an objective and reasonable justification. Article 14 of the Constitution contains constitutional guarantee against discrimination on any ground in securing a concrete right. Although the appellant relied in her constitutional complaint in Article 35 of the Constitution and the related Article 8 of the Convention, the Constitutional Court finds that these provisions are not applicable in the case at issue. 8.1. In the proceedings before it, the Constitutional Court did not find facts or circumstances which would suggest that in the proceedings before [the lower bodies] the appellant was discriminated against on any ground ... Thus her complaint of a violation of Article 14 § 1 of the Constitution, the Constitutional Court finds unfounded. 8.2. The Constitutional Court also notes that the appellant, in the concrete case, did not show that she has used the legal avenue under the Prohibition of Discrimination Act ... There has therefore been no violation of her constitutional right under Article 14 §§ 1 and 2 of the Constitution. 9. The case-law of the European Court cited in the constitutional complaint is of no relevance for the case at issue since it relates to cases concerning health insurance and inheritance of tenancy rights by same-sex partners living in a stable (de facto) relationship.”
| 1 |
test
|
001-173308
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,017 |
R.S. v. GERMANY
| 4 |
Inadmissible
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Síofra O’Leary;Yonko Grozev
|
1. The applicant, Mr R.S., is a German national who was born in 1979 and lives in Berlin. He was represented before the Court by Mr M. Manzel, a lawyer practising in Berlin. 3. The applicant was a soldier in the German armed forces from 1 March 2001 until 28 February 2013. On the first day of his service, he was formally instructed that, pursuant to the pertinent internal regulation of the armed forces, the consumption of drugs was prohibited both on duty and off duty and was subject to disciplinary sanctions (see paragraph 25 below). From July 2002 until March 2009, the applicant consumed cannabis in his spare time on several occasions. 4. After another soldier had informed the applicant’s disciplinary superior (Disziplinarvorgesetzter) about this, the latter confronted the applicant with the accusation on 20 March 2009. The applicant denied having consumed drugs and agreed to have a rapid drug test carried out that same day. As the test turned out to be positive, the applicant was questioned a second time. The disciplinary superior informed the applicant of his right to remain silent by virtue of Section 32 of the Disciplinary Code of the German Armed Forces (see paragraph 26 below), but did not tell him about the possibility of contacting a lawyer, as this right was not laid down in the said provision. The disciplinary superior also told the applicant that, if he chose not to remain silent, he was obliged to make true statements under the Disciplinary Code. The applicant then confessed to having consumed cannabis. 5. On 26 March 2009 the disciplinary superior informed the Public Prosecutor, who launched preliminary criminal proceedings against the applicant. On 30 June 2009 these proceedings were discontinued because the applicant’s guilt was considered to be of a minor nature and because prosecution was not in the public interest. 6. On 26 March 2009 the applicant’s disciplinary superior informed the Prosecutor of the armed forces (Wehrdisziplinaranwalt) that he had referred the matter to the Public Prosecutor. On 21 April 2009, in an internal document, the Prosecutor of the armed forces ordered a preliminary investigation. 7. On 22 April 2009 the applicant, of his own motion, went to see the deputy of the disciplinary superior. He again admitted to having consumed cannabis. 8. Following the applicant’s second confession, his disciplinary superior advised him to see the Vertrauensperson (“person of confidence”, see paragraph 27 below) so as to give him the opportunity to convince the latter to make a statement that was favourable to him. The disciplinary superior informed the applicant of his right to object to the Vertrauensperson being part of the proceedings. As the applicant did not object, the disciplinary superior also asked the Vertrauensperson to talk to the applicant. Shortly after, the applicant went to see the Vertrauensperson and told him about the background of his drug consumption. 9. On 28 April 2009, after the Prosecutor of the armed forces had asked the disciplinary superior to do so, the applicant was informed for the first time of his right to contact a lawyer. He was also asked whether he agreed to the Vertrauensperson being given access to the file. The applicant gave his consent without asking a lawyer for advice. 10. On 11 May 2009 the applicant was formally questioned for the first time. He remained silent. The same day, the Vertrauensperson was questioned and gave evidence about the applicant’s statements during their conversation, as the applicant had not objected to the Vertrauensperson being heard (see paragraph 27 below). 11. On 27 May 2009 disciplinary court proceedings against the applicant were opened. This decision was served on the applicant on 8 June 2009. 12. On 7 October 2009 the Prosecutor of the armed forces charged the applicant with the disciplinary offence of having breached his duties with intent by regularly consuming cannabis from 2002 to 2009. 13. On 29 July 2010 the Northern Military Court found the applicant guilty of a disciplinary offence pursuant to Section 23 § 1 of the Act on the Legal Status of Soldiers (see paragraph 25 below). It ordered that the applicant be banned from promotion for the next thirty months and that his salary be cut by a twentieth (i.e. five per cent) for a period of ten months. It considered the pecuniary fine to be necessary for educational reasons, as the applicant had no realistic prospect of promotion (see paragraph 25 below). 14. In the proceedings before the Military Court, the applicant remained silent. The court, therefore, based its findings on the result of the drug test and, mainly, on statements made by the applicant’s disciplinary superior. Emphasising the difference between criminal proceedings and disciplinary proceedings, it considered that admitting these pieces of evidence did not violate the applicant’s right to a fair trial. It pointed out that, when the applicant had first confessed his drug consumption to his disciplinary superior on 20 March 2009, after the latter had informed him about his right to remain silent, the proceedings were at the stage of a disciplinary investigation by a soldier’s disciplinary superior; the Prosecutor of the armed forces had not yet opened a preliminary investigation. It considered that a soldier only had to be informed of his right to contact a lawyer once the latter proceedings were opened. Hence, the evidence obtained from the applicant’s first confession of 20 March 2009 could be admitted (see paragraph 4 above). However, the applicant’s second confession of 22 April 2009 (see paragraph 7 above) could not be admitted as evidence because the prosecutor of the armed forces had ordered the initiation of a preliminary investigation prior to that date, which was why the applicant had to be informed of his right to contact a lawyer. 15. On 28 June 2012, the Federal Administrative Court rejected the applicant’s appeal against the decision of the Northern Military Court. It found that neither the applicant’s first confession of 20 March 2009 nor his second confession of 22 April 2009, nor the statements by his disciplinary superior, respectively the superior’s deputy – to whom he had confessed on those occasions – could be admitted as evidence, because the applicant had not been informed of his right to contact a lawyer in advance. The court reasoned that such instruction, which was not required for minor disciplinary measures imposed by the disciplinary superior himself, was always required for evidence to be admitted in disciplinary court proceedings so as to ensure the fairness of the latter. 16. However, the court considered that the finding that the applicant had consumed cannabis in his spare time, in breach of his duties as a soldier, could be based on three pieces of evidence. First, the statement of a witness who had known about the applicant’s drug consumption prior to the commencement of any proceedings. Second, the drug test to which the applicant had agreed after the initial questioning by his disciplinary superior on 20 March 2009. The court noted, however, that the examining physician had indicated that the positive result could also have been caused by passive smoking of cannabis and was not in itself sufficient to prove the applicant’s cannabis consumption. Third, the statement of the Vertrauensperson about the conversation he had had with the applicant. 17. The court found that he did not have a right to refuse to give testimony. The Vertrauensperson did not belong to the persons listed in either Section 53 or Section 53a of the Code of Criminal Procedure (see paragraph 28 below) who could refuse testimony on professional grounds. It was constant case-law of the domestic courts that this provision did not extend to employee representatives or staff council members, and there was no reason to treat the Vertrauensperson more favourably than those persons. A right to refuse testimony did not follow from Section 54 of the Code of Criminal Procedure (see paragraph 28 below) either, as the pertinent internal regulations of the armed forces authorised the Vertrauensperson to testify before Military Courts. 18. The Federal Administrative Court further found that hearing the Vertrauensperson as a witness did not violate Article 136a of the Code of Criminal Procedure (see paragraph 28 below). The fact that the applicant’s disciplinary superior had advised him to contact the Vertrauensperson did not amount to “deception” within the meaning of Article 136a. When giving this advice, the disciplinary superior had not been aware of the fact that the Vertrauensperson might be heard as a witness in court proceedings against the applicant and had no intention of deceiving the applicant as to the lack of confidentiality of his statements to the Vertrauensperson. No pressure had been exerted on the applicant to confess his drug consumption to the Vertrauensperson. Referring to Section 27 of the Participation of Soldiers Act (see paragraph 27 below), the court took into account that the role of the Vertrauensperson in disciplinary proceedings was a neutral one and not comparable to a defence lawyer acting on behalf of the accused soldier. The intention behind advising the applicant to talk to the Vertrauensperson was, thus, to give him the opportunity to convince the Vertrauensperson to make a statement that was favourable to him. 19. Moreover, Section 8 of the Participation of Soldiers Act did not prevent hearing the Vertrauensperson as a witness. Noting that the provision obliged him to observe professional secrecy vis-à-vis third parties and that the German legislator, as a rule, distinguished between the obligation to observe secrecy and the right to refuse testimony, the Federal Administrative Court observed that courts were not a third party within the meaning of that provision, which, in addition, did not contain a right to refuse testimony. The term “Vertrauensperson” could not lead to a different result. This formulation reflected the fact that he was elected by the soldiers, hence he had the confidence of the majority of voters, and was entrusted with the task of representing their interests. This did not imply that soldiers accused of wrongdoing could rely, without restriction, on the Vertrauensperson to remain silent in proceedings of which he was made part. Rather, Section 27 § 2 of the Participation of Soldiers Act showed that the Vertrauensperson had an independent role in disciplinary court proceedings and his task was to provide the perspective of a fellow soldier, so as to allow for an informed exercise of discretion. The interests of the accused soldier were sufficiently protected by his right to object to the participation of the Vertrauensperson in the disciplinary court proceedings prior to their opening. Sections 8 and 27 § 2 of the Participation of Soldiers Act did not give the accused soldier the right to object, at a later stage, to the Vertrauensperson being heard with retroactive effect. 20. Furthermore, the Federal Administrative Court found that admitting the statement of the Vertrauensperson as evidence did not violate constitutional law. The applicant’s right to protection of personality rights and his right to a fair trial had not been violated because, although advised to do so by his disciplinary superior, he had freely chosen to inform the Vertrauensperson about his drug consumption. He had also been aware that he was not legally obliged to talk to the Vertrauensperson. Moreover, neither his disciplinary superior nor the Vertrauensperson had told the applicant that the Vertrauensperson would treat the information as confidential. On the contrary, the applicant had repeatedly been asked whether he objected to the Vertrauensperson being part of the disciplinary proceedings and had decided not to object. He could thus not rely on the content of his statements made to the Vertrauensperson remaining confidential. 21. The court noted that, prior to making his statement to the Vertrauensperson, the applicant had already confessed his drug consumption to his disciplinary superior and the superior’s deputy without having been instructed about his right to consult a lawyer. It acknowledged that the applicant may thus have decided to talk to the Vertrauensperson because he was under the impression that he could no longer undo his earlier selfincriminatory statements. The Vertrauensperson did not instruct him that none of his earlier confessions could be used as evidence against him (so-called “qualified instruction”). However, the conversation the applicant had had with the Vertrauensperson could not be compared to a situation of questioning an accused, for its purpose was not to further the investigation of the matter. As the Vertrauensperson was, therefore, not obliged to instruct the applicant that he could be heard as a witness in the court proceedings, he was even less obliged to provide a qualified instruction to the applicant. 22. Finally, the Federal Administrative Court found that admitting the statement of the Vertrauensperson as evidence did not violate the applicant’s right to a fair trial guaranteed by Article 6 of the Convention, noting that it could be left open whether the disciplinary proceedings at issue fell under the criminal or under the civil limb of the provision. Noting that Article 6 of the Convention did not lay down any rules on the admissibility of evidence as such, which was therefore primarily a matter for regulation under national law, the question which had to be answered was whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. Referring to, inter alia, the judgment in the case of Bykov v. Russia [GC] (no. 4378/02, § 92, 10 March 2009), it pointed out that the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures, and the use to which any material so obtained was put had to be assessed when examining whether a procedure had extinguished the very essence of the privilege against selfincrimination. The applicant had talked to the Vertrauensperson voluntarily, his confession had not been elicited through subterfuge and there were no elements of oppression or coercion. The court also noted that the applicant could raise his arguments as to why the statement of the Vertrauensperson should not be admitted as evidence before domestic courts and that he could question him in person at the appeal hearing. Emphasising that the statement of the Vertrauensperson was not the only piece of evidence used and that all three pieces of evidence used were consistent with each other, it concluded that the proceedings, taken as a whole, were not unfair. 23. On 30 July 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. 24. On 15 October 2014 the Federal Constitutional Court declined to consider the applicant’s complaint, without giving reasons. The decision was served on the applicant on 23 October 2014. 25. Section 23 § 1 of the Act on the Legal Status of Soldiers (Gesetz über die Rechtsstellung der Soldaten) provided that a culpable breach of a soldier’s duties constituted a disciplinary offence. Pursuant to the internal regulation of the German Armed Forces (Zentrale Dienstvorschrift) 10/5, no. 404, the consumption of drugs was prohibited both on duty and off duty and was subject to disciplinary sanctions. According to the constant caselaw of the domestic courts, the consumption of drugs would normally be sanctioned by a promotion ban or, in severe cases, by a demotion (see Federal Administrative Court, 2 WD 44/09, judgment of 12 October 2010). Pursuant to Section 58 § 4 of the Disciplinary Code of the German Armed Forces (Wehrdisziplinarordnung), a salary cut may be imposed in addition to a promotion ban, if it appeared that the promotion ban did not have an impact on the soldier’s career in the armed forces. 26. Section 32 of the Disciplinary Code of the German Armed Forces provided that, where facts become known that justified the suspicion of a soldier’s breach of duty, the disciplinary superior of that soldier had to establish the facts by conducting the necessary investigations. The soldier was to be informed about the investigation as soon as possible without putting the purpose of the investigation at risk, and had to be informed at the beginning of the first questioning of which breaches of duty he was accused. At the same time, he had to be advised that he was free to remain silent. If he chose to speak, he had to give a truthful account in relation to official matters. If the instruction required was omitted or not properly given, the statement given by the soldier could not be used to his detriment. In cases warranting the opening of disciplinary court proceedings, the disciplinary superior had to refer the matter to the Prosecutor of the armed forces (Section 41). Pursuant to Section 91 § 1 of the same Code, the provisions of the Code of Criminal Procedure were to be applied to disciplinary court proceedings in addition to the provisions of the Disciplinary Code, unless the nature of the proceedings was opposed to this. 27. The status of the Vertrauensperson, including the mode of his designation, his competencies and powers, and his role within the hierarchy, were laid down in the Participation of Soldiers Act (Soldatenbeteiligungsgesetz). At the material time, that Act, which has since been amended, provided that the Vertrauensperson was elected by groups of soldiers for a period of two years. He was tasked with contributing to the good cooperation between superiors and subordinates and the consolidation of comradely trust. He closely cooperated with the disciplinary superior, both in the interests of the soldiers and those of the armed forces. The Vertrauensperson had to be informed and heard with regard to measures falling within the scope of his mandate and, in certain scenarios, had a right to make suggestions to the disciplinary superior. He had to be heard with regard to day-to-day matters of service and should be heard on a variety of matters concerning staff. Where no agreement could be reached, it was possible to refer certain matters to a more senior level within the hierarchy. The Vertrauensperson was also concerned with staff welfare and offered counselling sessions to fellow soldiers as needed. At the material time, Section 8 § 1, which has since been changed, provided that the Vertrauensperson had to observe professional secrecy vis-à-vis third parties in relation to facts and matters he learned about in the exercise of his functions. Section 27 § 2 provided, at the time, that the Vertrauensperson had to be heard about the soldier concerned and the facts at issue where the opening of court proceedings against a soldier for a disciplinary offence was intended, unless the soldier objected to such hearing. That hearing served the purpose to ensure that the soldier’s interests were taken into account prior to a decision being taken on the opening of court proceedings against him (see Federal Administrative Court, 2 WDB 1/98, decision of 31 August 1998). Section 27 § 4 stated that a transcript of that hearing had to be recorded. 28. The pertinent provisions of the Code of Criminal Procedure read, in so far as relevant, as follows: Section 53 [Right to Refuse Testimony on Professional Grounds] “(1) The following persons may also refuse to testify: 1. clergymen, concerning information that was entrusted to them or became known to them in their capacity as spiritual advisers; 2. defence counsel of the accused, concerning information that was entrusted to them or became known to them in this capacity; 3. attorneys, patent attorneys, notaries, certified public accountants, sworn auditors, tax consultants and tax representatives, doctors, dentists, psychological psychotherapists, psychotherapists specialising in the treatment of children and juveniles, pharmacists and midwives, concerning information that was entrusted to them or became known to them in this capacity. ... 3b. drugs dependency counsellors in a counselling agency recognised or set up by an authority, a body, an institution or a foundation under public law, concerning the information that was entrusted to them or became known to them in this capacity; ... Section 53a [Right of Professional Assistants to Refuse Testimony] (1) Persons assisting, and persons involved in the professional activities of those listed in Section 53 subsection (1), numbers 1 to 4, as part of their training, shall be considered equivalent to such persons. ... Section 54 [Authorisation for Judges and Officials to Testify] (1) The special provisions of the law concerning public officials shall apply to the examination of judges, officials, and other persons in the public service as witnesses concerning circumstances covered by their official obligation of secrecy, as well as to permission to testify. ... Section 136a [Prohibited Methods of Examination] (1) The accused’s freedom to make up his mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis. ... (3) The prohibition under subsections (1) and (2) shall apply irrespective of the accused’s consent. Statements which were obtained in breach of this prohibition shall not be used, even if the accused consents to their use.”
| 0 |
test
|
001-159199
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF IVKO v. RUSSIA
| 3 |
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra
|
6. The applicant was born in 1973 and until his arrest lived in the town of Volzhskiy, Volgograd Region. 7. On 16 October 2007 the applicant was arrested on suspicion of attempted drug trafficking and placed in custody. He remained in detention throughout the investigation and trial. 8. On 28 May 2008 the Volzhsk Town Court (“the Town Court”) convicted the applicant of attempted drug trafficking and sentenced him to six years’ imprisonment in a high-security correctional colony. The court noted that the term of the applicant’s detention was to be calculated with effect from the date of his arrest on 16 October 2007. 9. On 9 September 2008 the Volgograd Regional Court upheld the sentence on appeal. It mentioned, inter alia, that at the time of the hearing the applicant was detained in temporary detention facility no. IZ-34/5 in the town of Leninsk in the Volgograd Region. 10. The applicant asked the Presidium of the Volgograd Regional Court to re-examine his case by way of a supervisory review. In February and March 2009 the applicant submitted additional observations to the Presidium, which were dispatched from facility no. IZ-34/5. The application for supervisory review was rejected. 11. The applicant’s request for a re-examination of his case by way of a supervisory review was, however, granted by the Supreme Court of Russia, which on 13 January 2010 reduced the applicant’s sentence to five years and six months’ imprisonment. 12. Having served his sentence in full, the applicant was released from detention on 15 May 2013. 13. On 15 July 2013 the applicant was arrested on suspicion of another episode of attempted drug trafficking. 14. On 27 September 2013 the Town Court convicted the applicant of attempted drug trafficking and sentenced him to three years’ imprisonment in a high-security correctional colony. 15. On 11 October 2014 the applicant died in detention. 16. The applicant and the Government offered different versions of the applicant’s detention and treatment in the temporary detention facility. 17. According to the applicant, from 18 October 2007 to 27 June 2009 he was detained mostly in facility no. IZ-34/5. His letters to the Court dated 13 May and 7 December 2008 and 26 August 2009 were dispatched from that facility. A letter from the Court dated 8 June 2009 was sent to and received by the applicant in the same facility. 18. The applicant also submitted that on several occasions he had been transported to court hearings and to penal medical institution no. LIU-15 in Volgograd (“institution no. LIU-15”) and that he had spent very short periods, in transit, in temporary detention facility no. IZ-34/1 of the town of Volgograd. In particular, the applicant had been sent to institution no. LIU15 in 2008, where he had undergone successful treatment for tuberculosis. A chest X-ray examination on 14 January 2008 indicated that his tuberculosis had been cured, although extensive calcification and fibrosis remained in his lungs. On 17 January 2008 a medical commission confirmed his recovery. The applicant was prescribed anti-relapse treatment, but this was never provided to him after his return to the temporary detention facility. 19. The applicant filed a number of complaints ‒ for instance with the Prosecutor’s Office of the Volgograd Region ‒ arguing that he had not been afforded adequate medical treatment in facility no. IZ-34/5. On 31 March 2008 the Prosecutor’s Office re-directed the applicant’s claim to the Federal Service for the Execution of Sentences in the Volgograd Region. A month later the authorities rejected the applicant’s claim as ill-founded. They confirmed that from 18 October 2007 he had been detained in facility no. IZ-34/5. Referring to the decision of the medical commission on 17 January 2008, the authorities held that the applicant’s tuberculosis had been fully cured. 20. The Government, relying on a certificate issued on 18 December 2013 by the head of facility no. IZ-34/1, asserted that from 15 July 2007 to 22 October 2009 the applicant had been detained in that facility. In their observations of 31 January 2014, however, the Government mentioned the applicant’s detention in facility no. IZ-34/5, but did not provide any further details. 21. Despite the Court’s request for the applicant’s entire medical file, the Government submitted no medical documents dating from the period after his arrest and up until 29 October 2009. They merely noted that the applicant had contracted hepatitis C and tuberculosis before his arrest. The applicant did not dispute that submission. 22. On 27 June 2009 the applicant was transferred to correctional colony no. IK-154/9 of the Volgograd Region. 23. According to the applicant, the medical service in the colony was very poor. The colony did not employ a tuberculosis specialist and the detainees’ access to drugs, which were often out of stock, was limited. The applicant only received basic anti-fever medication. 24. The Government did not provide any information regarding the medical assistance afforded to the applicant in colony no. IK-154/9 and did not submit his medical record or any medical certificates from his time there. 25. On 29 October 2012, after the applicant complained of coughing up blood, he was transferred to institution no. LIU-15. 26. The Government provided the Court with copies of the applicant’s medical documents for the period 29 October 2012 to 15 May 2013. 27. The medical records show that on admission to institution no. LIU15 the applicant had undergone a general medical examination, a chest X-ray examination and a clinical blood test. A sputum culture test was performed the next day. The applicant was diagnosed with recurrent smear-positive infiltrative tuberculosis of the upper lobe of his left lung at the stage of lung tissue destruction caused by mycobacterium tuberculosis (“MBT”). He was prescribed protiocomb, a complex medicine containing protionamide, pyrazinamide, ethambutol hydrochloride, lomefloxacin hydrochloride and vitamin B6. 28. On 6 November 2012 the applicant was tested for HIV, syphilis, hepatitis B and C. The test confirmed his hepatitis C infection, but no antibodies associated with the other infections were found. 29. A week later the applicant again underwent a chest X-ray examination. It revealed that the cavity in the lung had decreased in size, and some negative changes in the lung tissues had progressed further. 30. On 20 November 2012 the applicant was examined by a doctor, who noted in the “epicrisis” (medical report issued on the applicant’s discharge) that no significant changes in the applicant’s health had occurred and prescribed continued treatment with protiocomb and ciprofloxacin, an antibiotic used to treat a number of bacterial infections. 31. On 1 December 2012 the applicant’s treatment was modified. He was prescribed a combination of anti-tuberculosis drugs and injections. A chest X-ray examination on 19 December 2012 showed no changes in the applicant’s lungs. 32. The applicant sent an application to the Dzerzhinskiy District Court of the town of Volgograd seeking early release on medical grounds. That request was dismissed on 27 December 2012 upon the court’s finding that the applicant’s state of health did not warrant his release from detention. 33. In February 2013 the applicant’s blood was twice taken for testing and his liver function was tested for the first time. On three further occasions in the same month the institution carried out a sputum culture test and also performed the first drug susceptibility test. The test was smear-positive. It revealed that the MBT was resistant to streptomycin. On 13 and 19 February 2013 the applicant underwent a chest X-ray examination and a tomography examination. They showed no changes. The treatment regimen was modified. The applicant was prescribed, among other medicines, pyrazinamide, ethambutol, prothionamide, cycloserine, rifampicin and isoniazid. 34. As follows from the epicrisis of 27 February 2013 and a “regime violation record” dated 6 March 2013 signed by two deputy heads of institution no. LIU-15 and the head of the detention ward, the applicant refused to take the drugs pyrazinamide, ethambutol, prothionamide and cycloserine ‒ citing their adverse effects on his health through inducing negative development of his hepatitis C ‒ and claiming that doctors should first treat his hepatitis. According to the same record, the applicant also refused to give a written explanation of the reasons for his refusal. 35. On 15 March 2013 the applicant’s X-ray examination established increased infiltration of the left lung tissue. According to a medical certificate dated 20 March 2013, his health had deteriorated due to his consistent refusal to take the prescribed medicines. 36. According to an extract from the applicant’s medical history, on an unspecified date he agreed to take isoniazid, rifampicin and capreomycin on condition that he would be provided with hepatoprotectors. 37. On 15 May 2013 the applicant was released from detention with a diagnosis of infiltrative contagious tuberculosis of the left lung at the stage of lung tissue destruction. 38. From 27 May to 15 July 2013 the applicant received in-patient medical treatment in a civilian anti-tuberculosis hospital, where he was diagnosed with active chronic fibrous-cavernous pulmonary tuberculosis at the stage of infiltration with bacilli emission, as well as hepatitis C. There is no information in the Court’s possession concerning the details of the applicant’s treatment during that period. 39. The parties did not provide the Court with any information about the applicant’s detention and treatment after his renewed arrest on 15 July 2013. The applicant’s letters to Ms Yusupova submitted to the Court indicate that between 16 July and 21 October 2013 he was detained in facilities nos. 34/5 and 34/1, that he had no access to medical treatment, and that institution no. LIU-15 had refused to admit him for treatment before his conviction. 40. On 18 October 2013 the applicant underwent a chest X-ray examination which indicated negative changes in his right lung. The volume of his left lung had decreased, its tissue was infiltrated and it contained a number of cavities. 41. Following the fresh conviction, on 21 October 2013 the applicant was admitted to institution no. LIU-15. He was examined by a doctor, who diagnosed him with hepatitis C and MBT positive infiltrative tuberculosis of the left lung at the stage of tissue destruction. The doctor ordered blood, urine, sputum culture and drug susceptibility tests and an electrocardiogram examination. The applicant was prescribed a long list of medicines, including capreomycin, isoniazid, ethambutol and hepatoprotectors. 42. A week later, after the results of the tests had been received, the applicant’s treatment was slightly modifed to include ofloxacin. 43. In the first half of November 2013 the applicant was examined on four occasions by doctors, who recommended continuing the prescribed treatment. 44. On 14 November the applicant’s electrocardiogram examination revealed that he had mitral insufficiency. 45. A medical record drawn up on 14 November 2013 by the applicant’s attending doctor indicated that the applicant had refused to take tuberculosis medicines on that date. The following entries in the applicant’s medical record dated 19, 21, 25, 27 and 29 November do not contain any similar information. The Government did not submit any other document (for instance, a regime violation record) showing that the applicant had refused to continue the treatment. 46. On 6 December 2013 a medical commission examined the applicant and established no significant changes in his condition. The most recent entry in the medical record, made on 16 December 2013, showed no significant development in his health. 47. No further information about the applicant’s treatment was provided after 16 December 2013. 48. The applicant was certified as having second-degree disability on 1 May 2014. 49. A medical panel examined the applicant on 15 August 2014 with the aim of determining whether his state of health warranted early release. The panel stated that the applicant was suffering from multi-drug resistant progressive tuberculosis aggravated by cavernosal fibrosis of the lungs and cardiopulmonary decompensation in the third stage. The applicant’s left lung was completely destroyed by the infection. The panel concluded that his state of health could warrant his release on parole. 50. On 11 October 2014 the applicant died from tuberculosis in institution no. LIU-15. 51. The documents from the case-file, including a court judgment, indicate that the applicant was not married. According to certificate no. 35/6/9-Ю-1ГР issued by institution no. LIU-15 on 20 October 2014, when being asked about his relatives, the applicant stated that he had a partner, Ms Yusupova. The authorities noted that statement in the applicant’s personal file and allowed Ms Yusupova to visit him in detention as his de facto wife. By a telegram on 11 October 2014 the authorities informed Ms Yusupova of the applicant’s death, addressing her as his wife. 52. According to Ms Yusupova’s submissions, which were not contested by the Government, she was in a close family-like relationship with the applicant from 2010 until his death in detention. She visited him on many occasions, sent him letters and parcels. In 2013 when the applicant was released from detention they lived together and ran a common household. 53. Ms Yusupova submitted that she had had intense and intimate correspondence with the applicant before his death. She provided the Court with two letters sent to her by the applicant in September 2013 to confirm that they had shared strong feelings for each other. 54. On 11 September 2013 the applicant formally authorised Ms Yusupova to withdraw money from his bank account. In his letter to the Court on 1 March 2014 the applicant expressly asked the Court to award her non-pecuniary damage if he died.
| 1 |
test
|
001-145013
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF KRUPKO AND OTHERS v. RUSSIA
| 3 |
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);Non-pecuniary damage - award
|
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
|
4. The applicants are Jehovah’s Witnesses belonging to various congregations in Moscow. In 2004, the Moscow courts banned the local religious organisation of Jehovah’s Witnesses in Moscow. 5. In early 2006, the applicant Mr Krupko, acting on behalf of the Administrative Centre of Jehovah’s Witnesses, signed a rental contract with the Academy of Agriculture for the purpose of holding religious meetings in the academy’s assembly hall (актовый зал) twice a week. By the time of the events, the meetings had been being held for approximately ten weeks. 6. The most solemn and significant religious meeting for Jehovah’s Witnesses, their families and supporters, known as the annual celebration of the Memorial of the Lord’s Evening Meal, was scheduled to begin at approximately 8 p.m., after sundown on 12 April 2006. Around four hundred people, including the four applicants, gathered for the service. 7. At 8:50 p.m. police officers, led by the chief of the Lyublino police station, arrived in substantial numbers at the building. The building was cordoned off by the police units whose deployment included ten police vehicles, two minibuses, an armed unit of the Special Police Force (OMON) and dozens of other officers in uniform. 8. The police chief went on stage, took over the microphone and announced that the meeting was unlawful and that the participants were to disperse. Those in attendance complied with the order. The police officers segregated the male individuals from the rest of the group and made them stand in the corridor behind the hall. Fourteen male members of the congregation were escorted into the minibuses waiting outside. The police then proceeded to search the premises and took away a few boxes of religious literature and some documents from the notice board. 9. The applicants were brought to the Lyublino police station where they were placed in a holding room and collectively photographed. Their identity documents were taken away. Their lawyer, Mr S., was not allowed to visit them at the police station. 10. The applicants were released shortly after midnight. 11. On the following day, more than twenty press agencies, including a federal television channel, reported on the disruption of the service and the detention of participants. 12. The four applicants brought proceedings before the Lyublinskiy District Court of Moscow, seeking a declaration that the police had unlawfully disrupted a service of worship, removed religious literature, taken them to the police station, photographed and detained them and hindered the work of their counsel. They claimed compensation in respect of non-pecuniary damage. 13. On 15 June 2006 the District Court gave judgment, making the following findings of fact: “It was established that the plaintiff[s] and approximately 400 fellow believers ... had gathered for a service of worship on 12 April 2006 in the assembly hall ... The service was stopped by police officers of the Lyublino police station who declared the meeting illegal and demanded that the hall be vacated. Mr Krupko, Mr Burenkov, Mr Solovyov and Mr Anorov were detained and escorted to the Lyublino police station to give statements. These circumstances, including the curtailment of the religious service ... were confirmed by the representative of [the Lyublino police station]. His arguments that the plaintiffs were not detained, but went of their own accord, are unfounded. The fact of detention is corroborated by the testimonies of witnesses ... the entries in the register of persons detained or escorted to the police station ... which read that the plaintiffs were escorted to the police station [for the reasons contained in] report no. KUS-5172, and the written statements of the detainees. Records of the detention and escorting to the police station were not compiled.” 14. The District Court held that the police had lawfully stopped the service of worship: “Pursuant to section 16 §§ 2 and 5 of the Religions Act ... religious organisations shall conduct religious services ... in religious buildings ... and in other places provided to religious organisations for such purposes ... In other cases, public religious services ... shall be conducted in accordance with the procedure established for conducting meetings, marches and demonstrations. The assembly hall of the Academy of Agriculture ... does not meet the requirements established by the above-mentioned legal provisions for buildings, structures and other places provided for conducting religious rites by religious organisations. That is, since the plaintiffs belong to a religious organisation, the public religious service [they held] in a secular establishment should have been carried out in accordance with the procedure established by the Public Gatherings Act, as provided for by section 16 § 5 of the Religions Act ... As follows from the statements of the plaintiffs, they are not members of the Moscow Community of Jehovah’s Witnesses – the religious organisation whose activity was banned in Moscow by the judgment of the Golovinskiy District Court dated 26 March 2004 – and they exercise their right to freedom of religion ... having united not as a religious organisation but as the Lyublinskaya and Krasnodonskaya religious groups. In light of the above, the court considers that, in accordance with section 7 of the Religions Act, only premises provided for the use of the religious group by its members could be used for conducting services of worship ... The court considers that the actions of the police officers in stopping the religious ritual in the building of the Academy of Agriculture ... in which around 400 people were participating, without having observed the [notification] procedure for conducting meetings, marches and demonstrations, were well grounded.” 15. Nevertheless, the District Court considered that the police officers had acted unlawfully in detaining the applicants: “In accordance with Article 20 § 2 of the Code of Administrative Offences, violations of the established procedure for organising or conducting meetings, marches and demonstrations is a ground for instituting administrative offence proceedings. However, as follows from the testimony of [the representative of the police station], no elements of an administrative offence were established in the actions of the plaintiffs and no records of an administrative violation, detention, escorting to the police station and administrative arrest were compiled. That is, there were no grounds for detaining [the plaintiffs] or escorting them to the police station.” 16. The District Court summarily rejected the remainder of the claims: “The claims concerning the removal of religious literature and passports, the photographing [of the applicants] or impediments caused to counsel are unsubstantiated. The applicants’ and their witnesses’ statements in that connection are contradictory, thus making it impossible to establish the relevant facts ...” 17. The applicants lodged an appeal, submitting that the District Court had misinterpreted the law in that the premises for the service of worship had been legally provided under a rental contract entered into by the Administrative Centre of Jehovah’s Witnesses, a registered legal entity, of which the local religious groups were structural divisions. 18. On 22 March 2007 the Moscow City Court quashed the District Court’s judgment in the part concerning the finding of unlawfulness in the actions of the police: “It appears from the register of persons detained or escorted to the police station that the plaintiffs were taken to the police station to give statements ... and spent no more than three hours at the police station, which cannot be considered as detention. Thus, the actions of the police patrol unit of the Lyublino police station in escorting the plaintiffs to the police station were carried out within the framework of the Police Act, and there is no basis for pronouncing unlawful their actions in stopping the unlawful religious service and escorting the plaintiffs to the police station for the purposes of taking their statements and inspecting [their] identity documents.” 19. The City Court upheld the remainder of the judgment and dismissed the applicants’ arguments in a summary fashion: “The fact that the service of worship held by the Lyublinskaya and Krasnodonskaya religious groups, which are part of the centralised religious organisation ‘The Administrative Centre of Witnesses’ [sic], was conducted on behalf of that organisation and on premises paid for by it does not in itself exempt it from [the need to meet] the requirements [applicable to] religious groups when conducting religious services, since the activity of that organisation is banned in Moscow. The court has considered the other arguments in the appeal ... [They] involved in essence a different interpretation of the law and a re-evaluation of evidence ... and these cannot constitute grounds for reversing a court decision on appeal”.
| 1 |
test
|
001-175684
|
ENG
|
MLT
|
ADMISSIBILITY
| 2,017 |
VICA LTD v. MALTA
| 4 |
Inadmissible
|
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Georges Ravarani
|
1. The applicant company, Vica Ltd, was registered in Sliema, Malta in 1969. It was represented before the Court by Dr S. Grech and Dr I. Refalo, lawyers practising in Valletta. 3. The applicant company owned six pieces of land which were expropriated by the Government on 16 May 1975. The case before the Court only concerns one of those six (the sixth one). 4. In so far as relevant, on 5 July 2000 the applicant company was informed, by means of a notice to treat, that it was being offered 10,200 Maltese liri (MTL approximately 23,760 euros (EUR)) for the (sixth) piece of land, which measured 952 sq.m. 5. By means of a judicial letter of 25 July 2000 the applicant company refused the offer and claimed compensation amounting to MTL 45,210 (EUR 105,311) based on an ex parte architect report which considered that, according to the Government’s architect’s valuation, part of the land was agricultural land. 6. In the absence of any agreement, in the same year, the applicant company instituted constitutional redress proceedings, complaining under Article 1 of Protocol No.1 to the Convention and Article 6 of the Convention about the delay in the payment of compensation (in respect of all the pieces of land). The applicant company was successful and by a final judgment of 3 February 2012 the Constitutional Court awarded it EUR 10,000 in compensation for non-pecuniary damage. The costs were to be borne by both parties. 7. Pending the above constitutional proceedings and following action taken by the Commissioner of Lands, on 7 August 2000 proceedings before the Land Arbitration Board (LAB) were commenced to determine the compensation due. 8. In 2004, pending those proceedings, the Government returned part of the land to the applicant company. In consequence the remaining part of the sixth piece of expropriated land amounted to an area of 485 sq.m. 9. The LAB were not informed of the return of the property. 10. During the proceedings, technical experts appointed by the LAB established the value of the (entire) sixth piece of land as EUR 378,435, considering that for the most part, it was to be classified as building land. 11. By a decision of 18 March 2010 the LAB awarded the applicant company compensation for the six pieces of land mentioned in paragraph 3 above. In connection with the sixth piece of land, the subject of the proceedings before the Court, the LAB awarded EUR 378,435 (for the entire piece of land). It referred to Article 25 of the Land Acquisition (Public Purposes) Ordinance, which provided that where the technical members of the board were unanimously in agreement, the board was bound to award compensation in accordance with the valuation of the technical members. It also awarded interest and ordered that the costs be divided by the parties in proportion. 12. The Commissioner of Lands appealed, claiming, inter alia, that the Board had wrongly applied the law in determining the compensation, because by means of transitory provisions enacted in 2004 the LAB could now no longer award more than a claimant would have claimed. 13. During the proceedings the applicant company pleaded that the application of the relevant provisions of Act XVII of 2004 had breached its rights under Article 1 of Protocol No. 1 to the Convention. 14. By a judgment of 5 December 2014 the Court of Appeal upheld the appeal in so far as Article 25(1) of the Ordinance had retroactive application in terms of the transitory provisions contained in Article 4 of Act XVII of 2004. It followed that the award of compensation could not exceed that claimed by the applicant company. Adjusting the claim to the area of the sixth piece of land which had not been returned and for which the applicant company was owed compensation, the court awarded the applicant company EUR 53,651 and ordered it to pay costs. As to the constitutional plea raised by the applicant company in this regard, the Court of Appeal held that this legal matter had already been examined in two constitutional cases, namely Commissioner of Lands vs Maria Theresa Caruana Gatto et, of 6 September 2010 and Neriku Confectionary Ltd vs Director of Lands of 28 March 2014, in which it was held that there had been no breach of the claimants’ property rights given that they had been awarded the sum they had actually requested in compensation (irrespective of the fact that the independent architects had estimated the land to be worth more). 15. The applicant company did not institute a new and separate set of constitutional proceedings to complain about the matter, considering that it would be futile given the established case-law. 16. Before the 2004 amendments described below, in awarding compensation for the value of the land the Chairman of the LAB was bound by the valuations given by two experts (which formed part of the LAB), when these were unanimous in their valuation. 17. Act XVII of 2004 added a proviso to Article 25 (1) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta, amending it to read as follows: “(1) The Board shall be competent – ... (e) to assess the amount of compensation payable under any of the provisions of this Ordinance and for that purpose to declare whether any area is a building site or agricultural or waste land; ... ... Provided that the amount of compensation to be assessed by the Board in accordance with the provisions of paragraph (e), shall not exceed the higher amount of compensation as proposed by any of the parties.” 18. The transitory provision, section 4(2) of the 2004 Act, reads as follows: “The provisions of Articles 25 and 31 of the Ordinance as amended by this section shall apply to any proceedings relating to any land covered by any declaration issued under Article 3 of the Ordinance, even if issued prior to the date of the coming into force of this section.” 19. The relevant parts of Article 27(1) of the Ordinance, regarding compensation, read as follows: “ (1) Without prejudice to any special provision contained in this Ordinance, in assessing compensation the Board shall act in accordance with the following rules: (a) no allowance shall be made on account of the acquisition being compulsory; (b) the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise: (...)” 20. In circumstances similar to the present case, the Constitutional Court examined, inter alia, the complaint of the claimants in that case concerning the retroactive application of the 2004 Act, which had allegedly violated their legitimate expectation to compensation as established by the laws in force at the time of the taking, thus denying them part of their compensation. 21. By a judgment of 6 September 2010 the Constitutional Court – which was bound (by procedural rules) to look into the matter only under Article 1 of Protocol No. 1 – found no violation of the claimants’ property rights. 22. It considered that before the 2004 Act the LAB could have awarded compensation higher than that requested by the parties, so rather than clarifying the law the Act limited the compensation that could be awarded. Nevertheless, the claimants did not have a “possession” within the meaning of Article 1 of Protocol No. 1, in that they had had no legitimate expectation of receiving an amount higher than that established by their ex parte expert, which they had claimed. Specific to that case the court noted firstly that when the 2004 Act had come into effect the report of the new architects had not yet been included in the case file. Secondly, before the 2004 Act the claimants had not claimed compensation higher than that awarded, and thirdly, when the tribunal architects were appointed the claimants had been aware of the new legislation. Moreover, the claimants had received fair compensation since they had been awarded the entire sum they had asked for. The Constitutional Court noted that it was clear that the valuation made by the experts appointed by the tribunal was in stark contrast to the valuations made by the previous architects and the ex parte experts; their valuation was therefore arbitrary and disproportionate, as no reasons had been given to justify the huge difference. The 2004 Act had therefore not violated the claimants’ rights under Article 1 of Protocol No. 1. 23. In circumstances similar to those in the present case, the claimants raised a constitutional issue arguing that the application of the relevant proviso of the 2004 Act in their case had breached their right to fair compensation. The issue was raised before the Court of Appeal before which they were appealing against a decision of the LAB awarding them compensation. The Court of Appeal shared the conclusions of the Constitutional Court in the case of Commissioner of Lands vs Maria Theresa Caruana Gatto et of 6 September 2010 and dismissed the claim on the basis that the claimants had obtained the sum they had requested.
| 0 |
test
|
001-173102
|
ENG
|
SVN
|
CHAMBER
| 2,017 |
CASE OF VASKRSIĆ v. SLOVENIA
| 3 |
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);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
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András Sajó;Boštjan Zalar;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
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6. The applicant was born in 1980 and lives in Kresnice. 7. The applicant and his family lived in a house in Litija which was sold in the impugned enforcement proceedings, described below. 8. During the proceedings described below the applicant was the subject of enforcement claims brought by three different creditors, namely a public water-supply company JP Vodovod-kanalizacija J. (hereinafter “company J.”), private company Porsche Kredit in Leasing SLO (hereinafter “company P.”), and an individual, A.A. Each creditor was seeking to enforce its own claim against the applicant. Although company P. had initially requested that the enforcement be carried out by seizing the applicant’s house, its claim was subsequently paid from the applicant’s bank account. Having been unsuccessful in securing the payment of its claim by the sale of movable property, company J. subsequently requested that enforcement action be taken against the applicant’s house. The house was ultimately sold at public auction for the purposes of enforcing company J.’s claim. A.A. joined the proceedings with his claim after the house had been awarded to the successful bidder at the aforementioned public auction. As the applicant repaid the debt to company J. after the auction, the proceeds from the sale of the house were used to cover his debt to A.A. Taxes and the outstanding mortgage on the house were also paid from the proceeds. 9. Company J. is based in Ljubljana and is the largest public water-supply company in Slovenia. On 18 December 2007 it sent the applicant a water bill in the amount of 124 euros (EUR), which was due to be paid on 5 January 2008. 10. As the applicant had not settled the aforementioned water bill of 18 December 2007, company J. instituted enforcement proceedings against him on 28 May 2009. It sought enforcement of the principal amount of EUR 124 plus default interest. 11. On 2 June 2009 the Ljubljana Local Court issued an enforcement decision – a writ of execution – against the applicant, ordering the seizure of his movable property as requested by company J. The decision contained a notice that an objection could be lodged by the debtor within a time-limit of eight days. The decision was served on the applicant on 24 June 2009. Since the applicant did not object to it, it became final on 3 July 2009. The case was subsequently transferred to the Litija Local Court for further consideration. 12. On 7 January 2010 an enforcement officer went to the applicant’s house with a view to seizing movable property. A report drawn up by the enforcement officer stated that nobody was at the property. The enforcement officer left a note, which included information concerning the attempted enforcement of the principal debt, interest and costs totalling EUR 376. He also wrote to the applicant inviting him to pay the debt voluntarily. 13. On 2 March 2010 company P. instituted enforcement proceedings seeking payment of EUR 1,576 together with interest accrued as from 10 July 2009 until payment. It proposed several means of enforcement, including the sale of the applicant’s house. The Ljubljana Local Court granted the request and the decision was served on the applicant on 9 March 2010. Since the applicant did not lodge an objection, the decision became final on 18 March 2010 and was transferred to the Litija Local Court for further consideration. 14. On 21 April 2010, as part of the proceedings instituted by company P., the Litija Local Court ordered a valuation of the applicant’s house. The order was served on the applicant through his father. Subsequently, on 2 June 2010, a property valuer submitted a report in which he set the market value of the house at EUR 140,000. He also stated that the applicant had assured him on the phone that the debt had already been repaid, but had then failed to submit confirmation of such repayment. The report was sent to the applicant for comment. As neither the applicant nor any other adult member of his household was found at the address, a note was left on 8 June 2010 directing the applicant to collect the report at the post office. However, he failed to do so, and on 24 June 2010 the report was left in his mailbox (see paragraphs 52 and 53 below). The applicant did not react to the report. 15. In the meantime, on 29 April 2010, the enforcement officer inspected the interior of the applicant’s house in the presence of the applicant’s wife and concluded that it contained no objects which could be seized and sold to cover the debt concerned in the proceedings instituted by company J. The officer again left a note inviting the applicant to pay the debt, now amounting to EUR 516, voluntarily. In his report, he proposed that the creditor choose some other means of enforcement, because enforcement directed against movable property would not suffice for the payment of the enforcement costs, let alone the debt. It was also established that the applicant’s car was leased and therefore could not be seized for enforcement purposes. 16. On 15 June 2010 company J. applied to the Litija Local Court for an attachment order in respect of the applicant’s immovable property, namely his house. 17. On 17 June 2010 the Litija Local Court granted company J.’s application and issued a decision allowing enforcement to be carried out by means of the sale of the applicant’s house. The decision was served on the applicant via his wife on 21 June 2010. The applicant did not lodge an objection. Subsequently, the court joined company J.’s application to the proceedings instituted by company P. 18. On 1 July 2010, the Litija Local Court set the amount to be paid to the property valuer. This was then paid from the deposit made by company P. On the same day the court also issued a decision setting the market price of the applicant’s house at EUR 140,000. After an unsuccessful attempt to serve both decisions on the applicant, they were left in the applicant’s mailbox (see paragraphs 52 and 53 below). The applicant did not appeal against the decisions. 19. On 31 August 2010 the Litija Local Court discontinued the enforcement proceedings pursued by company P. because the debt had been paid by means of the seizure of assets from the applicant’s bank account. 20. On 1 September 2010 the Litija Local Court ordered that a public auction of the applicant’s house be held on 7 October 2010. Following an unsuccessful attempt on 3 September 2010 to serve the order and the summons on the applicant, they were left in his mailbox (see paragraphs 52 and 53 below) on 20 September 2010. 21. On 2 September 2010 the Litija Local Court discontinued the enforcement action in respect of the applicant’s movable property because company J. had not lodged a new application within three months of the failed attempt (see paragraph 15 above). The decision was served on the applicant on 6 September 2010. 22. On 7 October 2010 a first public auction of the applicant’s house was held. However, there were no interested buyers. The applicant did not appear. 23. On 8 October 2010 the Litija Local Court ordered a second public auction to be held on 18 November 2010. Following an unsuccessful attempt to serve the order and the summons on the applicant on 14 October 2010, a note was left directing the applicant to collect them at the local post office. As he failed to do so, they were left in his mailbox (see paragraphs 52 and 53 below) on 2 November 2010. 24. In the meantime, on 18 and 25 October 2010, company J. applied to the Litija Local Court for an extension of the enforcement order to other means of enforcement, namely the attachment of the applicant’s bank account and his salary respectively. 25. At the second public auction held on 18 November 2010 the house was sold to M.L. for EUR 70,000, namely 50% of its estimated market value. The applicant did not appear. 26. On 19 November 2010 the Litija Local Court issued a written decision awarding the property to the bidder, M.L. (sklep o domiku). The award decision, together with a copy of the minutes of the second auction, was served on the applicant via his wife on 23 November 2010. 27. On 22 November 2010 the Litija Local Court granted company J.’s application and attached to the enforcement order the applicant’s salary and bank account. The decision was served on the applicant on 24 November 2010. The decision mentioned that enforcement had previously been ordered against movable property, but contained no mention of the judicial sale of the house. It was noted that up to two thirds of the salary the applicant was receiving from his employer K. could be seized, provided that the applicant was left with the statutory minimum guaranteed income. The decision also contained a notice to the bank, which stated, among other things, that if no assets were currently available, the bank should proceed with the seizure once assets became available; if no assets became available within a year of the decision being served on the bank, the latter should inform the court to that effect. 28. On 22 November 2010 another creditor, A.A., applied to the court for enforcement of a court judgment granting him compensation together with costs and interest, totalling EUR 5,112, with accrued interest. He requested that the enforcement be carried out by attachment of the applicant’s house. 29. On 24 November 2010 the applicant lodged an appeal against the award decision in which he informed the court that he had repaid the debt (see paragraph 26 above). He argued, inter alia, that he had been unable to go to the auction and that he had only learned from the impugned decision that the auction had been held. He further submitted that in the meantime he had repaid his debt. He had been having financial difficulties throughout that year since his father had died and his mother had lost her job. In this connection he submitted that he had needed to support her in addition to his wife, who had also been unemployed, and his two children. He stressed that in the event that the award decision were not revoked, his family would risk becoming homeless. Moreover, his employer, company K., had received the same day the enforcement order directed against his salary. 30. Following the applicant’s repayment of the debt on 24 November 2010, company J. on the same day applied to the court for discontinuation of the enforcement proceedings. 31. On 25 November 2010 the Litija Local Court discontinued the enforcement proceedings instituted by company J. 32. On 2 December 2010 the Ljubljana Local Court granted the application for attachment of the applicant’s house in the enforcement proceedings instituted by A.A. (see paragraph 28 above). 33. The applicant lodged an objection to the above decision (see paragraph 32 above), stating that the enforcement proceedings instituted by company J. had already been discontinued and that he wished to have A.A.’s claim enforced by the seizure of his monetary assets and repaid in twelve monthly instalments. On 19 January 2011 the Litija Local Court dismissed the applicant’s objection and refused to adjourn the enforcement proceedings in respect of the attachment of the applicant’s house. It also refused to allow the enforcement by means of seizure of the applicant’s monetary assets as proposed by the applicant because it had not been shown that such means would lead to the settlement of the debt within a year (see paragraph 49 below). That decision was served on the applicant on 21 January 2011. The applicant did not appeal against it. 34. On 29 December 2010 the Ljubljana Higher Court dismissed an appeal lodged by the applicant against the award decision issued in favour of M.L. (see paragraphs 26 and 29 above), which thus became final. The court held that the applicant had been properly summoned to attend the public auction, which he had not disputed in his appeal, and that he had not given a reason why he had been unable to go to the auction. The court dismissed his allegations that he had been unable to repay the debt. It explained that the enforcement decision concerning the debt of EUR 124 had become final in July 2009, whereas he was relying on circumstances which had taken place in 2010. Moreover, the debt was of minor value. The court further pointed out that the applicant had been properly served with all the court documents in the proceedings but had not reacted to them, which had been entirely his choice. It also found that there was no reason to suggest that the applicant’s family would end up on the street, although their standard of living might worsen as a result of the sale of their house. Lastly, the court referred to Constitutional Court decisions nos. Up-35/98 and Up-77/04 (see paragraph 55 below), stressing that the subsequent repayment of the debt could not lead to the revocation of an award decision that had already been pronounced, regardless of the amount of money to be paid. 35. On 12 January 2011, following the full payment of the sale price by M.L., the Litija Local Court transferred the property sold at public auction to him and ordered that his name be entered as the owner in the Land Register. It further ordered the applicant to vacate the house within thirty days of receipt of the decision. 36. On 21 January 2011 the applicant, now represented by a law firm, lodged an appeal against the decision concerning the transfer of title and applied for revocation of the finality of the award decision. He argued, inter alia, that following the discontinuation of the enforcement proceedings on 25 November 2010, the court should have, in accordance with section 76 of the Enforcement and Securing of Civil Claims Act (hereinafter “the Enforcement Act”, see paragraph 48 below), annulled any enforcement actions already taken; hence it should also have revoked the award decision. He stressed that at the relevant time the buyer had not yet acquired ownership of the property and therefore the revocation of the award decision would not have affected rights already acquired by the buyer. The applicant maintained that the summons for the auction had not been served on him. 37. On 25 May 2011 the Ljubljana Higher Court dismissed the applicant’s appeal. It held that under section 192 of the Enforcement Act (see paragraph 50 below) there were only two conditions to be fulfilled in order to allow the transfer of property to a buyer – a final award decision and the payment of the purchase price. Therefore, the law had been correctly applied. The court also rejected the allegation that the summons had not been served on the applicant, referring to the findings in the decision of 29 December 2010 (see paragraph 34 above). It also rejected the applicant’s assertion that the discontinuation of the enforcement proceedings should have resulted in the annulment of orders to carry out enforcement, including revocation of the award decision. The court further stated that the Constitutional Court, in its decisions nos. Up-35/98 and Up-77/04, had already expressed an opinion that the revocation of the award decision would have interfered with the rights of others (see paragraph 55 below). 38. On 17 June 2011 the Litija Local Court held a hearing on the distribution of the proceeds of the house sale and decided to distribute them as follows: the amounts of EUR 146 and EUR 5,895 would go to the applicant’s creditor, A.A., who had joined his claims to the enforcement proceedings after the house had already been sold; EUR 1,372 to the Tax Office for taxes due for the sale of the house; and EUR 58,888 to a bank on account of the outstanding mortgage on the house. The remainder of the proceeds from the sale in the amount of EUR 3,699 was transferred to the applicant. The decision was served on the applicant on 18 August 2011. 39. At the request of M.L., on 11 July 2011 the Litija Local Court issued a writ of execution against the applicant, ordering the eviction of the applicant’s family from the house. The applicant lodged an objection and a further appeal, which were both dismissed. He referred to his constitutional appeal (see the following paragraph) and essentially argued that the sale should be revoked in view of the fact that he had repaid the debt before the award decision had become final. In his submission, the transfer of the title to M.L. could not therefore be taken as a valid basis for his eviction. 40. In the meantime, on 28 July 2011 the applicant lodged a constitutional appeal against the decisions of 12 January and 25 May 2011 (see paragraphs 35 and 37 above). He argued that the decisions were unlawful and arbitrary and that the sale of his house resulting from a debt of EUR 124 amounted to a disproportionate interference with his property rights. In particular, he argued that the court had been under no obligation to attach immovable property to the enforcement order. He also submitted that an award decision could not become final if the enforcement proceedings had been discontinued, a point he had explicitly raised in his appeal (see paragraph 36 above). 41. On 5 March 2012 the Constitutional Court dismissed the applicant’s constitutional appeal by referring to section 55b(2) of the Constitutional Court Act (see paragraph 54 below). 42. On 16 March 2012 the applicant and his family were evicted from their house with the assistance of the police. They first moved in with their relatives and later acquired a new home.
| 1 |
test
|
001-146386
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF AVANESYAN v. RUSSIA
| 4 |
Violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for home);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)
|
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicant was born in 1972 and lives in Stavropol Region. 6. On 22 March 2006, following an application by a police chief and without the applicant’s knowledge, a judge of the Georgievsk Town Court of Stavropol Region issued a decision authorising the taking of “operational-search measures”, which read in its entirety as follows: “[The court], having examined a decision by the chief of the Georgievsk district police station on the taking of operational-search measures,
| 1 |
test
|
001-157530
|
ENG
|
DEU
|
CHAMBER
| 2,015 |
CASE OF LECOMTE v. GERMANY
| 4 |
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary
|
6. The applicant was born in 1981 and lives in Lüneburg. 7. The applicant is an anti-nuclear and environmental activist. She has repeatedly used her climbing skills to draw public attention to her protest. 8. On 6 November 2008 around 11 a.m. the applicant and three further persons belonging to the Robin Wood organisation, an environmental protection group, climbed on the arch of a railway bridge. The group fixed banners expressing protest against the transport, by train, of radioactive waste from La Hague, France, to the interim storage facility in Gorleben, scheduled from 7 to 9 November 2008. The members of the group refused to have themselves roped down by the police, who had dissolved their assembly. They were finally roped down by Federal Police’s mountain rescue team. The police then arrested only the applicant at 2.40 p.m. while the other three participants remained at liberty. They further seized the banners and the climbing equipment. 9. On 6 November 2008 at 5.30 p.m. the Lüneburg District Court, having heard the applicant and the Lüneburg police, ordered the applicant’s detention for preventive purposes under section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act (Niedersächsisches Gesetz über die öffentliche Sicherheit und Ordnung, see paragraph 42 below). That detention was to last until the arrival of the “castor” containers in Dannenberg train station and until 10 November 2008, 0.00 p.m. at the most. 10. The District Court found that the applicant, who had been represented by counsel throughout the proceedings before the domestic courts, and three further persons had let themselves down on a rope on a railway bridge. They had unrolled banners protesting against the castor transport. A commuter train had to be stopped because its passage would have put the protesters at risk. 11. The District Court considered that the applicant’s detention was indispensable in order to prevent the imminent commission of a regulatory offence of considerable importance to the general public, as required by section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act. There was a risk that the applicant would block the forthcoming transport of the castor containers scheduled from 7 to 9 November 2011 by a climbing action. Thereby, she would commit regulatory offences under the Railway Construction and Operation Act (Eisenbahn-Bau- und Betriebsordnung) and the Assembly Act (Versammlungsgesetz) which would be dangerous to the public. That risk was also imminent in the applicant’s case as she was known for expressing political protest, including protest against the transport of castor containers, by climbing actions and for being ready to breach the law in that context. 12. On 7 November 2008 at 9.15 p.m. the Lüneburg Regional Court, having heard the applicant in person at 2.10 p.m., dismissed the applicant’s appeal against the District Court’s decision. 13. On 9 November 2008 at 5.25 p.m. the Lüneburg District Court quashed the order of 6 November 2008 for the applicant’s detention for preventive purposes and ordered the applicant’s immediate release. 14. The District Court found that, having regard to the applicant’s deteriorating state of health, there was no longer a risk that the applicant would commit a criminal or regulatory offence of considerable importance to the general public, as required by section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act, in the context of the transport of castor containers to Gorleben. Moreover, her continued detention was no longer proportionate in these circumstances. The District Court noted that medical doctor C., who had visited the applicant in detention on the latter’s request, had confirmed that the applicant suffered from serious rheumatism which necessitated her to move continuously and was in a poor mental condition. Her detention in Braunschweig Police Station, with little possibility to move, had already led to her joints having stiffened. The doctor had explained that she was not in a position to assess the applicant’s fitness for detention, but that it appeared excluded that the applicant would be capable of carrying out a climbing action in the days to come. 15. The applicant was released on the same day at 6.32 p.m. 16. Following her arrest on 6 November 2008 at 2.40 p.m. the applicant, having been found by a doctor of the Federal Police not to suffer from any health problems, was brought before the Lüneburg District Court which ordered her detention at 5.30 p.m. Following the District Court’s decision, the applicant was accompanied home by the police officers from 5.45 p.m. to 6.45 p.m. in order to enable her to take her own clothes and medication. She was detained in a cell in the Lüneburg Police Station from 7 p.m. onwards until 7 November 2008 at approximately 1.40 p.m., when she was brought to the Lüneburg Regional Court. The applicant’s small cell, equipped with a mattress and a chair, was lighted at least via a ventilation slot and by electric light. 17. Between the end of the hearing of the applicant by the Lüneburg Regional Court on 7 November 2008 at around 3 p.m. and its decision at 9.15 p.m. on that day, the applicant essentially stayed in the office area of the Lüneburg Police Station. She went outside for a walk on the banks of the Ilmenau river with the police officers three times during that period. 18. Following the Regional Court’s decision, the police decided to transfer the applicant to the Braunschweig Police Station which was considered being better equipped for police custody. When the applicant complained about breathing problems during the journey, the police called an ambulance. When both the ambulance crew and a police doctor had found that the applicant did not suffer from health problems, the transfer was continued in the ambulance. 19. The applicant was detained in the Braunschweig Police Station from 8 November 2008, 2.10 a.m. until her release on 9 November 2008 at 6.32 p.m. Her cell was equipped with a bed, an empty desk, a chair and an open cupboard and had a barred window with frosted glass. In the corridor of the detention wing, which she had to pass to go to the toilet, photographs of shackled persons were exposed. These included a picture of a person subject to ankle and hand cuffs, with both cuffs being tied together by a chain in the person’s back lying on a mattress on the ground. 20. During the applicant’s detention in the Braunschweig Police Station, the light in her cell remained switched on throughout the applicant’s first night in that cell. The applicant had climbed on the cupboard in her cell and passed the night thereon, failing to comply with the police’s order to descend. The applicant was taken out for a walk on the premises of the Braunschweig Police Station, which did not dispose of a closed courtyard, on 8 November 2008 from 2.20 p.m. until 3.02 p.m., being loosely shackled to a female police officer. On 9 November 2008 the applicant was allowed to stay outside on those premises from 12.22 p.m. until 12.35 p.m., without being shackled; she climbed on a tree on that occasion. The applicant was supplied with writing material on 8 November 2008. She was further allowed to receive three visits from a friend and two from her doctor C. She was also allowed to telephone her lawyer and her partner several times. 21. On 15 July 2009 the Lüneburg District Court dismissed the applicant’s action of 8 November 2008 under section 19 § 2 of the Lower Saxony Public Security and Order Act (see paragraph 43 below) against the Lüneburg police for a finding that both the order for her detention and the conditions of its execution had been unlawful. 22. As regards the lawfulness of the applicant’s detention the District Court, endorsing the findings of fact made by the Regional Court in its decision of 7 November 2008 (see paragraph 12 above) as well as its reasoning, confirmed that the detention had complied with section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act. 23. As regards the execution of the detention order against the applicant, the District Court considered that the manner in which the detention had been enforced had been lawful and had complied, in particular, with the provisions of the Police Custody Regulations (Polizeigewahrsamsordnung, see paragraph 45-49 below). 24. The District Court noted that the detention order was executed in the detention wing of the Lüneburg Police Station until 7 November 2008 and subsequently in the detention wing of the Braunschweig Police Station. 25. As to the applicant’s complaint that her detention cells did not have windows, but only ventilation slots, the District Court considered that the equipment of the detention cells had complied with no. 15 of the Police Custody Regulations (see paragraph 49 below) and that there had been enough light. The recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) were irrelevant here. The photographs of shackled persons exposed in the detention wing of the Braunschweig Police Station may have been tasteless, but did not render the applicant’s detention unlawful as a result of intimidation. 26. Moreover, there had not been a breach of the right to sufficient night’s rest provided by no. 12 of the Police Custody Regulations (see paragraph 48 below). In Lüneburg, some noise made by a ventilator may have made it more difficult for the applicant to fall asleep, but the police was not obliged to be considerate of individual sensitivities. The fact that the light had remained switched on all night in Braunschweig had been a consequence of the applicant’s own behaviour. She had insisted spending the night on the cell’s cupboard the height of which was 1.90 metres. The light had therefore been necessary for her own protection. It had not been possible for the police to guarantee that, in case the applicant had fallen down from the cupboard, they would notice it immediately otherwise. According to the District Court, the applicant could ask herself whether she would have preferred having been shackled for her protection instead. 27. Furthermore, the court noted that on 8 November 2008 the applicant had been outside on the premises of the Braunschweig Police Station from 2.20 p.m. until 3.02 p.m. She had to be shackled as, being an excellent climber, there had been a risk that she would climb on trees or buildings and abscond. The applicant had not, therefore, been “taken for a walk like an animal” on the parking. On 9 November 2008 the applicant had been outside from 12.22 p.m. until 12.35 p.m. She had not been shackled and had been allowed to climb on a tree. She had not objected to returning to the detention wing afterwards. 28. The District Court further considered that the applicant had failed to substantiate that her state of health in detention had deteriorated in a manner so as to render her detention disproportionate already prior to the District Court’s decision of 9 November 2008 ordering her release. There had not been a written and impartial medical report proving the applicant’s allegation in that respect. The doctor who had visited the applicant in detention and had persuaded the then competent District Court judge to order her release had probably been a sympathiser. 29. On 28 October 2009 the Lüneburg Regional Court dismissed the applicant’s appeal against the District Court’s decision of 15 July 2009. 30. As to the legality of the applicant’s detention, the Regional Court, endorsing the findings in its decision of 7 November 2008, confirmed that the applicant’s detention as such had complied with section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act. 31. The Regional Court further confirmed that the conditions of the applicant’s detention, albeit onerous for the applicant, had complied with the applicable legal provisions and had not been so unacceptable as to render the execution of her detention unlawful. 32. As regards the applicant’s detention during the first night in the detention cell in the Lüneburg Police Station, the Regional Court found that the cell had been uncomfortable, but had complied with no. 15.1 of the Police Custody Regulations in the version then in force (see paragraph 49 below). In that police station there were no detention cells suitable for a deprivation of liberty lasting several days. Despite this, the police had convincingly explained that transporting the applicant to and back from Braunschweig for the hearing before the Regional Court the following day would have restricted her even more in her liberty of movement. Furthermore, she had not complained to the police about the noise at night emanating from a ventilator. 33. Moreover, the Lüneburg police had taken care of the applicant’s well-being after her hearing before the Regional Court (on 7 November 2008 from 2.10 p.m. until 2.50 p.m.) while they waited for the Regional Court’s decision until approximately 9 p.m. with the applicant in an office in the Lüneburg Police Station in that they had taken her outside three times. 34. As regards the applicant’s subsequent detention in the Braunschweig Police Station, the Regional Court noted that the applicant arrived at that station on 8 November 2008 at 2.10 a.m. after the crew of the ambulance called by the police and a police doctor had confirmed her fitness for detention despite the breathing difficulties she had informed the police of. The Regional Court further confirmed the District Court’s finding that the pictures of shackled persons in the corridor of the detention wing – which included a photograph of a person subject to ankle and hand cuffs – may have been tasteless. However, it had neither been shown that the pictures had been put up to intimidate prisoners nor that the applicant had been intimidated in a considerable manner by them. Moreover, the court considered that it had been lawful for the police to leave the light switched on during the night. It noted that the applicant had climbed on a cupboard measuring 1.90 metres and had failed to descend on the police’s request. By choosing not to descend her by force and by leaving the light on instead the police had respected as much as possible the applicant’s right to liberty. 35. As regards the applicant’s right to stays outside during her detention in Braunschweig, the Regional Court, endorsing the findings of the District Court in this respect, found that the right provided by no. 10 of the Police Custody Regulations (see paragraph 46 below) to be allowed to stay outside for 45 minutes per day in so far as the staffing and infrastructural situation permitted had not been breached. Shackling the applicant to a female police officer on 8 November 2008 had been necessary in order to prevent the applicant from absconding. The applicant, an excellent climber, had previously shown that she was not ready to comply with the police’s orders and there had not been a closed courtyard as in prison. On 9 November 2008 the applicant had not been shackled during her time outside and had been allowed to climb on a tree. She had also been able to move within her cell in order to alleviate ailments resulting from her rheumatism. 36. As regards the applicant’s right to receive visits in detention, the Regional Court observed that under no. 11 of the Police Custody Regulations (see paragraph 47 below), such visits were permitted in so far as they did not endanger the purpose of the detention and were authorised by the police. The said provision had to be read in conjunction with section 20 § 4 of the Lower Saxony Public Security and Order Act (see paragraph 44 below). The Regional Court noted that the Braunschweig Police had received some 200 telephone calls of sympathisers of the applicant, some of whom had insulted the police, which had considerably disturbed the execution of the applicant’s detention. It had not been unlawful in these circumstances for the police not to permit visits by persons who had presented themselves at the police station without having lodged a request for a visit. In any event, the applicant had been visited by three persons while in detention, in addition to the two visits by her doctor, C., who had prescribed her necessary medication and had brought a couple of magazines. Her right to receive visits had not been unlawfully restricted in these circumstances. 37. The Regional Court’s decision was served on the applicant’s counsel on 6 November 2009. 38. By submissions dated 1 December 2009 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Lüneburg District Court of 6 November 2008, confirmed on appeal by the Lüneburg Regional Court on 7 November 2008, and against the decision of the Lüneburg District Court of 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009. She argued, in particular, that her right to liberty, the principle of proportionality and her right to freedom of assembly and of expression had been violated by her long illegal detention in unreasonable conditions in order to prevent insignificant regulatory offences. Her complaint was registered under file no. 2 BvR 2794/09. 39. In a letter dated 18 August 2010 addressed to the applicant in person, the Federal Constitutional Court informed the applicant that her constitutional complaint of 1 December 2009 against the decisions of the Lüneburg District Court of 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009, in so far as the decisions concerned the conditions of her detention, had been registered under file no. 2 BvR 1779/10. 40. On 24 August 2010 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the abovementioned four decisions in so far as these decisions concerned the lawfulness of the applicant’s detention, without giving reasons (file no. 2 BvR 2794/09). The Federal Constitutional Court’s decision was served on the applicant’s counsel on 21 September 2010. In her letter to the Federal Constitutional Court dated 3 October 2010 the applicant’s counsel, referring to the two file numbers assigned to the applicant’s constitutional complaint, the letter of 18 August 2010 and the decision of 24 August 2010, asked for a progress report; she was informed that it was not possible to indicate when a decision on the complaint under file no. 2 BvR 1779/10 would be taken. 41. On 30 May 2012 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the decision of the Lüneburg District Court dated 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009, without giving reasons (file no. 2 BvR 1779/10). The decision was served on the applicant’s counsel on 18 June 2012.
| 0 |
test
|
001-177387
|
ENG
|
TUR
|
COMMITTEE
| 2,017 |
CASE OF GENÇ AND DEMIRGAN v. TURKEY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)
|
Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström
|
5. The applicants were born in 1971, 1953 and 1976 respectively and live in Bergama, İzmir. 6. On 16 August 1989 the public limited company E.M. Eurogold Madencilik (“the company”), subsequently renamed Normandy Madencilik A.Ş., received an authorisation to begin prospecting for gold. Subsequently, the company was authorised to use cyanide leaching in the gold extraction process by the Ministry of Energy and Natural Resources. 7. On 19 October 1994 the Ministry of the Environment decided to issue an operating permit to the company for the Ovacık gold mine. 8. On 2 July 1996 the İzmir Administrative Court dismissed a case brought before it for the annulment of the permit of 19 October 1994. On 13 May 1997 the Supreme Administrative Court quashed the first-instance judgment and decided that the permit should be annulled. It referred to the State’s obligation to protect the right to life and to a healthy environment and assessed the physical, ecological, aesthetic, social and cultural effects of the mining activity in question as described in the environmental impact report and the various expert reports which had been submitted to it. It held that those reports demonstrated the risk posed to the local ecosystem and to human health and safety by sodium cyanide use. It concluded that the operating permit in issue did not serve the public interest and that the safety measures which the company had undertaken to implement did not suffice to eliminate the risks involved in such an activity. On 15 October 1997, in compliance with the Supreme Administrative Court’s judgment, the Administrative Court annulled the Ministry of the Environment’s decision to issue a permit for the mine. On 27 February 1998 the İzmir provisional governor’s office ordered that the mine be closed. On 1 April 1998 the Supreme Administrative Court upheld the judgment of 15 October 1997. 9. On 5 April 2000 the Prime Minister’s office drew up a report on the mine. It concluded that operations at the mine could be authorised, having regard to the additional measures taken by the company, the conclusions of a report by the Turkish Institute of Scientific and Technical Research (“TÜBİTAK”), the Ministry of the Environment’s favourable opinion and an opinion of the President’s Administration, which had emphasised the economic importance of an investment of that type. 10. On 1 June 2001 the İzmir Administrative Court delivered a judgment on an application for judicial review of the report of the Prime Minister’s office, brought by twenty-five residents of Bergama, including the second and third applicants, Mr Mustafa Demirgan (Demircan) and Mr Yılmaz Acar. The administrative court decided to set aside the report, which, in its opinion, constituted an enforceable administrative decision giving rise to the issuing of permits. Notwithstanding the measures taken by the company, the court held that judicial decisions which had become final had found that the “risk and threat” in question resulted from the use of sodium cyanide in the gold mine and that it was impossible to conclude that those risks could be avoided by implementing new measures. Equally, it had been established that the risk connected with the accumulation of heavy elements or cyanide could persist for twenty to fifty years and was likely to infringe the right of the area’s inhabitants to a healthy environment. Accordingly, it was appropriate to conclude that the decision at issue could lead to the circumvention of a final judicial decision and was incompatible with the principle of the rule of law. 11. On 29 March 2006 the Supreme Administrative Court upheld the judgment of 1 June 2001 in so far as it had been brought by nineteen of the plaintiffs, including the second and third applicants and dismissed a rectification application by the Prime Minister’s office on an unspecified date. 12. In the meantime, on 22 December 2000 the Ministry of Health decided to authorise the continued use of the cyanidation process at the mine for an experimental period of one year. The company re-started mining operations on 13 April 2001. 13. In a judgment of 27 May 2004, the İzmir Administrative Court set aside the provisional permit issued by the Ministry of Health on 22 December 2000 in a case brought by fourteen people, including the first applicant, Ms Feride Genç. In particular, it considered that the risks highlighted in the judgment of 13 May 1997 were, inter alia, linked to the use of sodium cyanide in the gold mine and to the climatic conditions and features of the region, which was situated in an earthquake zone. It held that those risks and threats could not be eliminated by supplementary measures which continued to be based on the same leaching process. It also concluded that the issuing of the permit in question had been incompatible with the principle of the rule of law as that administrative decision had in reality been intended to amend a judicial decision that had become final. 14. On 2 February 2005 the Supreme Administrative Court upheld the judgment of 27 May 2004 and dismissed a rectification application by the Ministry of Health on 3 April 2006. 15. On 29 March 2002 the Cabinet of Ministers took a “decision of principle”, stating that the gold mine situated in the area of Ovacık and Çamköy, in the district of Bergama (İzmir) and belonging to the Normandy Madencilik A.Ş. company, could continue operations. The decision was not made public. 16. On 23 June 2004 the Supreme Administrative Court ordered a stay of execution of the Cabinet decision in a case brought by twenty-four plaintiffs, including the second and third applicants. The Supreme Administrative Court found that the Prime Minister’s decision had been unlawful as the environmental impact assessment report which had allowed for the operating of the gold mine had been previously annulled. The Prime Minister’s office objected. 17. On 18 August 2004 referring to the decision of 23 June 2004, the İzmir governor’s office ordered the closure of mine. 18. On 7 October 2004 the Supreme Administrative Court upheld the stay of execution of 23 June 2004. 19. On 20 May 2005 the goldmine began operating again under a permit of the same date issued by the İzmir governor’s office. 20. On 22 March 2006 the Supreme Administrative Court annulled the decision of the Cabinet of Ministers a decision which was upheld on 21 February 2008 by the Supreme Administrative Court. 21. According to the documents in the case file, various sets of other proceedings were brought between 2006 and 2012 by other residents of Bergama against various administrative authorities and Normandy Madencilik A.Ş. before the administrative courts, some of which are still ongoing. The gold mine was in operation until at least 2014.
| 1 |
test
|
001-177417
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF SOKOLOVA AND OTHERS 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)
|
Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-173089
|
ENG
|
ARM
|
CHAMBER
| 2,017 |
CASE OF ASATRYAN v. ARMENIA
| 4 |
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)
|
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano
|
5. The present case concerns the applicant’s trial and conviction for attempted murder of M. G., a businessman and former parliamentarian. A co-defendant, Y. W., was tried and convicted for assisting an offender. 6. The facts of the case may be summarised as follows. 7. On 29 December 2001 a bomb placed under M.G.’s car detonated when the latter started the engine in the morning. M.G. survived without major injuries. 8. On the same date the District Prosecutor’s Office started an investigation into the matter. When questioned by police officers, M.G. pointed to the applicant’s ex-husband, A.G., with whom he had major disagreements over business-related issues, as the only possible offender. 9. On the same day A.G. was summoned to the police station. Having acknowledged the existence of disagreements with M.G., he denied the offence and stated that he had been at home with his son, V.G., the night before the incident. 10. On the same day V.G. was arrested on suspicion of attempted murder. The charges against him were eventually dropped several months later since his involvement in the offence had not been established. 11. On 18 February 2002 A. At., A.G.’s friend who also knew the applicant and the family, was interviewed. He stated, inter alia, that he was aware of A.G.’s problems with M.G. and that the applicant had always been against A.G. doing business with M.G. since she considered the latter a “scammer”. 12. On the same date A.A., A.G.’s neighbour, was interviewed and described his family as a normal and ordinary one. She mentioned that about a year before, the applicant had complained about M.G. because he owed them some money. 13. On 29 January 2002 L.G., the applicant’s daughter, was interviewed and stated, inter alia, that she had learnt about her parents’ divorce three or four years previously. The parents had maintained good relations and the family was in contact almost every day. She also stated that, most of the time, the applicant stayed in the apartment where the father lived. 14. On 21 February 2002 A.B., the applicant’s neighbour, was interviewed. He stated that he had known the members of the family, A.G., the applicant and their two children V.G. and L.G., since 2001, when they had settled in the building. 15. On 16 September 2005 Y.W., a friend of the family, was arrested following the discovery of a large quantity of firearms and explosives in his house. Shortly after, Y.W. confessed to M.G.’s attempted murder and stated that he had acted on the applicant’s orders. 16. On 23 September 2005 the applicant was arrested and charged with instigation of attempted murder and property damage. 17. On an unspecified date the investigation was concluded and the criminal case was referred to the Avan and Nor-Nork District Court of Yerevan for trial. The bill of indictment included L.G. in the witness call list while it appears that A.At., A.A. and A.B. were not included in it. 18. At the trial, Y.W. retracted his pre-trial statements, claiming that they had been obtained under duress. The applicant denied any involvement in M.G.’s attempted murder, stating that she had divorced A.G. in 1999 and since then she had lived with their daughter L.G. in another apartment while A.G. lived with their son, V.G. She also stated that at some point she had been asked to sign some documents in relation to a contract between A.G. and M.G. since the contract concerned the sale of the house where she used to live, which she did. However, in general she had no connection with A.G. and tried not to maintain any contact with him. 19. At the hearing of 22 June 2006 the applicant’s lawyer asked for L.G. to be excluded from the witness call list, since the latter was the applicant’s daughter. This request was granted when L.G. expressed her wish to use the testimonial privilege. 20. On 12 October 2007 the District Court found the applicant guilty as charged and sentenced her cumulatively to nine years’ imprisonment. Y.W. was also convicted. The District Court found it established that the applicant had ordered M.G.’s murder as the property-related disputes between the latter and A.G. had also affected her property rights. In this connection the District Court mainly relied on the trial statements of S.A., Y.W.’s spouse, and L.C., his former colleague and the fact that the applicant was involved in court disputes with M.G., which showed that both she and A.G. had a strained relationship with the latter. 21. On 29 October 2007 the applicant lodged an appeal against the judgment of the District Court. On 3 December 2007 she lodged a supplement to her appeal claiming, inter alia, that she had no reason to murder M.G. as she had been living separately from A.G. since their divorce in 1999 and had no interest in his business activities. 22. In the course of the proceedings before the Criminal Court of Appeal Y.W. retracted his statements made before the District Court and submitted that in reality he had organised the explosion of M.G.’s car upon the applicant’s request. However, he had no intention of killing M.G., but was trying to frighten him. The applicant maintained her defence. 23. On 18 June 2008 the Criminal Court of Appeal dismissed the applicant’s appeal and upheld the judgment of 12 October 2007 as regards her conviction and sentence, while Y.W.’s sentence was reduced. In its judgment the Court of Appeal, inter alia, established that although the applicant had divorced A.G., she had maintained a family-like relationship with him and expressed her annoyance at M.G.’s actions in the presence of different people. In this respect, the judgment of the Court of Appeal referred to L.G.’s pre-trial statement of 29 January 2002, A.At.’s pre-trial statement of 18 February 2002, as well as the pre-trial statements of two neighbours, A.A. and A.B., made on 18 and 21 February 2002 respectively. 24. On 21 November 2008 the applicant lodged an appeal on points of law claiming, inter alia, that the Court of Appeal had based its conclusions on the pre-trial statements of L.G., A.A., A.B. and A.At., which had not been read out and examined either by the Avan and Nor-Nork District Court of Yerevan or the Court of Appeal. Furthermore, she had had no opportunity to question these witnesses. 25. On 15 December 2008 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit. 26. On 14 April 2009 the applicant lodged an application with the Constitutional Court challenging the compatibility with the Constitution of certain provisions of the Code of Criminal Procedure (hereafter, the CCP) allowing the Court of Cassation not to indicate reasons when declaring inadmissible an appeal on points of law. 27. On 28 July 2009 the Constitutional Court granted the application by finding such provisions of the CCP incompatible with the Constitution. 28. On 11 August 2009 the applicant, based on the above decision of the Constitutional Court, requested the Court of Cassation to reopen the proceedings and to re-examine her appeal on points of law of 21 November 2008. 29. By decision of 25 September 2009 the Court of Cassation reopened the proceedings, re-examined the applicant’s appeal on points of law and declared it inadmissible for lack of merit. In doing so, the Court of Cassation, inter alia, indicated that the Criminal Court of Appeal’s conclusion concerning the applicant’s guilt was correct as it was based, among other things, on the witness statements of L.G. and A.A.
| 1 |
test
|
001-174398
|
ENG
|
LTU
|
CHAMBER
| 2,017 |
CASE OF ŠIMKUS v. LITHUANIA
| 4 |
Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice)
|
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
|
5. The applicant was born in 1975 and lives in Tauragė. 6. On 23 July 2006 officers of the State Border Guard Service were patrolling the border between Lithuania and Russia in the Jurbarkas Region, by the river Nemunas. At around 2 a.m. the officers noticed several cars approaching the river and heard the sound of a boat in the water. The officers approached one of the cars and found cartons of cigarettes inside, which they suspected had been smuggled from Russia. The three individuals who had been in the car, K.B., E.L. and M.G., were arrested. During the arrests K.B. received a gunshot wound and the officers took him to a hospital in Jurbarkas (hereinafter “the hospital”). 7. At around 3.30 a.m. E.L.’s mobile telephone began to ring and a border officer answered it. The caller stated that he would “find and shoot” the officer who had injured K.B. A subsequent forensic examination identified the caller’s voice as probably (tikėtinai) that of the applicant. 8. At around 4 a.m. the applicant arrived at the hospital and approached the border officers guarding K.B. The applicant used various swearwords towards the officers, demanded that they release K.B. and said that he would beat them up or kill them. It appears that no physical altercation occurred between the applicant and the officers and that the applicant subsequently left the hospital. 9. On the same day the State Border Guard Service opened a pre-trial investigation against the applicant and several other individuals. The applicant was suspected, among other things, of threatening to murder or seriously injure law enforcement officers and obstructing and verbally abusing them in the exercise of their official duties, under Articles 145 § 1 and 231 § 2 of the Criminal Code (see paragraphs 21-22 below). 10. On 5 December 2006 the Jurbarkas district prosecutor (hereinafter “the prosecutor”) discontinued the pre-trial investigation against the applicant for lack of evidence. As to the words and statements used by the applicant in his interaction with the border officers (see paragraphs 7 and 8 above), the prosecutor noted that the applicant could have committed the administrative offence of minor hooliganism under Article 174 of the Code of Administrative Offences (see paragraph 26 below). The prosecutor’s decision was forwarded to the State Border Guard Service, instructing them to decide whether administrative proceedings against the applicant should be instituted. However, three days later a senior prosecutor annulled that decision and reopened the pre-trial investigation. 11. On an unspecified date administrative proceedings were instituted against the applicant; the information available to the Court does not indicate which authority was in charge of them. On 18 December 2006 the Jurbarkas District Court held that the applicant had committed the administrative offence of minor hooliganism when he had used swearwords in the presence of border officers in the hospital (see paragraph 8 above). He was given a warning. The decision was not appealed against and became final after the expiry of the ten-day time-limit for appeal. 12. On 6 August 2008 the prosecutor charged the applicant with threatening to murder or seriously injure law enforcement officers, and insulting them in the exercise of their official duties, under Articles 145 § 1 and 290 of the Criminal Code (see paragraphs 21 and 24 below). The indictment alleged that the applicant had committed the offences in the hospital on 23 July 2006 (see paragraph 8 above). The case was transferred to the Jurbarkas District Court for examination on the merits but in June 2009, at the prosecutor’s request, the case was returned for additional investigation. 13. On 23 October 2009 the prosecutor discontinued the pre-trial investigation, stating that the applicant’s actions had not amounted to the criminal offence of threatening to murder or seriously injure the officers because there had not been any objective circumstances indicating that he could have carried out those threats. The prosecutor also held that the applicant could not be prosecuted for insulting the officers because he had already been given an administrative penalty for the same conduct (see paragraph 11 above) – continuing the criminal proceedings against him would be in breach of the ne bis in idem principle. 14. On 11 June 2010 the Prosecutor General’s Office annulled the prosecutor’s decision and reopened the investigation, noting that the administrative penalty given to the applicant “did not automatically preclude” the criminal proceedings against him. 15. The applicant appealed against that decision to a senior prosecutor at the Prosecutor General’s Office but on 30 June 2010 his appeal was dismissed. The senior prosecutor held that, in line with the case-law of the domestic courts, an administrative penalty did not preclude the institution of subsequent criminal proceedings concerning the same conduct; however, in order to comply with the ne bis in idem principle, if a person was found guilty in the criminal proceedings, the previous administrative penalty had to be annulled or, if that was impossible, it had to be taken into account during sentencing. Accordingly, the prosecutor considered that the administrative penalty given to the applicant did not preclude the continuation of the criminal proceedings against him. 16. On 2 November 2010 the Jurbarkas District Court upheld the applicant’s appeal and overruled the prosecutor’s decision of 30 June 2010. It held that criminal proceedings against the applicant could be continued only after the administrative penalty had been annulled, but since that had not been done, any further proceedings concerning the same conduct would be in breach of the ne bis in idem principle. However, on 8 December 2010 the Kaunas Regional Court quashed the lower court’s decision, reiterating the reasoning of the prosecutor’s decision of 30 June 2010 (see paragraph 15 above). That decision was not subject to any further appeal. 17. In June 2011 the case was transferred to the Jurbarkas District Court for examination on the merits. The amended indictment alleged that the applicant had committed the offences set out in Articles 145 § 1 and 290 of the Criminal Code because of the words and statements which he had used when speaking to the border officers on the telephone (see paragraph 7 above) and in the hospital on 23 July 2006 (see paragraph 8 above). 18. On 6 September 2011 the Jurbarkas District Court terminated the criminal proceedings against the applicant as time-barred. That decision was not appealed against and became final.
| 1 |
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