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test
|
001-170595
|
ENG
|
RUS
|
CHAMBER
| 2,017 |
CASE OF VORONTSOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
|
5. The applicants were born in 1977, 1972 and 1987 respectively and lived before their convictions in Krasnoyarsk, Cheboksary and Vologda Region. 6. The facts of the applications, as submitted by the parties, may be summarised as follows. 7. On 3 May 2013 the applicant was arrested on suspicion of having committed a crime. 8. On 4 May 2013 the Oktyabrskiy District Court of Krasnoyarsk (“the District Court”) remanded the applicant in custody. 9. On 11 June and 11 November 2013, and 14 February 2014 the District Court extended the applicant’s detention until 30 November 2013, 28 February and 28 May 2014 respectively. 10. On 4 April 2014 the District Court convicted the applicant of robbery and sentenced him to three years and six months’ imprisonment. The applicant appealed. 11. During the hearings before the District Court on 11 June, 26 July, 1 October, and 11 November 2013, and 14 February, 14, 21 and 27 March, and 2, 3 and 4 April 2014 the applicant was held in a metal cage. 12. On 23 June 2015 the Krasnoyarsk Regional Court upheld the judgment of 4 April 2014 on appeal. 13. On 30 June 2011 the Novocheboksarsk Town Court of the Chuvash Republic convicted the applicant of embezzlement and the illegal acquisition, storage, transfer, transportation and possession of firearms and sentenced him to four years’ imprisonment. 14. On 11 February 2013 the Leninskiy District Court of Cheboksary (“the District Court”) convicted the applicant of fraud committed through abuse of position and sentenced him to a fine. 15. On 1 August 2013 the Supreme Court of the Chuvash Republic reduced the applicant’s fine. 16. However, on 18 October 2013 the Presidium of the Supreme Court of the Chuvash Republic granted a cassation appeal lodged by the Prosecutor of the Chuvash Republic and quashed the judgment of 11 February 2013 and the appeal decision of 1 August 2013. The case was remitted to the District Court for fresh examination. 17. On 29 April 2014 the District Court convicted the applicant on nine counts of fraud, acquitted him of a further four counts of fraud and sentenced him to seven years’ imprisonment, taking into account the fact that the applicant had not fully served the sentence imposed on him on 30 June 2011. 18. On 25 June 2014 the Supreme Court of the Chuvash Republic reclassified the nine counts of fraud on which the applicant had been convicted and sentenced him to seven years’ imprisonment. As regards the four counts of fraud of which the applicant had been acquitted, the Supreme Court quashed the judgment on appeal and remitted the case for fresh examination. Those proceedings are still pending. 19. During the proceedings before the District Court and the Supreme Court of the Chuvash Republic the applicant was confined in a metal cage. 20. On 16 September 2014 the applicant was arrested on suspicion of having committed a crime. 21. On 17 September 2014 the Cherepovets Town Court of the Vologda Region (“the Town Court”) remanded the applicant in custody. 22. On 10 November 2014 the Town Court extended the applicant’s detention. 23. On 12 December 2014 the Town Court convicted the applicant of inflicting grievous bodily harm and sentenced him to three years’ imprisonment. 24. The applicant was confined in a metal cage when the custodial measure was applied to him, when it was subsequently extended and during the trial.
| 1 |
test
|
001-156271
|
ENG
|
SVK
|
CHAMBER
| 2,015 |
CASE OF FRISANCHO PEREA v. SLOVAKIA
| 4 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
|
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
5. The applicant was born in 1963 and lives in Maryland (the United States of America). 6. In 1999 the applicant married A., a Slovak national. There were three children of the marriage: B., born in 1999, C., born in 2002, and D., born in 2004. The children are all Slovak nationals, while B. is also a Peruvian national, and C. and D. also have the United States nationality. 7. For about eight years, until July 2010, the family lived together in one household in Maryland. A. then moved to stay with friends, took the children with her, the couple agreed on alternating custody, and they started receiving marriage counselling. Nevertheless, A. filed for divorce, but then withdrew her petition. 8. On 25 August 2010 A. left the United States for Slovakia, taking the children with her. The following day she informed the applicant that they had left and that she had no intention of coming back. 9. In September 2010 A. filed for divorce in Slovakia and requested that the children be entrusted to her custody by way of an interim measure. The status and outcome (if any) of these proceedings is not known. 10. On 14 October 2010 the applicant filed an application for the return of the children to the United States as the country of their habitual residence, relying on the (Slovakian) International Private and Procedural Law Act (Law no. 97/1963 Coll., as amended), the Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, and the Hague Convention. 11. On 25 November 2010 the applicant’s Hague Convention application was transmitted to the Bratislava I District Court, through the intermediary of the Slovak Central Authority responsible for implementing the Hague Convention. 12. On 21 January 2011 the District Court ordered the children’s return to the United States, having found that it was the country of their habitual residence, that they had been removed from there wrongfully, and that no obstacles to the return had been established. 13. On 28 April 2011 the Bratislava Regional Court dismissed an appeal filed by A. and upheld the return order. The matter thus became resolved by force of a final and binding decision on 9 May 2011. 14. On 31 May 2011 the applicant filed for judicial enforcement of the return order. 15. Upon several unsuccessful attempts at having A. comply with the order voluntarily, the Komárno District Court acceded to the petition on 28 November 2011 by issuing a warrant for the order’s enforcement. 16. On 29 June 2012 the Nitra Regional Court quashed the enforcement warrant following an appeal by A. It observed that, meanwhile, A. had challenged the decision of 28 April 2011 by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) to the Constitutional Court; that on 15 December 2011 the Constitutional Court had declared that complaint admissible; and that, at the same time, it had suspended the enforceability of the return order pending the outcome of the proceedings on the merits of the complaint of A. (see paragraphs 20 and 21 below). The Regional Court concluded that, in those circumstances, an essential prerequisite for the enforcement of the return order had lapsed. Consequently, the matter was remitted to the District Court for a new decision to be taken in the light of the outcome of the constitutional complaint of A. 17. The applicant challenged the decision of 29 June 2012 by way of an appeal on points of law. He pointed out that there had been no hearing before the Regional Court and that it was only from the Regional Court’s decision that he had learned of the Constitutional Court’s decisions underlying it and of other new relevant facts, such as that the applicant had applied for the enforcement proceedings to be stayed. As the Constitutional Court’s decisions had not been served on him and he had had no knowledge of those facts, he had been deprived of an opportunity to comment and to consider the taking of other legal steps. This was contrary to the principles of adversary proceedings and equality of arms and, in the applicant’s submission, he had thereby been “prevented from acting before the court”, which constituted an admissibility ground for his appeal under Article 237 (f) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “CCP”). 18. On 6 December 2012 the Supreme Court declared the appeal inadmissible. It observed that the Regional Court had of its own motion obtained a copy of the Constitutional Court’s decision to suspend the enforceability of the return order, that it had based its decision on it, and that a copy of the Constitutional Court’s decision had never been served on the applicant. However, the Supreme Court also noted that the Constitutional Court’s decision was binding upon the Regional Court and considered that, therefore, having it served on the applicant and having allowed him to comment could not have had any impact on the Regional Court’s decision. Therefore, in the Supreme Court’s conclusion, the ground invoked by the applicant for the admissibility of his appeal had not been given. 19. In consequence, it became incumbent upon the District Court to rule on the applicant’s enforcement petition anew, which it did on 18 January 2013 by dismissing it. The District Court observed that on 16 May 2012 the Constitutional Court had quashed the decision upholding the return order and that it had remitted the appeal of A. against that order to the Bratislava Regional Court for a new determination (see paragraph 23 below). The return order was thus pending on appeal and, as such, it was no longer enforceable. The District Court’s decision became final and binding on 8 February 2013. 20. On 6 July 2011 A. challenged the decision of 28 April 2011 to uphold the return order (see paragraph 13 above) by way of a complaint to the Constitutional Court. It was directed against the Regional Court and, in it, she submitted that the applicant had filed observations in reply to her appeal against the return order; that she had not been served a copy of these observations; that her appeal had been determined without a hearing; and that she had accordingly been deprived of the opportunity to comment on those observations, which was contrary to her rights under Articles 46 § 1 (right to judicial protection), 47 § 3 (equality of parties to judicial proceedings) and 48 § 2 (right to comment on the evidence assessed) of the Constitution, as well as Article 6 § 1 (fairness) of the Convention. In addition, A. requested that the Constitutional Court indicate an interim measure to the effect that the enforceability of the contested decision be suspended. 21. On 15 December 2011 the Constitutional Court declared the complaint admissible and ruled that the enforceability of the decision of 28 April 2011 should be suspended pending the outcome of the constitutional proceedings on the merits. As to the latter ruling, the Constitutional Court found (i) that the suspensive measure was not contrary to any important public interest, (ii) that not having the enforceability of the return order suspended could lead to an irreversible situation and “cause detriment to the property sphere” of A. in potential violation of her fundamental rights and freedoms, and (iii) that having the enforceability suspended “gave rise to no risk of damage to any party concerned”. 22. In the ensuing proceedings on the merits, the Bratislava Regional Court as the defendant of the complaint submitted, inter alia, that there was no statutory requirement for observations in reply to an appeal to be communicated to the appellant for further observations, unless the former observations had a substantial impact on the determination of the appeal. However, the applicant’s observations in reply to the appeal by A. had had no such impact. 23. In a judgment of 16 May 2012 the Constitutional Court found a violation of the rights of A. as identified above (see paragraph 20), quashed the decision of 28 April 2011, remitted the case to the Regional Court for a new determination of the appeal of A. against the return order, and awarded her legal costs. In principle, the Constitutional Court fully embraced the line of argument advanced by A. 24. The Constitutional Court also noted that the applicant had sought leave to intervene in the proceedings as a third party. In that respect, it observed that constitutional proceedings were conducted in the procedural framework laid down in the Constitutional Court Act (Law no. 38/1993 Coll., as amended), as a lex specialis, and in the CCP, as a lex generalis. The Constitutional Court Act however envisaged no standing for third parties to intervene in proceedings on individual complaints, and its quality of a lex specialis excluded the application of the third-party-intervention rules under the CCP. For that reason, the Constitutional Court observed specifically that it had taken no account of the submissions made by the applicant. 25. The applicant obtained a copy of the Constitutional Court’s judgment on 16 August 2012. 26. On 28 February 2013 the applicant lodged a complaint with the Constitutional Court, alleging inter alia a violation of his rights under Article 46 § 1 of the Constitution and Article 6 § 1 of the Convention (fairness) in the enforcement proceedings, in particular in their phase before the Regional Court and the Supreme Court, and raising in substance the same arguments as in his appeal on points of law (see paragraph 17 above). The applicant pointed out, in addition, that that it had been for substantially the same reasons that the Constitutional Court itself had found a violation of the rights of A. in relation to her appeal against the return order. 27. On 5 November 2013 the Constitutional Court declared the complaint inadmissible. It fully endorsed the reasoning behind the Supreme Court’s decision of 6 December 2012 (see paragraph 18 above) and concluded that, accordingly, the complaint was manifestly ill-founded. The decision was served on the applicant on 9 December 2013. 28. Following the Constitutional Court’s judgment of 16 May 2012, on 21 September 2012, the Bratislava Regional Court decided again on the appeal by A. against the return order of 21 January 2011 by quashing that order and remitting the case to the Bratislava I District Court for a new determination. 29. In the subsequent period a number of hearings were held at first instance and courts at two levels of jurisdiction dealt with various procedural matters such as translations of documents into a language the applicant understood, court fees and costs of the translations, the applicant’s visiting rights in relation to his children pending the outcome of the proceedings on the merits, an injunction prohibiting A. to leave and remove the children form the territory of Slovakia, admission of the mother of A. to the proceedings as a third party, two procedural fines on A., her challenges to the first-instance judge for bias, her request for a legal-aid lawyer and establishing her whereabouts. There is no indication that any of the fines and interim rulings were actually enforced. 30. No decision on the merits was taken and the District Court decided to terminate the proceedings on 28 November 2014. It referred to Article 12 (last sentence) of the Hague Convention, which permits termination of the proceedings if there is an indication that the child in question has been taken to another State, and observed that A. and the children had moved to Hungary and had established residence there. 31. On 7 January 2015 the applicant appealed and his appeal appears to be still pending.
| 1 |
test
|
001-167559
|
ENG
|
UKR
|
COMMITTEE
| 2,016 |
CASE OF SEMENENKO v. UKRAINE
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
|
Erik Møse;Mārtiņš Mits;Yonko Grozev
|
4. The applicant was born in 1982 and resides in Vinnytsia. 5. The applicant suffers from emotional instability and slight mental retardation since childhood. Several forensic psychiatric examinations found him to have sufficient mental capacity to be held criminally liable. 6. On 17 July 2007 Ms O., a tobacco kiosk seller, was stabbed to death at her working place. 7. On 19 July 2007 the applicant was apprehended by the police. According to the police reports, that measure was undertaken on at least two different occasions, each time in respect of an administrative (minor) offence formally unrelated to the murder. 8. Under the first police report, at 2.30 a.m. on 19 July 2007, the applicant was noted in a public place while being in a state of manifest alcohol intoxication, swearing and disturbing passers-by. When the police ordered him to produce his documents and follow them to their vehicle, he resisted in a vehement manner. As indicated in the apprehension report, at 10.30 a.m. on 19 July 2007 the applicant was taken to the court for the examination of the above administrative offence case. 9. In the morning on the same day the Vinnytsya Leninskyy District Court (“the Leninskyy Court”) found the applicant guilty of the administrative offence of resisting the police and fined him 150 Ukrainian hryvnias (around 14 euros). 10. It is not known what exactly happened next. The case file contains two more reports on the applicant’s administrative apprehension dated 19 July 2007. According to one of them, he was released at 9.40 p.m. on that date, without any further details being indicated. As noted in the other report, at 10.10 p.m. on that day the applicant was apprehended again in respect of an administrative offence. According to the related judicial ruling of 20 July 2007 (see paragraph 14 below), at 3.25 p.m. on 19 July 2007 the police apprehended the applicant in a street after he resisted to an identity check. 11. It appears from the materials of the criminal proceedings against the applicant, which were instituted later (see paragraph 19 below), that on 19 July 2007 he was questioned in respect of Ms O.’s murder. He submitted that he had bought cigarettes at her kiosk on 17 July 2007, without anything unusual having happened. The case file does not contain any further information regarding that questioning. 12. On the same day the applicant had a conversation with his cell-mate in the temporary detention facility, Yu., who convinced him to confess to the murder. He also promised the applicant money in exchange for the information as to where the applicant had thrown the knife. The applicant drew a scheme. Subsequently the police found the knife at the indicated place. Yu.’s statements and the related material evidence were eventually relied on by the trial court in the criminal proceedings against the applicant. 13. Still on 19 July 2007, from 6.30 to 7.30 p.m., the police carried out a search in the applicant’s flat in the context of the investigation of the murder of Ms O. It appears that they seized his shirt. 14. On 20 July 2007 the Leninskyy Court found the applicant guilty of the administrative offence of resisting the police at 3.25 p.m. on 19 July 2007 (see also paragraph 10 above) and sentenced him to five days’ administrative detention to be calculated from 19 July (at 3.25 p.m.) to 23 July 2007. 15. On the same day the applicant was questioned as a witness in the murder case. He reiterated his statement that he had only bought cigarettes at Ms O.’s kiosk. 16. On 21 July 2007 the applicant was questioned again as a witness concerning the murder of Ms O. He confessed to having stabbed her several times after she had refused to give him cigarettes without payment. 17. On the same day the applicant repeated his confession during a reconstruction of the crime. He also showed where he had thrown the knife. 18. Later on 21 July 2007 the applicant was questioned as a criminal suspect. The questioning took place in the presence of a lawyer appointed for him. As noted in the investigator’s decision to that effect, there were sufficient reasons to suspect the applicant of the murder and, given the fact that he suffered from a mental disorder, his legal representation was mandatory. During that questioning the applicant retracted his earlier confession and submitted that he had not been at the tobacco kiosk on the day of the murder. He explained that he had invented his confession being scared that otherwise he would not be released. 19. On 23 July 2007 at 9.20 p.m. the applicant was formally arrested on suspicion of Ms O.’s murder. The arrest report noted that there were eyewitnesses who had directly pointed at him as the offender. During his questioning on that and the following day the applicant confessed to that crime. 20. On 26 July 2007 the Leninskyy Court ordered the applicant’s pretrial detention as a preventive measure pending trial. 21. The trial court remitted the case for additional investigation many times. According to the case-file materials, the most recent such remittal took place on 31 October 2013. There is no information about any subsequent developments.
| 1 |
test
|
001-145700
|
ENG
|
DEU
|
CHAMBER
| 2,014 |
CASE OF AXEL SPRINGER AG v. GERMANY (No. 2)
| 3 |
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
|
6. The applicant company is a public limited company with its registered office in Hamburg. Among other activities, it is the publisher of the mass-circulation daily newspaper Bild. 7. On the evening of 22 May 2005, after his party (the Social Democratic Party (SPD)) had suffered a heavy election defeat in the Land of North Rhine-Westphalia, Federal Chancellor Gerhard Schröder, who had been in power as head of the Federal Government since 1998, announced that parliamentary elections would be brought forward to autumn 2005 from their scheduled date in September 2006. Because the early elections could not be held until the Bundestag (German Federal Parliament) had been dissolved – a process which could only take place by order of Federal President of Germany after a motion of confidence in the Federal Chancellor had been defeated – Chancellor Schröder called a vote of confidence on 1 July 2005 and lost it, with 148 of the 304 members of parliament from the parties making up his government abstaining as requested by the Chancellor. On 21 July 2005 Federal President Horst Köhler dissolved the Bundestag. This means of securing the dissolution of Parliament prompted discussions in public and among members of parliament, and was also the subject of appeals to the Federal Constitutional Court, which, by a majority, dismissed them and ruled that the disputed procedure was in conformity with the Basic Law (see in particular the decision of 25 August 2005, nos. 2 BvE 4/05 and 7/05). 8. The elections were held on 18 September 2005. None of the main political parties emerged victorious with a sufficient majority, but the parties forming the outgoing Schröder government (the SPD and the Greens) lost their majority. Subsequently, the conservative parties (the CDU and CSU) and the SPD agreed to form a coalition headed by Ms Angela Merkel, the candidate for the CDU and CSU. On 22 November 2005 Mr Schröder left office and Ms Merkel was elected as the new Federal Chancellor. 9. On 9 December 2005, at a ceremony to mark the start of work on the Baltic Sea gas pipeline (“Ostseepipeline”), it was announced that Mr Schröder had been appointed chairman of the supervisory board of the German-Russian consortium NEGP (Konsortium Nordeuropäische Gaspipeline). The aim of the consortium, which had its registered office in Switzerland and was controlled by the Russian company Gazprom, was to build a gas pipeline to supply Russian gas to western Europe. The agreement on the principle of building the pipeline had been signed on 11 April 2005 by the German company BASF and Gazprom in the presence of Mr Schröder and the Russian President Vladimir Putin. The signing of the contract itself, initially scheduled for mid-October at an energy summit in Moscow, had taken place on 8 September 2005 – again in the presence of Mr Schröder and Mr Putin – ten days before the early elections. 10. On the day of the announcement, a member of Bild’s editorial staff attempted to contact the deputy spokesperson for the government, S. (who had continued to occupy this post under the new government), for information on the subject but received no reply. The following day he made a further attempt, which was likewise unsuccessful. Following a third request later that day, the deputy spokesperson informed the journalist that Mr Schröder had nothing to add to his statement of 9 December 2005 in which he had indicated his willingness to accept an offer from the consortium partners to take up a position on its supervisory board. 11. On Sunday 11 December 2005 a Bild journalist called the vice-chairman of the parliamentary group of the Free Democratic Party (FDP), Carl-Ludwig Thiele. 12. In a sworn statement of 14 December 2005 the journalist affirmed that Mr Thiele had wondered whether Chancellor Schröder had already spoken to the Russians about a lucrative position before calling the early elections in May 2005. When asked by the journalist what he meant, Mr Thiele had replied: “The early election gambit must now be seen in a new light”. The journalist had then asked Mr Thiele whether he meant that Mr Schröder might have triggered the fresh elections on the basis of promises from Russia. Mr Thiele had replied: “That’s a question we need to ask”. He had added that, from his own experience in politics, a matter involving such a major change in personal activity must have been settled well before May. He had then asked two further questions: “Did Schröder want to resign because he had been offered lucrative positions? Did he have personal motives in deciding to call early elections in a politically desperate situation?” According to the statement, Mr Thiele had agreed for his comments to be quoted. On 14 December 2005 the journalist called Mr Thiele again and asked him whether, in the light of the warning (Abmahnung) which Mr Schröder had issued to Bild, he still stood by his comments; Mr Thiele confirmed that he did. 13. In its edition of 12 December 2005 Bild published a front-page article with the headline: “What does he really earn from the pipeline project? Schröder must reveal his Russian salary.” On page 2 of the newspaper, under the headline “Russian salary – will Schröder earn more than a million a year?” the article read as follows: “The ex-Chancellor and Russian gas: there is growing outrage among all political parties. For Schröder is to head the supervisory board of a business seeking to build a four-billion-euro gas pipeline through the Baltic Sea from Russia to Germany. While he was Chancellor, he pushed this project through despite considerable resistance. Lower Saxony Prime Minister Christian Wulff (CDU) called on Schröder to act, either by declining the chairmanship of the NEGP consortium’s supervisory board, or by revealing all his income from his Russian job! Wulff told Bild: ‘Through his behaviour Gerhard Schröder has seriously damaged the reputation of politics in Germany. Schröder must decline the job of supervisory board chairman, because otherwise this may create the impression of being a reward for promoting the pipeline.’ The politician added: ‘If Schröder nevertheless accepts his appointment to the supervisory board, he must disclose what he is getting paid. This is a requirement under the regulations on disclosure [of income], which were toughened up by the Schröder government this year. The fact that the pipeline company has its headquarters in Switzerland is no reason for the former Federal Chancellor not to abide by these rules.’ Insiders reckon that Schröder is pocketing more than a million dollars a year for his gas job. After all, the Russians are not stingy. For example, five supervisory board members of the Russian company Northgas, a Gazprom subsidiary, have received payments totalling seven million dollars. The fact that Schröder is walking into the joint German-Russian venture so soon after leaving the Government has been met with incredulity across all political parties. One particularly delicate matter is that on 11 April the Russian energy giant Gazprom and the German [company] BASF signed a memorandum in Hanover for the joint exploitation of a Russian gas field, in the presence of Schröder and Russian head of State Vladimir Putin. Following the signing, the two government leaders stayed up late drinking red wine together. Was Schröder’s recruitment to the multinational gas company already being discussed at that time – six weeks before he called the early elections? The vice-chairman of the FDP parliamentary group, Carl-Ludwig Thiele, said: ‘That’s a question we need to ask!’ Thiele has a monstrous suspicion: ‘Did Schröder want to resign because he had been offered lucrative positions? Did he have personal motives in deciding to call early elections in a politically desperate situation?’ The early election gambit should ‘now be seen in a new light’, he added. Peter Ramsauer, chairman of the CSU parliamentary group in the Bundestag, said: ‘You don’t make a deal like that overnight, and Gerhard Schröder was still Chancellor three weeks ago. He should now lay his cards on the table and say whether these agreements had already been reached while he was in office.’ The vice-chairman of the CDU parliamentary group, Wolfgang Bosbach, added: ‘Schröder should finally say what’s going on (was Sache ist)!’ The economic affairs spokesperson for the Greens parliamentary group, Matthias Berninger, said: ‘Schröder must now ensure maximum transparency and disclose his contract and remuneration.’” 14. The article on page 2 was accompanied by a photograph of Mr Schröder wearing a chapka on his head. Further down there was a short article stating that the NEGP consortium was headed by a former major from the State Security Ministry of the former German Democratic Republic, who was a friend of Mr Putin. 15. Mr Schröder’s appointment as chairman of the supervisory board gave rise to public debate and was reported in the media and discussed in the German Parliament, in particular on 15 December 2005. 16. An article published in Focus magazine (no. 50/2005) on 12 December 2005 stated that a journalist from the magazine had contacted the Schröder government in August 2005 to find out whether indications from Moscow that Gazprom was preparing a post for Mr Schröder were true. The government spokesperson had said that this was absurd and denied the existence of any such offer. 17. In April 2006 it emerged that in late October 2005, while government business was still being conducted on an interim basis by the outgoing government pending Ms Merkel’s election as Chancellor, guarantees had been signed whereby the German government agreed to underwrite a loan of one billion euros from two German banks in favour of Gazprom and part of the pipeline. Mr Schröder indicated that he had had no knowledge of the signing of the guarantees and Gazprom stated that it had not made use of them. 18. On an unspecified date in 2006 Gerhard Schröder sought an injunction in the Hamburg Regional Court prohibiting any further publication of the following passage of the article: “Thiele has a monstrous suspicion: ‘Did Schröder want to resign because he had been offered lucrative positions? Did he have personal motives in deciding to call early elections in a politically desperate situation?’” 19. In a judgment of 24 June 2005 the Regional Court granted the injunction. It held in particular that the quotation in issue was neither a factual allegation nor a value judgment but mere speculation in the form of questions, the legality of which was a matter for assessment in the light of the principles established for reporting on suspicions (Verdachtsberichterstattung). According to these criteria, the courts had to assess whether the impugned report concerned a matter of public interest, whether there was a sufficient factual basis for the speculation, whether the newspaper had been sufficiently diligent in carrying out its research and in deciding to publish the report, and whether the nature of the report made it sufficiently clear that what was being reported was speculation and that the factual reality might be different. The regional court held that the publication of the passage in issue in the case before it did not satisfy these criteria in so far as the applicant company had not sought to obtain Mr Schröder’s views on the matter beforehand and had not established a sufficient factual basis to justify publishing the passage in question. 20. In a judgment of 8 April 2008 the Hamburg Court of Appeal upheld the Regional Court’s judgment. It held that the publication of the offending quotation breached Article 823 § 1 of the Civil Code, in conjunction with Article 1004 § 1 (by analogy) of the Civil Code and the right to protection of personality rights (Allgemeines Persönlichkeitsrecht – see “Relevant domestic law and practice”), because it suggested to readers of the newspaper that Chancellor Schröder had taken the decision to hold early parliamentary elections on the basis of private considerations motivated by self-interest. The Court of Appeal found it unnecessary to determine whether the quotation in issue amounted to a genuine (open) question or a factual allegation in the form of a question, since the applicant company had conveyed a suspicion which could also have been formulated as a question. The Regional Court had thus been correct in applying the criteria for reporting on suspicions. 21. The Court of Appeal observed that the report published by the applicant company did not merely reproduce what Mr Thiele had said, but the quotation had formed part of a significantly longer article intended to steer readers in a certain direction. It further pointed out that the article had begun by saying that Mr Schröder and the Russian President Putin had met in April 2005, and had then asked whether Chancellor Schröder’s activities on behalf of Gazprom had been discussed on that occasion. In the court’s view, this encouraged readers to believe that it was possible that an agreement had been reached for Mr Schröder to take up a private-sector post and that he had used the election defeat in North Rhine-Westphalia as a pretext for triggering a series of events that would lead to his leaving office as Chancellor. It added that this line of thinking was borne out by the two questions in the quotation in issue and the use of the phrases “early election gambit” and “must now be seen in a new light”. 22. The Court of Appeal observed that the principles for reporting on suspicions applied to the case before it, although the report in question had not contained any suspicion that Mr Schröder had committed a criminal offence. What was decisive in the court’s view was that the applicant company had conveyed a suspicion entailing a serious and damaging accusation against the former Chancellor. The article had suggested that he had misled the general public and the electorate about the true reasons for his decision to call early elections and that he had prioritised his own financial interests over the common good, which he was required to serve as Federal Chancellor. The Court of Appeal considered that this was one of the most serious accusations that could be levelled against a person who had formerly held one of the highest State offices. In its view, the quotation in issue confirmed the seriousness of the accusation by using the phrase “monstrous suspicion”. 23. The Court of Appeal added that the applicant company had not had due regard to the principles established for reporting on suspicions. According to these principles, any such reports had to concern a matter of justifiable public interest, have a minimum factual basis, set out the facts objectively by indicating both the circumstances supporting the suspicion and those pleading in favour of the person under suspicion, be published, in principle, after obtaining comments about the accusations from the person concerned and be the result of research satisfying the requirements of journalistic rigour. 24. Applying those principles to the case before it, the Court of Appeal noted firstly that the subject-matter of the report was in the public interest. It also accepted that there had been sufficient material to justify reporting on the suspicions in question. In that connection, it recapitulated the sequence of events forming the background to the article, namely that Mr Schröder had expressed support for the pipeline project throughout his time as Chancellor, that he had met President Putin at the signing of the declaration of 11 April 2005 by two Russian and German private-sector firms, that he had decided to hold early elections at a time when his political party had been in difficulty following its election defeat in North Rhine-Westphalia, that he had triggered a process resulting in his relinquishing the office of Chancellor and that – according to the Court of Appeal – it had emerged that between the date of the early elections and his last day as Chancellor, Mr Schröder had secured a very well-paid post in a consortium controlled by Gazprom. 25. The Court of Appeal added that it was especially legitimate to ask how Mr Schröder could have secured that post as the events in question belonged to an area of fundamental importance in shaping public opinion. It pointed out that the requirements for assessing the legitimacy of such a report should not be too stringent. Otherwise, there was a risk that the media would be limited to commenting on politicians’ conduct only where there was substantial evidence corroborating the suspicions raised. Such a restriction, however, was not acceptable in this sphere. The Court of Appeal noted that anyone who attracted public attention, such as politicians, had to accept that the threshold beyond which their conduct could be investigated by the media was lower than that applicable to anyone not in the public domain. 26. The Court of Appeal added that the impugned publication had lacked objectivity and balance. It pointed out that the version of events set out in a report should not amount to a prejudgment (Vorverurteilung) of the person concerned. This was not only the case where the report gave the impression that the person had in fact done what he or she was suspected of doing, but also when a report was intentionally biased and distorted the facts for sensationalist purposes, without regard to the circumstances militating in favour of the person concerned. In the Court of Appeal’s view, this was what had happened in the case of the report in issue, since it had made no mention of any factors casting doubt on the accusations made but had referred solely to circumstances corroborating the suspicions, which to a certain extent were concentrated within the offending quotation. 27. In this connection the Court of Appeal observed that the report did not mention that the May election defeat in North Rhine-Westphalia had considerably weakened the authority of the government majority at federal level and could have constituted a valid reason for asking the electorate, by means of early elections, whether it still supported this majority. Likewise, the report did not mention anywhere that Chancellor Schröder had not adopted an attitude of resignation but rather had been active and combative throughout the election campaign. Lastly, the Court of Appeal found that at the time of the article’s publication there had been no information from anyone close to Mr Schröder to suggest that he had based his decision to call early elections on grounds that were spurious (sachfremd). 28. The Court of Appeal added that the applicant company had no basis for arguing that these circumstances were so well known to readers that there was no need to reiterate them in the report, since the entire article had sought to suggest to readers that there were no circumstances casting doubt on the facts as presented. Similarly, the fact that the subject of the report was of considerable public interest could not exempt the applicant company from its duty to present a balanced account of the facts. On this point, the Court of Appeal emphasised that the applicant company was not prevented from criticising Mr Schröder. However, in view of the extremely serious accusation being made, it could have been expected to indicate that the facts had yet to be established. 29. The Court of Appeal held, lastly, that the applicant company had not carried out sufficient research before publishing the article. It considered that irrespective of whether the politician quoted in the article should have been required to conduct his own research before raising his questions, the applicant company had had a duty to clarify the facts further before publicly reproducing those questions, which concerned extremely serious allegations. It pointed out that there had been sufficient connecting factors in this regard. For example, the applicant company could have contacted the consortium in Switzerland, Mr Schröder himself or one of his team to find out when the post for the former Chancellor had been planned or created, when he had discovered the existence of the post and when and by whom the post had been offered to him. The Court of Appeal added that the fact that other media outlets had reported on similar suspicions could not release the applicant company from its duties. Moreover, the company had not asked Mr Schröder for his views. In the Court of Appeal’s opinion, irrespective of whether the views of the person concerned should always be sought when suspicions were being reported, the press had a duty in any event, in order to satisfy the requirements of journalistic rigour, to contact the person concerned when publishing speculation relating to that person’s motives, provided that the person could be reached for comment. The Court of Appeal concluded that this duty had been all the more compelling in the case before it, in view of the especially serious nature of the allegation being made. 30. In a decision of 13 January 2009 the Federal Court of Justice refused the applicant company leave to appeal on points of law, holding that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. 31. On 18 February 2010 a chamber of the Federal Constitutional Court decided not to accept for adjudication a constitutional appeal by the applicant company (no. 1 BvR 368/09). It declined to give reasons for its decision.
| 1 |
test
|
001-146529
|
ENG
|
BGR
|
ADMISSIBILITY
| 2,014 |
LAZAROVI v. BULGARIA
| 4 |
Inadmissible
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
|
1. The applicants, Mrs Dimitrina Yoncheva Lazarova, Mr Yordan Ivanov Lazarov and Mr Ivan Yordanov Lazarov, are Bulgarian nationals who were born in 1946, 1949 and 1969 respectively and live in Veliko Tarnovo. They were represented before the Court by Ms A. Mircheva, a lawyer practising in Sofia, and Ms L. Nelson and Ms A. Tamamović from the Mental Disability Advocacy Center in Budapest, Hungary. The applicants stated that they were also submitting the application on behalf of their relative Ms Valya Yordanova Lazarova, who had died on an unspecified date at the beginning of 2007. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice. 3. In 1992 Valya Lazarova, who was the daughter of the first and second applicants and the sister of the third applicant, and was born in 1974, was diagnosed with schizophrenia. In December 1998 she was declared mentally incapable by the Veliko Tarnovo Regional Court and was deprived of legal capacity. No guardian was appointed as it was decided that she would be represented by her parents. 4. As Valya’s state of health deteriorated, on 6 June 1998 the family placed her in an institution, the Social Care Home for Mentally Ill Adults in the village of Radovtsi (hereafter referred to as “the Radovtsi Home”). The home was financed by the State and managed by the mayor of the Dryanovo municipality. 5. An inspection by the Social Assistance Agency carried out in October 2006 established that the Radovtsi Home housed 114 mentally ill patients at the time. The building was in a poor state of repair due to the lack of funds to carry out renovation work. 6. The inspectors also established that during the day twenty inmates of the home whose state of health was especially poor were kept in a locked room, known as the “room for special care”. The inspectors recommended the closure of the room, which was implemented on 1 November 2006. After that date the inmates were allowed to move around freely within the building, the doors of which nevertheless remained locked. The yard outside, occupying an area of about 6,000 square metres, was enclosed by a wire fence. Even though on some occasions inmates managed to leave the home, they always returned promptly. 7. At around 11.30 a.m. on 3 January 2007 a member of the staff of the Radovtsi Home administered a medication with a sedative and tranquilising effect to Ms Lazarova. Sometime later, around lunchtime, Ms Lazarova could not be found. Another inmate had seen her shortly beforehand, when Ms Lazarova had said that she was very hungry and was going to look for a friend of hers in the village. The gates had been open. 8. At about 12.15 p.m. the staff informed the director of the home of Ms Lazarova’s disappearance. They conducted a search of the area: on foot in the vicinity of the building and by vehicle in the neighbouring villages. They checked abandoned and derelict buildings. It had been snowing, but as the roads had just been cleaned, there were no footprints. It appears that the search may have been suspended at nightfall, although some documents indicate that it continued until 10.30 p.m. The search was resumed the next day. Oral contact with the police was established at around 1.30 p.m. on 3 January, and written contact on 4 January 2007, when Ms Lazarova was officially declared missing. The staff of the home and the police questioned the inhabitants of the neighbouring villages, some of whom said that they had seen a woman they did not know. However, Ms Lazarova was not found when the locations concerned were visited and searched. The search continued over the following days but did not yield any result. 9. The case file contains contradictory information as to the date on which the Radovtsi Home staff informed the applicants about their relative’s disappearance. Some documents indicate that this happened on 3 January, whereas the applicants allege that they were not contacted until 8 January 2007. 10. Valya Lazarova’s body was found on 22 January 2007, approximately eight kilometres away from the home. According to the post mortem, her death was due to hypothermia and physical exhaustion. There were no traces of physical violence. Death had occurred at least ten days before the body’s discovery. 11. On 24 January 2007 the third applicant lodged a complaint with the prosecution authorities alleging that the staff of the Radovtsi Home were responsible for his sister’s disappearance from the home and her subsequent death. 12. In a decision of 9 March 2007 a prosecutor from the Gabrovo regional public prosecutor’s office concluded that there was no indication that Ms Lazarova had been the victim of intentional homicide. 13. A separate investigation was opened in relation to offences under Articles 137 and 138 of the Criminal Code, namely exposing the life of a vulnerable person to risk and failing to assist a vulnerable person. In a decision dated 9 March 2007 a prosecutor from the Dryanovo district public prosecutor’s office refused to institute formal criminal proceedings against identified persons under those provisions, noting that on the day when Valya Lazarova had disappeared there had been three members of the medical staff and four orderlies on duty. None of them had been personally responsible for ensuring the inmates’ physical presence. Accordingly, it did not appear that any of them had committed an offence under Articles 137 or 138 of the Criminal Code. 14. Upon an appeal by the third applicant, on 5 April 2007 a prosecutor from the Gabrovo regional public prosecutor’s office quashed the abovementioned decision and ordered a further investigation into the matter. 15. The Dryanovo district public prosecutor’s office interviewed the staff who had been on duty on 3 January 2007, residents of the village of Radovtsi and the people who had participated in the search following Valya Lazarova’s disappearance. In a decision of 21 May 2007 a prosecutor from that office again refused to institute criminal proceedings, concluding that there was no indication that any of the staff members of the Radovtsi Home had committed an offence. 16. Upon a further appeal by the third applicant, on 22 June 2007 that decision was upheld by the Gabrovo regional public prosecutor’s office. In addition to the findings of the Dryanovo public prosecutor’s office, it noted that the building housing the Radovtsi Home had been in a poor state of repair and that the institution had been understaffed. This, combined with the very poor state of health of the inmates, had facilitated Valya Lazarova’s disappearance from the home; however, these factors had not been within the staff’s control. Accordingly, none of the staff members, including the director of the home, could be held criminally liable. 17. In decisions dated 29 August and 24 October 2007 respectively, the Veliko Tarnovo appellate prosecutor’s office and the Chief Public Prosecutor’s Office upheld the above-mentioned decisions. 18. On an unspecified date the third applicant also complained to the Ministry of Labour and Social Policy, which conducted an inquiry and informed the applicant of its findings in a letter dated 25 March 2007. The inquiry showed that the director of the Radovtsi Home had been informed of Ms Lazarova’s disappearance at about 12.15 p.m. on 3 January 2007. The search had started immediately after that. Members of the staff had searched the neighbouring villages. The police and the mountain rescue service had joined in as well. The enquiry concluded that the search had been prompt and adequate. Moreover, it transpired that Ms Lazarova had left the home on another occasion in 2005, but had been found the same day. 19. On 13 November 2007 the applicants brought a tort action against the Dryanovo municipality, the Ministry of Labour and Social Policy and the State under the State and Municipalities Responsibility for Damage Act (“the SMRDA”, see paragraph 23 below). They claimed 33,000 Bulgarian levs for each of them in compensation for non-pecuniary damage resulting from Valya Lazarova’s death. In their statement of claim they argued that the medical treatment and the care provided to Ms Lazarova in the Radovtsi Home had been inadequate and that her needs had been neglected. They pointed out that the “room for special care” in the home had been closed in 2006, and argued that inmates in a serious state of health had been provided with no alternative care. In addition, they alleged that the staff of the home had not been sufficiently trained and had not treated the inmates in a humane manner. They also pointed out that the living conditions in the home had been poor. They argued that Valya Lazarova’s death was “directly and immediately linked to the lack of appropriate care in the social institution, lack of administrative supervision on the part of the Dryanovo municipality, lack of adequate support for the institution’s work and lack of good practice”. 20. The statement of claim was reviewed by a judge of the Gabrovo Administrative Court, who on 10 July 2008 instructed the applicants to specify those administrative duties performed by the defendants in the course of which the alleged damage had occurred. The judge also asked for clarification of the specific acts and omissions complained of in respect of each defendant and the grounds for viewing these acts or omissions as unlawful. 21. In response, on 22 July 2008 the applicants submitted that the mayor of the Dryanovo municipality, in his role as employer, and the bodies responsible for social assistance (forming part of the centralised Social Assistance Agency) had failed to monitor the staff of the Radovtsi Home as regards the performance of their duty to “provide individually tailored social services and assess the needs of Valya Lazarova” and had failed to ensure the presence of qualified medical personnel. They alleged that the mayor had also failed to ensure that the living conditions in the home were satisfactory in relation to Ms Lazarova’s state of health and that the Minister of Labour and Social Policy had failed to ensure methodical assistance, administrative supervision and the necessary financing. As to the State, represented by the Council of Ministers, they claimed that it had not created the necessary legislative framework, had not adopted policies ensuring that staff of social care institutions were adequately qualified, and had not provided the Dryanovo municipality with the financing needed by the Radovtsi Home. 22. In a decision dated 23 September 2008 the Gabrovo Administrative Court refused to accept the statement of claim for examination, noting that the applicants had failed to provide the information and the clarification requested on 10 July 2008. In particular, it considered that the submissions of 22 July 2008 mostly restated the initial statement of claim and that the inclusion of a new possible defendant, the Social Assistance Agency, led to confusion. It thus concluded that “neither the [statement of claim], nor the additional submissions contain a request to order the cessation of an action that is not based on an administrative decision or on law, nor do they allege failure to take actions which the administrative body is obliged to take pursuant to the law, which actions or omissions are causally linked to the damage they allegedly sustained.” 23. Upon an appeal by the applicants, on 12 January 2009 the abovementioned decision was upheld by the Supreme Administrative Court. 24. The State and Municipalities Responsibility for Damage Act (“the SMRDA”) provides in section 1(1) that the State and the municipalities are liable for damage caused to private individuals and legal entities as a result of unlawful decisions, acts or omissions of their authorities or officials while discharging their administrative duties. Since 1 March 2007 claims under section 1(1) of the SMRDA have been examined by the administrative courts under the rules of the Code of Administrative Procedure. 25. It is also possible to seek damages from the State and the municipalities under the general tort provisions (sections 45 et seq.) of the Obligations and Contracts Act. Legal persons may be vicariously liable under section 49 of the Act, which provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. In this case the employer’s liability is presumed and is to be engaged even where it cannot be established which of its employees has caused the damage (ППВС № 7 от 1959 г., ППВС № 4 от 30.10.1975 г.). Section 49 of the Obligations and Contracts Act has been successfully relied on in a case which, like the present one, concerned the disappearance and the subsequent death of a mentally ill patient placed in a social care institution. The domestic courts, which found that the staff of the institution – by virtue of its internal rules – had been responsible for constantly monitoring and supervising the claimants’ relative, ordered the mayor of the respective municipality, as their employer, to pay the damages sought (Решение от 11.12.2006 г., Софийски градски съд I ГО, гр. д. № 2216/2005 г.; Решение № 91 от 30.07.2008 г., Софийски апелативен съд, Гражданска колегия, гр. д. № 824/2007; Определение № 693 от 26.06.2009 г. по гр. д. № 824/2007, ВКС, III г. о.).
| 0 |
test
|
001-154372
|
ENG
|
POL
|
ADMISSIBILITY
| 2,015 |
P.P. v. POLAND
| 4 |
Inadmissible
|
George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
1. The applicant, Mr P.P., is an Italian national, who was born in 1960 and lives in Torri di Quartesolo. He was represented before the Court by Ms A. Mascia, a lawyer practising in Strasbourg. 2. 3. In 1991 the applicant married a Polish national K.P., who gave birth to their two daughters. A was born in 1992 and B was born in 1996. The family lived in Italy. 4. In the summer of 1999 K.P. took A and B on holiday to Poland. They did not return to Italy. Afterwards the applicant tried to secure the return of his daughters to Italy by applying to the Polish Ministry of Justice designated as a Central Authority under the Hague Convention on the Civil Aspects of the International Child Abduction (“the Hague Convention”). On 5 January 2001 the Poznań District Court allowed the application for the return of the children lodged by the applicant and ordered to return them to the applicant. The court considered that the children had been unlawfully abducted. The decision became enforceable on 8 June 2001. The facts concerning subsequent enforcement proceedings can be found in the judgment issued by the Court in the first case brought by the applicant (P.P. v. Poland, no. 8677/03, §§ 8-65, 8 January 2008). 5. On 7 June 2005 the Poznań District Court quashed the judgment given under the Hague Convention and decided that their return would expose the children to psychological harm or would otherwise place them in an intolerable situation. 6. On 8 January 2008 the European Court of Human Rights found a violation of the applicant’s rights under Article 8 on the basis that the Polish authorities failed to take all the measures that could be reasonably expected to enforce the return order issued with respect to his two daughters under the Hague Convention and consequently to secure his visiting rights. The judgment concerned the events between 1999 and 2005. 7. On 17 November 1999 the Poznań District Court granted the applicant visiting rights. The applicant was granted the right to visit his children four times a month and to take them outside the flat in which they lived. 8. On 15 April 2005 the Poznań District Court decided that the applicant could visit his daughters every time he came to Poland and that he could take them outside their place of residence, if they agreed to it. The court indicated that the applicant should be able to visit his daughters from 5 p.m. to 8 p.m., notifying K.P. the week before the visit. In so far as the first meeting was concerned the applicant was to inform K.P. with one month advance and notify the Poznań Regional Court about it. The court would then appoint a guardian who could oversee the course of the visit. 9. On 22 January 2007 the Poznań Regional Court fixed the applicant’s access rights in the divorce judgment with reference to the conditions set out in the decision of the Poznań District Court of 15 April 2005. 10. On 7 July 2008 the Italian Central Authority requested the Polish Ministry of Justice to enforce the applicant’s access rights. On 11 August 2008 the Polish Ministry of Justice replied stating that the Hague Convention no longer applied to A, since she had already reached the age of 16 and so was not considered a child for the purposes of the Hague Convention (Article 4 of the Hague Convention). It also noted that the applicant should institute relevant proceedings before the Polish courts. 11. On 8 November 2012 the applicant instituted new proceedings in Poland in which he sought to amend the modalities of visiting rights with his younger daughter B. 12. In his pleading of 14 May 2013 the applicant specified that he wished to spend with B part of her winter and summer holidays, in Poland and abroad. Moreover, he wished to have contacts with her by phone and other means of communication. The applicant requested to impose a fine on K.P. for failing to comply with the court’s order. 13. On 28 May 2013 the Poznań District Court held a hearing at which it heard the applicant’s former wife, K.P. She stated that the applicant last time saw his daughters in May 2009 and afterwards made no attempts to see them. Following that meeting he often telephoned them. However, with time A and B stopped taking his calls. 14. On 12 August 2013 the court held a hearing at which it heard B, at that time 16 years old. She said that after she left Italy when she was three years old she met her father two or three times. She received letters and emails from him. B stated that she felt indifferent about her father and she would not seek or need contacts with him. B considered that her mother had never opposed her contacts with the applicant provided that he would not keep them in Italy. B stated that she would not like to go to Italy with the applicant as he was a foreign person to her and she would not feel safe. She admitted to having stopped taking his calls as they bothered her. If she wanted to contact him she could do it by email or phone. She opposed the idea to force herself to meet her father only to please him. 15. On 15 October 2013 the Poznań District Court dismissed the applicant’s request for interim order. The Court considered that forcing B to keep contact with her estranged father would be against her interests and could only deepen the conflict with the applicant. 16. On 4 February 2014 the court held another hearing at which it heard the applicant. The applicant submitted that he met his daughter in 2007 and 2009 but at no point he could stay with them without presence of their mother. He submitted that in reality he has not seen his daughters for 15 years. The applicant accepted that one cannot force a 17-year-old-girl to a certain behaviour, however, she should be assisted by a therapy to have her attitude to him improved. 17. On 12 February 2014 the experts from the RODK (Family Consultation Centre, Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) presented their opinion to the court. The experts observed that B has emotional ties with her mother. However, any ties with her father had been broken due to lack of contacts and his negative picture induced by the mother. She presently expressed no need for contacts with the applicant. The applicant was perceived by the experts as determined to re-establish any contact with his daughters; a responsible person and posing no threat to them. The girls’ mother imposed on them her negative vision of the applicant and perceived his attempts to contact them as threatening. She made it impossible for her daughter to build autonomous relations with the applicant and his family. The mother failed to accept the children’s needs for the presence of their father. The experts recommended that B with her mother undergo a therapy with a view to rebuild her relations with the applicant. 18. On 1 July 2014 the Poznań District Court gave a decision in the case and dismissed the applicant’s motion. The court took into account the statements made by B in which she expressed no wish to resume contacts with her father. Taking into account her age and degree of maturity the court decided not to regulate her contacts with the applicant. 19. The applicant appealed. It appears that the proceedings are pending before the domestic court. In December 2014 B turned 18. 20. The relevant domestic law concerning the enforcement of a parent’s visiting rights in force prior to 13 August 2011 is set out in the Court’s judgment in the case of P.P., cited above, §§ 69-74. 21. Before 13 August 2011, the general provisions of the Code of Civil Proceedings (CCP, Kodeks Postępowania Cywilnego) on enforcement of nonpecuniary obligations were applicable to enforcement of court decisions on parental rights or access rights. If a court obliged a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the CCP was applicable to the enforcement of this obligation. This article provides that: “1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on the motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of a fine (...). 2. If the debtor fails to comply with this obligation, further time limits may be fixed and further fines may be imposed by the court.” 22. The Law of 26 May 2011 on the amendment of the CCP introduced provisions dealing specifically with the enforcement of judgments granting visiting rights in respect in children (Articles 59815 to 59821). Under those provisions as they stand as of 13 August 2011, the court decision on access arrangements shall serve as an enforceable title for a request to a court to impose a penalty payment (oznaczona suma pieniężna) on the party refusing to comply with these arrangements in respect of each and every failure to do so, to be paid to the person to whom visiting rights have been granted.
| 0 |
test
|
001-177439
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF SMIRNOV 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
|
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 complaints under the Article 13 of the Convention.
| 1 |
test
|
001-166737
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF KARELIN v. RUSSIA
| 3 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra
|
5. The applicant was born in 1970 and lives in Naberezhnyye Chelny. 6. On 4 March 2012 the applicant was arrested by a police officer, Z., and accused of disorderly behaviour in a public place, an offence under Article 20.1 of the Federal Code of Administrative Offences (“the CAO”), punishable by a fine or up to fifteen days’ detention. It appears that the applicant was then taken to the police station and remained there for some time. 7. In the police station, Z. compiled an administrative offence record, thereby instituting administrative offence proceedings against the applicant. The record read as follows: “4 March 2012 I have made the following findings under Article 28.3 of the Code of Administrative Offences: [The applicant] was drunk and used foul language against passers-by, waving his arms in the air; he was trying to start a fight, and did not rectify his behaviour despite remarks from passers-by. Thus, he gravely offended public order and committed an administrative offence under Article 20.1 of the CAO. The fact of the offence has been confirmed by: witness K. [The applicant] has been informed of his rights and obligations under Articles 48 and 51 of the Constitution, and Articles 1.5, 24.2 and 25.1 of the CAO: that the person who is being prosecuted for an administrative offence has the right, inter alia, to have access to all the material in the file, to testify, to adduce evidence, to lodge interlocutory applications and challenges, and to have legal assistance. ... Decision: to submit to a court Signature: deputy chief officer, 5 March 2012” 8. Officer Z. also issued a written report stating that the applicant had used foul language against passers-by. 9. It appears that one of the passers-by, N., accepted a request to make a written statement attesting to the fact that the applicant had been drunk and had used foul language. 10. On 5 March 2012 the police officer submitted the record to his superior, who decided that the case should be transferred to a court for examination. 11. On an unspecified date, the administrative offence file was submitted to a justice of the peace for adjudication. It appears that the file contained the offence record, Z.’s report and N.’s statement. It is unclear whether there was any written statement from K. at that time. 12. On 29 March 2012 the justice of the peace held a hearing. It is unclear whether it was a public one. 13. The applicant made a written statement that he had been apprised of his procedural rights. 14. As can be seen from the judgment in this case (see below), the applicant was accused at the trial of using foul language in the presence of other people, while being drunk, thus breaching public order. 15. The applicant, who is himself a lawyer, did not appoint a legal representative. He pleaded not guilty and made oral submissions on the charge against him. 16. After a request, Officer Z. was present at the hearing and made an oral statement. The court also heard N. and K.. It appears that the justice of the peace asked Z. and N. a couple of questions. 17. By judgment of 29 March 2012 the justice of the peace found the applicant guilty and imposed a fine of 500 Russian roubles (the equivalent of 13 euros at the time) on him. The judgment read as follows: “The court holds that, while drunk, the defendant used foul language in the presence of other people and thus breached public order ... The defendant’s guilt is confirmed by Z.’s report and N.’s testimony ... The use of foul language in a public place is unacceptable and discloses a form of disorderly behaviour ... In the court’s view, the use of aberrant language in a public place in the presence of at least one person constitutes an offence under Article 20.1 of the CAO. Moreover, the defendant continued to use foul language during his arrest and while being taken to the police station ...” 18. The applicant appealed to the Naberezhniye Chelny Town Court. He argued, inter alia, that although the offence record referred to his using foul language “against passers-by”, the justice of the peace had phrased the charge as using foul language “in the presence of other people”; the judge had not retained the phrase from the offence record, which stated that the applicant “[had not rectified] his behaviour despite remarks from passersby”. 19. On 16 April 2012 the Town Court held a hearing. It is unclear whether it was a public hearing. The appeal court examined the applicant and upheld the judgment of 29 March 2012. On that date, the appeal decision and the trial judgment became final. The appeal court held as follows: “The justice of the peace convicted [the applicant] of using foul language in the presence of others, thus breaching public order ... The appeal court dismisses the argument that the mere use of aberrant language in respect of one person does not disclose an offence. The offence of disorderly conduct is constituted by actions breaching public order and peace. Such actions include using foul language in a public place, insulting people, destruction of or damage to others’ property ... Each of these actions may amount to disorderly behaviour if it breaches public order and discloses a manifest disregard to society ... Certain factual contradictions between the information in the administrative offence record, Z.’s report and N.’s testimony (as regards use of foul language on account of low culture rather than in respect of passers-by) were dispelled during the trial following the interview of the witnesses ...” 20. The applicant applied to the Deputy President of the Supreme Court of the Tatarstan Republic for judicial review under Article 30.12 of the CAO. Having examined the file, by decision of 15 June 2012 the Deputy President upheld the court decisions of 29 March and 16 April 2012. 21. The applicant did not seek further review before the Supreme Court of Russia.
| 1 |
test
|
001-146705
|
ENG
|
RUS
|
COMMITTEE
| 2,014 |
CASE OF KOKSHAROVA v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
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Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev
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5. The applicant is a Russian national who was born in 1930 and lives in Arkhangelsk. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 19 February 2001 the applicant brought a court action against the Social Security Fund of the Russian Federation (Фонд социального страхования Российской Федерации) for compensation of health damage. 8. On 4 April 2001 her claim was dismissed by the Oktyabrskiy District Court of Arkhangelsk. The decision was quashed on appeal and the case was remitted for a fresh examination to the same court. 9. On 3 June 2002 the Oktyabrskiy District Court of Arkhangelsk granted the applicant’s claim and ordered the Social Security Fund (i) to calculate the amount of the lump-sum compensation for the period from 1 January 2000 to May 2002 and of the monthly compensation which should be paid from 1 June 2002, (ii) to pay these amounts to the applicant, and (iii) to index-link the monthly payments in future in accordance with national law. 10. The judgment was not appealed against and became final on 13 June 2002. 11. The applicant states that no lump-sum compensation was paid to her. 12. On 26 August 2002 the Social Security Fund calculated the monthly payments due to the applicant as of 15 November 2001. 13. On 18 December 2002 the President of the Arkhangelsk Regional Court lodged with the Presidium of that court an application for supervisory review of the judgment of 3 June 2002. He also suspended the execution of the judgment pending the supervisory review proceedings. 14. On the same date the Arkhangelsk Regional Court informed the applicant that the Presidium would examine her case on 25 December 2002. 15. On 25 December 2002 the Presidium quashed the judgment of 3 June 2002 stating that the first instance court had incorrectly applied domestic law: the lump-sum compensation should have been calculated from 15 November 2001 and not 1 January 2000. The case was remitted for a fresh examination to the first instance court. 16. On 25 June 2003 the Oktyabrskiy District Court dismissed the applicant’s claim. 17. On 28 July 2003 the Arkhangelsk Regional Court upheld the judgment.
| 1 |
test
|
001-167086
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,016 |
SKANT v. UKRAINE
| 4 |
Inadmissible
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev
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1. The applicant, Mr Gleb Davidovich Skant, is a Ukrainian national who was born in 1971 and lives in Kharkiv. 2. The applicant was represented by Ms A. Mukanova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna, of the Ministry of Justice. 3. After 7 p.m. on 18 October 2008 the applicant went out onto the staircase landing in front of his flat to talk to an acquaintance of his, Y.K., a user of injection drugs. According to the applicant, they spoke about computer games. According to Y.K., the applicant asked him to inject him with a syringe which the latter provided. According to a subsequent forensic analysis, the syringe seized from Y.K. contained an illegal drug, but the relevant amount was below the level needed for a prosecution. 4. In the course of the subsequent investigation it emerged that the residents in the applicant’s block of flats had for some time observed drug use on the staircase landings in the building. Having seen the applicant and Y.K. on the landing, and suspecting them of drug use, O.Ya. – the grandson of a lady who lived two floors above the applicant – contacted his friend D.T., a police officer, and asked him to intervene. 5. While the applicant and Y.K. were standing on the landing and, according to Y.K., while he was giving the applicant the injection, they were approached by D.T., accompanied by O.Ya. and a certain I.L. D.T. explained that he had brought along the other people as potential witnesses. 6. According to all those involved in the incident other than the applicant, D.T. identified himself as a police officer and enquired what the applicant was doing. According to the applicant, D.T. did not identify himself. The applicant attempted to open the door to his flat and retreat. 7. According to the applicant, he was then hit on the head, kicked and punched, and those attacking him also attempted to put a syringe in his pocket. He cried for help. The attackers pushed him to the floor and continued to kick him. 8. According to all the other people involved in the incident, including Y.K., the applicant resisted D.T. when the latter tried to stop him from retreating into his flat. He started struggling with D.T., but D.T. eventually overpowered him and pushed him to the ground face down. I.L. helped D.T. hold the applicant down. 9. The applicant cried for help. D.T. called his colleague, officer O.Z., for backup. I.P., a neighbour, subsequently stated that, after hearing cries for help, he went up one floor from his flat and saw the applicant, whom he knew by sight, lying on the ground and being held down by two people while struggling. A third person assisting with the arrest was holding Y.K., who was standing facing the wall. Other than that, nobody was moving. I.P. saw O.Z. arrive and handcuff the applicant. 10. The applicant and Y.K. were taken out of the building. G.D., a neighbour, saw them on the ground floor and did not see any ill-treatment. 11. According to the applicant’s submissions to the Court, immediately before putting him in the car, the police officers hit him repeatedly. Y.K. and another neighbour, N.Zh., saw no ill-treatment. 12. The police officers took the applicant and Y.K. to the Kharkiv Kyivsky District police station in the same car, and took the applicant to the third floor without registering him at the front desk. 13. According to the applicant, in the car and at the police station the police continued to beat him. They also threatened to continue beating him and rape him once they were in one of the offices at the station. The officers and all the other people present, including Y.K., denied these allegations. 14. It is undisputed that when the applicant was taken to the third floor of the station, and as D.T. was opening an office door, the applicant either kneed or headbutted him in the face, ran along the corridor to a window and jumped out, breaking the glass with a part of his body, either his head or shoulder. On 24 October 2008 a forensic medical expert recorded that D.T. had a haematoma on his face, diagnosed him with concussion, and stated that the injuries were consistent with D.T.’s account that he had been hit by the applicant. 15. The applicant was found lying on a lawn and was taken to hospital. 16. On 24 October 2008 a forensic medical expert recorded that, based on the applicant’s personal examination and hospital records, he had a wound on the crown of his head which had scabbed over, a wound on his right elbow which had scabbed over, redness in his waist area on the right and a circular bruise on his left wrist. He was diagnosed with a closed head trauma, concussion and several fractures. The expert concluded that, other than the wrist bruise, all of the injuries could be explained by the applicant’s jump through the window and fall, and the bruise could be explained by the handcuffing. 17. On 21 November 2008, in connection with his conduct in the course of his arrest, the Kharkiv Moskovsky District Court convicted the applicant of the administrative offence of disobeying a police officer, and gave him a fine. 18. On 3 September 2012 the applicant was recognised as a Category 3 disabled person (the least severe category of disability). 19. On 18 October 2008 an inspection of the scene of the incident at the police station was conducted. A shattered window and shards of glass were discovered, spread over the ground and covering a wide area. 20. On 20 October 2008 the applicant’s mother lodged a formal complaint regarding the alleged ill-treatment. On 21 October 2008 an investigator of the Kharkiv Kyivsky district prosecutor’s office took a statement from her. The statement was mainly based on the applicant’s account, which she had heard while visiting him in hospital. 21. On 23 October 2008 the applicant told the investigator that he had been attacked by strangers on the landing of his building. He had hit back and struggled with them for two minutes. They had pushed him to the ground and hit him. They had then hit him in the car on the way to the police station, stopping several times on the way to do so. When they had taken him to the third floor of the police station, somebody had threatened him with rape. He had not been able to bear it, had hit one of the officers, and had jumped out of the window. 22. On 24 October 2008 the applicant and D.T. underwent forensic medical examinations, in accordance with the investigator’s instructions (see paragraphs 14 and 16 above). Subsequently, the investigator took a number of statements from various witnesses (see, in particular, paragraph 11 above) and the applicant. 23. On 28 October 2008 a certain Ms T.O. told the investigator that on the night in question she had been collecting empty bottles near the applicant’s building when she had seen, at a distance of about fifteen metres, six strangers take two arrestees to a car. One person, with his hands handcuffed behind his back, had been hit and kicked in the kidneys, neck and head for about ten minutes while he screamed for help. Before putting him in the car one of the assailants had said, “Don’t forget to plant [that thing on him]” (“Что б не забыли подложить”). When she had called the applicant’s mother the next day to tell her about the incident, she had learned that the person she had seen had been the applicant. T.O. said that she was the applicant’s mother’s former classmate, and made other statements indicating that she knew the family well. Neither the applicant nor his mother mentioned in their initial statements (see paragraphs 20-22 above) the events which, according to T.O., had happened in front of the police car. 24. On 30 October 2008 the investigator refused to institute criminal proceedings, for lack of corpus delicti in the police officers’ actions. On 8 November 2008 the Kharkiv regional prosecutor’s office overruled that decision, instituted criminal proceedings in relation to suspected abuse of power by the police officers, and entrusted the investigation to an investigator at the regional office. On the same day the police officers were questioned, and denied subjecting the applicant to any ill-treatment. 25. On 15 November 2008 the applicant was recognised as an aggrieved party in those proceedings, and was questioned in that capacity. 26. In the course of the subsequent criminal investigation, all the witnesses mentioned above and several others were repeatedly interviewed, and several formal confrontations between witnesses and on-site reconstructions were held, with the participation of the applicant and the police officers. In particular, on 6 March 2009 the applicant was questioned about his personal history. He stated that he had previously participated in kickboxing and karate tournaments, and in 1994 had been a karate champion in Ukraine. He also stated that in 2000 he had changed his name from Maksim Vladimirovich Inyutin to Gleb Davidovich Skant, since this was a requirement for converts to Islam. He did not attend any church in particular, but felt closest to the Jehovah’s Witnesses. 27. The investigator also obtained the opinions of a number of experts. In particular, on 21 April 2009 a psychologist concluded that the applicant’s conduct might have been driven by such pronounced personality traits as an appetite for risk, a heightened sense of injustice, a strong will, and a tendency to become easily insulted. The expert noted that, according to the applicant, he had thought about jumping out of the car on the way to the police station. On 30 June 2009 a panel of medical experts confirmed the findings of the examination of 24 October 2008 (see paragraph 16 above), and concluded that the applicant’s injuries were inconsistent with his account of ill-treatment. 28. On 30 September 2010 the investigator decided not to bring charges against the individuals who had been involved in the incident (D.T., O.Z., O.Ya. and I.L.), for lack of corpus delicti in their actions, and on 2 October 2010 the investigator decided to discontinue the criminal proceedings, finding that there were no sufficient grounds to bring any charges. The investigator concluded, in particular, that the applicant’s account diverged from the accounts of all witnesses and the medical evidence, while the officers’ accounts did not. As to T.O., her account contradicted the consistent statements of other disinterested parties, and she was the applicant’s mother’s former classmate. 29. On 24 November 2010 the Kharkiv Chervonozavodsky District Court overruled the decision of 2 October 2010 and sent the case back for further investigation, stating in particular that the investigator had failed to take into account T.O.’s statements. 30. In the course of the subsequent investigation, the investigator repeatedly attempted to contact the applicant, without success, and then ordered the police to look for him. According to a police report of 7 April 2011, the applicant’s parents and neighbours said that he had moved in with his girlfriend. Although he visited them from time to time, his parents maintained that he had not left an address. They promised to inform the applicant that the investigator was looking for him when they next saw him. The investigator’s efforts to contact the applicant through his lawyers were equally unsuccessful. 31. On 31 May 2011 the investigator again discontinued the criminal proceedings, coming to the same conclusions, particularly concerning T.O.’s statements. According to the Government, the applicant was notified of that decision on the same day by letter. According to the applicant, he learned of it on 3 June 2013.
| 0 |
test
|
001-145007
|
ENG
|
ITA
|
CHAMBER
| 2,014 |
CASE OF CATALDO AND OTHERS v. ITALY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)
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András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
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5Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011). 6. In 1995, by means of the Dini reform, Italy changed its pension system from a retributive one, which applied the remuneration-based (“retributivo”) method of calculation, to a contributory one, where the amount received in pension was dependent on the contributions paid. 7. Mr Cataldo, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension in accordance with the 1962 Italo-Swiss Convention on Social Security (see Relevant Domestic Law and Practice below) on the basis of the contributions paid in Switzerland for work he had performed there between 1956 and 1994. As a basis for the calculation of his pension (in respect of the average remuneration of the last ten years), the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a readjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 8. Consequently, in 2006 Mr Cataldo instituted judicial proceedings, contending that this was contrary to the spirit of the Italo-Swiss Convention. Various individuals in the same position had done the same and had been successful, the domestic courts having determined that persons having worked in Switzerland and who had subsequently transferred their contributions to Italy should benefit from the remuneration-based pension calculations, on the basis of the wages earned in Switzerland, irrespective of the fact that the transferred contributions had been paid at a much lower Swiss rate. 9. Pending the proceedings, Law no. 296/2006 (see Relevant Domestic Law and Practice below) entered into force on 1 January 2007. 10. By a judgment of the Lecco Tribunal (Labour and Welfare Section) of 27 February 2008, filed in the relevant registry on 6 May 2008, the court rejected Mr Cataldo’s claim in view of the entry into force of Law no. 296/2006. 11. Mr Cataldo did not appeal, deeming it to be futile given that the impugned law had been considered legitimate by the Constitutional Court in its judgment of 23 May 2008, no. 172 (see Relevant Domestic Law and Practice below), which other courts were then bound to uphold. 12. Mr Maggioni, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension in accordance with the 1962 Italo-Swiss Convention on Social Security on the basis of the contributions paid in Switzerland for work he had performed there between 1965 and 2000. As a basis for the calculation of his pension (in respect of the average remuneration of the last ten years), the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a readjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 13. Consequently, in 2006 Mr Maggioni instituted judicial proceedings. 14. By a judgment of the Brescia Tribunal (Labour Section) of 26 June 2006, Mr Maggioni’s claim was upheld on the basis of the relevant Court of Cassation case-law at the time. 15. The INPS appealed. 16. By a judgment of 1 March 2007, filed in the relevant registry on 19 May 2007, the Milan Court of Appeal reversed the first-instance judgment in view of the entry into force of Law no. 17. Mr Ribulotta, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension in accordance with the 1962 Italo-Swiss Convention on Social Security on the basis of the contributions paid in Switzerland for work he had performed there between 1955 and 1991. As a basis for the calculation of his pension (in respect of the average remuneration of the last ten years), the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a readjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 18. Consequently, in 2003 Mr Ribulotta instituted judicial proceedings. 19. By a judgment of the Varese Tribunal (Labour and Welfare Section) of 21 February 2006, Mr Ribulotta’s claim was upheld on the basis of the relevant Court of Cassation case-law at the time. 20. The INPS appealed. 21. By a judgment of 16 May 2008, filed in the relevant registry on 5 June 2008, the Milan Court of Appeal reversed the first-instance judgment in view of the entry into force of Law no. 296/2006. 22. 23. Mr Marinaro, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension in accordance with the 1962 Italo-Swiss Convention on Social Security on the basis of the contributions paid in Switzerland for work he had performed there between 1965 and 1994. As a basis for the calculation of his pension (in respect of the average remuneration of the last ten years), the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a readjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 24. Consequently, in 2006 Mr Marinaro instituted judicial proceedings. 25. By a judgment of the Como Tribunal (Labour and Welfare Section) of 21 February 2006, Mr Marinaro’s claim was dismissed as being out of time. 26. Mr Marinaro appealed. 27. By a judgment of 7 July 2008, filed in the relevant registry on 17 July 2008, the Milan Court of Appeal reformed the first-instance judgment, considering that the applicant’s claims for the dues relating to the three years before he lodged his application could not be considered time-barred. However, it rejected the merits of the claim in view of the entry into force of Law no. 296/2006. 28. 29. Mr Centamore, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension in accordance with the 1962 Italo-Swiss Convention on Social Security on the basis of the contributions paid in Switzerland for work he had performed there between 1969 and 2000. As a basis for the calculation of his pension (in respect of the average remuneration of the last ten years), the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a readjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 30. Consequently, in 2006 Mr Centamore instituted judicial proceedings. 31. By a judgment of the Busto Arsizio Tribunal (Labour and Welfare Section) of 9 June 2008, Mr Centamore’s claim was rejected in view of the entry into force of Law no. 296/2006. 32. 33. Mr Maccarinelli, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension in accordance with the 1962 Italo-Swiss Convention on Social Security on the basis of the contributions paid in Switzerland for work he had performed there between 1960 and 2000. As a basis for the calculation of his pension (in respect of the average remuneration of the last ten years), the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a readjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 34. Consequently, in 2006 Mr Maccarinelli instituted judicial proceedings. 35. By a judgment of the Bresce Tribunal (Labour and Welfare Section) of 20 June 2008, filed in the relevant registry on 23 June 2008, Mr Maccarinelli’s claim was rejected in view of the entry into force of Law no. 296/2006. 36.
| 1 |
test
|
001-152626
|
ENG
|
MDA
|
CHAMBER
| 2,015 |
CASE OF PISAROGLU v. THE REPUBLIC OF MOLDOVA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
5. The applicant was born in 1987 and lives in Chişinău. 6. The applicant was arrested on 19 July 2010 on charges of trafficking in human beings and held in detention on remand in Prison No. 13 in Chișinău until 15 March 2011. According to her, the conditions of detention were very poor. In particular, the applicant alleged that the cells were overcrowded, dirty and cold, with no access to daylight or fresh air, no bedding, very poor quality food, showers only once a week, only cold water, and clothes had to be washed and dried in the cell.
| 1 |
test
|
001-147680
|
ENG
|
ROU
|
CHAMBER
| 2,014 |
CASE OF ENĂȘOAIE v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra
|
5. The applicant was born in 1960 and lives in Roman. 6. On 29 September 2011 the applicant was arrested after criminal proceedings had been opened against him for bribe taking. On the same date he was detained in Bacău Police Department’s detention facility. 7. On 29 November 2011 he was moved to Bacău Prison. 8. On 20 June 2012 he was released. The criminal proceedings opened against him are still pending before the domestic courts. 9. In Bacău Police Department’s detention facility and Bacău Prison the applicant had to share a cell with smokers, even though he was a nonsmoker and was suffering from a heart condition. He was unable to rest because the other detainees would smoke continuously from 7 a.m. to 2 p.m., and the cell would be covered by thick smoke. 10. The cell did not have enough furniture, and lacked coat hangers, shelves and cupboards. Clothes had to be stored on the floor, under beds, where no cleaning was carried out. The bathrooms lacked shelves and privacy, as the washing area and toilet facilities were not separate. In addition, the cell was damp, measured 15 sq. m., had a volume of 50 cubic metres, contained six beds, and was occupied by ten detainees. Cleaning and dehumidification materials were provided by his family, and in the absence of any action on the part of the prison authorities, he and the other detainees had to clean the cell themselves. The cell was not heated during the cold season, and as a result of the extreme cold the applicant had to ask his family to provide him with warmer bed linen. Also, the cell was infested with fleas, lice, bed bugs and mosquitoes, but the detainees were not allowed to disinfect it, even at their own expense. 11. The detention facilities did not provide detainees with any areas for washing, drying or cleaning their clothes. He was forced to wear dirty clothes, or if he did wash them, he had to wear them damp. 12. The bed linen provided by the authorities was unusable, was not suitable for the time of year and was not changed during the entire time he was detained. 13. Warm water was available twice a week for two hours each time therefore not all detainees could wash. He was unable to shave on a daily basis. Detainees did not have access to a barber, toiletries were not provided by the authorities and he had to purchase shaving products at his own expense. 14. The food was poor, insufficient and served in unhygienic conditions by detainees not wearing the appropriate equipment for serving food. The cutlery and plates were rusty and dirty, and the cell did not have a table and chairs for detainees to be able to sit down and eat their meal. 15. He was taken out of his cell for a walk only twice a week for thirty minutes; between ten or twenty inmates would be in the prison courtyard at a time. The courtyard was covered by a metal mesh, measured 25 sq. m, had no bathroom facilities and did not receive any sunlight. 16. The applicant was transported to and from court and was held in the courthouse cells with smokers. 17. In Bacău Police Department’s detention facility the applicant was detained in a cell which measured 12.82 sq. m and contained four beds. The cell had central heating and was ventilated. The sanitary facilities were outside the cell and were accessible to everyone twenty-four hours a day. Detainees had access to a shower, a sink, and a toilet that was separate from the rest of the bathroom. They were allowed to shower and do their laundry twice a week. 18. In Bacău Prison the applicant was detained in six different cells. Five of them were in the infirmary. 19. From 29 November to 5 December 2011 the applicant was detained in a cell which measured 26.09 sq. m and contained twenty-three beds. From 23 February to 7 May 2012 he was detained in a cell which measured 33.05 sq. m and contained eight beds. From 8 to 14 May 2012 he was detained in a cell which measured 26.61 sq. m and contained nine beds. From 15 to 28 May 2012 he was detained in a cell which measured 32.09 sq. m and contained six beds. 20. All the detention cells had central heating, sanitary facilities, windows, electricity and were furnished. The beds had mattresses, pillows, bed linen and blankets provided by the detention facility. Detainees were also allowed to receive bed linen from their families. 21. Detainees had unlimited access to cold water. They also had access to warm water every day, based on a pre-approved rota. 22. The cells were heated daily during the cold season from 5 to 9.30 a.m. and 7 to 11 p.m. 23. They were disinfected three times a year or whenever needed, by specialist contractors. In addition, detainees were provided with cleaning materials and had a statutory duty to clean their cells. They were also provided with toiletries for their personal hygiene. Starting from December 2011 each individual had to sign for the toiletries they were given. 24. The detention facilities had cells assigned exclusively to nonsmoking detainees. 25. Without providing supporting documents, the Government submitted to the Court that when the applicant had been transferred to Bacău Prison, he had declared that he was a smoker. In addition, on 6 and 16 December 2011 and 8 May 2012 he had purchased cigarettes, and on 13 December 2011 he had bought lighters. 26. The applicant was transferred only to courthouse cells and not to any other detention facilities. The vehicles had windows and heating. 27. As a general rule, detainees were forbidden from smoking during transfers. Smokers were separated from non-smokers in the courthouse cells. 28. Between 14 December 2011 and 20 June 2012 the applicant was transferred sixteen times to and from court, for distances of 2 and 62 kilometers.
| 1 |
test
|
001-157695
|
ENG
|
RUS;UKR
|
CHAMBER
| 2,015 |
CASE OF BELOZOROV v. RUSSIA AND UKRAINE
| 3 |
Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person;Article 5-1-f - Extradition) (Ukraine);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention) (Russia);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review by a court;Speediness of review);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Stanislav Shevchuk
|
6. The applicant was born in 1967 and lives in the town of Feodosiya, the Autonomous Republic of Crimea. 7. On 19 September 2000 the Prosecutor’s office of the NorthWestern Administrative District of the city of Moscow (“the Prosecutor’s office”) opened a criminal investigation into the murder of a businessman. 8. By a decision of 30 October 2000 the Prosecutor’s office ordered the applicant to appear as a witness in this case. Since at that time the applicant resided in the town of Feodosiya in the Autonomous Republic of Crimea, the prosecutor also ordered the police to take measures with a view to ensuring the applicant’s attendance. It appears that the relevant summons was sent to the applicant’s only known address in Russia, that of his sister, who resided in Moscow. The applicant denied having received the summons at that time. 9. On 1 and 2 November 2000 the Prosecutor’s office ordered the applicant’s apartment in Feodosiya to be searched, requested the cooperation of the Ukrainian authorities in conducting the search, and also dispatched a team of police officers from the Department of Criminal Investigations of the Moscow City Department of the Interior to Ukraine. In his letter dated 1 November 2000 a prosecutor from the Prosecutor’s office specifically mentioned that he had decided to send two police officers from that Department to Feodosiya for “operative follow-up”. 10. Two Russian police officers, Ti. and Go., were entrusted with this operation and at once sent to Ukraine. It appears that they had secured the support of the head of the Department of Criminal Investigation of the Feodosiya Department of the Interior, lieutenantcolonel Mir., who had apparently instructed his subordinate, police officer Kov., to assist the Russian police officers in their task. The exact mandate of police officer Kov. is unclear. 11. On 3 November 2000 police officer Kov. and the two Russian police officers, Ti. and Go., located and arrested the applicant. He was handcuffed and his apartment was searched. The search took place in the presence of the applicant’s mother, B.N., and her neighbours K.M. and P.N. acting as witnesses; it was documented in a report drawn up by Kov. on 3 November 2000. The report stated that the applicant had been given a copy of the report on the day of the search. 12. According to the applicant, after the search he remained in the custody of the Ukrainian and Russian police, who the next day escorted him to a local airport. The Russian officers and the applicant took the first flight to Moscow. On arrival, the applicant was formally arrested by the same two officers and detained on suspicion of murder. 13. The applicant submitted a copy of the passenger manifest for Aeroflot flight Su-200 dated 4 November 2000. The document showed that the applicant and police officers Go. and Ti. had travelled on the same flight and occupied seats nos. 5 (Go.), 6 (the applicant) and 7 (Ti.). 14. According to the Russian Government, after the search the applicant had been taken to the Ukrainian police and shortly thereafter had been released. The next day he had bought a ticket and took a flight to Moscow. Two police officers, Ti. and Go., had been tipped off about the applicant’s decision to buy a ticket and managed to buy tickets for the same flight. When the applicant arrived at a Moscow airport, he had been arrested by Ti. and Go. and brought before an investigator from the Prosecutor’s office. 15. The Ukrainian Government did not submit their own version of these events. 16. After the events of 3 and 4 November 2000 the applicant’s parents made a number of complaints to various Ukrainian officials and bodies about the actions of the Ukrainian policemen and requested assistance from the Ukrainian Ministry of Foreign Affairs in repatriating the applicant to Ukraine from Russia. 17. More specifically, on 25 November 2000 the applicant made a criminal complaint to the Ukrainian Prosecutor General’s office, alleging abuse of power and the unlawfulness of the search, arrest and detention. 18. In response to one of the complaints of the applicant’s parents’, on 8 December 2000 a prosecutor from the Feodosiya Prosecutor’s office initiated administrative proceedings regarding the events of 3 November 2000 against the Ukrainian officials involved. The decision stated that: “... On 3 November 2000 police officers from the Moscow department of criminal investigations arrived at the town of Feodosiya with a warrant to carry out a search at [the applicant’s home address], this decision having been authorised by [a] prosecutor from the Moscow North-Western District. The head of the criminal investigation department of the Department of the Interior ... police lieutenant-colonel Mir., seriously breached the requirements of Article 177 of the Code of Criminal Procedure of Ukraine and Article 80 of the Minsk Convention ... according to which contact concerning questions of extradition, criminal prosecution, and the execution of investigatory missions ... is to be made by the Prosecutor General’s offices of the respective parties. He directed his [subordinates] to render assistance [to the Russian police] in carrying out their search. Before the start of the search the Moscow police officers, in the presence of Ukrainian police officers Kov., Ga., and Bol., arrested [the applicant] and handcuffed him: this was confirmed by [the applicant’s parents and witnesses] K.M. and P.N. After the search, a Ukrainian national [the applicant] was apprehended by the Russian police and taken to an unknown location ...” 19. On 9 December 2000 the head of the Feodosiya Department of the Interior, lieutenant-colonel Mir., issued order no. 478, in which he reprimanded police officer Kov. who had taken part in the events of 3 November 2000, for “incorrect and unathorised actions while assisting the police of other states”. 20. On 22 December 2000 the same official from the Feodosiya Department of the Interior issued order no. 501, in which he mentioned that the initial authorisation given to police officer Kov. had only included the instruction “to locate [the applicant] and indicate that location to the police officers from Moscow”. 21. By a letter dated 30 December 2000 the Ukrainian authorities informed the applicant’s mother that police officer Kov. had been reprimanded and that the question of the disciplinary liability of lieutenantcolonel Mir. would be decided when he returned from holiday. 22. On 22 January 2001 a prosecutor from the Ukrainian Prosecutor General’s office wrote a letter to the applicant’s father and informed him that they “had requested legal assistance [from the Russian authorities] in resolving [the applicant’s complaint] about his unlawful arrest ... and his ... subsequent transfer to [Russia]”. By the same letter the applicant’s father was informed that the applicant’s complaint about unlawful actions on the part of the Ukrainian policemen had been forwarded to a prosecutor’s office for further investigation. 23. By a letter dated 23 April 2001, in response to one of the complaints from the applicant’s family, a prosecutor from the Feodosiya Prosecutor’s office informed the applicant that the Russian lawenforcement bodies had never formally asked the Ukrainian authorities to conduct a search at the applicant’s address in Ukraine. 24. By a letter dated 7 February 2002 a prosecutor from the Ukrainian Prosecutor General’s office informed the applicant’s mother that the inquiry into the events conducted by the Prosecutor’s office of the Autonomous Republic of Crimea revealed that officers from both the Russian and the Ukrainian police had been present during the search. The inquiry resulted in the decision to bring administrative proceedings in respect of the Ukrainian police officers who had breached the rules of criminal procedure and the Minsk Convention. 25. In July 2004 the applicant’s mother lodged a complaint about the events of 3 November 2000 with the Feodosiya Town Court. This complaint remained unexamined and on 19 August 2004 it was forwarded instead to the Feodosiya Town Prosecutor’s office. A covering letter signed by the President of the Feodosiya Town Court explained to the applicant’s mother that the complaint had been forwarded to the Prosecutor’s office for examination. 26. The applicant’s parents appealed against the Town Court’s failure to examine his mother’s arguments on the merits before the Appeal Court of the Autonomous Republic of Crimea on 29 November 2004. 27. On 8 December 2004 the President of the Appeal Court explained that on 6 April 2001 an investigator had already refused to bring criminal proceedings in respect of the events of 3 November 2000. 28. It is unclear whether the applicant or his family received a copy of the decision of 6 April 2001. According to a certificate submitted by the Ukrainian Government, the inquiry case file was destroyed owing to expiry of the retention period on 4 May 2006. 29. On 6 December 2000 the applicant lodged a similar complaint with the Russian Prosecutor General, stating that his arrest in Ukraine, subsequent transfer to Moscow and detention in custody by the Russian authorities had been unlawful. 30. On 22 December 2000 an investigator from the Prosecutor’s office questioned officer Ti. in connection with the circumstances of the applicant’s arrest in Ukraine. Ti. stated: “... on 1 November 2000 the prosecutor’s office of the Northern Western Administrative District issued an international request for the search of [the applicant’s apartment] and the applicant’s arrest. Whether it reached the police of Feodosiya I am not sure, but as far as I understood it [did]. In order to execute the request, [officer] Go. and I set off for Feodosiya in possession of a copy of the international request. Having arrived in Feodosiya, we contacted the Department of the Interior of Feodosiya and asked them to be present during the search and other activities within the framework of the request. On 3 November 2000 we attended the search at [the applicant’s] place of residence. The search of [the applicant’s] apartment was conducted by the [Feodosiya] police officers and they drew up a record in this respect. Go. and I were present at the search, but did not actively participate in it. After the search [the applicant] was invited by the [Feodosiya] police officers to the premises of the Department of the Interior for questioning. I was informed by one of the [Feodosiya] police officers that [the applicant] refused to answer any questions concerning the matter. No documents were given either to me or to Go. We were only given a copy of the search record. I knew that we had no right to carry out any operative search activities on the territory of Ukraine, and therefore we did not personally participate in the verbal exchanges with [the applicant]. Having refused to make any statements, [the applicant] was released. The next day, 4 November 2000, the [Feodosiya] policemen – I don’t remember who exactly – informed Go. and myself that [the applicant] had bought a ticket for a plane to Moscow and told us the flight and seat number. At once we set off for the sales office and, since very few tickets were sold, managed to buy tickets for seats close to [the applicant] so as to be able to observe him. The plane was not full, since few people were flying to Moscow. We did not show any interest or attention towards [the applicant]. I don’t know whether [the applicant] recognised us. In any event, had he had any concerns, he could have expressed them to the officers [of the law enforcement agencies in the airport]. [The applicant] did not do this, from which I deduce that he was not aware of either me or Go., nor had he recognised [us], and he expected to go into hiding in Moscow. We knew about the investigator’s decision to arrest [the applicant] because he had no place of residence in Moscow. Upon his arrival in Moscow, we decided to arrest [the applicant] and bring him [to the police station of the Northern Western Administrative District] for investigative actions ...” 31. On 22 December 2000 an investigator from the Prosecutor’s office questioned officer Go. in connection with the circumstances of the applicant’s arrest in Ukraine. Go. repeated word for word the statements given earlier by Ti. 32. By a decision of 26 December 2000 an investigator from the Prosecutor’s office rejected the applicant’s complaint on the grounds that the applicant had travelled to Moscow of his own free will and had been detained on arrival in accordance with domestic law. The prosecutor relied principally on the evidence given by the two Russian police officers, who explained that they had happened by mere chance to be on the same plane to Moscow as the applicant. They denied that they had taken an active part in the events in Ukraine and stated that the applicant had been released after the search and had then bought a plane ticket to Moscow on his own. The officers had been tipped off by an undisclosed source within the Ukrainian police and had managed to buy tickets for the same flight, “sitting not very far from the applicant’s seat”. On arrival in Moscow the officers arrested the applicant in the airport terminal and took him to the investigating authorities. 33. On 28 December 2000 an investigator from the Prosecutor’s office questioned the applicant in connection with the circumstances of his arrest in Ukraine. The applicant stated: “... I was arrested on 3 November 2000 in the town of Feodosiya, in the Krym Region. The arrest was carried out by five police officers from the Feodosiya Town Police and two other police officers, who I later learned were from Moscow. Once the policemen had identified me I was handcuffed. Thereafter they conducted a search of my home. I was shown a search warrant signed by the Prosecutor from the Northern-Western Administrative District of Moscow but no other documents were provided. After the search I was brought to the police station in Feodosiya. I was not shown any documents justifying my arrest. I was refused a phone call. After that I was transported to hotel “Sailor” in Feodosiya where the policemen from Moscow were staying and where I was handcuffed to a radiator. We spent about an hour in the hotel but after that I was taken to the police station because the hotel manager objected to the presence of three men in a room designed only for two. The rest of the night I spent in an office belonging to the police, attached by handcuffs to the radiator. The next morning the policemen from Moscow took me to the passport office of Feodosiya Police Station to collect my ID card and thereafter we went by car to the airport. At the airport I was in the car with the policemen from Feodosiya. The policemen bought a ticket in my name. Then we took flight 200 from Simferopol to Moscow. Before boarding we went through the customs and border control. As we were passing it, my handcuffs were removed and the policemen showed their licences to use special devices. Upon landing in Moscow, the policemen and I did not go through the border and customs control, but went out through [a special] exit. Thereafter I was put in a car and brought to the [police station] of the Northern-Western Administrative District of Moscow ...” 34. In decisions of 16 February and 16 April 2001, in response to further complaints by the applicant, the prosecutor reiterated his earlier findings. 35. By a judgment of 2 September 2002 the Khoroshevskiy District Court of the city of Moscow confirmed the prosecutor’s decision to dispense with criminal proceedings in respect of the allegedly unlawful arrest, search and detention. Among other things, the court referred to the Minsk Convention. 36. The Moscow City Court quashed this judgment on 31 October 2002 on the grounds that the questions of the lawfulness of the applicant’s arrest and the search of his apartment were inextricably linked to the merits of the applicant’s criminal case and could not be decided before the trial court judgment. 37. The case was remitted for fresh examination at first instance and on 27 November 2002 the Khoroshevskiy District Court of Moscow rejected the applicant’s appeal. This judgment was upheld on appeal by the Moscow City Court on 9 January 2003. 38. It appears that the applicant subsequently tried to institute court proceedings in respect of the same questions before the domestic courts. By a judgment of 18 July 2003, given in the applicant’s absence, the Khoroshevskiy District Court of Moscow rejected these arguments. The court held, in particular, that: “... as is apparent from the case file, [the applicant] was arrested by the [police officers] Go. and Ti. on 4 November 2000 at Sheremetyevo airport as ordered by the investigator in his decision of 30 October 2000 ... When questioned in this connection, Go. and Ti. stated that they did not arrest [the applicant] in Ukraine and did not take any part in the search of his apartment, but were simply in attendance. According to the search record of 5 November 2000, the search was carried out in [the applicant’s] apartment in Feodosiya by the local police and the request to carry it out had been made to the Feodosiya prosecutor by the prosecutor of the North Western Administrative District of Moscow. The order to execute the request is defined by the party to which the request is addressed. In accordance with the Criminal Procedure Code of RSFSR and the Law on Operative and Search Activities, the said norms applied only on the territory of RSFSR but they did not contain any rules preventing [investigation and operative] activities on the territory of another state. The [Minsk] Convention sets out the possibility of legal assistance and does not contain a ban on procedural actions on the territory of Contracting States, recognising the lawfulness of such actions if they are authorised by the law of the party to which the request was addressed (Article 6 of the Convention). According to part 3 of Article 8 of the Convention, the presence of officers acting for the requesting party during such actions is possible. In the view of the above, the court considers that the search was carried out fully and properly. In the present case the prosecutor’s office was only competent to assess the events which took place on the territory of Russia, as the norms of the code of criminal procedure of RSFSR only applied there, and any decision concerning events which took place on the territory on Ukraine could only be taken by the competent body in Ukraine and the corresponding investigation could only be initiated upon a request from the party to which the request was addressed, that is to say Ukraine. However, no such request was ever made, and, as is apparent from the letter from the Feodosiya prosecutor, the request to bring a criminal case in this connection had been refused ...” 39. According to the applicant, he received only a copy of the judgment on 28 July 2003 and tried to appeal against it on 30 July 2003. His request for restoration of the time-limits for appeal, submitted on 31 October 2003, was refused by the Khoroshevskiy District Court of Moscow on 19 November 2003 for the applicant’s failure to justify the filing of the appeal outside of the ten days’ statutory time-limit. The Moscow City Court upheld the decision of 19 November 2003 on 13 January 2004. 40. After the Court had communicated the case to the Russian Government on 30 November 2005, police officers Ti. and Go. wrote explanatory reports to their superiors dated 13 March 2006 concerning the events of 3 and 4 November 2000, with the following content: “... After the search had been carried out, [the applicant] went to the Police Department along with [the Ukrainian police officials] to give The next day officer Go. and I departed for Moscow by air. We were told by one of the Ukrainian police officers that [the applicant] had bought a ticket to Moscow; we managed to buy tickets for the same flight. Upon arrival in Moscow, after going through customs and border control in the airport terminal, we ... approached [the applicant and arrested him]. No physical or psychological pressure was exercised on [the applicant] ...” 41. At around 9 p.m. on 4 November 2000 an investigator from the Prosecutor’s Office in Moscow drew up a report on the applicant’s arrest, having ascertained that the applicant was wanted on suspicion of murder. The report noted that the applicant had the status of an accused in the case and confirmed that he had been notified of his rights. 42. It appears that the applicant’s detention was first authorised by a decision of 7 November 2000 taken by the District Prosecutor of the Prosecutor’s office in Moscow. The decision stated that the applicant had been detained on 4 November 2000. It further referred to the gravity of the charge against him, the risk of his fleeing or interfering with the course of the investigation, and the fact that he had no permanent residence in the Moscow region. The decision neither specified the term of the applicant’s detention nor commented on the lawfulness of his arrest in Ukraine, his transfer to Moscow and his subsequent detention in custody by the Russian authorities. 43. The detention was subsequently extended by order of the prosecutor on 7 December 2000. The order described the course of the investigation into the case and mentioned the progress achieved so far. More specifically, the investigation identified and located Sm. and Ko., two other persons allegedly directly implicated in the murder of the businessman in question. It also included a number of expert examinations, a forensic examination of the body of the businessman, two ballistic examinations and a dactylographic examination. The investigator had mentioned that he still needed to study the network of the applicant’s and Ko.’s connections and to bring new versions of charges against the applicant, as well as against Sm. and Ko. The order extended the applicant’s detention until 2 February 2001. 44. By order of 23 January 2001 the applicant’s detention was extended until 19 March 2001. It was based on the same reasoning as the detention order of 7 December 2000. 45. On 22 March 2001 the prosecution concluded the investigation and remitted the case for examination on the merits. It does not appear that there was any procedural decision authorising the applicant’s detention between 19 March and 4 April 2001. 46. On 4 April 2001 the Moscow City Court conducted a preliminary examination of the applicant’s case and, without examining the question of the lawfulness of his detention between 19 March and 4 April 2001, further remanded the applicant in custody. No time-limit was indicated. 47. Thereafter the court again extended the applicant’s detention on 24 July, 2 August, 4 September and 17 December 2001 as well as on 1 July 2002, without specifying any time-limit for his detention. All these decisions were taken with reference to the gravity of the charge against the applicant and the fact that the proceedings in the case had not been completed. 48. The applicant and his counsel were not invited to attend the hearing of 1 July 2002. 49. It does not appear that the applicant lodged any complaint about the repeated extension of his detention by the prosecutor or by the court prior to the decision of 1 July 2002. The applicant’s complaints of 1 and 22 July 2002 against that decision were rejected by the Supreme Court on 24 October 2002. 50. According to the applicant, he and his counsel were not invited to attend the hearing of 24 October 2002. However, the Government submitted that the applicant and his counsel had been informed about the hearing of 24 October on 15 October 2002. The applicant’s counsel had not given the appeal court any reasons for her failure to appear, and did not ask for the hearing to be postponed. At the same time, the applicant’s request to attend in person remained unexamined. 51. It appears that on 16 September and 16 December 2002 the trial court extended the applicant’s detention once again. The applicant submits that he challenged these decisions on 17 September and 17 December 2002 respectively but received no reply. 52. According to the Government, the applicant’s appeals against the decision of 16 September 2002 were dated 30 December 2002 and 22 January 2003, whilst the decision of 16 December 2002 was appealed against on 13 January 2003. The Government were unable to specify the reasons for the domestic courts’ failure to examine these appeals. 53. On 22 March 2001 the preliminary investigation was concluded and the prosecutor remitted the applicant’s criminal case to the Moscow City Court for trial. 54. On 4 April 2001 Judge N. listed the case for a hearing on 16 April 2001. 55. On 16 April 2001 the court adjourned the hearing until 21 June 2001. On the latter date the hearing was adjourned until 25 July 2001 since a lawyer for one of the co-accused failed to appear. 56. Judge M. took over the case on 24 July 2001 and scheduled the hearing for 1 August 2001. 57. On 1 August 2001 the court adjourned the case until 2 August 2001, when the case was again suspended until 3 September 2001 because of the failure of some witnesses to appear. 58. On 4 September 2001 the hearing was postponed until 8 October 2001 for the same reasons. 59. By a decision of 8 October 2001 the court fixed the next date of the hearing for 30 November 2001. 60. Between 30 November and 17 December 2001 hearings were held regularly. 61. On 17 December 2001 the case was adjourned on grounds of witnesses’ absence and the need for a psychiatric examination of the applicant. The examination was carried out on 4 April 2002. 62. In July 2002 the case was transferred to Judge Z. The next hearing took place in August 2002, when the case was yet again postponed until 17 October 2002 due to witnesses’ failure to appear. 63. On 30 January 2003 the Moscow City Court convicted the applicant of conspiracy to murder and sentenced him to eight years and six months’ imprisonment. The court did not address the question of the lawfulness of the applicant’s arrest and detention until his arrival in Moscow on 4 November 2000. 64. On 27 November 2003 the Supreme Court of Russia upheld the judgment on appeal.
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test
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001-161037
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ENG
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POL
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CHAMBER
| 2,016 |
CASE OF RYWIN v. POLAND
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Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)
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Aleš Pejchal;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney
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7. The applicant was born in 1945 and lives in Konstancin Jeziorna. 8. On 27 December 2002 the Gazeta Wyborcza – a major daily newspaper – published an article with the headline: “A law in exchange for a bribe: when Rywin pops by to see Michnik” (Ustawa za łapówke, czyli przychodzi Rywin do Michnika). The article was about bribery in connection with the legislative procedure for the amendment of the Broadcasting Act. According to the article, in July 2002 Lew Rywin (the applicant), a well-known film producer, had offered a bribe to representatives of the company that published the Gazeta Wyborcza newspaper, Agora S.A. The applicant was said to have been acting on the instructions of a purported “group in power” (grupa trzymająca władze), which allegedly included certain high-ranking State officials, among them the Prime Minister. More specifically, the applicant had reportedly offered the representatives of Agora his assistance in amending the Broadcasting Act so that the company could buy the private television channel Polsat, and had asked for the following, among other things, in return: payment of 17.5 million United States dollars (USD), his appointment as chairman of the channel Polsat and an undertaking from the newspaper Gazeta Wyborcza to refrain from publishing any criticism of the government. The above-mentioned proposal was said to have been made by the applicant during a meeting with Adam Michnik, editor-in-chief of Gazeta Wyborcza. The meeting had been recorded by the latter and transcriptions from the recording were later included in the article published by his newspaper. A. The criminal proceedings against the applicant, the work of the Parliamentary commission of inquiry and the media coverage 9. After the case was revealed in the press, the public prosecutor at the Warsaw Court of Appeal brought proceedings against the applicant, on 31 December 2002, on a charge of influence peddling (przestępstwo płatnej protekcji), under Article 230 of the Criminal Code. 10. On 10 January 2003, the Sejm – lower house of Parliament – passed a resolution (uchwała) setting up a parliamentary commission of inquiry (“the commission”). Under that resolution the commission was set up with the following aims: “(1) To investigate the circumstances surrounding the attempted extortion by Lew Rywin of material and political gains in exchange for his assistance in preventing an amendment of the Broadcasting Act that would be unfavourable to private media and in guaranteeing that the Broadcasting Media Council would decide in favour of such media; and to determine the identity of any persons that may have taken steps to this effect, as revealed by the Gazeta Wyborcza newspaper and other media. (2) To examine, in the light of the circumstances mentioned in paragraph 1 above, the parliamentary procedure for the amendment of the Broadcasting Act. (3) To examine whether the authorities’ response to the media revelations concerning the affair mentioned under point 1 above was regular.” The resolution stated that the commission’s meetings would be held in public, unless otherwise provided by law or by the Sejm’s rules of procedure. 11. On 14 January 2003, the commission, consisting of ten MPs, began its work. 12. On the same day the public prosecutor questioned the applicant and notified him of the charge against him. The applicant was obliged to present security in the form of a registered charge against his property and his passport was seized. 13. On 23 February 2003 issue number 8 of the weekly magazine Wprost was published with, on the cover, a photomontage showing the applicant with his head emerging from a toilet bowl while three hands of unknown persons were pressing the flush button. The photomontage was accompanied by the following caption: “How many men in power will Rywin bring down with him?” (Ilu ludzi wladzy pociagnie za soba Rywin ?). Inside the same issue of Wprost was an article headed “Rywinotherapy” (Rywinoterapia), on the subject of corruption in Poland. 14. Following that publication the applicant brought proceedings against Wprost for the protection of his reputation, complaining about a breach of his right to be presumed innocent. On 25 June 2003 Warsaw Regional Court dismissed the applicant’s claim, finding in particular as follows: “Until the final conviction has been handed down, the complainant must be treated as a person presumed innocent. It is nevertheless true that he had been charged with specific offences, that a bill of indictment had been preferred against him, and that the matter is being examined by a parliamentary commission of inquiry. It must be emphasised that the general public have been informed about the “group in power” [sic]. In that situation, the journalists had not only the right but also a duty, under the Press Act, to ask questions about any figures in power who may be implicated in this affair ... In the lower court’s opinion, the complainant’s picture was widely known to the public in the context of the ‘Rywin affair’ even before the article was published. The image of Lew Rywin had appeared on a number of occasions in the media in connection with this matter. The complainant was interviewed by the parliamentary commission of inquiry in the course of hearings that were broadcast on television. Having regard to this context, the publication by the weekly Wprost of the applicant’s picture did not harm his reputation. ... What is important in the present case is the fact that the cover does not contain any material that may prejudge the complainant’s guilt in [what is known as] the ‘Rywin’ affair. According to the court below, the cover may be seen by readers as a [mere] indication that the complainant was involved in the case. His implication in this affair, of which the public were well-informed before the impugned publication, is therefore not attributable to the latter. ... The seriousness of the bribery justified, in the present instance, the use of scathing expressions and very expressive symbols. ... Bribery is so harmful and blameworthy that the fact of representing it using a toilet bowl as a symbol is no exaggeration ... The picture where the complainant’s head is seen emerging from the toilet bowl – a symbol of corruption – only means that he may be implicated in the affair and that its elucidation may lead to establishing the identities of others involved ...” 15. In the meantime, the criminal investigation and the work of the commission were ongoing. The commission sat throughout 2003 and until 5 April 2004, when its last session was convened. The sessions held by the commission between 8 February and 21 November 2003 were devoted to the hearing of witnesses, such as the executives of Agora, high-ranking government officials starting with the Prime Minister, journalists, members of the Warsaw public prosecutor’s office and businessmen representing the media. The applicant, who appeared before the commission on 22 February 2003, refused to answer any of its questions. The commission’s hearings were public and broadcast live on radio and television. Only two of the witness hearings were apparently held in private. The transcripts of the commission’s hearings, consisting of more than 8,000 typed pages, were systematically published on the Parliament’s website. 16. The commission’s work was widely reported in the media, including comments by its members. 17. Pursuant to the Parliamentary Commissions of Inquiry Act (see paragraph 83 below), the commission worked in close cooperation with the Warsaw public prosecutor conducting the criminal investigation in respect of the applicant. Thus in February 2003 the president of the commission asked the public prosecutor’s office to conduct certain investigative acts, and in particular: to obtain the transcripts of the applicant’s telephone conversations; to determine the places where his documents were kept; to seize the hard drives from his computer; and to carry out a search of his private and professional premises. On 6 February 2003 the public prosecutor conducting the investigation authorised the commission to disclose, in the context of the proceedings before it, the material in the criminal investigation file. On 6 March 2003 the national public prosecutor (Prokurator Krajowy) dismissed the applicant’s appeal against this measure, observing that the disclosure of such material was authorised provided it was not prejudicial to the outcome of the case. On 24 March 2003 the commission forwarded to the public prosecutor, at his request, the transcripts and recordings of its hearings, including the witness hearings. 18. Information was exchanged between the commission and the public prosecutor on several occasions. In that connection, members of the commission’s presidium had meetings with the national public prosecutor and the public prosecutor leading the investigation. 19. In June 2003 the criminal investigation in respect of the applicant was completed and the indictment, together with a case file of eighteen volumes, was presented to Warsaw District Court. Mr Rywin was indicted for attempted influence peddling, an offence under Article 230 of the Criminal Code combined with Article 12 of the same Code. 20. On 8 August 2003 the Warsaw Court of Appeal ordered the case to be sent to Warsaw Regional Court on the ground of its exceptional nature and its importance (sprawa szczególnej wagi), having regard to the positions held by the individuals implicated in the case, the media and public interest and the work of the commission. 21. On 6 October 2003 Warsaw Regional Court declared that the public prosecutor’s decision of 6 February 2003 (see paragraph 17 above) applied to the judicial phase of the criminal proceedings. Noting that the commission had been privy to the whole of the investigation case file concerning the applicant, the court pointed out that if the material in the file were used in the proceedings before the commission it would have to be careful not to cause any prejudice to the persons concerned by that investigation, such as the witnesses and the applicant. 22. On 20 October 2003 the case was assigned to a bench of three professional judges. 23. On 2 December 2003, when the trial opened, Warsaw Regional Court authorised the broadcasting of the hearings live on radio and television, emphasising that journalists should not impede the smooth running of the proceedings and should abide by the rule that testifying witnesses were not to be apprised of the statements of the other witnesses. The court also authorised the media disclosure of the applicant’s identity and picture, observing that the public interest in following the proceedings prevailed over any contrary interest of the persons on trial. 24. Warsaw Regional Court heard testimony from a number of witnesses, including those who had already been interviewed by the commission. During these hearings, the court systematically compared the statements before it with those that the same witnesses had given to the commission. 25. The Regional Court and the commission exchanged, on a number of occasions, information they had gathered in their respective proceedings. 26. On 31 March 2004, after the closing of the witness hearings, the court made public all the evidence, including that which it had received from the commission. The court informed the parties that there might be a change in the legal classification of the charges against the applicant, which might fall under Article 13 § 1 combined with Article 286 § 1 of the Criminal Code, corresponding to the offence of attempted fraud (usiłowanie doprowadzenia do niekorzystnego rozporzadzenia mieniem). In response to a request by the defence for the adjournment of the proceedings for a maximum of one week, the court postponed the trial until 14 April 2004, fixing 16 April 2014 as the date of the last round of oral argument. 27. On 14 April 2004 the court rejected a defence request for the admission of new evidence. In response to a request by the defence, the court then adjourned the trial until 20 April, declaring that judgment would be given on 26 April. 28. On 21 April 2004 the newspaper Gazeta Wyborcza published an article with the heading “Before the judgment” (“Przed wyrokiem”), beginning as follows: “The biggest corruption scandal of the Third Republic will certainly end in a failure for the justice system – regardless of the charges on which Lew Rywin is convicted or the sentence handed down. ... I think that the judgment will be disappointing in terms of the intention and capacity of the justice system to succeed in discovering the truth – this indeed being the mission of the courts and the public prosecutor – beyond the politics. After the Rywin affair, citizens will still be convinced that laws are not enacted but purchased and that even the high-ranking officials of the State – and I quote the public prosecutor – ‘place their personal interests above those of society’; in other words – to call a spade a space – [that they] are corrupt. ...” 29. In a judgment of 26 April 2004 Warsaw Regional Court found the applicant guilty of attempted fraud, under Article 13 of the Criminal Code combined with Article 286 § 1, Article 294 § 1 and Article 12 of the same Code, and sentenced him to two years and six months’ imprisonment and a fine of 100,000 zlotys (PLN). In its reasoning the court found as follows: (a) that it was established that between 15 and 22 July 2002, the applicant had attempted to incite Wanda Rapaczyńska, chair of Agora’s board of directors, and Adam Michnik, editor-in-chief of Gazeta Wyborcza, to dispose of that company’s property with detrimental effect thereto for a value equivalent to USD 17.5 million; (b) that it had not been established that the applicant had been instructed by the Prime Minister or any figures in his entourage. One of the judges on the bench submitted a separate opinion, taking the view that the applicant should have been given a suspended sentence with probation, in view of his age, his professional background and his state of health. 30. After the delivery of the judgment, the president of the trial court of Warsaw Regional Court published a statement. He commended the efforts of his fellow judges to bring the trial to its conclusion in a calm manner, notwithstanding the various comments about the procedure that had been reported in the media. Noting that some of those comments could be regarded as an attempt to influence the court’s work, the president emphasised the following points: that throughout the trial the judges had acted pursuant only to the provisions of criminal law; that the purpose of the trial was different from that of the parliamentary commission of inquiry; and that as professional judges the members of the bench had been able to resist any pressure that might result from the media statements made in connection with the case by various journalists and politicians, or even by certain members of the commission. Pointing out that a statement such as his in the present case was unusual, in view of the judiciary’s duty of discretion, the president explained that he could not refrain from mentioning the remarks made by the author of the article entitled “Before the judgment”, which had been published in the period when the case was under deliberation and which could be regarded, in his view, as an attempt on the part of the journalist to influence the outcome; such statements were, in his view, inadmissible and blameworthy, even in connection with a case which, like the present one and rightly so, had attracted significant media interest. 31. On 23 August 2004 the applicant and the public prosecutor’s office each appealed against the judgment of 26 April 2004. In his statement of appeal the applicant alleged, among other things, that on account of the influence of the commission’s work on the judges, exacerbated by the press coverage of the two sets of proceedings, his trial had been devoid of the requisite fairness under Article 6 of the European Convention on Human Rights. 32. At the end of its last session on 5 April 2004, the commission adopted its final report, concluding that the applicant had acted alone. Several commission members submitted their own draft reports to the Sejm. After examining it at the plenary of 28 May 2004, the Sejm rejected the commission’s report and expressed its preference for that of the MP Zbigniew Ziobro, which was regarded as the most radical. It can be seen from the file that this report was drafted with a view to having the persons concerned held to account before the Tribunal of State. In view of doubts as to the weight of the vote of 28 May, the Sejm endorsed the report by the MP Zbigniew Ziobro by its final vote of 24 September 2004. The position taken in that report was as follows: “Leszek Miller, Prime Minister, Aleksandra Jakubowska, junior minister in the Ministry of Culture, Lech Nikolski, the Prime Minister’s chief of staff, Robert Kwiatkowski, chair of the board of directors of the company TVP S.A., and Wlodzimierz Czarzasty, member of the Broadcasting Media Council, committed, by deliberate and concerted action in July 2002, the offence of bribery, within the meaning of Article 228 § 5 of the Criminal Code taken together with Article 13 § 1 thereof; in that they, [while] influencing the content of the Broadcasting Act being amended and the parliamentary proceedings related thereto, in July 2002, through the intermediary of Lew Rywin, acting as agent of the ‘power-holding group’, made a corrupt proposal to the representatives of Agora S.A, namely on 15 July 2002 to Wanda Rapaczyńska and Piotr Niemczycki and on 22 July 2002 to Adam Michnik, consisting in demanding a financial reward of 17.5 million US dollars (USD), the appointment of Lew Rywin as chairman of the channel Polsat and an undertaking from the company Agora that the newspaper Gazeta Wyborcza would refrain from publishing any criticism of the Prime Minister or government. In return, provisions would be inserted in the Broadcasting Act that would be beneficial for Agora, allowing it to purchase the television channel Polsat. The evidence gathered in this case renders highly plausible (w wysokim stopniu uprawdopodabnia) the above-mentioned account, to the extent of justifying the prosecution of the above-named persons.” 33. The report, disseminated by the media, was widely discussed and commented on by the various public stakeholders. ... 35. In the meantime, the applicant’s trial continued before the Warsaw Court of Appeal. 36. On 23 November 2004 the Court of Appeal informed the parties that the charge against the applicant was likely to be reclassified to aiding and abetting influence peddling (pomocnictwo do płatnej protekcji), an offence under Article 18 § 3 of the Criminal Code taken together with Article 230 of that Code. The Court of Appeal adjourned the proceedings until 8 December 2004 to allow the defence to adapt its strategy to the intended change of classification. On the scheduled date the defence submitted their observations. 37. In a judgment of 10 December 2004 the Court of Appeal found Mr Rywin guilty of aiding and abetting influence peddling (pomocnictwo do płatnej protekcji), an offence under Article 18 § 3 of the Criminal Code taken together with Articles 230 and 12 of that Code, and sentenced him to two years’ imprisonment and a fine of PLN 100,000. In its reasoning, the Court of Appeal found that the applicant had facilitated the perpetration by other individuals – whose identity had not been established – of the offence of bribery. In this connection it found it established that, on 15 and 22 July 2002, the applicant had presented to Wanda Rapaczyńska and Adam Michnik an offer devised by the above-mentioned individuals who, on the strength of their positions at the level of the State, had proposed their assistance as intermediaries to amend the Broadcasting Act in a manner favourable to Agora, thereby enabling it to purchase the television channel Polsat, in exchange for USD 17.5 million, a sum that was to be paid to the Social Democrat Party (SLD) via the bank account of a company belonging to the applicant. 38. In response to the applicant’s complaint that the proceedings of the commission and their media coverage had undermined the fairness of his trial, the Court of Appeal found that this complaint was not substantiated by any tangible evidence; the applicant had not explained concretely how the media reports on the commission’s work had influenced the reasoning of the judges in their deliberations or the outcome of the criminal proceedings, or how the commission’s proceedings and report might have had any impact on the impartiality of the judges or on the reliability of the testimony given before the trial court. The Court of Appeal took the view, in sum, that this was tantamount to implying that only an adjournment of the criminal proceedings pending the outcome of the commission’s work could have preserved its fairness. Noting that the courts were frequently confronted with media interest in a given case, the Court of Appeal was of the view that this fact, in itself, did not suffice for the fairness of the criminal proceedings against the applicant to be called into question. 39. As to the applicant’s complaint that the testimony used in support of his conviction had been vitiated by the fact that the witnesses had been heard by the Regional Court after being questioned on the same circumstances by the commission, in public sittings that had received significant media attention, the Court of Appeal regarded it as ill-founded; testimony was always assessed by judges in accordance with the rules in Article 7 of the Code of Criminal Procedure and in the light of all the evidence. In the present case, the Court of Appeal could not identify any circumstance that would lead it to believe that the witnesses heard by the Regional Court had been influenced by the content of their previous statements to the commission or by those of other witnesses. 40. With reference to the applicant’s complaint that the reasoning of the Regional Court’s judgment was insufficient, the Court of Appeal acknowledged that in certain respects the reasoning had been succinct. Nevertheless, it endorsed that reasoning to a large extent, noting that the Regional Court had examined the relevant aspects of the case and that its conclusion was justified. 41. Lastly, the Court of Appeal dismissed the applicant’s complaint concerning the Regional Court’s refusal to admit in evidence certain items proposed by the defence; the court below had rightly found them superfluous for the outcome of the case. In the view of the Court of Appeal, the exercise of defence rights could not consist in requests made ad infinitum , and in particular those that were irrelevant for its resolution. 42. The applicant and the public prosecutor’s office appealed on points of law. 43. In a decision (postanowienie) of 20 October 2005 the Supreme Court dismissed the two appeals, endorsing the reasoning given by the Court of Appeal. ...
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test
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001-146047
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ENG
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POL
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CHAMBER
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CASE OF HUSAYN (ABU ZUBAYDAH) v. POLAND
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Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);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);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);Violation of Article 13+5 - Right to an effective remedy (Article 13 - Effective remedy) (Article 5-1 - Deprivation of liberty;Article 5 - Right to liberty and security);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing);Non-pecuniary damage - award
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George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
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41. The applicant was born in 1971. He is currently detained in the Internment Facility at the United States Guantánamo Bay Naval Base in Cuba. 80. The applicant’s lawyers referred to what they called “the unprecedented restrictions on communication between Mr Abu Zubaydah, his counsel and the Court, which “precluded the presentation of information or evidence directly from or in relation to the client”. Only the applicant’s US counsel with top-secret security clearance could meet with the applicant and all information obtained from him was presumptively classified, so that counsel could not disclose to other members of the legal team or to the Court any information obtained from the applicant or other classified sources without approval by the detaining authority. A request for release of an affidavit from Abu Zubaydah had been pending before the US authorities for more than two years but, as was routinely the case, this request would involve the need for litigation in a US court. In addition, if the document were released, it would likely be heavily redacted. Attempts to declassify drawings and writings by the applicant during his detention had been unsuccessful. According to the applicant’s lawyers, “Abu Zubaydah [was] a man deprived of his voice, barred from communicating with the outside world or with this Court and from presenting evidence in support of his case”. For that reason, his case was presented by reference principally to publicly available documentation. 81. The facts of the case, as submitted on behalf of the applicant by his representatives, may be stated as follows. 82. On 27 March 2002 agents of the United States and Pakistan seized the applicant from a house in Faisalabad, Pakistan. In the course of the operation, he was shot several times in the groin, thigh and stomach, which resulted in very serious wounds. He was taken into the custody of the CIA. 83. At the time of his capture the applicant was considered one of the key Al’Qaeda members and described by the American authorities as the “third or fourth man” in Al’Qaeda, who had had a role in its every major terrorist operation, including the role of a planner of the attacks on 11 September 2001. It was also alleged that he had been Osama bin Laden’s senior lieutenant. As mentioned above, he was the first socalled “high-value detainee” (“the HVD”) detained by the CIA at the beginning of the “war on terror” launched by President Bush after the 11 September 2001 attacks in the United States (see paragraphs 49 and 54-55 above). 84. The 2004 CIA Report stated that the applicant’s capture accelerated the development of the HVD Programme. Paragraph 30 of the Report read: “30. [REDACTED] The capture of Senior Al-Qaida operative Abu Zubaydah on 27 March 2002 presented the Agency with the opportunity to obtain actionable intelligence on future threats to the United States from the most senior Al-Qaida member in U.S. custody at that time. This accelerated CIA’s development of an interrogation program [REDACTED]” 85. Subsequently – for more than four years from the day on which he was seized in Faisalabad until his transfer from the CIA’s to the US Department of Defense’s custody in September 2006 – the applicant was held in incommunicado detention in secret detention facilities, the so-called “black sites” run by the CIA around the world. 86. After his arrest, the applicant was transferred to a secret CIA detention facility in Thailand code-named “Cat’s Eye” (often written as one word “Catseye” in CIA documents), where he was interrogated by CIA agents and where a variety of EITs were tested on him. Mr Al Nashiri was detained in the same facility as from 15 November 2002 (see paragraphs 8990 below and Al Nashiri v. Poland, no. 28761/11, judgment of 24 July 2014, §§ 85 and 88). At this site, the interrogations of both applicants were videotaped. 87. The 2004 CIA Report referred to the videotapes of interrogations as follows: “Headquarters had intense interest in keeping abreast of all aspects of Abu Zubaydah’s interrogation [REDACTED] including compliance provided to the site relative to the use of EITs. Apart from this, however, and before the use of EITs, the interrogation teams [REDACTED] decided to videotape the interrogation sessions. One initial purpose was to ensure a record of Abu Zubaydah’s medical condition and treatment should he succumb to his wounds and questions arise about the medical care provided to him by CIA. ... There are 92 videotapes, 12 of which include EIT applications. ...” 88. The 2009 DOJ Report, relying on the 2004 CIA Report, also confirmed that the interrogation sessions were videotaped: “According to [the 2004 CIA report], the interrogation team decided at the outset to videotape Abu Zubaydah’s sessions, primarily in order to document his medical condition. CIA OIG examined a total of 92 videotapes, twelve of which recorded the use of EITs. Those twelve tapes included a total of 83 waterboard applications, the majority of which lasted less than ten seconds.” It further added: “After the on-site interrogation team determined that Abu Zubaydah had ceased resisting interrogation, they recommended that EITs be discontinued. However, CTC headquarters officials believed the subject was still withholding information [REDACTED] Senior CIA officials reportedly made the decision to resume the use of the waterboard [REDACTED] to assess the subject’s compliance. After that session [REDACTED] agreed with the on-site interrogators that the subject was being truthful, and no further waterboard applications were administered.” 89. The 2009 DOJ Report and the 2004 CIA Report confirmed that on 15 November 2002 Mr Al Nashiri was brought to the same facility, that they both were subjected to EITs, and that they both were subsequently transferred to another CIA “black site”. Paragraph 7 of the 2004 CIA Report read: “7. [REDACTED] By November 2002, the Agency had Abu Zubaydah and another high-value detainee, Abd Al-Rahim Al Nashiri, in custody [REDACTED] and the Office of Medical Services (OMS) provided medical care to detainees.” Paragraphs 74-76 of the same report read: “ 74. [REDACTED] psychologist/interrogators [REDACTED] led each interrogation of Abu Zubaydah and Al-Nashiri where EITs were used. The psychologist/interrogators conferred with [REDACTED] team members before each interrogation session. Psychological evaluations were performed by [REDACTED] psychologists. ... 370. The Government, in their written observations filed on 16 September 2013, submitted that until the criminal investigation in Poland had been terminated they reserved their right to comment on and rectify the facts of the case as supplied to them when they had been given notice of the application. They further added that they could not address in detail the Court’s questions concerning the violations of Articles 3, 5, 6 and 8 of the Convention due to the fact that the criminal investigation was still pending. As it could not be assumed that the applicant had been transferred to and from Poland and had legally or illegally been detained on its territory, no answer could be given at this stage to questions concerning his alleged treatment contrary to Article 3, his incommunicado detention in a secret detention facility and deprivation of access to his family. Likewise, no answer could be given to the question concerning the involvement of the Polish authorities in the events complained of. 371. At the public hearing, the Government said that they were not prepared to affirm or negate the facts submitted by Mr Al Nashiri and Mr Abu Zubaydah because they believed that those facts should first be established and evaluated by the Polish judicial system. They added that, in contrast to the case of El-Masri, in these cases the Court was not confronted with two different versions of facts or differences in accounts of facts. Accordingly, in their view, there was no need for the Court to take the role of a first-instance court and to establish the facts of the cases itself before the domestic proceedings had been completed. 372. As regards the documentary and oral evidence obtained by the Court throughout the proceedings, the Government did not at any stage contest the admissibility, accuracy or credibility of the relevant materials and testimonies. Furthermore, at the hearing in camera held on 2 December 2013 (see paragraph 12 above), during which the parties were asked to state their positions on the oral evidence taken and on whether the parties could rely on that evidence at the public hearing, they confirmed that they had no objection to the parties’ referring at the public hearing to the testimony of the experts and the witness. In their assessment, this knowledge was already accessible, albeit via other channels, in the public domain. 373. At the public hearing, in relation to that testimony, the Government drew the Court’s attention to the fact that both Senator Marty and Mr Fava had carried out inquiries which were not judicial proceedings. Those inquiries, they said, were pre-procedural examinations instituted for the purpose of corroborating the participation of the European countries in the CIA HVD Programme. They had not dealt with individual cases. In terms of the standard of proof they were not comparable to criminal proceedings. In contrast, the investigation in Poland was being conducted in order to obtain evidence concerning all possible offences, to establish individual perpetrators and to determine whether it was possible to bring an indictment to the court. The Government admitted that the findings of the relevant international inquiries were a source of information about the potential evidence and indicated the direction for subsequent actions to be taken by prosecutors. However, they did not constitute evidence in the strict sense of the word and relying on them would not be sufficient for a prosecutor to bring a charge or indictment against an individual in respect of a specific offence. 374. Lastly, the Government, responding to a question from the Court at the public hearing, concerning the injured-party status accorded to the applicant and Mr Al Nashiri by the investigating prosecutor, explained that for a procedural decision to identify an individual as an injured party in criminal proceedings two elements had to be present. First, the subjective element, that is to say a person must have a sense of having suffered prejudice on account of the commission of an offence. The second, the objective element consisted in an indication that there existed a sufficient level of credibility that an offence had been committed to the detriment of that person in Poland. In the applicant’s case the credibility was sufficiently high for him to be treated as a victim of an offence and the investigation continued in order to determine the extent to which he had been harmed and by whom. 375. The applicant, in his submissions concerning the facts of the case, the probative value of the evidence before the Court, the burden of proof and the standard of proof as applicable in the present case and Poland’s knowledge of the HVD Programme stated, in particular, as follows. 376. On giving notice of the application to the respondent Government, the Court asked the applicant’s representatives to explain the discrepancy between the statements regarding the dates of his detention in 2002-2003. In particular, the Court referred to the dates given in his application and those given in the applicant’s own account of his detention as rendered in the verbatim record of the interview with him included in the 2007 ICRC Report. In the application, it was stated that he had had been detained in Poland from 5 December 2002 to 22 September 2003 (see paragraphs 82108 above), whereas in the interview, he had recounted details of his ill-treatment “regarding his detention in Afghanistan where he [had been] held for approximately nine months from May 2002 to February 2003” (see paragraph 101 above). 377. The applicant’s representatives provided the following explanation. The facts of the applicant’s case were based on a wide range of publicly available documents, reports and investigations into the CIA HVD Programme that had come into the public domain only after he had been transferred from Poland on 22 September 2003. Given that no information as to the places and periods of his detention had been given to him and that the range of abusive interrogation techniques had been inflicted on him, the applicant could not be expected to have known his precise location when he had been held in CIA custody. In fact, as demonstrated by the CIA declassified material, concerted and meticulous efforts had been made by the CIA to prevent High-Value Detainees from knowing their transfer destinations. On his transfers from one CIA black site to another the applicant had been shackled and blindfolded, with ear muffs restricting his hearing and a hood placed over his head. At the black site, he had been subjected to detention conditions that had included “white noise/loud sounds and interrogations aimed at creating “a state of learned helplessness and dependence” and designed to psychologically “dislocate” him. As a result of his ill-treatment he was suffering from serious and debilitating physical and mental condition. 378. Taking all the circumstances into account the applicant could not have been expected at the time of making the statement to the ICRC to have been able to provide an accurate and detailed account of where he had been detained and for how long. Should any discrepancy arise concerning such details, the applicant’s representatives asked the Court to take into account the exceptional features of the case, in particular the difficulty in obtaining evidence from the applicant and the fact that this case presented extraordinary challenges for the victim. As stated in the application, the applicant’s lawyers were not in a position to provide the Court with further statements from the applicant. He was prevented from communicating with the outside world, including the Court, and his US counsel were precluded from disclosing to the Court any information that he conveyed to them. 379. The applicant maintained that numerous documents submitted to the Court, including reports prepared by international organisations and oral evidence from the experts and the witness confirmed that he had been detained in Poland from 5 December 2002 to 22 September 2003. 380. There was no doubt that the CIA secret prison in Poland had been established deliberately. Senator Marty, in his 2007 Report, had highlighted the existence of bilateral agreements between the Polish Government and the CIA, allowing this secret prison to operate. Senator Pinior, in his affidavit, had given evidence of an agreement drawn up for the purpose of regulating the existence of this prison and of documents that illustrated the “provision of practical logistical support” and “servicing” of the prison site by the Polish authorities. 381. At the public hearing, the applicant’s representatives said that in the light of the documentary evidence and the experts’ testimony, it was now proven beyond reasonable doubt that Mr Abu Zubaydah had been transferred into Poland. It was also beyond any credible dispute that he had been imprisoned at a CIA secret prison in Stare Kiejkuty. A letter from the Polish Border Guard to the Helsinki Foundation of Human Rights confirmed that plane number N63MU landed in Szymany on 5 December 2002 with eight passengers and four crew and departed on the same day with no passengers. This account of the aircraft’s arrival was verified by a handwritten log of landings and take-offs at Szymany airport. The experts had explained how intense and multiple efforts had been made to disguise the true route of this flight. Information disclosed by Eurocontrol to Senator Marty for his 2007 Report showed that false flight plans had been filed for N63MU, omitting Szymany from the record of the plane’s movements. Further evidence pointing to concerted attempts to cover up these flights was provided by Senator Marty in his 2007 Report, which noted that the filing of false flight plans had been done so that “their actual movements would not be tracked or recorded – either ‘live’ or after the fact – by the supranational air safety agency Eurocontrol. The system of cover-up entailed several different steps involving both American and Polish collaborators”. The applicant thus submitted that, in the light of the entirety of this evidence, it was clear that he had been rendered out of Thailand on the flight in question and taken to Poland. As also demonstrated by evidence given by the experts and witness to the Court, after over nine months of secret detention in a CIA black site in Poland, on 22 September 2003 Abu Zubaydah was then transferred from Poland, on board N313P, a plane that had at this time been flying under official “State” status and was already known to the Court from its role in the El-Masri case (see El-Masri, cited above, §§ 46 and 159) 382. In the applicant’s view, this evidence taken together clearly established that he had been imprisoned on Polish territory. The evidence before the Court was detailed, specific and consistent, and concerned the entire period of his detention in Poland, as well as the circumstances surrounding that period. This evidence had been uncovered in the face of determined efforts by State agents and State organisations to stymie any attempt at getting to the truth of Abu Zubaydah’s case. In that context, the applicant also pointed out that Poland had never provided an explanation of the events as described in his application and further pleadings. Instead, it had relied on a secretive and stalled investigation to deflect attention away from its failure to cooperate in the Court’s examination of the case. 383. In the applicant’s submission, the nature of abuse by the CIA in the context of the extraordinary rendition operations had been a matter of public knowledge in 2002-2003. This had been documented by the applicant from both Polish and international sources disclosing widespread abuse of terrorist suspects in the custody of the US authorities at the material time. 384. Moreover, evidence before the Court confirmed that numerous State agents and State authorities at all levels of the Polish Government had been involved, in different ways, in the CIA secret prison system. As Senator Pinior stated at the fact-finding hearing, the Polish authorities had had full knowledge of the illegality of this operation and they had known that it had been in breach of the Polish Constitution and that it had been clear that the Polish authorities had cooperated with the CIA. 385. According to the 2007 Marty Report, the former President Kwaśniewski had been “the foremost national authority on the High-Value Detainee programme”. Indeed, President Kwaśniewski confirmed this in an interview in Poland where he had stated that ”of course, everything [had taken] place with my knowledge” and that “the decision to cooperate with the CIA [had] carried a risk that the Americans would use unacceptable methods”. He also asked whether, if a CIA agent had brutally treated a prisoner in the Warsaw Marriott, should the management of that hotel be charged for the actions of that agent (see also paragraph 230 above). This, in the applicant’s view, provided a telling insight into the Polish Government’s attitude to the CIA HVD Programme and demonstrated, at the highest level of the Government, involvement in the operation of the secret prison and knowledge of the illegal methods used by the CIA. 386. The CIA prison could not have operated on Polish territory without the support and assistance of the Polish Government. While the full form and extent of the involvement of the Polish authorities and agents was not known owing to the secrecy surrounding the CIA operations, it was clear that Poland through its acts and omissions had cooperated with the CIA and facilitated the applicant’s secret detention and ill-treatment. The level of cooperation was readily illustrated by the fact that Poland had entered into, as mentioned in the 2007 Marty Report, “operating agreements” with the US authorities, specifying the use and maintenance of secret detention facilities whereby it had “agreed to provide premises in which these facilities [had been] established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference”. As stated in that report, the operational agreements for different types of cooperation had been “negotiated on the part of [sic] the President’s office by the National Security Bureau”. Accordingly, the assistance and support given by Poland included ensuring physical security to facilitate the CIA’s detention and transfer of detainees under the HVD Programme, assigning Polish intelligence agents to the CIA at the relevant time to provide open-ended assistance for their dealings in Poland, navigating CIA aircraft through Polish airspace without completed flight plans, clearing the Szymany airport runway of other aircraft, providing vehicles and staff to allow the CIA rendition flights to land, including the planes transporting the applicant and securing the route from Szymany airport to Stare Kiejkuty – all this in order for the CIA to have their prisoners secretly detained. 387. AI/ICJ stressed that already on 16 September 2001, the US Vice President Richard Cheney had said that, in response to the attacks of 11 September, US intelligence agencies would operate on “the dark side”, and had agreed that US restrictions on working with “those who [had] violated human rights” would need to be lifted. AI warned in November 2001 that the USA might exploit its existing rendition policy in the context of what it had been called the “global war on terror” , in order to circumvent human rights protections. From early 2002 it had become clear that non-US nationals outside the USA suspected of involvement in international terrorism had been at a real risk of secret transfer and arbitrary detention by US operatives. In particular, from January 2002 through 2003, the USA had transferred more than 600 foreign nationals to the US Naval Base in Guantànamo Bay, Cuba, with reports from the outset of ill-treatment during transfers, and detention without charge or trial or access to the courts, lawyers or relatives. By mid-July 2003, there had been approximately 660 detainees held there. 388. Cases of arbitrary detention and secret transfer had continued to emerge during 2002. In April 2002, AI had reported that, in addition to the case of Abu Zubaydah, the US authorities had transferred dozens of people to countries where they could be subjected to interrogation tactics, including torture. In December 2002 the Washington Post had reported on a secret CIA facility at Bagram, Afghanistan and the CIA’s use of “stress and duress” techniques, including sleep deprivation, stress positions and hooding, and the use of renditions by the agency. 389. Thus, as early as the end of 2002, any Contracting Party had been or should have been aware that there had been substantial and credible information in the public domain that the USA had engaged in practices of enforced disappearance, arbitrary detention, secret detainee transfers, torture and other forms of ill-treatment. 390. In its annual reports covering the years 2002 and 2003, AI had made multiple references to human rights violations in the context of US counterterrorism operations, not only in the entries on the USA, but also in respect of a number of other countries. Paper copies of these reports had been widely distributed, including to the media and governments. By mid-2003 no Contracting Party could reasonably have found credible the USA’s assurances that it had been committed to human rights and the rule of law in the counter-terrorism detention context, including the prohibition of torture and other ill-treatment. 391. The Court notes that the Government did not take advantage of the opportunity to make comments on the facts as supplied by the applicant and that it was not their intention to contest them. It also notes that they did not challenge the admissibility, accuracy or credibility of documentary and oral and evidence obtained by the Court throughout the proceedings (see paragraphs 370-373 above). Consequently, the Court will proceed on the basis of there being no contestation as such by the Government as to the facts of the case as put forward by the applicant and no discernible dispute between the parties as to the facts of the case as related by the applicant and as to the evidence from various sources which was admitted by the Court and summarised above (see paragraphs 42-332 above). 392. With respect to the assessment of the facts and evidence gathered in the present case, the Court would first wish to reiterate the relevant principles. 393. The Court is sensitive to the subsidiary nature of its role and has consistently recognised that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Imakayeva, cited above, no. 7615/02, § 113, ECHR 2006XIII (extracts); Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 96, 18 December 2012; and El-Masri, cited above, § 154). 394. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to the Court’s established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, among other examples, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005VII; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012; and El-Masri, cited above, § 151). 395. While it is for the applicant to make a prima facie case and adduce appropriate evidence, if the respondent Government in their response to his allegations fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences can be drawn (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 184, ECHR 2009, with further references; Kadirova and Others v. Russia, no. 5432/07, § 94, 27 March 2012; and Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 97, 18 December 2012) 396. Furthermore, the Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. According to the Court’s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, for instance as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see El-Masri, cited above, § 152; Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Imakayeva v. Russia, no. 7615/02, §§ 114-115, ECHR 2006XIII (extracts). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see El-Masri, ibid.). 397. The Court observes at the outset that, in contrast to many other previous cases before it involving complaints about torture, ill-treatment in custody or unlawful detention, in the present case it is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (for example, compare and contrast with El-Masri, §§ 16-36 and 156-167; Selmouni v. France [GC], no. 25803/94, §§ 13-24, ECHR 1999V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18, ECHR 2006IX; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 188-211, ECHR 2004VII). As stated in the application, since 27 March 2002, when the applicant was captured by the CIA in Pakistan, he has continually been in the custody of the US authorities, initially in the hands of the CIA in undisclosed detention at various black sites and then, as confirmed by President Bush on 6 September 2006, in the custody of US military authorities in Guantánamo (see paragraphs 69 and 82-121 above). 398. The regime applied to High-Value Detainees in CIA custody such as the applicant is described in detail in the CIA documents and also, on the basis, inter alia, of the applicant’s own account, in the 2007 ICRC Report. It “included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention”. The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location (see paragraphs 53-68, 102-103 and 276 above). 399. It is submitted that since 27 March 2002 the applicant had not had contact with persons from the outside world, save the ICRC team in October and December 2006 and, following his transfer to the jurisdiction of military commission in the Guantánamo Naval Base, his US counsel with top-secret security clearance. All his communication with his counsel has been presumptively classified. In fact, he is subjected to a practical ban on his contact with the outside world, apart from mail contact with his family (see paragraphs 80, 101 and 117-118 above). 400. The above circumstances have inevitably had an impact on the applicant’s ability to plead his case before this Court. Indeed, as his representatives maintained, in his application the events complained of were to a considerable extent reconstructed from threads of information gleaned from numerous public sources. The difficulties involved in gathering and producing evidence in the present case caused by the restrictions on the applicant’s communication with the outside world and the extreme secrecy surrounding the US rendition operations have been compounded by the Polish Government’s failure to cooperate with the Court in its examination of the case. In consequence, the Court’s establishment of the facts is to a great extent based on circumstantial evidence, including a large amount of evidence obtained through the international inquiries, considerably redacted documents released by the CIA, other public sources and evidence from the experts and the witness. 401. The Court notes that the CIA official documents clearly confirm the date of the applicant’s capture – 27 March 2002 – the event, which, as stated in the 2004 CIA Report – “accelerated CIA’s development of an interrogation program” (see paragraph 84 above). Those documents also confirm that by November 2002 the Agency had the applicant and Mr Al Nashiri, both referred to as “High-Value Detainees”, in its custody and that they were interrogated at a CIA black site with the use of the EITs and that their interrogations were videotaped. The applicant was first to have been detained and interrogated there, Mr Al Nashiri was brought to that facility as a “second prisoner” on 15 November 2002. The interrogation of Mr Al Nashiri “continued through 4 December 2002” (see paragraphs 84-87 above). Those documents also attest to the fact that as from 15 November 2002 the applicant and Mr Al Nashiri were held in the same detention facility, that they were interrogated by apparently the same team of “psychologist/interrogators”, that their interrogations were videotaped and that the series of Mr Al Nashiri’s enhanced interrogations, including the so-called “waterboarding”, “continued through 4 December 2002” (see also Al Nashiri, cited above, § 401). 402. The CIA material further confirm – in the cables of 3 and 9 December 2002 – that this specific detention facility was closed following an inventory of the videotapes recording the enhanced interrogations of Mr Al Nashiri’s and Mr Abu Zubaydah’s. The inventory was carried out on 3 December 2002. No CIA cables from that location were sent to the Headquarters after 4 December 2002 (see paragraphs 90-91 above). The 2009 DOJ Report states that, after the enhanced interrogations of Mr Al Nashiri which, as noted above, continued at that black site until 4 December 2002, both he and Mr Abu Zubaydah were moved to “another CIA black site”. The same fact is mentioned in the 2004 CIA Report (see paragraph 89 above). 403. Senator Marty and Mr J.G.S., the experts who gave evidence to the Court, in their presentation at the fact-finding hearing explained in detail the above sequence of events with reference to documentary evidence available in the public domain, in particular the material released by the CIA. They identified the CIA detention facility in which the applicant and Mr Al Nashiri had been held during the period under consideration as the one known under the codename “Cat’s Eye” or “Catseye” and located in Bangkok. They conclusively confirmed that the closure of the site and interruption of Mr Al Nashiri’s interrogation schedule on 4 December 2002 indicated the date of his physical transfer by means of the HVD rendition out of the black site in Thailand to another black site (see paragraphs 308309 above). 404. In the light of the above first-hand CIA documentary evidence and clear and convincing expert evidence, the Court finds established beyond reasonable doubt that the applicant, following his capture on 27 March 2002, was detained in the CIA detention facility in Bangkok from an unknown date following his capture to 4 December 2002, that Mr Al Nashiri was also held in the same facility from 15 November 2002 to 4 December 2002 and that they were both moved together to “another CIA black site” on 4 December 2002 (see also Al Nashiri, cited above, § 404). 405. It is alleged that on 5 December 2002 the applicant, together with Mr Al Nashiri, had been transferred by the CIA under the HVD Programme from Thailand to Poland on a CIA contracted aircraft, registered as N63MU with the US Federal Aviation Authority. The flight flew on 4 December 2002 from Bangkok via Dubai and landed at Szymany airport on 5 December 2002. The applicant was then secretly detained in the Polish intelligence training base at Stare Kiejkuty (see paragraphs 92-107 above). It is further alleged that during his undisclosed detention in Poland the applicant was subjected to various forms of ill-treatment and abuse and deprived of any contact with his family. He was held in Poland until 22 September 2003. On that date he was transferred by means of extraordinary rendition from Polish territory, on a Boeing 737 registered as N313P, to other CIA secret detention facilities elsewhere (see paragraphs 109-117 above). 406. The Court notes that the fact that after 4 December 2002 the applicant and Mr Al Nashiri were transferred together to the same detention facility is conclusively confirmed in paragraph 91 of the 2004 CIA Report. The paragraph states that the same “interrogation team” was “to interrogate Al Nashiri and debrief Abu Zubaydah” and that “the interrogation team continued EITs on Al Nashiri for two weeks in December 2002” (see paragraph 107 above). 407. As regards the aircraft indicated by the applicant, the Court observes that there is abundant evidence identifying them as rendition planes used by the CIA for the transportation of detainees under the HVD Programme. That evidence includes data from multiple sources, such as flight plan messages by Eurocontrol and information provided by the Polish Border Guard and the Polish Air Navigation Services Agency (“PANSA”), which was released and subsequently analysed in depth in the course of the international inquiries concerning the CIA secret detentions and renditions (see paragraphs 95-96, 252, 265, 281-286, 310 and 312 above). 408. In the light of that accumulated evidence, there can be no doubt that: (1) the aircraft N63MU, a Gulfstream jet with capacity for 12 passengers, flew on 4 December 2002 from Bangkok via Dubai to Szymany and landed there on 5 December 2002 at 14:56. The Polish Border Guard’s official documents recorded that on arrival there were eight passengers and four crew and that the plane departed from Szymany on the same day at 15:43 with no passengers and four crew; (2) the aircraft N313P, a Boeing 737, landed in Szymany en route from Kabul, Afghanistan on 22 September 2003. The hours of the arrival and landing were recorded by PANSA as 18:50 and 19:56 respectively. A hand-written log of take-offs and landings at Szymany airport recorded that N313P arrived in Szymany on 22 September 2003 at 21:00 (local time) and departed at 21:57 (local time). The Polish Border Guard’s official documents recorded that on arrival there were no passengers and seven crew and on departure there were five passengers and seven crew. 409. As regards transfers of High-Value Detainees between CIA black sites, the CIA declassified documents give, in meticulous detail, a first-hand account of the standard procedures applied to them. The transfer procedure is also related in the 2007 ICRC Report, which compiled consistent and explicit descriptions given by the fourteen High-Value Detainees, including the applicant (see paragraphs 62 and 276 above). Nothing has been put before the Court to the effect that upon and during his transfer to and from “another black site” on, respectively, 4-5 December 2002 and 22 September 2003, the applicant could have been subjected to less harsh treatment than that defined in the strict and detailed rules applied by the CIA as a matter of routine. It accordingly finds it established beyond reasonable doubt (see paragraph 394 above) that for the purposes of his transfers on 4/5 December 2002 and 22 September 2003: 1) the applicant was photographed both clothed and naked prior to and again after the transfer; 2) he underwent a rectal examination and was made to wear a diaper and dressed in a tracksuit; 3) earphones were placed over his ears, through which loud music was sometimes played; 4) he was blindfolded with at least a cloth tied around the head and black goggles; 5) he was shackled by his hands and feet, and was transported to the airport by road and loaded onto the plane ; 6) he was transported on the plane either in a reclined sitting position with his hands shackled in front of him or lying flat on the floor of the plane with his hands handcuffed behind his back; 7) during the journey he was not allowed to go to the toilet and, if necessary, was obliged to urinate or defecate into the diaper. In that regard, the Court would also note that a strikingly similar account of his transfers in CIA custody was given by the applicant in El-Masri (see El-Masri, cited above, § 205). 410. As regards the applicant’s actual presence in Poland, the Court takes due note of the fact that there is no direct evidence that it was the applicant who was transported on board the N63MU flight from Bangkok to Szymany on 5 December 2002 or that he was then taken from Szymany elsewhere on board N313P on 22 September 2003. The applicant, who for years on end was held in detention conditions specifically designed to isolate and disorientate a person by transfers to unknown locations, even if he had been enabled to testify before the Court, would not be able to say where he was detained. Nor can it be reasonably expected that he will ever on his own be able to identify the places in which he was held. Also, having regard to the very nature and extreme secrecy of the CIA operations in the course of the “war on terror” and to how the declassification of crucial material demonstrating the CIA activities at that time currently stands – this being a matter of common knowledge – , no such direct evidence will soon be forthcoming in this regard. 411. No trace of the applicant can, or will, be found in any official records in Poland because his presence on the plane and on Polish territory was, by the very nature of the rendition operations, purposefully not to be recorded. As unequivocally confirmed by the expert, the Border Guard’s records showing numbers of passengers and crew arriving and departing on the rendition planes in question “neither include[d], nor purport[ed] to include detainees who were brought into or out of Polish territory involuntarily, by means of clandestine HVD renditions” and those detainees “were never listed among the persons on board filed vis-à-vis any official institution” (see paragraph 322 above). 412. In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained in Poland at the relevant time, the Court has taken into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 401-404 above) and analysed other material in its possession, including, in particular, the expert evidence reconstructing the chronology of rendition and detention of the applicant and Mr Al Nashiri in 2002-2003 (see paragraphs 305-312 above). 413. It has already been established that on 4 December 2002 the applicant was transferred from the black site in Bangkok together with Mr Al Nashiri and that they were subsequently detained in the same CIA detention facility (see paragraph 404 above) The date of the transfer coincides exactly with the path followed by the N63MU, which took off from Bangkok on 4 December 2002 and then, after the stopover in Dubai, arrived in Szymany on 5 December 2002 (see paragraphs 93-96 and 408 above). The flight was the subject of protracted and intense investigations by the experts who gave evidence to the Court, who had investigated it “in its most intricate detail from its planning and authorisation to its execution through multiple, different corporate shells”. They found no alternative explanation for its landing in Szymany other than the transfer of the applicant and Mr Al Nashiri from Bangkok to “another black site”, which they categorically identified as the one codenamed “Quartz” and located at the Polish intelligence training base in Stare Kiejkuty near Szymany (see paragraphs 310-311 and 321 above). 414. The Court notes that the Polish Government have offered no explanation for the nature of, the reasons for, or the purposes of the landing of the N63MU on their territory on 5 December 2002, a plane which in all the relevant reliable and thorough international inquiries was conclusively identified as the rendition aircraft used for transportation of High-Value Detainees in CIA custody at the material time (see paragraphs 93-96, 248, 265, 281-285, 310, 312 and 321 above). Nor have they explained the reasons for the subsequent series of landings of the CIA rendition aircraft (see paragraph 286 above). The landing of N63MU on 5 December 2002 was followed by five further landings of the N379P (the “Guantánamo express”), the most notorious CIA rendition plane. One of those landings took place on 6 June 2003 – the date indicated by Mr Al Nashiri as that of his transfer from Poland and conclusively confirmed by the experts as that on which he had been transferred out of Poland (see paragraph 311 above). The series ended with the landing of N313P on 22 September 2003 – the date indicated by the applicant for his transfer from Poland, confirmed by the experts as the date of his transfer out of Poland and identified by them as the date on which the black site “Quartz” in Poland had been closed (see paragraph 312 above and also Al Nashiri, cited above, § 414). Indeed, no other CIA-associated aircraft appeared in Szymany after that date (see paragraph 286 above). 415. In view of the lack of any explanation by the Government as to how the events in the present case occurred and their refusal to disclose to the Court documents necessary for its examination of the case (see paragraphs 368-369 above), the Court will draw inferences from the evidence before it and from the Government’s conduct. Consequently, on the basis of unrebutted facts and in the light of all the relevant documentary material in its possession and the coherent, clear and categorical expert evidence explaining in detail the chronology of the events occurring in the applicant’s case between 4-5 December 2002 and 22 September 2003, the Court finds that the applicant’s allegations to the effect that during that time he was detained in Poland are sufficiently convincing. 416. Lastly, as regards the applicant’s treatment in CIA custody over the period under consideration, in contrast to Mr Al Nashiri whose treatment in CIA custody in the relevant period is described at least partly in the CIA documents (see paragraph 107 above and Al Nashiri, cited above, §§ 416417), the unredacted sections of those documents give very sparse information about the applicant’s situation. The 2004 CIA Report merely states that in December 2002 the purpose of the interrogation team assigned to the black site in which the applicant was detained was to “interrogate Al Nashiri and debrief Abu Zubaydah“ (see paragraph 107 above). As confirmed by the experts, upon the point of his transfer to Poland, the applicant was described as having been compliant and was undergoing a process known as “debriefing”, which was interviewing for the provision of intelligence and information rather being subjected to the EITs of a more aggressive or harsh nature. In their view, it was not known what techniques were applied to the applicant in Poland (see paragraph 311 above). The 2004 CIA Report, with reference to the applicant’s detention between August 2002 and 30 April 2003, that is, during the period which partly overlaps with his detention in Poland, seems to confirm that the applicant at some point became “compliant”. It states that after the applicant was subjected to the waterboard “at least 83 times during August 2002” and during the period between the end of the use of the waterboard and 30 April 2003 he “provided information”. In that respect, the document speaks of the applicant’s “increased production”, which appears to have meant that the aims of the enhanced interrogation had been achieved, although the authors of the report expressed doubts as to whether his “compliance” should be attributed to the use of waterboard or the length of his – undisclosed – detention (see paragraph 106 above). The 2009 DOJ Report also refers to the fact that at some point the use of the waterboard on the applicant was discontinued (see paragraph 88 above). 417. In the Court’s view, the above elements confirm that the use of this particular interrogation technique stopped but this left open the application of other EITs on the applicant throughout his undisclosed detention, including in the period between 5 December 2002 and 22 September 2003 in Poland. Furthermore, the Court finds it inconceivable that during the applicant’s detention in Poland any of the standard methods applied by the CIA to persons detained under the HVD Programme as a matter of routine were lifted in respect of him on account of his “compliance”. 418. It is to be recalled that the applicant was the first High-Value Detainee for whom the EITs were specifically designed by the CIA and on whom they were tested before ever being applied to other captured terrorist suspects as from November 2002 (see paragraphs 49 and 54-59 above). Having regard to the fact that the CIA “legally sanctioned interrogation techniques” encompassed a variety of measures, ranging from “standard” to “enhanced” and that the CIA applied to each and every detainee the same “standard procedures and treatment” (see paragraphs 53 and 60-68 above), the Court finds it established beyond reasonable doubt that the treatment to which the applicant was subjected in CIA custody in Poland must have included the elements defined in the CIA documents as those routinely used in respect of High-Value Detainees (see paragraphs 51-68, 98 and 102-105 above). 419. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that: (1) on 5 December 2002 the applicant, together with Mr Al Nashiri arrived in Szymany on board the CIA rendition aircraft N63MU; (2) from 5 December 2002 to 22 September 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename “Quartz” and located in Stare Kiejkuty; (3) during his detention in Poland under the HVD Programme he was “debriefed” by the CIA interrogation team and subjected to the standard procedures and treatment routinely applied to High-Value Detainees in the CIA custody, as defined in the relevant CIA documents; (4) on 22 September 2003 the applicant was transferred by the CIA from Poland to another CIA secret detention facility elsewhere on board the rendition aircraft N313P. 420. Several sources of evidence obtained by the Court confirm that the Polish authorities followed a special procedure for the landing of CIA rendition flights in Szymany. That procedure was related before the TDIP by an eye-witness, a certain Ms M.P., who had been the manager of Szymany airport at the material time (see paragraphs 287-296 above). On the basis of her detailed account and statements from other persons, including the former director of Szymany airport and the former Chairman of the Board of that airport, the summary description of that procedure was included in the Fava Report (see paragraph 265 above). Furthermore, the 2007 Marty Report contained a compilation of testimonies obtained from confidential sources among Szymany airport employees, civil servants, security guards, and Border Guard and military intelligence officials, who had given an account of what had happened at the time immediately following the landing of the CIA-associated aircraft landed in Szymany (see paragraph 254 above). The above-mentioned accounts of the special procedure, which are concordant and complementary, can be summarised as follows: 1) all the landings were preceded by a telephone call to Szymany airport from the Warsaw Headquarters of the Border Guard or a military intelligence official, informing the authorities of the airport of an arriving “American aircraft”; 2) the army was informed at the same time and two military officials were on duty in the airport at that time; 3) prior to the landings two high-ranking Border Guard officers always appeared in the airport; 4) orders were given directly by the Border Guard, emphasising that the airport authorities should not approach the aircraft and that the military staff and services alone were to handle them; 5) the airport manager was instructed to adhere to strict protocols to prepare for the flights, including clearing the runways of all other aircraft and vehicles, and making sure that all Polish staff were brought in to the terminal building from the vicinity of the runway, including local security officials and airport employees; 6) the role of the airport personnel was only to complete the technical arrangements after the landing; 7) the planes were treated as military planes and were not subjected to customs clearance; the military character of the flight was determined by the Border Guard and the relevant procedure was to be followed by the airport staff; 8) the perimeter and grounds of the airport were secured by military officers and the Border Guard; 9) the aircraft touched down in Szymany and taxied to a halt at the far end of the runway, several hundred metres (and out of visible range) from the four-storey terminal control tower; it always parked with the doors facing towards the wood; 10) the passengers never entered the airport; 11) the Border Guard approached the aircraft first and then drove away; 12) the “landing team” waited at the edge of the runway, in two or three vans with tinted windows, bearing the Stare Kiejkuty army unit’s registration plates; the vans, with their engines often running, were parked in close proximity to the aircraft; 13) after the Border Guard drove away, the vans with tinted windows drove up to the aircraft and then drove away; 14) the planes left shortly afterwards; 15) the landing fees were paid to the airport in cash by a Pole (or a person who spoke Polish very well) the next day and were considerably higher – several times more – than those normally applicable (between 2,000 and 4,000 euros (EUR) per plane), including an amount for “non-standard handling”. 421. Several sources of evidence obtained by the Court reveal that, in addition to granting the CIA rendition aircraft overflight permissions and navigating the planes through Poland’s airspace, the Polish authorities, including PANSA, accorded them special status, various exemptions and authorisations. They also cooperated with the CIA in disguising the aircraft’s actual routes and validated incomplete or false flight plans which served to cover-up the CIA activities in Poland, in contravention of international aviation regulations (see paragraphs 252, 265 and 285 above). 422. As explained in the 2007 Marty Report and by Senator Marty and Mr J.G.S. orally before the Court, Jeppesen, a usual provider of services for the CIA for rendition flights (see also paragraphs 70-72 above), filed multiple false – “dummy” – flight plans for those flights, including the landings in Poland. Those plans often featured an airport of departure and/or destination that the aircraft never intended to visit. In at least four out of six instances of the CIA aircraft landings in Szymany, including the landing of N63MU on 5 December 2002 with the applicant and Mr Abu Zubaydah on board (see paragraphs 408 and 413 above), flight plans were disguised, false plans were filed and PANSA navigated the aircraft into Szymany without a valid flight plan (see paragraphs 252, 310 and 312 above). 423. A detailed analysis of the rendition circuit of the flight N379P – on which, as established in Al Nashiri, Mr Al Nashiri was transferred out of Poland on 6 June 2003 (see also paragraph 412 above and Al Nashiri, cited above, § 417), is included in the CHRGJ Report. That report explains how the aircraft made the entire circuit under various forms of exemption and special status, which indicated that the flights were planned and executed with the full collaboration of the US authorities and the “host” States through which the N379P travelled. Such exemptions are only granted when specifically authorised by the national authority whose territory is being used (see paragraph 285 above). On 5 June 2003 PANSA navigated the N379P into Szymany, despite the fact that all relevant flight plans named Warsaw as the airport of destination. The fact that PANSA accepted Jeppesen’s flight plan naming Warsaw but navigated the plane to Szymany demonstrated that the Polish authorities did not require it to comply with international aviation regulations and that they knowingly issued a false landing permit. In consequence, the rest of the aviation monitoring community, including Eurocontrol, mistakenly recorded the aircraft’s stopover in Warsaw (see paragraphs 253, 286 and 311 above). 424. The CHRGJ Report also gave a detailed analysis of the rendition circuit of the flight N313 P – on which, as established above (see paragraph 408 and 419 above) the applicant was taken out of Poland on 22 September 2003. While it does not appear that on this occasion Jeppesen filed any “dummy” flight plans for the flight from Kabul to Szymany, it did, as in case of N379P’s flight circuit in June 2003, invoke a special status designation. As stated in that report, such “special status exemptions in their invocation alone demonstrate a collaborative planning on the part of the states whose territory or airspace is being traversed, because they are only granted when specifically authorised by the national authority whose 425. Several sources of evidence before the Court have suggested the existence of a special bilateral agreement between Poland and the USA on the setting up and running of a secret prison in Poland. 426. The 2007 Marty Report, based on evidence from confidential sources, states that the CIA brokered an “operating agreement” with Poland to hold its High-Value Detainees in a secret detention facility and that Poland agreed to “provide the premises in which [that facility was] established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference” (see paragraphs 248–249 above). In the context of the authorisation of Poland’s role in the CIA rendition operations, the 2007 Report mentioned a number of names of the Polish high-ranking officials, stating that they had known and authorised the country’s role “in the CIA operation of secret detention facilities for High-Value Detainees on Polish territory” and that they “could therefore be held accountable for these activities” (see paragraph 251, see also paragraph 234 above). Senator Marty confirmed those statements before the Court and added that the operation had been organised within the framework of NATO. It had been decided that the CIA would be in sole charge of the operation and, if requested, the member countries would provide cooperation. As regards the specific names of Polish officials that had been given in the 2007 Marty Report, he explained that they had been indicated “because the sources that [had] provided us with these names [had been] of such value, they [had been] so authoritative and there [had been] so much concurring evidence of the involvement of those persons” (see paragraph 315 above). 427. Mr J.G.S., when heard by the Court, said that whilst in the course of the Marty Inquiry they had not seen the classified documents in question, they had been made aware of the existence of authorising agreements, which granted extraordinary protections and permissions to the CIA in its execution of the rendition operations (see paragraph 323 above). 428. Senator Pinior, both in his affidavit and oral testimony before the Court, stated that he had been informed by an authoritative confidential source of a document – a draft prepared by the Polish intelligence – drawn up under the auspices of Mr Miller’s Government for the purpose of regulating the operation of the CIA prison in Poland. According to him, that document, which was currently in the Polish prosecution authority’s possession, contained precise regulations concerning the functioning of the prison and, among other things, a proposed protocol for action in the event of a prisoner’s death. The word “detainees” was used in the text. The draft had not been signed on behalf of the US (see paragraphs 297 and 328 above). 429. The 2007 EP Resolution “note[d] with concern” that the Polish authorities’ official reply of 10 March 2006 to the to the Secretary General of the Council of Europe, “indicate[d] the existence of secret cooperation agreements initialled by the two countries’ secret services’ themselves, which exclude[d] the activities of foreign secret services from the jurisdiction of the Polish judicial bodies” (see paragraph 269 above). 430. The Court does not find it necessary for its examination of the present case to establish whether such agreement or agreements existed and if so, in what format and what was specifically provided therein. It considers that it is inconceivable that the rendition aircraft crossed Polish airspace, landed in and departed from a Polish airport and that the CIA occupied the premises in Stare Kiejkuty without some kind of pre-existing arrangement enabling the CIA operation in Poland to be first prepared and then executed. 431. The Court considers that the respondent State’s lack of cooperation in the course of the international inquiries into the CIA rendition operations in Europe undertaken in 2005-2007 is an element that is relevant for its assessment of Poland’s alleged knowledge of, and complicity in, the CIA rendition operations. 432. To begin with, in their response dated 10 March 2006 to the Secretary General of the Council of Europe’s questions in the procedure launched under Article 52 of the Convention, the authorities “fully denied” the allegations of “the alleged existence in Poland of secret detention centres and related over-flights (see paragraph 236 above; the relevant letter is also mentioned in paragraph 429 above). In that regard, they relied on the findings of “the Polish Government’s internal inquiry”. It is not clear what kind of “internal inquiry” was carried out and whether the authorities in fact meant the Parliamentary inquiry conducted in November-December 2005 (see paragraph 122 above) but, be that as it may, they could not have been unaware of the CIA operations in the country in 2002-2003 (see paragraphs 424-430 above). 433. A similar obstructive attitude was displayed during the Marty Inquiry. In the 2006 Marty Report it was noted that “the Polish authorities ha[d] been unable, despite repeated requests, to provide [the rapporteur] with information from their own national aviation records to confirm any CIA-connected flights into Poland” (see paragraph 242 above). The 2007 Marty Report noted that “in over eighteen months of correspondence, Poland ha[d] failed to furnish [the] inquiry with any data from its own records confirming CIA-connected flights into its airspace or airports” (see paragraph 253 above). Senator Marty, at the fact-finding hearing, added that “Poland [had been] no exception” and that practically all governments that [had] had links with the secret detention centres or with ‘extraordinary rendition’ not only [had] not cooperate[d] but [had done] everything that they could in order to stifle the truth, to create obstacles in the search for the truth” (see paragraph 314 above). 434. The conduct adopted by the authorities in respect to the Fava Inquiry was no different. The Fava Report explicitly stated that the Polish authorities cooperation with the TDIP delegation had been “regrettably poor”, that the delegation had not been able to meet any representatives of Parliament and that the Government had been “reluctant to offer full cooperation ... and receive [the] delegation at an appropriate political level”. It was also noted that there had been confusion about flight registers of CIA planes transiting through Poland and contradictory statements about the existence of flight logs (see paragraph 264 above). The same observations were made in the 2007 EP Resolution (see paragraph 269 above). In his testimony before the Court, Mr Fava stated that the Polish Government had “cooperated very little” with the TDIP and that almost all representatives of the Government whom they had asked for a meeting had declined the TDIP’s request. He also confirmed that during his visit to Poland with the TDIP delegation he had “definitely” had the impression that there had been attempts on the authorities’ part to conceal information (see paragraph 302 above). 435. Having regard to the above facts, the Court finds that in the course of the relevant international inquiries the Polish authorities displayed conduct that can be characterised as denial, lack of cooperation with the inquiry bodies and marked reluctance to disclose information of the CIA rendition activities in Poland. 436. Mr Fava, in his oral testimony described in detail a document – the records or “the debriefing” of the informal transatlantic meeting of the European Union and North Atlantic Treaty Organisation foreign ministers with the US Secretary of State Condoleezza Rice, which had taken place on 7 December 2005. The meeting was convened in connection with recent international media reports concerning the CIA secret detentions and rendition, naming European countries that had allegedly had CIA black sites on their territory. The debriefing, obtained by the TDIP from a credible confidential source in the offices of the European Union, confirmed that the member States had had knowledge of the CIA rendition programme and there had been an “animated discussion” on the practices applied by the CIA. While Mr Fava could not recall whether there had been any intervention by the Polish Government at that meeting, he said that it had appeared from Ms Rice’s statement “we all know about these techniques” that there had been an attempt on the USA’s part to share “the weight of accusations” (see paragraph 300 above). 437. The Court further notes that Mr Fava also referred to the meeting held in the context of the Fava Inquiry with the former Polish head of the security service who, “although ... with great diplomacy”, had confirmed that the CIA officials often landed in Szymany and that the Polish intelligence and the CIA had had “frequent relations of cooperation ... consisting in sharing certain practices and objectives” (see paragraphs 264 and 305 above). 438. Former President of Poland, Mr Kwaśniewski, in his press interview given on 30 April 2012, also referred to the “intelligence cooperation” with the CIA and stated that ”the decision to cooperate with the CIA carried the risk that the Americans would use inadmissible methods” (see paragraph 234 above). 439. Having regard to the procedure for High-Value Detainees’ transfers under which, as established above, a detainee such as the applicant was blindfolded, wore black goggles and was shackled by his hands and feet for the duration of his transfer (see paragraphs 62, 276 and 409 above), the Court considers that those of the Polish authorities who received the CIA personnel on the Szymany airport runway, put them on the vans and drove them to the black site could not be unaware that the persons brought there with them were the CIA prisoners. In particular, the Court finds it inconceivable they would not have seen or, as described by Mr J.G.S., “witnessed ... the unloading of bound and shackled detainees from aircraft” (see paragraph 324 above). 440. There are also other elements that the Court considers relevant for its assessment of Poland’s knowledge of the nature and purposes of the CIA activities on its territory at the material time. As recounted by Senator Pinior in his affidavit and subsequently confirmed in his oral testimony given to the Court, “in the period when the CIA prisoners were detained in Stare Kiejkuty” the authorities of the military base ordered from a Polish company a metal cage of the size fitting a grown man with the option of adding a portable chemical toilet (see paragraphs 297 and 329 above). No explanations have been offered by the respondent Government as to what kind of purposes that cage was to serve. Furthermore, there were, as pointed out by one of the experts (see paragraph 324 above), other aspects of the CIA activity in Poland that were extraordinary from the perspective of the normal operation of an airport like Szymany. For instance, the landing of the Boeing 737 (N313P on which the applicant was transferred from Poland; see paragraphs 408 and 419 above) on 22 September 2003 at Szymany took place despite the fact that the airport did not have the necessary technical conditions for receiving such a large aircraft, in particular the facilities to refuel it, and the fact that the airport fire brigade was not adequately equipped for that purpose (see paragraphs 289-290 and 312 above). In the view of Ms M.P., the airport manager at the relevant time, “there must have been some very pressing reasons” for allowing that landing (see paragraph 290 above). On another occasion in the winter, notwithstanding the severe weather conditions and the fact that snow had not been cleared at the airport for six weeks, the airport management were not in a position to refuse the CIA aircraft’s landing and had to clear the runway because “if the aircraft concerned did not land, ‘heads would roll’” (see paragraph 294 above). For the airport civilian staff, the landing of the CIA aircraft was a “major event”. Despite the fact that they were excluded from the handling of the aircraft and were taken to the airport terminal building during the CIA landings and departures (see paragraph 420 above), they perceived those events as “spies” coming or a “changeover of intelligence staff” (see paragraph 291 above). 441. Lastly, the Court attaches importance to the fact that already between January 2002 and August 2003 ill-treatment and abuse to which captured terrorist suspects were subjected in US custody at different places, including Guantánamo Bay or Bagram base in Afghanistan was largely in the public domain through numerous statements or reports of international organisations (see paragraphs 208–223 above and Al Nashiri, cited above, §§ 384385 above). At the material time that topic was also present in the international and Polish media, which paid considerable attention to the situation of Al’Qaeda prisoners in US custody (see paragraphs 224–333 above). 442. The Court has taken due note of the fact that knowledge of the CIA rendition and secret detention operations and the scale of abuse to which High-Value Detainees were subjected in CIA custody evolved over time (see paragraphs 47-68, 76-79, 235-255, 260-269, 275-280 above). In particular, the CIA’s various secret or top secret documents, including the 2004 CIA Report, the CIA Background Paper and the 2009 DOJ Report – which, in the present case and in Al Nashiri, are among important items of documentary evidence relevant for the establishment of the facts relating to both applicants’ rendition, secret detention and treatment by the US authorities – were disclosed to the public, in a heavily redacted form, as late as 2009-2010 (see paragraphs 47, 55 and 60 above). The 2007 ICRC Report, including the applicant’s account of the treatment and material conditions of detention to which he was subjected under the HVD Programme, was leaked into the public domain in 2009 (see paragraph 276 above). The reports following the Marty Inquiry and the Fava Inquiry emerged earlier, in 2006-2007 (see paragraphs 240-255 and 260266), but this was between three and a half and five years after the events complained of. As stated by Senator Marty, even “the picture provided by the 2007 [Marty] Report is still very much a partial one”, having regard to the subsequent developments, such as the publication of the CIA materials and the availability of statements from detainees (see paragraph 317 above). As already stated above (see paragraphs 397-400 above), the Court has relied extensively on those sources of evidence in its retrospective reconstruction and establishment of the facts concerning the applicant’s transfers to and from Poland and his secret detention and ill-treatment by the CIA in Poland. However, the Polish State’s knowledge of and complicity in the HVD Programme must be established with reference to the elements that it knew or ought to have known at or closely around the relevant time, that is, between December 2002 and June 2003 in respect of the applicant and between December 2002 and September 2003 in respect of Mr Al Nashiri. 443. In that regard, the Court has taken into account the various attendant circumstances referred to above (see paragraphs 420-441 above). In the Court’s view, those elements taken as a whole demonstrate that at that time the Polish authorities knew that the CIA used its airport in Szymany and the Stare Kiejkuty military base for the purposes of detaining secretly terrorist suspects captured within the “war on terror” operation by the US authorities. It is inconceivable that the rendition aircraft could have crossed Polish airspace, landed in and departed from a Polish airport, or that the CIA occupied the premises in Stare Kiejkuty and transported detainees there, without the Polish State being informed of and involved in the preparation and execution of the HVD Programme on its territory. It is also inconceivable that activities of that character and scale, possibly vital for the country’s military and political interests, could have been undertaken on Polish territory without Poland’s knowledge and without the necessary authorisation being given at the appropriate level of the State authorities. The Court would again refer to the testimony given by the experts who, in the course of their inquiries, had the benefit of contact with various, including confidential, sources. They all stated, in unambiguous terms, that at the relevant time Poland had had, or should have had, knowledge of the CIA rendition operations. Poland had ensured the security of the area and had collaborated in concealing the rendition flights. The Polish officials’ liaison units must have been aware of the preparation or execution of particular operations and their timing. They had known that the CIA interrogations had contributed intelligence to the United States’ war on terror (see paragraphs 301, 315-317, 320 and 324–325 above). This did not mean, in the experts’ view, that the Polish authorities had known the details of what went on inside the black site, since the interrogations had been the exclusive responsibility of the CIA, or that they had witnessed treatment to which High-Value Detainees had been subjected in Poland (see paragraphs 316-317 and 324-325 above). The Court, being confronted with no evidence to the contrary, accepts the experts’ above-mentioned assessment. Notwithstanding the foregoing proviso as to the lack of direct knowledge of the treatment to which the applicant was subjected in Poland, as noted above, already between January 2002 and August 2003 numerous public sources were consistently reporting ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in different places. Moreover, in the 2003 PACE Resolution adopted in June 2003 – of which Poland, as any other Contracting State was aware – the Parliamentary Assembly of the Council of Europe was “deeply concerned at the conditions of detention” of captured “unlawful combatants” held in the custody of the US authorities. All these sources reported practices resorted to or tolerated by the US authorities that were manifestly contrary to the principles of the Convention (see paragraphs 208-218 and 223-233 above). Consequently, there were good reasons to believe that a person in US custody under the HVD Programme could be exposed to a serious risk of treatment contrary to those principles (see also El-Masri, cited above, § 218). 444. Taking into consideration all the material in its possession (see paragraphs 413-435 above), the Court finds that there is abundant and coherent circumstantial evidence, which leads inevitably to the following conclusions: (a) that Poland knew of the nature and purposes of the CIA’s activities on its territory at the material time and that, by enabling the CIA to use its airspace and the airport, by its complicity in disguising the movements of rendition aircraft and by its provision of logistics and services, including the special security arrangements, the special procedure for landings, the transportation of the CIA teams with detainees on land, and the securing of the Stare Kiejkuty base for the CIA’s secret detention, Poland cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory; (b) that, given that knowledge and the emerging widespread public information about ill-treatment and abuse of detained terrorist suspects in the custody of the US authorities, Poland ought to have known that, by enabling the CIA to detain such persons on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see also ElMasri, cited above, §§ 217-221). 445. Consequently, Poland was in a position where its responsibility for securing “to everyone within [its] jurisdiction the rights and freedoms defined .... in [the] Convention” set forth in Article 1 was engaged in respect of the applicant at the material time.
| 1 |
test
|
001-170052
|
ENG
|
ROU
|
CHAMBER
| 2,017 |
CASE OF IONIȚĂ v. ROMANIA
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicants, Dorina and Viorel-Aurel Ioniță, were born in 1976 and 1972 respectively and live in Brăila. 6. On 7 November 2005 the applicants’ son, aged four years and nine months at that time, underwent surgery for the removal of polyps, which was performed by Dr C.B. in the State-run Brăila Emergency Hospital. 7. Dr C.B. decided to perform the operation under general anaesthetic with tracheal intubation. The general anaesthesia was performed by Dr P.A, assisted by P.V.I., a staff nurse. 8. After surgery the child was immediately transferred to the intensive care unit. Ten minutes after his transfer P.V.I. informed Dr P.A that the child was cyanotic and had no pulse. 9. The child suffered a haemorrhage, causing blood to flood his lungs. A team of doctors tried to resuscitate him and clear his respiratory channels, but without any success. The child was declared dead two hours after the operation. 10. A criminal investigation into the cause of death was opened by the Brăila police on the same day. 11. Dr C.B. and Dr P.A. were questioned and gave written statements. 12. An autopsy report issued by the Brăila Forensic Service (Serviciul de medicină legală Brăila) on 8 November 2005 said that the applicants’ son had died of acute respiratory failure as a result of the blood that had blocked his airways and flooded his lungs. It also noted that the child had suffered from several congenital deficiencies which had probably played a role in the postoperative complications: myocardia and hepatic dystrophy, and interatrial septum aneurisms. 13. The report was sent for the approval of the commission for confirmation and supervision of the Iaşi Forensic Institute (Comisia de avizare și control din cadrul IMF Iaşi). On 5 May 2006 the commission confirmed that the child’s death had occurred after surgery and had been caused by the blood that had blocked his airways and lungs. It held that there had been a causal link between the post-operative treatment and the child’s death. It noted the deflation of the balloon of the catheter (balonaşul sondei de întubaţie), applied after post-operatively to prevent the ingress of blood into the lungs, as a possible cause of the presence of blood there and in his airways. 14. On 12 October 2006 the superior commission of the Mina Minovici Forensic Institute examined all the documents and approved the conclusions of the commission for confirmation and supervision of the Iaşi Forensic Institute. 15. On 8 November 2005 the child’s father lodged a disciplinary complaint against Dr C.B. and Dr P.A. 16. The disciplinary committee of the Brăila College of Doctors opened an investigation into the patient’s death, collecting documents from the patient’s medical file and taking statements from Dr C.B. and Dr P.A., as well as from the doctors involved in the resuscitation procedure postoperation. It gave its decision on 9 July 2007 by which it concluded that the child’s death could be included among cases of sudden death (with a frequency of 2-4 % owing to the child’s pre-existing medical conditions: myocardia and hepatic dystrophy, and inter-atrial septum aneurisms). Although the committee concluded that there had been no direct link between the child’s death and the doctors’ medical conduct, it reprimanded both doctors for their failure to perform the necessary pre-surgical medical tests and to seek the applicants’ informed consent before surgery. 17. The applicants objected to the committee’s conclusions and their appeal was examined by the superior disciplinary committee of the National College of Doctors. 18. An expert medical opinion was submitted to the committee and was used by it in reaching its final conclusions. The expert noted, among other things, that the child’s preparation for surgery had not been appropriate as his examination before anaesthesia had been “very superficial”; in this respect the committee noted the lack of a radioscopy of the lungs, of an EKG and an exploration of the necessary time for blood coagulation. In the expert’s view, the doctors had ignored the child’s severe congenital deficiencies as they had considered that surgery for the removal of polyps had been a “minor intervention” and therefore no special precautions had been necessary. 19. By a decision of 6 June 2008 the superior disciplinary committee of the National College of Doctors quashed the decision of 9 July 2007 and fined each doctor 1,000 Romanian lei (the equivalent of approximately 220 euros (EUR)). It found that the child’s pre-surgical tests had been insufficient for avoiding post-operative complications. Therefore, it held that Dr C.B. and Dr P.A. had infringed Article 53 of the Medical Deontological Code, pursuant to which a doctor should perform diagnoses with maximum diligence in order to determine the adequate treatment and avoid predictable complications that might occur for a patient under his or her care. 20. The committee further stated that the presence of blood in the child’s airways could not be explained on the basis of the documents and statements in the file. It noted that all the doctors and the nurses who had given evidence stated that the balloon of the intubation catheter had been leakproof (etanche); however, the fact that the cause of death had been the presence of blood in the child’s lungs could only lead to the conclusion that such statements had been inaccurate. 21. Relying on Articles 58 and 60 of the Deontological Code and Article 6 of Law no. 46/2003, the committee also noted that the parents had not given their informed consent. 22. On 7 November 2005 the applicants lodged a criminal complaint alleging that the flawed surgical and post-surgical treatment received by their son had resulted in his death. They asked that those responsible be identified and held accountable for their son’s death. They joined the criminal proceedings as civil parties. 23. Following a request of the Brăila Police Inspectorate, on 19 July 2006 Brăila Emergency Hospital stated that the medical staff members in charge of monitoring the child were Dr P.A. during the intervention and the child’s transfer to the intensive care unit and P.V.I. while in the intensive care unit. 24. On 5 January 2007 the prosecutor’s office of the Brăila District Court decided to institute criminal proceedings against Dr P.A. 25. P.V.I. was interviewed as a witness immediately after the child’s death, during the preliminary criminal investigation. During the criminal proceedings against Dr P.A., in spite of the fact that she had been repeatedly summoned, the investigating authorities were not able to question her as she had not been found. She had left her job at the Brăila Emergency Hospital in January 2006. 26. The prosecuting authorities interviewed several doctors and nurses from the hospital’s medical staff who had been involved in the applicants’ son’s post-operative care. 27. Dr P.A. lodged a request with the investigating body for a new forensic medical report. He pointed out that there were major contradictions between the autopsy report and the opinion issued by the commission for confirmation and supervision of the Iaşi Forensic Institute. 28. On 4 April 2007 the Brăila Police Inspectorate asked the Iaşi Forensic Institute to carry out a forensic expert report that would identify the cause and circumstances of the child’s death. The Iaşi Forensic Institute replied that a new forensic report could not be produced as the evidence examined had been sent by Brăila Forensic Service to the Mina Minovici National Forensic Institute. 29. On 20 February 2008 Dr P.A. submitted an extrajudicial expert report. It stated that the cause of death had not been the presence of blood in the child’s lungs owing to a lack of adequate post-operative monitoring, but the post-operative reaction of a child with pre-existing medical conditions (cardiac congenital malformation, hepatic dystrophy, renal stasis, mesenteric adenopathy and hemorrhagic enterocolitis) mentioned in the medical records kept by the child’s paediatrician. The report noted a generalised inflammatory reaction associated with diffused haemorrhages in his digestive tract, lungs, heart and spleen. 30. The applicants gave evidence to the investigating authorities on 23 January 2008. They contended that they had not been properly informed about the risks of surgery and of the general anaesthetic and consequently they had not given their consent for such interventions. 31. On 30 June 2008 the Brăila Police Inspectorate ordered that a new forensic report be produced by the Mina Minovici National Forensic Institute. The applicants, Dr P.A. and the investigating authorities submitted several questions for the forensic experts. They asked, among other things, whether the pre-existent medical condition of the child had influenced his unfavourable post-surgical evolution and whether administration of a general anaesthetic had been the right option, given the age and the diagnosis of the child. The child’s father also asked the Forensic Institute whether the post-operative monitoring of the child had been adequate. 32. However, on 28 July 2008 the Forensic Institute replied that it could not deliver such a report because under the relevant domestic legislation a new forensic expert report could not be ordered unless there were new medical and factual elements. Accordingly, the Forensic Institute stated that it maintained its previous opinion. 33. Copies of the documents from the disciplinary file were added to the criminal file. 34. On 30 September 2008 the prosecutor’s office of the Brăila County Court decided to discontinue the criminal proceedings against Dr P.A., finding, in the light of evidence gathered in the case, that there had been no element of criminal negligence in his conduct. That decision was upheld on 10 November 2008 by the chief prosecutor of the same prosecutor’s office. 35. A complaint by the applicants against the prosecutors’ decisions was allowed by the Brăila District Court on 25 February 2009. The prosecutors’ decisions were quashed and the District Court kept the file for fresh consideration. It considered that although a new forensic report had not been produced, the decision of the superior committee of the National College of Doctors provided enough information concerning the cause of death, which had been the presence of blood in the child’s airways owing to the balloon of the tracheal catheter not being tight enough. It considered that it should be established whether the post-operative monitoring of the child by Dr P.A. had been appropriate and more precisely whether Dr P.A. should have noticed the non-functioning catheter. 36. Dr C.B. and Dr P.A. gave statements before the District Court on 18 January 2010. Moreover, members of the medical staff that had attempted resuscitation gave evidence (on 1 March, 20 April and 8 June 2008). Some of them maintained that the blood in the lungs could be explained by the resuscitation attempts and that the balloon of the catheter had been kept tight all the time after surgery. 37. P.V.I. did not give evidence before the court as, although summoned, she did not attend the hearings. According to several reports issued by bailiffs seeking to bring her before the court, she had left the country for Italy. Based on the material in the case file it does not appear that the court took special measures to identify her address there. 38. The child’s father gave evidence before the Brăila District Court on 18 January 2010. He reiterated his claims for pecuniary and nonpecuniary damages. He again contended that the doctors had not informed his family about the risks of surgery and in particular of the general anaesthetic and accordingly they had not given their informed consent. 39. On 1 October 2010, after several hearings, the Brăila District Court acquitted Dr P.A. and dismissed the applicants’ civil claim as unfounded. 40. The District Court took into account the extrajudicial forensic report submitted by Dr P.A. It noted that the conclusions of the extrajudicial report were in total contradiction to the conclusions of the medical report of 8 November 2005 and the conclusions of the commission for confirmation and supervision of the Iaşi Forensic Institute. 41. This judgment was upheld by a decision of the Brăila County Court delivered on 21 December 2010. 42. The County Court did not take into account the conclusions of the extrajudicial forensic report as in its opinion it represented only extrajudicial evidence which could not set aside the conclusions of competent forensic institutes. 43. The County Court concluded that the death of the child had been caused by the presence of blood in his airways and lungs. However, based on the evidence in the file, it was not possible to explain when the blood had entered the child’s airways because of the deflation of the catheter’s balloon. Moreover, the post-operative complications occurred ten minutes after the child had been transferred to the intensive care unit, while under the supervision of P.V.I. The County Court held therefore that Dr P.A. could not be held responsible for the deflation of the catheter’s balloon after surgery. 44. The applicants lodged an appeal on points of law against that decision. They requested that the court extend the criminal investigation to P.V.I., who had had the child under her supervision in the intensive care unit. 45. By a decision of 15 April 2011 the Galaţi Court of Appeal allowed the applicant’s appeal and quashed the decisions of the lower courts. Noting that the lower courts had not examined the allegation made by the child’s parents that they had not given their consent for surgery and the general anaesthesia, the appeal court sent the file back to the Brăila District Court. 46. On 22 December 2011 the Brăila District Court acquitted Dr P.A. It held that no causal link existed between the death of the child and the presumed omission of the medical authorities to obtain the applicants’ informed consent for the administration of a general anaesthetic. 47. It further held that it could not establish beyond any reasonable doubt that Dr P.A. had been negligent in ensuring the tightness of the catheter’s balloon after surgery. Consequently, the court dismissed the applicants’ civil claim as unfounded. 48. The court also dismissed the applicants’ request to extend the criminal investigation to P.V.I. on the grounds that, under Article 337 § 1 of the CCP, only the prosecutor could ask for the extension of the investigation to other persons while the proceedings were pending before the courts. 49. This judgment was upheld by a final decision delivered by the Galaţi Court of Appeal on 22 May 2012. 50. On 28 October 2008 the applicants instituted separate civil proceedings against the Brăila Emergency Hospital and doctors C.B. and P.A. in the Brăila District Court for the pecuniary and nonpecuniary damages they had sustained as a result of their son’s death. 51. On 23 April 2009, referring to Article 19 of the CCP (see paragraph 57 below), the court stayed the civil proceedings pending a final decision in the criminal proceedings. It noted that the outcome of the civil proceedings would depend to a large extent on the verdict in the criminal proceedings. 52. On 29 January 2013 the Brăila District Court lifted the stay of the civil proceedings. However, the applicants gave up their separate civil claim on 6 March 2013.
| 1 |
test
|
001-182222
|
ENG
|
RUS
|
CHAMBER
| 2,018 |
CASE OF GULIYEV AND SHEINA v. RUSSIA
| 4 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
|
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
|
5. The applicants, who are married, were born in 1975 and 1988 respectively. The second applicant lives in Perm; prior to his expulsion in March 2014, the first applicant also lived there. 6. On an unspecified date in 2002 or 2003 the first applicant arrived in Russia. It is unclear on what legal basis he resided there. He never applied for a residence permit or Russian nationality. 7. At some point in 2004 the first applicant started living with the second applicant. The Government did not dispute that fact. 8. The Government submitted that in April 2007 the first applicant was fined 2,000 Russian roubles (RUB) (about 60 euros (EUR)) for a breach of Article 18.8 of the Code of Administrative Offences (living on Russian territory without a valid residence permit or non-compliance with the established procedure for residence registration). 9. In 2007 and 2011 the applicants’ two children, T.S. and D.S., respectively, were born. The first applicant was not officially registered as their father, however, both children had his name indicated on the birth certificates as their patronym. 10. On 4 August 2012 the first applicant arrived in Russia from Azerbaijan. Under the bilateral visa-free agreement of 1997 between the countries, his stay was authorised until 2 November 2012. 11. On 10 August 2012 the applicants concluded a religious marriage in the Perm congregational mosque and continued to reside together in Perm. They furnished the Court with a copy of the marriage certificate. 12. It can be seen from the case documents that on 21 September 2012 the first applicant was shot in the left leg. As a result of the gunshot wound he was hospitalised and underwent several operations. He was released from hospital on 31 December 2012. 13. On 13 December 2013 the first applicant was detained by the police for a breach of Article 18.8 of the Code of Administrative Offences on account of his failure to apply for a renewal of his period of authorised stay, which had expired on 2 November 2012. In his statement to the police, which was submitted to the Sverdlovsk District Court in Perm on the same date, the first applicant stated that he had been living in Russia for twelve years, that he resided with the second applicant as a family and that they had two children. He further stated that they had not officially registered their marriage and his paternity in respect of the children had not yet been officially established. He explained that he had overstayed the term of the authorised stay as he had been shot in the leg on 21 September 2012, which had resulted in several operations and his admission to hospital, ending on 31 December 2012; doctors had recommended that he not stay seated for longer than two hours and that considering that the trip to the border with Azerbaijan took more than ten hours, he had decided to stay in Russia until the injury had completely healed. 14. On 13 December 2013 the Sverdlovsk District Court in Perm ordered that the first applicant be fined RUB 2,000 and that he be subjected to administrative removal (expulsion) from Russia to Azerbaijan, which also implied a subsequent five-year entry ban. The court stated, inter alia, as follows: “[...] as can be seen from the documents that have been submitted, [the applicant] Mr Guliyev has stayed in the Perm Region without lawful grounds from 3 November 2012 to 12 December 2013 [...] ’s character: ... the applicant has never had administrative proceedings opened against him and has fully admitted his guilt in the commission of the administrative offence. The court finds it necessary to choose an administrative fine with subsequent administrative removal from the country as he has been residing in Russia without a legal basis and without having a work permit. When choosing the punishment the court is unable to take into account Mr Guliyev’s minor children as he has not legally registered his paternity in respect of them ...” 15. The first applicant appealed against the decision, alleging that his removal and five-year re-entry ban would constitute a disproportionate measure in view of his family life with the second applicant and their children. In particular, he stated that his wife, the second applicant, was pregnant with their third child, that they had two children, that he was the family’s breadwinner and that the leg injury had precluded him from regularising his stay in Russia in a timely manner. 16. On 17 December 2013 the first applicant was officially registered as the father of the minors T.S. and D.S. 17. On 26 December 2013 the Perm Regional Court examined the appeal and upheld the decision of 13 December 2013 stating, amongst other things, as follows: “[...] in the appeal the applicant’s representative requested that the court change the decision by excluding administrative removal from the punishment. Mr Guliyev lives with Ms Sheina, he has two dependent children, and he is the sole breadwinner for the family. Mr Guliyev’s paternity has been officially registered and confirmed by evidence. Presently Ms Sheina is pregnant with Mr Guliyev’s third child in respect of whom he would also establish paternity ... [he] believes that administrative removal and its negative consequences would violate his right to respect for his family life ... [...] as can be seen from the case file, the applicant has been unlawfully residing in Russia for more than a year. There are no reasons to believe that the applicant was prevented from leaving the country for a long time. The applicant’s statement and that of Ms Sheina that he was not able to move around owing to the injury have not been confirmed by relevant evidence ... the case file contains documents showing that the applicant was hospitalised from 23 to 31 December 2012 with a fracture of the left hip ... it was recommended that he minimise the burden on the leg for three months after the release from hospital. Other documents demonstrating that his mobility was limited have not been submitted to the court ... The administrative punishment has been chosen in respect of Mr Guliyev in accordance with Article 41 of the Code of Administrative Offences and is the minimum prescribed by paragraph 1 of part 1 of Article 18.8 of the Code of Administrative Offences, according to which administrative removal represents a compulsory element of the punishment along with an administrative fine. The kind of exceptional circumstances which could serve as a basis for excluding that type of punishment in accordance with international law are not present in this case ... ... There are no convincing arguments which would enable the court to conclude that Mr Guliyev intends to permanently reside in Russia, obtain the right to temporary residence and (or) acquire Russian citizenship. The marriage with Ms Sheina has not been officially registered ... paternity in respect of the two minors [T.S. and D.S.] was established after the District Court’s decision to administratively remove Mr Guliyev ... in connection with that the certificates of paternity provided to this court cannot be taken into account. There are no reasons to believe that Mr Guliyev had not had the opportunity prior to that to register his marriage with Ms Sheina and the paternity ... it is impossible to conclude from the case file that Mr Guliyev’s income is the only source of income for Ms Sheina and the minor children ...” 18. The applicants officially registered their marriage on 21 February 2014. 19. On 6 March 2014 the first applicant was expelled from Russia. 20. On 8 July 2014 the Supreme Court upheld by supervisory review the first applicant’s removal. 21. On 23 July 2014 the applicants’ third child, R.Sh., was born. He remained in the intensive care unit owing to a congenital heart condition. 22. On 11 August 2014 the applicants lodged a request for the application of Rule 39 of the Rules of Court, asking the Court to take measures to lift the first applicant’s re-entry ban in order to enable him to visit his child in hospital. 23. On 12 August 2014 the Court refused to grant the interim measure and asked for factual information from the Government. 24. On 18 August 2014 the Government informed the Court that R.Sh. had a very serious heart condition, that he was being treated in intensive care and that his state of health prevented him from travelling. The Government further stated that domestic legal provisions did not provide for any exceptions to the five-year re-entry ban.
| 1 |
test
|
001-148272
|
ENG
|
POL
|
CHAMBER
| 2,014 |
CASE OF SIERMIŃSKI v. POLAND
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Zdravka Kalaydjieva
|
4. The applicant was born in 1941 and lives in Kadzidło. 5. The applicant’s parents owned land within the administrative borders of Warsaw. It was expropriated by way of an administrative decision issued on an unspecified date under the provisions of the Decree on Ownership and Use of Land in Warsaw of 26 October 1945. In February 1949 the applicant’s legal predecessor requested to be granted a right of perpetual use (użytkowanie wieczyste) for another plot of land situated in Warsaw as compensation provided for by the provisions of the 1945 Decree. His request was dismissed by way of an administrative decision given in 1961 and ultimately upheld in 1968. A judicial decision given in 1975 confirmed that the applicant was his parents’ general heir. 6. On 16 July 1993 the applicant requested that the decision given in 1961 be declared null and void. 7. On 20 September 1994 the Minister of Construction and Land Planning (Minister of Gospodarki Przestrzennej and Budownictwa) gave a decision. It noted that in 1961 the authorities had failed to examine whether the substantive conditions for granting the owners the right of perpetual use of the land specified in section 7 of the 1945 Decree (see paragraph 46 below) had been met at that time. He declared, referring to Article 156 § 1 item 2 of the Code of Administrative Procedure (CAP) (see paragraph 39 below), that decision null and void in so far as it related to the part of the land concerned which was used as family gardens. In so far as this decision related to the part of the land which had already been used for construction purposes, he considered that the contested decision had given rise to irrevocable legal consequences within the meaning of Article 156 § 2 of the CAP (see paragraph 41 below). Therefore under Article 158 § 2 he could merely declare that it had been issued contrary to law within the meaning of this provision. 8. The municipality of Warsaw did not lodge an appeal against this decision. It accordingly became final within thirty days after its service on the applicant. 9. The applicant instituted three separate sets of proceedings, seeking compensation for damage caused by the expropriation decision. 10. On 10 October 1994 the applicant, referring to the decision of 20 September 1994, requested the authorities to re-examine the original motion submitted in 1949 to be granted a right of perpetual use in respect of the land covered by the part of the expropriation decision declared null and void (see paragraph 7 above). On 28 October 1994 the Land Planning Division (Wydział Gospodarki Przestrzennej) of the Warsaw City Hall requested the Warsaw-Mokotów Town Hall to provide certain information concerning the land concerned. 11. On 3 March 1995 the applicant complained to the Minister of Construction and Land Planning about the authorities’ failure to give a decision in his case. 12. On 7 September 1995 the Minister of Minister of Construction and Land Planning stayed the compensation proceedings instituted by the applicant under Article 160 of the Code of Administrative Procedure (see paragraphs 29-33 below). He observed that the decision given on 20 September 1994 (see paragraph 7 above) made it necessary in law to reexamine the former owners’ request for grant of the right to perpetual use submitted in 1949 and that it created a compensation claim for the applicant. It referred to the applicant as “the claim’s owner” (właściciel roszczenia). 13. In March and May 1996 the applicant complained to the Minister of Construction and Land Planning about the authorities’ failure to give a decision in the case. 14. On 25 November 1996 the Supreme Administrative Court gave a decision obliging the Mayor of Warsaw to whom the case had meanwhile been transmitted to give a decision on the merits of the case within one month. 15. On 24 February 1997 the Mayor of Warsaw refused to allow the application submitted in 1949 and joined by the applicant (see paragraph 5 above). The applicant appealed. 16. On 19 July 1997 the Local Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) set the first-instance decision aside and remitted the case. 17. On 31 December 1997 the Mayor again refused to allow the applicant’s application. The applicant appealed. On 21 January 1999 the Board of Appeal set the first-instance decision aside and remitted the case. An exchange of correspondence between the applicant and the authorities ensued. 18. In January 2004 the Mayor of Warsaw informed the applicant that he had instituted proceedings with a view to having the decision given in 1994 that created for the applicant an entitlement to compensation (see paragraphs 7 and 12 above) declared null and void. In September 2004 the Minister of Construction refused to grant the Mayor’s application, finding that the contested decision was lawful. 19. On 13 December 2004 the Warsaw Town Hall (Urząd m. st. Warszawy) informed the applicant that the Mayor could not give a decision on the merits of the case unless the applicant indicated, by way of an initial request to obtain a construction permit, how he intended to use the land in question. 20. In September 2006 the applicant complained about the authorities’ failure to give a decision on the merits of the case. On 15 November 2006 the Board of Appeal obliged the Mayor to issue a decision by the end of February 2007. 21. On 15 March 2007 the applicant again complained about the administrative authorities’ failure to examine his case within a reasonable time. 22. On 24 April 2007 the Mayor refused to allow the applicant’s application. The applicant appealed. On 30 July 2007 the Board of Appeal quashed the decision, finding that it was unlawful both on procedural and substantive grounds, and remitted the case. 23. On 15 January 2008 the applicant again complained about the administrative authorities’ failure to give a decision. On 29 August 2008 the Board of Appeal found in a decision that his complaint was ill-founded as the file of the case had been forwarded to the civil court and the administrative authorities could not deal with the case. The applicant lodged an appeal against this decision with the Supreme Administrative Court. 24. On 28 October 2010 the Supreme Administrative Court obliged the Mayor of Warsaw to give a decision on the merits of the case within a twomonth time-limit. 25. On 3 June 2011 and on an unspecified later date the applicant complained to the Warsaw Regional Administrative Court about the Mayor’s failure to give a decision on the case in compliance with the judgment of that court obliging her to do so. On 14 July 2011 and 27 September 2012, respectively, the Warsaw Regional Administrative Court rejected his complaints for failure to comply with the applicable procedural requirements. It noted that the applicant was obliged, under Article 154 para. 1 on the Law of Proceedings before Administrative Courts, to call upon the Mayor to comply with the judgment obliging her to give a decision prior to lodging another complaint about her inactivity with the administrative court. 26. On 22 June 2011 the Mayor of Warsaw stayed the proceedings, pending a physical delimitation of the land concerned by a land surveyor. The applicant appealed against this decision. 27. On 13 September 2012 the applicant called upon the Mayor, under Article 154 para. 1 of the Law of Proceedings before Administrative Courts, to give a decision in compliance with the judgment of 28 October 2010. There was no reply to his request. 28. The proceedings are pending. 29. On 10 October 1994 the applicant instituted proceedings under the then applicable Article 160 of the Code of Administrative Procedure, seeking compensation for damage allegedly caused by the unlawful decision given in 1961. 30. On 7 September 1995 the Minister of Construction stayed the proceedings, considering that the outcome of the use of land proceedings described above (see paragraphs 10 – 28 above) was decisive for the proceedings under Article 160 of the Code of Administrative Procedure (see paragraph 12 above). The applicant appealed. 31. On 17 April 1997 the Supreme Administrative Court allowed the applicant’s appeal against the decision to stay the proceedings, holding that the other set of proceedings had no incidence on the issue of compensation for damage caused by the original expropriation decision. 32. In September 1997 the applicant complained about the Minister’s inactivity. 33. Ultimately in 2001 the President of Housing and Urban Development Office (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) refused to award compensation to the applicant. 34. In June 2001 the applicant and other legal successors of the former owners of the land expropriated in 1961 lodged a claim with the Warsaw Regional Court for compensation for damage caused by that decision. 35. By a judgment of 9 December 2008 the Warsaw Regional Court awarded compensation to the applicant and other plaintiffs. The State Treasury represented by the General Attorney Office (Prokuratoria Generalna) appealed. 36. On 8 July 2009 the Warsaw Court of Appeal allowed the appeal, amended the contested judgment and dismissed the plaintiffs’ claim. 37. On 14 October 2010 the Supreme Court refused to entertain the applicant’s cassation appeal.
| 1 |
test
|
001-157286
|
ENG
|
FRA
|
CHAMBER
| 2,015 |
CASE OF BERLAND v. FRANCE
| 3 |
Preliminary objection joined to merits (Article 35-3 - Ratione materiae);No violation of Article 7 - No punishment without law (Article 7-1 - Retroactivity)
|
André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
|
5. The applicant was born in 1987 and is currently in the specialised hospital centre (CHS) of Sevrey. 6. On 12 September 2007 the applicant, who was 20, went to the workplace of C.G., who had been his girlfriend and who had told him, following threats and violence on his part, that she no longer wanted to see him. The applicant inflicted several stab wounds on C.G., who died from a massive haemorrhage, having been wounded in the throat and thorax, and on two other individuals. On 14 September 2007 the applicant was placed under judicial investigation, charged with the premeditated murder of his former girlfriend and the intentional wounding of the other two people, and remanded in custody. On the same day the Prefect ordered his compulsory admission to the Sevrey CHS. 7. The applicant was examined by two boards of expert psychiatrists who found that, at the material time, he was suffering from a mental disorder which had impaired his discernment and the ability to control his actions within the meaning of Article 122-1 of the Criminal Code .... 8. On 8 September 2008 the public prosecutor asked the investigating judge at the Dijon tribunal de grande instance to refer the case to the Investigation Division for a ruling as to the applicant’s lack of criminal liability, in accordance with Article 706-20 of the Code of Criminal Procedure, derived from the Law of 25 February 2008 on preventive detention and declarations of criminal insanity (hereafter “the 25 February 2008 Act”, ...). 9. In a decision of 30 September 2008 the investigating judge found that it transpired from his investigation that there was sufficient evidence against the applicant to show that he had committed the offences as charged and that there were plausible reasons to apply Article 122-1, first paragraph, of the Criminal Code. He ordered the transmission of the case file by the public prosecutor to the Principal Public Prosecutor for the purposes of referral to the Investigation Division. 10. On 18 November 2008 the Principal Public Prosecutor at the Dijon Court of Appeal made his submissions calling for referral to the Investigation Division for a ruling as to the applicant’s lack of criminal liability on grounds of criminal insanity, in accordance with the procedure set out in new Article 706-122 of the Code of Criminal Procedure, which provided in particular for a public hearing ... 11. In a decision of 25 November 2008 the President of the Investigation Division noted that it was impossible for medical reasons for the applicant to appear at the hearing. At the hearing of 27 November 2008, his representative argued in particular that the decision of 30 September 2008 had breached the principle that harsher criminal legislation could not be applied retrospectively. He indicated that under the above-mentioned Article 706-122 of the Code of Criminal Procedure, the Investigation Division was required to rule on the commission of the offences by the applicant when deciding on compulsory psychiatric treatment, for an indefinite duration, and that this was tantamount to conviction for an offence and to the imposition of a sentence which had not been applicable at the material time. 12. In a judgment of 18 February 2009 the Investigation Division stated that there was sufficient evidence to show that the applicant had “intentionally killed C.G.” and that he lacked criminal liability for those acts on the ground that he was suffering from a mental disorder which had impaired his discernment and ability to control his actions. It ordered his compulsory hospitalisation pursuant to Article 706-135 of the Code of Criminal Procedure, derived from the 25 February 2008 Act ..., on the grounds that “it transpire[d] from the proceedings that [the applicant’s] mental disorder represent[ed] a risk for the safety of others and require[d] long-term care which [could] only be provided in a hospital”. The court also prohibited him, for a period of twenty years, from having any contact with the complainants and from possessing or carrying a weapon, those being preventive measures provided for under new Article 706-136 of the Code of Criminal Procedure ... It sent the case back to the Dijon Criminal Court for a judgment on the applicant’s civil liability and on the claims of damages. The Investigation Division had previously ruled on the procedural objections raised by the applicant’s representative, including argument concerning the immediate application of the provisions of the 25 February 2008 Act and the alleged violation of Article 7 of the Convention: “... The declaration of the existence of sufficient evidence that the person has committed the offence as charged does not constitute a conviction but a finding that there is a factual situation which could have legal consequences ... ... contrary to the pleadings and contrary to the rules on preventive detention, the Investigation Division does not rule on judicial confinement of unlimited duration but orders the compulsory hospitalisation of the individual in an institution mentioned in Article L. 3222-1 of the Public Health Code, which provides for hospitalisation arrangements specifically in such contexts, and the Prefect is immediately informed of the decisions. Thus the person concerned will be subject to the compulsory hospitalisation arrangements solely under the auspices of the medical and administrative authorities, depending on the evolution of his state of health. Accordingly, this measure cannot be regarded as a penalty but as a preventive measure. ... The Law of 25 February 2008 and the Decree of 16 April 2008 are thus applicable.” 13. The applicant appealed against that judgment on points of law. In his grounds of appeal he argued, relying on Articles 6 § 1 and 7 of the Convention, that the principle of “no punishment without law” precluded the immediate application of a procedure which had the effect of rendering him liable for penalties that his mental state would not have entailed under the former legislation in force at the material time. He contended that the declaration of his criminal insanity could not be accompanied by court-ordered sanctions or coercive measures, as this would breach the principle of the non-retrospective application of harsher criminal legislation. 14. Before the Court of Cassation, the public prosecutor, in his opinion, took the view that it was impossible to find that there was sufficient evidence against the applicant to show that he had “intentionally” committed the offences as charged, since “legally speaking, a state of criminal insanity related to a loss of discernment preclude[d] a court from ruling on the mental element of the offence and consequently on the question whether the offences were made out under the law”. He pointed out that the legislature had sought to ensure that the investigating judge would anticipate the declaration of criminal insanity and confine his assessment to the facts: “as a result of such anticipation only the material element will stand, devoid of its punitive connotation, together with its ‘objective imputation’ to an individual, which would serve as a basis for granting redress to the ‘victims’ and was in itself the focus of the legislative intent”. On this point he called for the setting-aside of part of the judgment, namely the replacement of the operative part in order to delete the word “intentionally”. 15. In a judgment of 14 April 2010 the Court of Cassation dismissed the appeal on points of law: “... The person under judicial investigation submitted that there could be no immediate application of the Law of 25 February 2008, as the provisions of Article 706-136 [of the Code of Criminal Procedure] derived therefrom would enable the judge to order, against the person declared criminally insane, measures which, by their effects, would be ‘quasi-criminal sanctions’, being listed in the person’s criminal record. To dismiss those arguments, the judgment uses the above-mentioned reasoning. As those grounds stand, the judgment does not warrant the alleged complaint in so far as the provisions of Article 112-1 of the Criminal Code, which provides that the only penalties that may be imposed are those legally applicable on the date of the offence, do not apply to the preventive measures that are prescribed in cases of criminal insanity under Articles 706-135 and 706-136 ... ... there is sufficient evidence [against the applicant] to show that he committed the offences of premeditated murder and wounding ...” 16. In a decision of 23 February 2011, produced by the applicant with his observations, the Prefect of Saône-et-Loire denied his requests to go outside the institution unescorted. The Prefect’s letter to the responsible psychiatrist of the Sevrey CHS reads as follows: “... In a letter dated 12 August 2010, I informed you that I had requested two assessments to ascertain whether I would be able to grant such leave. Those assessments reached me today. One states as follows: ‘In view of Mr Berland’s current state of health we can envisage allowing him to go outside unescorted in the context of a trial period with a process of social rehabilitation, which seems indispensable’. The other one reads: ‘his current state of health allows the possibility of unescorted leave to be envisaged. We should gradually move towards trial arrangements to consolidate the rehabilitation plans’. Moreover, in accordance with his instructions, issued following the judgment against Mr Berland, I have contacted the public prosecutor of Dijon to inform him of the findings of the assessments which could lead me in the future to authorise Mr Berland to leave the hospital unescorted. The public prosecutor drew my attention to the prohibitions ordered by the Dijon Court of Appeal on 18 February 2009 against Mr Berland, pursuant to Articles 706-135 to 706-140 of the Code of Criminal Procedure ... In those circumstances, even though the assessments tentatively allow for the possibility of granting Mr Berland such unescorted leave, it appears impossible to me to guarantee that he would not come into contact during such leave, if therefore alone, with the complainants. Consequently I wish to inform you of my decision ... to grant Mr Berland permission in the future to leave the hospital exclusively if escorted, depending on any assessment data that you may wish to transmit to me.”
| 0 |
test
|
001-166755
|
ENG
|
HRV
|
ADMISSIBILITY
| 2,016 |
BRLJAČIĆ v. CROATIA
| 4 |
Inadmissible
|
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
|
1. The applicant, Mr Dubravko Brljačić, is a Croatian national who was born in 1955 and lives in Požega. He was represented before the Court by Mr N. Sabljar, a lawyer practising in Rijeka. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In September 1997, following a public tender for the purchase of real properties owned by a company, P.-d. (hereinafter “the company”), the applicant bought a commercial property (a retail store) from the company. 5. On the basis of the purchase contract the applicant registered his ownership of the retail store in the land register. 6. In October 1998 the applicant transferred his ownership of the retail store to his wife, D.B.B., who then duly registered her ownership in the land register. 7. On 29 March 2000 the Požega County State Attorney’s Office (Županijsko državno odvjetništvo u Požegi) indicted thirteen managers of the company before the Požega County Court (Županijski sud u Požegi) on charges of abuse of power and authority in connection with several disadvantageous contracts concluded by the company, including the one concluded with the applicant. 8. The company joined the criminal proceedings by lodging a civil claim seeking the annulment of the contracts concluded by the alleged commission of a criminal offence. 9. During the proceedings before the Požega County Court the applicant was examined as a witness concerning the criminal charges against the accused. He explained that he had intended to start his own retail business and thus he had initially rented the retail store in question from the company. However, in July 1997 he had been offered the chance to buy the store, which he had accepted. The applicant also explained that subsequently, given that he had been unemployed and thus not eligible to take out a loan to pay for the renovation of the store, he had transferred his ownership of the store to his wife, who had been in a position to take out a loan. 10. On 4 February 2002 the Požega County Court found the accused guilty as charged and sentenced them to imprisonment. It granted the company’s civil claim and declared the contracts concluded by the accused null and void, including the contract concluded with the applicant. It also held that the decision declaring the contracts null and void should not call into question the rights of parties who had bought the real properties from the company in good faith, as that would require further proceedings to establish whether they had acted in good faith when concluding the contracts, and that would be contrary to the principle of efficiency of criminal proceedings. 11. The accused and the Požega County State Attorney’s Office appealed against the first-instance judgment before the Supreme Court (Vrhovni sud Republike Hrvatske) alleging numerous substantive and procedural flaws in the findings of the Požega County Court concerning the criminal responsibility of the accused. The applicant and several other parties who had concluded contracts with the company also appealed against the first-instance judgment, challenging the annulment of the contracts on which they had based their property titles. 12. On 19 April 2006 the Supreme Court dismissed the appeals by the accused and the Požega County State Attorney’s Office as unfounded and declared the complaints lodged by the applicant and the other third parties inadmissible on the grounds that they did not have standing to lodge an appeal against the first-instance judgment. 13. The applicant then challenged the judgments of the lower courts by lodging a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He contended in particular that the decision to declare the real property purchase contract null and void had unlawfully and unjustifiably interfered with his property rights and that the Supreme Court had declined to examine his complaint in that respect. 14. On 30 June 2010 the Constitutional Court dismissed the applicant’s constitutional complaint against the judgment of the Supreme Court as unfounded and ruled the complaints against the first-instance judgment of the Požega County Court inadmissible as they had been lodged outside the thirty-day statutory time-limit for lodging a constitutional complaint. In particular, the Constitutional Court examined the applicant’s complaint from the perspective of the right to a fair trial and found that there had been nothing unlawful or arbitrary in the decision of the Supreme Court; in its view, no other issue arose with regard to the remainder of the applicant’s complaints. 15. On 18 July 2007, relying on the final judgment of the Požega County Court by which the applicant’s purchase contract had been declared null and void, the company instituted civil proceedings against the applicant and his wife, D.B.B., before the Požega Municipal Court (Općinski sud u Požegi). It asked that the contract on the transfer of the property title from the applicant to his wife be declared null and void and that the successive entries in the land register of the applicant’s and D.B.B.’s titles to the retail store be cancelled. Alternatively, the company claimed 690,402.97 Croatian kunas (HRK) (approximately 92,600 euros (EUR)), plus statutory default interest. 16. During the proceedings the applicant and D.B.B., represented by a lawyer, contested the company’s civil claim on the grounds that they had purchased the real property at issue in good faith and that there were no grounds for annulling their property title. They also pointed out that the final judgment of the Požega County Court by which the contracts concluded by the company’s directors had been declared null and void did not call into question the rights of third parties who had obtained their property titles in good faith. 17. At a hearing on 31 March 2014 the Požega Municipal Court examined the relevant materials concerning the conclusion of the contracts and the transfer of title to the retail store from the company to the applicant and from the applicant to D.B.B. It also heard the company’s representative, the applicant and D.B.B., and read out the judgments of the Požega County Court and the Supreme Court. 18. On 29 April 2014 the Požega Municipal Court dismissed the company’s civil action on the grounds that both the applicant and D.B.B. had become owners of the real property at issue in good faith. It explained that whereas it was not possible to call into question the Požega County Court’s final judgment declaring the applicant’s purchase contract null and void, that judgment had to be read in conjunction with the relevant provisions of the Civil Obligations Act, which protected parties who had acted in good faith from being obliged to return that which they had acquired on the basis of an annulled contract. In the case at issue, the Požega Municipal Court considered that there was nothing suggesting that the applicant, and subsequently D.B.B., had not acquired title to the retail store in good faith. 19. The company lodged an appeal against the judgment of the Požega Municipal Court with the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu). The company argued, in particular, that the first-instance court had erred in its findings concerning the question of whether the applicant and D.B.B. had obtained title to the retail store in good faith. 20. The company’s appeal was forwarded to the applicant’s representative, who did not respond to the company’s arguments. 21. On 16 March 2015 the Slavonski Brod County Court dismissed the company’s appeal as unfounded and upheld the first-instance judgment of the Požega Municipal Court. In its reasoning, the Slavonski Brod County Court stated that there was nothing to call into question the findings of the first-instance judgment with regard to the question of whether the applicant and D.B.B. had acquired title to the retail store in good faith. 22. On 24 April 2015 the company lodged an appeal on points of law with the Supreme Court challenging the judgment of the Slavonski Brod County Court. The proceedings before the Supreme Court are still pending. 23. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 05/2014) read as follows: “In the determination of his rights and obligations or of any criminal charge against him, each person is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” “The right of ownership shall be guaranteed ...” 24. The relevant provision of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows: “If the civil claim concerns the annulment of a legal transaction, and the court finds that the request is well-founded, it shall declare the full or partial nullity of that legal transaction, including its effects, without interfering with the rights of third parties.” 25. The relevant parts of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999 and 88/1000) provide as follows: “(1) A contract that is contrary to the Constitution, peremptory rules or morals shall be null and void unless the purpose of the breached rule indicates that some other sanction or the law in a particular case provides otherwise. (2) If the conclusion of a contract is prohibited only in respect of one party, the contract shall remain valid, unless the law in a particular case provides otherwise, in which case the party that has breached the statutory prohibition shall bear the relevant consequences.” “(1) Where a contract is null and void, each contracting party is bound to return to the other everything it has received on the basis of such a contract. If that is not possible, or if the nature of the obligation performed renders [such return] impracticable, an appropriate [amount of] monetary compensation shall be given, according to the value of the object in question at the moment at which [the relevant] court decision is passed, unless the law provides otherwise. (2) However, if a contract is null and void because its substance or purpose is contrary to the Constitution and peremptory rules, the court may dismiss, fully or partially, a request for restitution [made by] the party that has not acted in good faith ...”
| 0 |
test
|
001-159051
|
ENG
|
PRT
|
COMMITTEE
| 2,015 |
CASE OF SALES v. PORTUGAL
| 4 |
No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
|
Paulo Pinto De Albuquerque
|
4. The applicant was born in 1969 and lives in Setúbal. 5. On 29 August 2002 the applicant was admitted to the emergency services in S. Bernardo Hospital (since renamed Setúbal Hospital Centre). She gave birth to a son who has irreversible injuries caused by the birth. 6. On 26 January 2005 the applicant brought a civil action before the Almada Administrative Court against the hospital, claiming damages for the injuries caused to her son. She claimed that contrary to her doctor’s instructions, the medical staff who treated her during labor had not performed a caesarean thus her son being born with several problems which caused him permanent motor-neurone injuries. She held that the hospital was responsible for medical negligence at birth. 7. On 9 March 2005 the hospital contested the civil action. 8. On 17 October 2005 a preliminary hearing was held. A second session of the preliminary hearing was scheduled for 5 December 2005, which was adjourned because the time-limits for the analysis of the documents had not expired. The hearing was adjourned to 7 February 2006. 9. Meanwhile, on 27 December 2006, the applicant requested the Almada Administrative Court to issue an interim measure (providência cautelar) seeking a temporary remediation (arbitramento de uma reparação provisória). On 16 January 2006 the Almada Administrative Court ordered interim payment of EUR 550 per month to the applicant and her husband until the decision in the main proceedings would be delivered and become res judicata. 10. On 2 February 2006 the hospital sought leave for the medical and nursing team to intervene in the proceedings. On 20 February 2006 the applicant replied to the hospital’s request. 11. The hearing called for 7 February 2006 had to be adjourned because of the hospital’s request. 12. On 14 March 2006 the judge gave directions (despacho saneador) setting out the matters that had already been established and those that remained outstanding. 13. On 31 March and on 6 April 2006 the hospital and the applicant submitted evidence and both requested expert’s appointement. 14. On 7 May 2006 the judge admitted the evidence submitted by the parties and ordered an expert medical report. 15. On 11 July 2006 the Almada Court requested the Portuguese Medical Chamber (Ordem dos Médicos) to appoint medical experts. Several requests were made concerning medical experts in gynaecology and obstetrics. The Portuguese Medical Chamber replied to all requests. 16. On 28 February 2007 the Forensic Institute (Instituto de Medicina Legal) submitted its forensic report, which contained its preliminary conclusions. 17. On 5 March 2007 the Forensic Institute lodged a request with the Almada Administrative Court seeking access to all the medical reports in respect of the birth of the applicant’s son. On 9 March 2007 the parties were notified to submit the relevant medical reports. On 21 March 2007 the hospital submitted its reports and on 23 March 2007 the applicant request for an extension of the time-limit. On 18 April 2007 the applicant submitted the medical reports. 18. On 31 January 2008 the Forensic Institute submitted its expert report. 19. On 4 June and on 20 June 2008, the appointed experts in gynaecology and obstetrics and the appointed experts in paediatrics submitted their reports, respectively. 20. The parties were notified of the reports and on 15 July 2008 the applicant requested a second expert medical report. On 18 July 2008 the hospital opposed to the applicant’s request. 21. On 28 July 2008 the Almada Adminitrative Court requested the experts to clarify existing doubts with regard to their reports. The clarifications were submitted on 3 and 15 October 2008. 22. On 14 November 2008 the Almada Administrative Court requested the Portuguese Medical Chamber to appoint experts in gynaecology and obstetrics to provide technical advice during trial. On 3 February 2009 the Portuguese Medical Chamber appointed an expert. 23. Between 9 December 2009 and 28 September 2010 the Almada Administrative Court listed nine hearings. In between hearings new evidence was submitted by the parties. 24. On 2 March 2011 the Almada Administrative Court delivered its decision in which it considered that the hospital could not be held liable for the injuries for lack of evidence in that regard. 25. On 8 April 2011 the applicant challenged the outcome of the proceedings before the Administrative Central Court of the South. 26. On 22 March 2012 the Administrative Central Court upheld the first-instance decision. 27. On 19 June 2012 the application of the interim measure ended when the decision of the second-instance court became res judicata.
| 0 |
test
|
001-173391
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF KAZAKOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)
|
Branko Lubarda;Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-182223
|
ENG
|
UKR
|
CHAMBER
| 2,018 |
CASE OF LAZORIVA v. UKRAINE
| 3 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Carlo Ranzoni;Egidijus Kūris;Eva Brems;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
|
6. The applicant was born in Chernivtsi in Ukraine in 1966. In 1984 she moved to Magadan in Russia (which is about 12,000 kilometres away from Chernivtsi), where she obtained a teaching degree and has been working as a school teacher for over twenty years. 7. Her sister, K.T.O., a Russian national, also lived in Magadan for a certain period of time. In February 1993 K.T.O. gave birth to a girl, K.L.S., who is also a Russian national. In December 1993 K.T.O. together with K.L.S. moved to Chernivtsi, where her parents (the grandparents of K.L.S.) lived. Subsequently, the grandparents raised K.L.S. for about ten years. 8. In 2004 the applicant’s parents and K.L.S. moved to Ludinovo, the Kaluga Region in Russia (which is about 1,100 km away from Chernivtsi and about 11,000 km away from Magadan). In August 2007 K.L.S. moved to Magadan and, since that time, has lived together with the applicant in her flat. 9. By a decision of 29 December 2007, the mayor of Magadan appointed the applicant as the guardian of K.L.S., on the grounds that the child’s parents did not take care of her. 10. On 20 February 2009 the Magadan Town Court allowed a claim by the applicant and deprived the parents of K.L.S. of their parental rights in respect of the child, on the grounds that they had failed to take care of her for over fifteen years. No appeal was lodged and on 11 March 2009 the judgment entered into force. No information was submitted to the Court as to whether the parents of K.L.S. had been informed of that judgment. 11. In March 2007 K.T.O. gave birth to a boy, K.O.S., whose nationality was disputed by the parties. According to the material submitted by the applicant, K.T.O., who was raising the child alone, failed to take care of him. For that reason, in November 2008 the Shevchenkivskyy District Court (hereafter “the Shevchenkivskyy Court”) in Chernivtsi ordered his placement in care (an orphanage). In March 2010 the same court ordered the child’s return to his mother. Subsequently, K.O.S. was taken to an orphanage on four other occasions. 12. The applicant claims that she and her parents visited K.O.S. in Chernivtsi on several occasions and maintained “a close family link” with him. In particular, she referred to her parents’ visits in April 2010 and May 2012 and her visit in August 2010. According to a copy of an undated letter from K.T.O., the applicant visited her and K.O.S. in Chernivtsi between 2010 and 2012 (no specific dates being indicated), and sent them parcels with food and clothes. 13. In March 2012 K.O.S. was taken into care as his mother had left him alone in her flat for over twenty-four hours. 14. On 5 July 2012 the Shevchenkivskyy Court deprived K.T.O. of her parental rights in respect of K.O.S., holding that she had not cared for him and had not played a part in his upbringing. No appeal was lodged and on 15 July 2012 the judgment entered into force. No information was submitted to the Court as to whether the parents of K.O.S. had been informed of that judgment. 15. On 27 July 2012 K.O.S. was put on the list of children deprived of parental care who could be adopted. On 14 August 2012 the Executive Committee of the Chernivtsi Town Council gave K.O.S. the formal status of a child deprived of parental care. 16. In the meantime, on an unspecified date in July 2012 K.L.S. had visited Chernivsti to meet K.O.S. She discovered that he had been placed in an orphanage and informed the applicant accordingly. The applicant decided to become her nephew’s legal tutor (a guardian for children under fourteen). She informed the Tutelage and Guardianship Service of Magadan of her wish to become a tutor, and started collecting documents and certificates to make a formal application. In particular, on 22 August 2012 her flat was inspected by representatives of the Magadan Public Health Service, who found that the flat had adequate hygienic and sanitary conditions for the applicant’s family to accommodate K.O.S. 17. In August and September 2012 the applicant made a number of telephone calls to the Childcare Service of Chernivtsi and to the orphanage, asking them to take into account that she wished to become K.O.S.’s legal tutor, and that she was preparing the necessary documents to make a formal application. 18. At the applicant’s request, the Tutelage and Guardianship Service of Magadan sent a letter to the Childcare Service of Chernivtsi informing them that she wished to become K.O.S.’s legal tutor and that she had fulfilled her obligations as K.L.S.’s tutor. The Tutelage and Guardianship Service of Magadan also asked the Childcare Service of Chernivtsi not to consider other candidates for the role of K.O.S.’s tutor. 19. By a letter of 17 September 2012, the Childcare Service of Chernivtsi informed the Tutelage and Guardianship Service of Magadan that they had received the information about the applicant’s wish to become K.O.S.’s legal tutor on 4 September 2012. The Childcare Service of Chernivtsi further informed the Tutelage and Guardianship Service of Magadan: that a couple wishing to adopt K.O.S. had been given permission to establish contact with him prior to that date and had already submitted all the necessary documents for his adoption (see paragraphs 22-23 below); that an opinion in favour of that adoption would be issued; and that, on the basis of such an opinion, the couple would submit an adoption application to the Pershotravnevyy District Court in Chernivtsi (hereafter “the Pershotravnevyy Court”). Lastly, the Childcare Service of Chernivtsi noted that the applicant had the right to lodge a tutelage application with the same court, and advised her to do so “as soon as possible”. 20. On 10 October 2012 the Tutelage and Guardianship Service of Magadan issued an opinion stating that, given her personal situation and qualities, the applicant could become a legal tutor or guardian. 21. On 22 October 2012 the applicant went to Chernivtsi, mainly to initiate procedures with a view to becoming K.O.S.’s tutor and to meet him there. Ultimately, this was not possible, as he had been adopted by S.S.V. and S.O.V. prior to her arrival in Ukraine (see paragraph 26 below) and the Ukrainian authorities refused to help her to meet K.O.S. 22. On 30 August 2012 a married couple, S.S.V. and S.O.V., who were on the list of persons wishing to adopt a child, were allowed to meet with K.O.S. at the orphanage. 23. On 6 September 2012 they informed the Childcare Service of Chernivtsi that they wished to adopt K.O.S. and asked it to issue an opinion in favour of the adoption. 24. On 19 September 2012 the Executive Committee of Chernivtsi, acting in the exercise of its childcare related functions, issued an opinion in favour of the requested adoption. According to the committee, S.S.V. and S.O.V. were physically fit and had sufficient funds and facilities to accommodate and take care of K.O.S. They had established contact and a good relationship with the child and, according to the orphanage’s psychologist, the child wished to live in their family, although he could not give written consent as “he didn’t understand what adoption was because of his age”. It was also noted: that the child had a half-sister and an aunt who lived in Magadan; that in August and September 2012 the applicant and the Magadan authorities, respectively, had informed the Childcare Service of Chernivtsi of her wish to become the child’s legal tutor; that the applicant had been informed in reply that she could lodge an application for tutelage with a district court; and that no such application had been lodged. Lastly, the opinion read that, generally, adoption was “the preferred form of [a child’s] placement”, and that, in the present case, the adoption would be appropriate and in the interests of the child. 25. On 24 September 2012 S.S.V. and S.O.V. lodged an adoption application in respect of K.O.S. with the Pershotravnevyy Court. 26. On 2 October 2012 the Pershotravnevyy Court, having examined the case at a closed hearing with the participation of S.S.V. and S.O.V. and representatives from the Childcare Service and the orphanage, delivered a judgment granting the adoption. It also ordered that K.O.S.’s surname be changed to that of the adoptive parents and that S.S.V. and S.O.V. be registered respectively as his father and mother instead of his biological parents. 27. The court essentially relied on the information contained in the opinion of the Executive Committee of Chernivtsi. The court held that the requested adoption was in the interests of the child in being raised in “stable life conditions and in [an atmosphere of] harmony”. 28. The applicant was informed of the judgment of 2 October 2012 following a delay, though she did not specify how long the delay had been. 29. On 1 February 2013 the applicant lodged an appeal with the Chernivtsi Court of Appeal against that judgment, stating that it had violated her right to become her close relative’s legal tutor and her right to submit arguments against the adoption. In particular, the applicant argued: (i) that the Pershotravnevyy Court had failed to take into account the fact that K.O.S. had close relatives, his half-sister and aunt, who had not been informed of the proceedings and had not taken part in them; (ii) that the Pershotravnevyy Court had not checked K.O.S.’s nationality; (iii) that K.O.S. was a Russian national, as his biological mother had been a Russian national at the time when he had been born in 2007; (iv) that the procedure provided for in Ukraine’s relevant international treaties in relation to the adoption of foreign nationals had not been followed; and (v) that the Pershotravnevyy Court had disregarded the fact that she had informed the Ukrainian Childcare Service of her wish to become K.O.S.’s legal tutor and the fact that she had been preparing the necessary documents for this. 30. On 18 March 2013 K.L.S. sent a letter to the Court of Appeal stating that she and the rest of her family (notably her grandparents and the applicant) had a close connection with K.O.S. and that he wished to live with them. 31. On 4 April 2013 the Court of Appeal refused to examine the applicant’s appeal on the grounds that the judgment did not concern her right or interest in becoming the child’s legal tutor, or any obligations in that regard which in principle could be the subject matter of a separate claim. 32. The applicant appealed in cassation, mainly arguing that the Court of Appeal had failed to examine her arguments and that she had been deprived of access to a court, in violation of the procedural rules. 33. On 10 July 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s cassation appeal on the basis that it had not been demonstrated that the contested decision of the Court of Appeal was unlawful. 34. According to the applicant’s submissions of 29 March 2016, on an unspecified date K.T.O. left Ukraine for Russia and she currently resides with her parents (the grandparents of K.O.S.) in Ludinovo. 35. In December 2015 the Government submitted a copy of a verbatim record of an interview with K.O.S. which had been carried out by the childcare service in the locality where he had lived with S.S.V. and S.O.V. on 19 February 2013. According to that record, the child, inter alia, expressed the wish to continue living with his adoptive parents, who were present during the interview, and said that he had no aunt or uncle. The applicant contended that this information could not be accepted, as it had not been checked with her participation and contradicted other material in the case file.
| 1 |
test
|
001-145442
|
ENG
|
BGR
|
CHAMBER
| 2,014 |
CASE OF HARAKCHIEV AND TOLUMOV v. BULGARIA
| 1 |
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
6. The applicant in the first application (no. 15018/11), Mr Harakchiev, was born in 1968. He is currently serving a whole life sentence (see paragraphs 58-60 and 65 below) in Stara Zagora Prison. 7. The applicant in the second application (no. 61199/12), Mr Tolumov, was born in 1954. He is currently serving a life sentence (see paragraphs 56 and 65 below) in Plovdiv Prison. 8. Between 1992 and 2005 Mr Harakchiev, a driver and car mechanic, was convicted eight times of non-violent offences: theft and aggravated theft (four convictions), and fraud and aggravated fraud (three convictions). He was given sentences ranging from two to five years’ imprisonment. 9. On 21 January 2003 the Haskovo Regional Court convicted Mr Harakchiev of illegal possession of a firearm and four armed robberies of motor vehicles carried out between 14 October and 6 November 2001, two of which had been accompanied by attempted murder and two by murder. It sentenced him to whole life imprisonment. 10. On 26 June 2003 the Plovdiv Court of Appeal upheld Mr Harakchiev’s conviction and sentence. 11. In a final judgment of 23 November 2004 (реш. № 476 от 23 ноември 2004 г. по н. д. № 901/2003 г., ВКС, ІІІ н. о.) the Supreme Court of Cassation likewise upheld Mr Harakchiev’s conviction and sentence. It held, inter alia, that in view of the gravity of his offences – in particular, the determination and cruelty with which they had been carried out – a more lenient sentence, such as life imprisonment (доживотен затвор със замяна), would not be adequate. That conclusion could not be altered by the fact that Mr Harakchiev had confessed and had helped the investigating authorities to uncover his criminal activities. 12. Mr Harakchiev has been detained in Stara Zagora Prison since 18 January 2002. He was initially placed under the “enhanced regime” (see paragraph 115 below). With the entry into force of the Execution of Punishments and Pre-Trial Detention Act on 1 June 2009, that regime was replaced by the “severe regime” (see paragraph 118 below) by operation of law. On 17 June 2009 the Execution of Punishments Commission (see paragraph 121 below) proposed that the Stara Zagora Regional Court place Mr Harakchiev under the “special regime” normally applicable to life prisoners, citing his “negative attitude” and lack of respect for internal order, as well as the fact that he should in any case have been placed under that regime from the outset. On 21 July 2009 the Stara Zagora Regional Court accepted the proposal. Mr Harakchiev’s legal challenge against that decision, filed on 12 July 2010, was rejected by the Stara Zagora Regional Court and the Plovdiv Court of Appeal as being out of time. The Government submitted that there was at present no intention on the part of the prison authorities to make further changes to Mr Harakchiev’s prison regime. 13. Between December 2005 and March 2013 Mr Harakchiev was given nine disciplinary punishments. The latest such punishments, in August 2012 and March 2013, were imposed in relation to (a) a scuffle between himself and another inmate during the daily walk on the morning of 4 August 2012, and (b) the theft on 18 February 2013 of food that another inmate had left in the communal toilet. In relation to the former, Mr Harakchiev was given a reprimand, and in relation to the latter isolation in a disciplinary cell for three days. 14. Mr Harakchiev’s cell – in which he is currently alone but which he apparently shared with another inmate between 2002 and 2007 – is in the prison’s high-security wing, reserved for life prisoners. According to Mr Harakchiev, the cell was quite small, especially bearing in mind that the furniture alone occupied 4.50 square metres, and was lit at night by a 60watt incandescent light bulb that was constantly on. According to the Government, the cell was not undersized. It measured 4.30 by 1.81 metres and was 3.95 metres high, with a total floor space of 7.78 square metres. It was furnished with a metal locker, a double metal bunk bed, two stools and a small table, all of which were attached to the floor for security reasons. It had a window, facing south, that measured 1.76 by 1.25 metres. Artificial lighting in the cell consisted of two 36-watt luminescent light bulbs. According to Mr Harakchiev, the incandescent bulbs had only been replaced with luminescent bulbs in 2012. He also pointed out that the cell did not have any low-intensity night lighting. 15. Stara Zagora Prison does not have a ventilation or airconditioning system. Mr Harakchiev claimed that as a result temperatures in his cell were very high in summer and there was no fresh air. In winter, heating was only turned on for periods of one hour in the morning, at noon and in the evening. According to the Government, the cell window could be opened, which allowed the cell to be aired at any time. The prison had its own heating installation with two boilers and a heat exchanger. The boilers were fired for nine hours a day, but the water that they heated circulated in the heating installation permanently. According to Mr Harakchiev, the radiator in his cell was hot for only thirty minutes each day and the poor state of repair of the cell window and the metal door were factors contributing to the low temperature in the cell in winter. Mr Harakchiev also submitted that as he had to dry his clothes in the cell, it was very damp. As a result, the paint and rendering were peeling off the walls. 16. According to Mr Harakchiev, the common areas of the prison could only be kept clean by bleaching with calcium hypochlorite, and the cells were only cleaned with water. In support of that assertion, Mr Harakchiev relied on the witness statement of one of his co-inmates made in the course of proceedings brought by him. According to the Government, the common areas of the prison were not merely cleaned with bleach. They were cleaned daily with detergents, and at least twice a year subjected to pest and rat control, as evident from fourteen invoices for such services carried out during the last four years. Mr Harakchiev replied that those invoices did not prove that the detergents had indeed been used as alleged by the Government. He also submitted that his cell was constantly infested with cockroaches and mice, and that all his complaints to the prison administration in that respect had gone unheeded. He submitted further that, since the window of his cell was not covered with a net, insects came into the cell all the time, drawn by the smell of excrement and the constant lighting at night, and bit him. 17. There is no toilet or running water in the cell. Mr Harakchiev submitted that as a result, apart from the three daily visits to the communal toilets, he had to use a plastic bucket to relieve himself. During the period he had had to share his cell with another inmate, he had had to do so in his presence. The lack of running water prevented him from washing his hands or the bucket after relieving himself. The Government pointed out that the toilet and bathroom in the high-security unit were accessible to inmates three times a day, and also whenever they asked the guards. It could not therefore be said that Mr Harakchiev was forced to use the bucket to relieve himself; that was his own choice. In fact he had more than ten buckets in his cell, in which he stored clothes, laundry and other items. Mr Harakchiev replied that, apart from the three daily visits to the toilet, between 5.30 a.m. and 8 p.m. the guards never opened his cell to let him visit the toilet. It was therefore not his choice to resort to the bucket for his sanitary needs. 18. Apart from his one-hour daily walk, Mr Harakchiev can leave his cell to visit the toilet three times a day. During each of those visits, he can also empty the bucket, wash his hands, and fill plastic bottles with water for drinking and sanitary needs. According to him, the visits to the toilet lasted no more than three minutes in the morning and no more than ten minutes at lunch and in the evening, and did not coincide with the visits of the other inmates in the unit. 19. According to Mr Harakchiev, inmates in Stara Zagora Prison could only take a shower once every fourteen or fifteen days. According to the Government, all inmates in the prison’s high-security unit could take a shower twice a week. 20. According to Mr Harakchiev, visits by relatives or lawyers took place in a special room. Prisoners and visitors were separated by a wire net, and prisoners had to remain seated. A prison officer was always present. According to the Government, the prison officer present during visits was only there to ensure good order and could not overhear conversations. Visits by lawyers took place in a separate room, in which no other person was present. The only form of control there was visual monitoring. In that context, the Government drew attention to the fact that as a result of the many claims that he had brought against the prison authorities, until mid2009 Mr Harakchiev had spent 97 days outside Stara Zagora Prison, and between 1 January 2010 and 18 May 2012 had spent 255 days, or 54% of the time, outside the prison. 21. According to Mr Harakchiev, food in the prison was poorly prepared, of low quality, tasteless, served cold and in unhygienic conditions, and insufficient in quantity. Meat was served once a week. The rest of the time food consisted of beans, lentils, cabbage and potatoes, served as soups or stews. According to the Government, the quantity and the chemical and calorie content of the food were fully adequate. The daily portions comprised 2,662 calories, and there was meat in the meals at least once a day. Mr Harakchiev replied that “meat” in effect meant boiled bones or canned meat. Both parties submitted menus and tables in support of their respective assertions. 22. According to Mr Harakchiev, medical care in Stara Zagora Prison consisted of routinely giving all inmates aspirin or Analgin, and inmates had to purchase all other medicines themselves. According to the Government, the prison’s medical centre was staffed by a general practitioner, three feldshers (paramedics – one for the main prison building and one for each of the two separate prison hostels), a nurse, a psychiatrist and a dentist. Medical examinations were carried out daily, and in cases of emergency inmates could be taken to the emergency ward of Stara Zagora Hospital. Medical examinations in the high-security unit were normally carried out on Fridays. Inmates could also consult outside specialists, or be treated in the prison hospitals in Sofia and Lovech. Medicines were normally provided by the prison medical centre, or could be obtained from outside the prison. The only medicine that Mr Harakchiev had had to obtain himself, because the centre had not had any in stock, had been Rivotril (clonazepam), at a unit cost of 7.31 Bulgarian levs (BGN). Mr Harakchiev replied, without giving further details, that he routinely had to purchase medicines himself. He also submitted that his dental care had consisted merely in extracting teeth; in spite of the obvious need to provide him with dental prostheses, the prison authorities had failed to take any action in that respect. The Government replied that dental prostheses did not form part of the standard medical cover for any health-insured person in Bulgaria, and could not be obtained free of charge. 23. The Government also asserted that Mr Harakchiev could see the social inspector in charge of his unit daily; he could ask to see a psychologist, the prison governor or deputy governor, the prison legal officer, or another member of the prison staff; he could socialise with other inmates of the same category during his daily walk and during meal times; and he had access to cable television, with fifty channels, to the prison library, and to religious services. For his part, Mr Harakchiev submitted that, in spite of having expressed his desire to do so, he had not been given any opportunity to work or take part in sport, cultural or educational activities. In reply, the Government stated that in November 2006 Mr Harakchiev had been allowed to take part in a yoga course in order to reduce his stress levels. 24. The annual psychological assessments of Mr Harakchiev for 2009, 2010, 2011 and 2013, submitted by the Government, are very similar. All of them say, often using the same language, that his conduct was characterised by the “campaign that he ha[d] mounted” against the institutions and prison officials with whom he had had contact, which chiefly consisted in his bringing various legal challenges and in inciting other prisoners to give “false evidence” in his favour. Dialogue with him was very difficult, chiefly because of his lack of respect for authority, acute awareness of his own rights, stubbornness, and tendency to call the officials concerned to give evidence in the cases that he was bringing against the prison authorities. The risk of serious harm was high in view of his personality, the nature of his offences and the rigidity of his conduct. He had been verbally aggressive to prison staff. 25. Since his incarceration in 2002 Mr Harakchiev has brought a number of claims for damages against the authorities under section 1 of the State and Municipalities Liability for Damage Act 1988 (see paragraph 136 below). 26. In a final judgment of 12 February 2009 (реш. № 1993 от 12 февруари 2009 г. по адм. д. № 9586/2008 г., ВАС, III о.) the Supreme Administrative Court dismissed a claim for damages brought by Mr Harakchiev under that provision in relation to the failure of the prison administration to provide him with newspapers. The court held that Mr Harakchiev had not proved that he had suffered any non-pecuniary damage as a result of that failure. 27. In a final judgment of 26 May 2009 (реш. № 6892 от 26 май 2009 г. по адм. д. № 14849/2008 г., ВАС, III о.) the Supreme Administrative Court dismissed a claim for damages brought by Mr Harakchiev under the above-mentioned provision in relation to a failure by the prison administration to organise his daily walk in such a way as to compensate him for one he had previously missed on account of bad weather. The court – overturning the lower court’s ruling on that point – held that Mr Harakchiev had failed to establish that he had suffered any non-pecuniary damage; he could not simply be assumed to have sustained damage on the basis of the prison administration’s failure to organise a daily walk. 28. In a final judgment of 18 January 2010 (реш. № 695 от 18 януари 2010 г. по адм. д. № 8404/2009 г., ВАС, ІІІ о.) the Supreme Administrative Court dismissed a claim for damages brought by Mr Harakchiev under the above-mentioned provision in relation to the refusal of the prison administration to allow him to watch films in the prison’s video-projection room. The court held that that would have been incompatible with the requirement, imposed by the “special regime” under which Mr Harakchiev was serving his sentence (see paragraphs 115 and 118 below), that he remain isolated in a locked cell at all times. The prison administration’s refusal had therefore not been unlawful. 29. In a final judgment of 9 November 2010 (реш. № 13333 от 9 ноември 2010 г. по адм. д. № 6668/2009 г., ВАС, III о.) the Supreme Administrative Court allowed a claim for damages brought by Mr Harakchiev under the above-mentioned provision in relation to the failure of the prison administration, for about five years, to provide him with shoes free of charge, as required by statute. Relying on Article 3 of the Convention, the court held that that failure had humiliated Mr Harakchiev and had diminished his human dignity. The court went on to say that Mr Harakchiev’s feelings of humiliation had been exacerbated as a result of his solitary confinement, and awarded him BGN 3,000 (the equivalent of 1,533.88 euros (EUR)), plus interest. 30. On 27 October 2009 Mr Harakchiev brought nine claims for damages against the Ministry of Justice and nine identical claims for damages against the Chief Directorate for the Execution of Sentences, which is a unit within that Ministry. He considered that the Ministry bore responsibility for all acts and omissions relating to his imprisonment before 1 June 2009, the date of entry into force of the Execution of Punishments and Pre-Trial Detention Act of 2009 (see paragraph 117 below), and that the Chief Directorate bore responsibility for all acts and omissions relating to his imprisonment after that date. 31. In a judgment of 21 December 2010 (реш. № 370 от 21 декември 2010 г. по адм. д. № 564/2010 г., АС-Стара Загора) the Stara Zagora Administrative Court, having carried out an inspection on the spot, allowed Mr Harakchiev’s claims against the Ministry of Justice and the Chief Directorate for the Execution of Sentences in relation to (a) the material conditions of his detention; (b) the failure of the prison administration to provide him with clothing, shoes and bed linen; (c) the failure of the prison administration to put in place conditions in which he could keep in good physical shape; and (d) the failure of the prison administration to enable him to take his outdoor exercise. The court dismissed the remaining claims, which concerned (a) the failure of the prison administration to provide Mr Harakchiev with toiletries; (b) the quality and quantity of the food that had been provided to him; (c) the failure of the prison administration to provide him with dental prostheses; (d) the failure of the prison administration to provide him with conditions allowing him to keep his mental health intact; and (e) the failure of the prison administration to provide him with work. The court awarded Mr Harakchiev a total of BGN 8,200 (the equivalent of EUR 4,192.59). It held, in particular, that the conditions of his detention had been in breach of Article 3 of the Convention and that he had accordingly suffered non-pecuniary damage. However, the court also held that the claim relating to the material conditions of detention was time-barred on the ground that it related to a period of time that predated the claim by five years. 32. In its findings of fact the court noted, inter alia, that under the regime in the ward where Mr Harakchiev was being detained, he had to spend about twenty-three hours in his cell and could only leave it during his daily walk and three visits to the toilet. He was not allowed to go to the prison canteen or library. His cell was adequate in size for one prisoner, but too small for two, and did not have a toilet or running water. As result, outside toilet times, Mr Harakchiev had to use a bucket. In winter the cell was too cold owing to inadequate heating, and in summer full of insects as a result of the lack of a window net. The cell was infested with cockroaches, moles and even rats, and there was no indication that the prison administration had disinfested it regularly. When the cell was locked, the only way to call the guards was to bang continuously on the metal door; the guards did not always respond, especially at night. Mr Harakchiev did not have adequate materials with which to clean his cell, and evidence of the provision of cleaning products was inconclusive. It was undisputed that the prison administration had not provided him with work; that had indeed been very difficult in view of the limitations imposed by his prison regime. Social work with all life prisoners had been very restricted, consisting essentially of meetings whenever a problem occurred. Relations between Mr Harakchiev and the prison social worker assigned to deal with him were difficult, and their meetings rare. The prison psychologist had met with Mr Harakchiev several times, but had stopped the meetings because he was displeased that they were taking place in the presence of a guard. 33. Mr Harakchiev, the Ministry of Justice and the Chief Directorate for the Execution of Sentences all appealed. However, as Mr Harakchiev had failed to pay the requisite court fee, the Supreme Administrative Court refused to examine his appeal (see опр. № 8931 от 21 юни 2011 г. по адм. д. № 5865/2011 г. ВАС, ІІІ о., upheld by опр. № 14723 от 14 ноември 2011 г. по адм. д. № 10633/2011 г., ВАС, петчл. с-в). As a result, the only part of the case that remained pending were the claims concerning the material conditions of Mr Harakchiev’s detention and the failure of the prison administration to provide him with clothing, shoes and bed linen. 34. In a judgment of 8 January 2013 (реш. № 179 от 8 януари 2013 г. по адм. д. № 5865/2011 г., ВАС, ІІІ о.) the Supreme Administrative Court quashed the lower court’s judgment in the part still under appeal and remitted the case to the lower court. It held that the lower court had failed to address in sufficient depth the conflicting witness statements of inmates on the one hand, and prison staff on the other hand, and analyse them in the light of the voluminous written evidence in the case. It had also failed to subject the expert report that it had obtained in the course of the proceedings to proper scrutiny, and had uncritically accepted it as correct. 35. In a judgment of 5 April 2013 (реш. № 38 от 5 април 2013 г. по адм. д. № 17/2013 г., АС-Стара Загора) the Stara Zagora Administrative Court found that the claims against the Ministry, which concerned the period before 1 June 2009, following which the 2009 Act had come into force, were inadmissible, but that the claims against the Chief Directorate for the Execution of Sentences, which concerned the period after that date, were admissible and, when analysed by reference to, inter alia, Article 3 of the Convention and this Court’s case-law under that provision, well-founded. It awarded Mr Harakchiev BGN 400 (EUR 204.52). The court found that Mr Harakchiev’s cell did not have ventilation and was damp, and that the cell window was not equipped with an insectproof net. In winter the cell was cold owing to the lack of adequate heating, and in summer too hot. The court went on to note that the cell did not have a toilet or running water, and that access to the communal toilets was very restrictive, with no real possibility to use them outside the three brief daily visits. It also observed that, in spite of the efforts of the prison authorities, the prison was infested with cockroaches and rats; that the authorities were not providing Mr Harakchiev with adequate cleaning products; and that the furniture in the cell was old and worn. It was true that work had been carried out in the cell in 2001 and then in 2005-06, but that had only consisted in repainting it. 36. Mr Harakchiev and the Chief Directorate for the Execution of Sentences appealed. The proceedings on appeal (адм. д. № 9946/2013 г.) are still pending before the Supreme Administrative Court. A hearing was due to be held on 24 February 2014, but the case was adjourned sine die on account of the failure of Mr Harakchiev’s court-appointed counsel to appear. 37. As can be seen from the documents in the case file, Mr Tolumov, a driver by profession, had four previous convictions and had spent a year and a half in prison in 1988. In 2000 he was convicted on a charge of armed robbery accompanied by murder and a further charge of murder and sentenced to life imprisonment. 38. Mr Tolumov was placed in Plovdiv Prison on 29 December 2000. In September 2005, when his life sentence imprisonment apparently became final, he was placed under the “enhanced regime” (see paragraph 115 below). With the entry into force of the Execution of Punishments and PreTrial Detention Act of 2009 on 1 June 2009, that regime was replaced with the “special regime” (see paragraph 118 below) by operation of law. On 11 February 2013 the competent Execution of Punishments Commission decided to change Mr Tolumov’s regime from “special” to “severe”. However, according to Mr Tolumov and an affidavit of another life prisoner detained in the same unit, he continues to be kept locked in his cell and is handcuffed whenever he is taken out of the highsecurity unit. 39. During his stay in prison, Mr Tolumov has been given four disciplinary punishments, the latest of which was in 2009. One of those punishments, imposed in in 2000 or 2001, was isolation in a disciplinary cell for seven days for his involvement in a scuffle with another prisoner. He was, on the other hand, given rewards for good conduct on a number of occasions. 40. In Plovdiv Prison Mr Tolumov has spent time in cells nos. 4, 9 and 7 in the prison’s high-security unit, situated on the first floor. He submitted that during unspecified periods of time he had had to share those cells with other inmates. The Government submitted that cell no. 7, in which Mr Tolumov was now being detained, was 7.5 square metres in size, and that Mr Tolumov was alone in it. According to the Government, the cell had a window measuring 1.15 x 0.97 metres. Artificial lighting was provided by a 100-watt incandescent light bulb, which was not on during the day and was turned off at 10 p.m. According to Mr Tolumov, the light bulb was very dim, installed behind a grille, and on all the time. 41. Mr Tolumov’s cell is furnished with a plank bed, two small cabinets, a table, which is fixed to the floor, and a stool, also fixed to the floor. Mr Tolumov submitted that humidity from the communal bathroom, which was adjacent to the cell, penetrated the walls and the floor and produced mould on one of the walls. An additional factor that increased dampness in the cell was the need to dry clothes in it. The Government submitted that the cell adjoined the part of the bathroom which contained the sinks and did not generate humidity; it was therefore impossible for mould to appear on the cell walls. According to an affidavit drawn up by one of Mr Tolumov’s fellow inmates in August 2013, humidity was indeed permeating the walls of the bathroom, and for that reason in June 2013 the prison authorities had had the gaps between the bathroom tiles filled in, unfortunately to little effect. 42. Plovdiv Prison does not have a ventilation or air-conditioning system. Mr Tolumov claimed that as a result temperatures in his cell were very high in summer and there was no fresh air. In winter, heating was inadequate. The Government pointed out the cell window could be opened, and that Mr Tolumov had a ventilator. As for heating, the prison had its own heating installation, which was normally turned on between 6 a.m. and 9 p.m., and permanently on colder days. 43. None of the cells in which Mr Tolumov was detained had a toilet or running water. Mr Tolumov submitted that as a result, apart from the daily visits to the communal toilets, he had to use a plastic bucket to relieve himself. During the period he had had to share his cell with another inmate, he had had to relieve himself in his presence. The lack of running water prevented him from washing his hands or the bucket after relieving himself. The Government submitted that the communal toilet and bathroom in the high-security unit were accessible to Mr Tolumov four times a day, and also whenever he asked the guards. 44. Mr Tolumov submitted that on any given day he could leave his cell once for his one-hour daily walk and three more times, for thirty minutes, to visit the toilet. Mr Tolumov also submitted that he took his meals in his cell. The Government submitted that all prisoners in the high-security unit could leave their cells once for their daily walk, and in addition four times a day, for forty-five minutes each time, for meals and visits to the toilet. According to an affidavit drawn up by one of Mr Tolumov’s fellow inmates in August 2013, the practice of allowing inmates in the high-security unit to visit the toilet four times a day instead of three had been introduced very recently. According to a document produced by the Government, since the end of January 2013 Mr Tolumov could also visit the prison gymnasium three times a week: between 3 p.m. and 4 p.m. on Mondays, Wednesdays and Saturdays. Mr Tolumov submitted that each time he was taken out of the prison’s high-security unit he was handcuffed. The Government submitted that he was only handcuffed when taken out of the prison for transfers. 45. According to Mr Tolumov, the food in prison was poorly prepared, of low quality, tasteless to the point of being inedible, and insufficient in quantity. According to the Government, the quantity and the calorie content of the food were fully adequate. Mr Tolumov was being provided with vegetarian meals on account of an illness, as well as fresh fruit and vegetables. In support of their assertion, the Government provided three randomly chosen daily menus. Mr Tolumov disputed the accuracy of those menus and submitted that he had never been given the meals stated in them. According to him, the “fresh fruit and vegetables” consisted of a daily portion of one onion and three carrots. 46. According to Mr Tolumov, medical care in Plovdiv Prison consisted of routinely giving all inmates aspirin or analgin, and inmates had to purchase all other medicines themselves. According to the Government, the prison’s medical centre was staffed by a general practitioner, a feldsher, a psychiatrist and a dentist. Medical and dental examinations were carried out weekly. Mr Tolumov could also consult outside specialists, and since the end of 2010 he had been examined nine times, by a cardiologist, a surgeon, an ophthalmologist, an endocrinologist and a dermatologist. All medicines required for Mr Tolumov’s treatment had been covered either by the national health insurance fund or the prison’s budget. 47. The Government asserted, further, that Mr Tolumov could see the social inspector in charge of his unit daily. He could also ask to see a psychologist, the prison governor or deputy governor, the prison legal officer, or another member of the prison staff. He could also socialise with other inmates of the same category during his daily walk and during meal times. He had access to cable television, with fifty channels, to the prison library, and to religious services. For his part, Mr Tolumov submitted that he could not attend religious services, and that, in spite of having expressed his desire to do so, he had not been given any opportunity to work or take part in other meaningful activities. The Government went on to say that at present Mr Tolumov was enrolled in a basic computer literacy class that he attended each Thursday between 3 p.m. and 4 p.m. 48. The annual psychological assessments of Mr Tolumov for 2008, 2009, 2011 and 2013, submitted by the Government, are quite similar. All of them say, often using the same language, that he has not changed his thinking and attitudes (though the 2013 report says that it was possible to detect a positive trend in that respect), but that he was not making any unjustified claims. He was able to defend his position, but usually avoided getting drawn into conflicts, and treated prison staff with respect. The risk of his hurting himself or others was average. He had expressed the wish to work, but it had not been possible to find work for him. He had willingly taken part in activities. 49. Mr Tolumov submitted that all letters from his legal representative before the Court were being opened and read by the prison administration. He also submitted that he had to hand over all letters to his legal representative to the prison administration without sealing the envelopes. The monitoring of his correspondence was proved by the letter “P” stamped on the back of each envelope. 50. In support of his allegations, Mr Tolumov submitted photocopies of the envelopes of three letters that he had sent to his legal representative in January, February and March 2012. They bear illegible postmarks and the word “checked” is stamped on the back of each one.
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test
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001-162210
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ENG
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HRV
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CHAMBER
| 2,016 |
CASE OF MERČEP v. CROATIA
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No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
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Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
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5. The applicant was born in 1952 and lives in Zagreb. 6. On 10 December 2010 the Zagreb Police Department (Policijska Uprava Zagrebačka; hereinafter “the police”) lodged a criminal complaint with the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) against the applicant, alleging that in 1991, as commander of a police unit, he had committed war crimes against the civilian population. They relied on extensive material obtained in the course of a preliminary investigation. An investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) was also informed of the case. The case immediately attracted wide media interest and coverage. 7. On the same day, based on the criminal complaint lodged by the police, the investigating judge questioned the applicant. The applicant contested the allegations of the police and decided not to give further evidence, stressing that he was suffering from health problems. He submitted extensive medical documentation showing that he had suffered a stroke in 2007. 8. Later on the same day, the Zagreb County State Attorney’s Office requested the investigating judge to open an investigation in respect of the applicant on suspicion of war crimes against the civilian population, as alleged in the criminal complaint lodged by the police. It relied in particular on the material provided to the Croatian authorities by the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (hereinafter “the ICTY”) concerning the crimes allegedly committed by a unit under the applicant’s command. 9. Following the request of the Zagreb County State Attorney’s Office, on 13 December 2010 the investigating judge questioned the applicant. The applicant decided to remain silent and refused to give any evidence. 10. On the same day the investigating judge opened an investigation in respect of the applicant on suspicion of war crimes against the civilian population. The investigating judge found, on the basis of the available material, that there was a reasonable suspicion that in the period between October and December 1991, in his capacity as commander of a police unit, the applicant had ordered arbitrary arrests, ill-treatment and the killing of a number of civilians, and that, by not taking the necessary measures to prevent and punish those responsible, he had consented to a number of other arbitrary arrests, the unlawful confiscation of property, ill-treatment and the killing of civilians by his subordinates. 11. During the investigation the investigating judge heard evidence from thirty-one witnesses and requested international legal assistance from the Serbian authorities in obtaining evidence from the witnesses. He also obtained a number of relevant reports on the DNA analyses of the victims’ remains, as well as exhumation and autopsy reports, and various documents concerning the actions of the unit under the applicant’s command. 12. On the basis of the evidence obtained during the investigation, on 9 June 2011 the Zagreb County State Attorney’s Office indicted the applicant in the Zagreb County Court on charges of war crimes against the civilian population. The indictment listed twenty-two counts of arbitrary arrest, unlawful confiscation of property, ill-treatment and the killing of civilians. The relevant part of the indictment concerning the applicant’s participation in those acts reads: “In the period between 8 October and mid-December 1991, in Zagreb and Pakračka Poljana, during an international armed conflict between the forces of the Republic of Croatia and the former [Yugoslav People’s Army] and the paramilitary Serb forces, assisted by volunteer fighters from other parts of the former Yugoslavia, contrary to Articles 2, 3 § 1 (a) and (c), 13 and 32 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and Articles 4 §§ 4 and 2 (a), 51 §§ 2 and 6, 86 and 87 of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), as an official in the Ministry of the Interior of the Republic of Croatia and the commander of the reserve unit of the Ministry of the Interior stationed in Pakračka Poljana and partially in Zagreb, where it had its compound, and thereby authorised to command his subordinates and responsible for the application of rules of international humanitarian law concerning the protection of civilians, ordered the unlawful deprivation of liberty, torture and killing of certain civilians, and when he was not present in the field, although aware that his subordinates were acting unlawfully by arbitrarily depriving civilians of their liberty, robbing, ill-treatment, torture, causing physical harm and killing civilians, did not take the necessary measures to prevent or suppress such unlawful actions, thereby accepting that his subordinates continue with such acts and condoning their consequences ...” 13. On 28 June 2011 the applicant lodged an objection against the indictment, arguing that it was not supported by any relevant evidence. 14. On 12 September 2011 a three-judge panel of the Zagreb County Court dismissed the applicant’s objection against the indictment as ill-founded on the grounds that there was sufficient evidence supporting the conclusion that there was a reasonable suspicion that he had committed the offences for which he had been charged. 15. On 4 October 2011 the Zagreb County Court commissioned an expert report concerning the possibility of the applicant following the trial. 16. In a report of 14 December 2011 a court expert found that with the appropriate accommodation arrangements and medical supervision, the applicant could follow the trial. 17. In the further course of the proceedings a number of hearings were held before the Zagreb County Court. A hearing held on 29 March 2012 was adjourned to 2 April 2012 due to deterioration in the applicant’s health during the questioning of a witness. A hearing held on 15 June 2012 was also adjourned due to the applicant’s state of health. 18. The criminal proceedings against the applicant are still pending. 19. The applicant was arrested on 10 December 2010 in connection with the criminal complaint lodged against him by the police (see paragraph 6 above). 20. On the same day, having questioned the applicant (see paragraph 7 above), the investigating judge of the Zagreb County Court ordered his remand in custody for a further forty-eight hours on the grounds that he might try to influence the witnesses and on account of the gravity of the charges. The investigating judge noted in particular that some forty-three witnesses needed to be questioned and that the allegations of war crimes against the civilian population imputed to the applicant were of a particularly serious nature, involving killings and severe ill-treatment. 21. On the order of the investigating judge and because of the applicant’s medical condition (see paragraph 7 above), he was placed in a prison hospital. Later during his confinement he was also treated in a special rehabilitation hospital in Krapinske Toplice. 22. On 12 December 2010 the investigating judge ordered that the applicant be remanded in custody for a further day. 23. On 13 December 2010 the investigating judge ordered the applicant’s pre-trial detention for one month under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges), reiterating his previous arguments. 24. The applicant appealed against the decision of the investigating judge before a three-judge panel of the Zagreb County Court, invoking his state of health and arguing that twenty years had passed since the alleged crimes had taken place. 25. On 17 December 2010 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal as unfounded. The relevant part of the decision reads: “It is firstly to be noted that in connection with the offences imputed to the defendant, in particular concerning the acts of the reserve [police] forces under his command, the questioning of a number of victims and witnesses, who have the relevant knowledge about the events from the period at issue, has been requested. Irrespective of the time that has passed since the period at issue, the defendant, who has only recently been informed of the facts of the offences forming the charges against him, if at large is likely to try to contact the [following] witnesses ... [These witnesses] still feel distress and fear and [the defendant could], in order to minimise his criminal responsibility, directly or indirectly influence their statements and thereby hinder the proper course of the investigation. Therefore, in order to avert the collusion, the investigating judge properly ordered the defendant’s pre-trial detention under Article 102 § 1 (2) of the Code of Criminal Procedure. Furthermore, in view of the manner in which the war crimes against the civilian population under Article 120 of the Criminal Code were allegedly committed by the defendant, and which are punishable by twenty years’ imprisonment, the investigating judge correctly found that the circumstances of the offences were particularly grave, warranting pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure. These particularly grave circumstances of the offences concern, in the view of this panel, the manner in which the civilians ... were unlawfully and arbitrarily deprived of their liberty, how their property was confiscated without any legal basis, how they were physically and mentally ill-treated (often by the use of electric shocks) and eventually killed; and the fact that some of these unlawful acts were committed on the basis of the defendant’s orders, while the others he did not prevent although he was aware of them ...” 26. On 5 January 2011 the investigating judge extended the applicant’s detention for a further two months under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He found that some more witnesses needed to be questioned and reiterated his previous findings concerning the gravity of the charges against the applicant. 27. The applicant appealed against that decision and on 14 January 2011 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, reiterating its previous arguments. 28. The investigating judge extended the applicant’s detention on 9 March 2011 for a further two months, relying on Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He found that eight witnesses still needed to be questioned and that the arguments concerning the gravity of the charges were still valid. 29. The applicant appealed against that decision, reiterating his previous arguments, and on 18 March 2011 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, relying on the same grounds as those in its previous decisions. 30. On 9 May 2011 the investigating judge extended the applicant’s detention for a further month under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges), reiterating his previous arguments concerning the gravity of the charges and finding that five more witnesses needed to be questioned. 31. The applicant appealed against that decision and on 27 May 2011 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, noting in particular that, in view of the gravity of the charges imputed to the applicant and given that he had been detained for some six months, there was still a predominant interest in keeping him in detention. It also considered that he should be remanded in custody until all the witnesses had been questioned. 32. Following the submission of the indictment against the applicant to the Zagreb County Court (see paragraph 12 above), on 10 June 2011 a three-judge panel of that court extended the applicant’s detention pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “When assessing whether further extension of the detention is needed under Article 102 § 1 (4) of the Code of Criminal Procedure, the panel looked into the facts of the indictment and found that there was a reasonable suspicion that the accused Tomislav Merčep, in the period between 8 October 1991 and mid-December 1991, as an official and the commander of the reserve unit of the Ministry of the Interior of the Republic of Croatia, authorised to command his subordinates, ordered the unlawful deprivation of liberty, torture and killing of certain civilians. When he was not present in the field, although aware that his subordinates were acting unlawfully by arbitrarily depriving civilians of their liberty, robbing, ill-treatment, torture, causing physical harm and killing civilians, he did not take the necessary measures to prevent and suppress such unlawful actions, therefore accepting that his subordinates continue with such acts and condoning their consequences. ... Furthermore, the perpetrators – members of the accused’s unit – took money and valuables from their victims (cars, jewellery, household appliances etc.) and subsequently exposed them to brutal torture, such as electric shocks through an induction telephone, cutting open muscles and wiring open wounds, severe beatings, physical ill-treatment, degrading treatment and locking them in rooms without beds or toilets. In addition, the charges against the accused also concern an incident in which members of the unit under his command killed a twelve year-old girl A.Z. by firing six bullets into her head, together with her mother M., both of whom had been taken away after her father, M.Z., had been killed in their doorway in Z. Consequently, and bearing in mind the extent of the unlawful actions which there is a reasonable suspicion that the accused committed and in particular the number of victims, which was, according to the facts of the indictment, more than twenty, all of them civilians, who were brutally tortured, robbed and killed or who have disappeared, the panel finds that the perpetrator acted with extreme cruelty, brutality, persistence and an extraordinary degree of criminal intent. All of the above-mentioned circumstances, in the opinion of this panel, represent particularly grave circumstances that overcome the usually grave circumstances pertinent to such offences. Therefore, the detention is necessary under Article 102 § 1 (4) of the Code of Criminal Procedure ...” 33. The applicant appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the necessity of his detention and alleging a number of substantive and procedural flaws. 34. On 6 July 2011 the Supreme Court dismissed the applicant’s appeal, upholding the decision of the Zagreb County Court. The Supreme Court in particular noted: “... the finding of the first-instance court that the grounds for further detention of the accused under Article 102 § 1 (4) of the Code of Criminal Procedure still exist is correct. The indictment shows a relevant degree of reasonable suspicion that the accused committed the criminal offence under Article 120 § 1 of the Criminal Code, by which the general statutory condition under Article 102 § 1 of the Code of Criminal Procedure has been fulfilled. ... According to the indictment ... the behaviour of the accused, in the view of this second-instance court, significantly surpasses the ordinary circumstances and consequences of such offences, and represents particularly grave circumstances of the offence allegedly committed by the accused which warrant detention under Article 102 § 1(4) of the Code of Criminal Procedure. In his appeal, the accused alleged that there had been a serious breach of criminal procedure, without specifying his argument. In this regard, the second-instance court was unable to find breaches that should have been examined ex officio. The appeal argument of errors of facts is also unfounded, since the first-instance court fully determined the facts and gave detailed, valid and clear reasons for its findings, which this second-instance court fully accepts. The accused also relied on the case-law of the Constitutional Court in its decision U-III-1683/2008 of 7 May 2008 and Article 5 § 1 [of the Convention], arguing that deprivation of liberty before a final judgment is a particularly sensitive issue, and that such detention should not turn into a prison sentence. Thus, [according to the accused] it can be ordered only when there is a high probability that guilt will be established and a sentence imposed, in cases where there is a reasonable suspicion that the accused has committed a criminal offence and only for the purposes of the proper conduct of the proceedings, conditions which had not been met in the case at issue. Contrary to the appeal arguments, the extension of detention under Article 102 § 1 (4) of the Code of Criminal Procedure is not contrary to the Constitution or Article 5 of the European Convention on Human Rights. Detention under Article 102 § 1 (4) of the Code of Criminal Procedure has a preventive purpose, namely the deprivation of liberty of the perpetrators of such serious crimes that, if they would be at large, the reputation of the judiciary and the public’s faith in it would be diminished; its purpose is not to avert the risk of the proceedings being hindered. ... The poor state of health of the accused does not call into question the reasonableness of his detention, since adequate medical care, bearing in mind that he suffers from a chronic disease, can be offered to him in detention, that is to say in the prison hospital.” 35. The applicant challenged the decision of the Supreme Court before the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that the Supreme Court had failed to provide relevant and sufficient reasons for his prolonged pre-trial detention. 36. On 30 August 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the decisions of the Zagreb County Court and the Supreme Court. The relevant part of the decision reads: “In view of the competence of the Supreme Court as the highest court ensuring the coherent application of the law and the equality of everyone in its application (Article 116 § 1 of the Constitution), the likelihood of a prison sentence within the given term and the particularly grave circumstances of the offence, the Constitutional Court finds that the Supreme Court and the Zagreb County Court satisfied the relevant opinions and requirements when extending the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure ...” 37. On 6 September 2011 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 38. The applicant appealed against that 39. On 28 November 2011 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) on the grounds that the reasons warranting his detention still persisted. 40. The applicant appealed against that decision and on 14 December 2011 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Zagreb County Court. 41. The applicant’s detention was further extended on 14 February 2012 by a decision of a three-judge panel of the Zagreb County Court, relying on Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) and reiterating its previous arguments. 42. The applicant challenged that decision before the Supreme Court and on 29 February 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that no doubts had been raised as to the findings of the Zagreb County Court. 43. The applicant then lodged a constitutional complaint before the Constitutional Court, arguing that his detention was no longer justified and proportionate. 44. On 18 April 2012 the Constitutional Court dismissed the applicant’’s state of health, when deciding whether his pre-trial detention should be extended. 45. On 27 April 2012 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), finding that the circumstances warranting his detention still persisted. With regard to the applicant’s state of health, it indicated that so far, nothing suggested that he could not receive appropriate medical treatment in detention. 46. The applicant appealed to the Supreme Court alleging lack of appropriate reasoning in the decision of the Zagreb County Court to extend his pre-trial detention. 47. On 21 May 2012 the Supreme Court accepted the applicant’s appeal and remitted the case to the Zagreb County Court on the grounds that it had not established all the relevant facts concerning the health care provided to the applicant in detention. 48. In compliance with the order of the Supreme Court, a three-judge panel of the Zagreb County Court re-examined the case. On 29 May 2012 it extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). With regard to the applicant’s state of health, it noted that he was receiving appropriate medical treatment in detention. 49. The applicant challenged that decision before the Supreme Court. On 29 June 2012 the Supreme Court accepted his appeal and remitted the case for re-examination on the grounds that the decision of the Zagreb County Court lacked relevant reasoning. 50. On 5 July 2012 a three-judge panel of the Zagreb County Court revoked the decision on the applicant’ the quality of the medical treatment which he was receiving in detention was not adequate. Since that could raise an issue under Article 3 of the Convention, the Zagreb County Court considered that he should be released pending trial. It stressed in particular: “Thus, in the concrete case priority should be given to the values protected by Article 3 of the European Convention on Human Rights because the public interest is reflected not only in the grounds for detention under Article 102 § 1 (4) of the Code of Criminal Procedure but also in the protection and application of the values provided for under the cited provision of the European Convention on Human Rights. In this respect, the time that has elapsed since according to the indictment the offence was committed should be noted, and in particular the period which the accused has spent in detention, as well as the likely duration of the criminal proceedings.”
| 0 |
test
|
001-145269
|
ENG
|
POL
|
ADMISSIBILITY
| 2,014 |
WOŹNIAK AND OTHERS v. POLAND
| 4 |
Inadmissible
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
|
1. The applicants in the first case, Ms Maria Woźniak and Mr Eugeniusz Woźniak, are Polish nationals, who were born in 1932 and 1925 respectively and live in Rybno. 2. The applicants in the second case, Mr Stanislaw Chruśliński and Ms Janina Powodzińska, are Polish nationals, who were born in 1949 and 1952 respectively and live in Łódź. 3. In the past decades road construction projects were often carried out in Poland on privately owned plots of land which were de facto taken over for that purpose by the authorities despite de fact that the ownership of those plots had not been validly transferred to the State or other public bodies. 4. In 1998 the legislator adopted a statute specifically addressing the situation of persons whose lands had in the past been taken over for road construction purposes; in particular with a view to bringing their legal status into line with the realities of the present day and to ensure payment of compensation to former owners or their legal successors (see Relevant domestic law, paragraphs 20-23 below). 5. The facts of the cases, as submitted by the applicants, may be summarised as follows. 6. On an unspecified point in time part of the applicants’ land was taken over by the State and a road was built on it. 7. By virtue of the Sochaczew City Council resolution dated 25 March 1997 the road which crossed through the applicants’ property was classified as a local town road (droga lokalna miejska). 8. On an unspecified date the Mazowiecki Governor (Wojewoda Mazowiecki), acting ex officio, instituted proceedings concerning the land taken over from the applicants. On 2 July 2009 the Governor (Wojewoda Mazowiecki) issued a decision confirming the acquisition ex lege by the municipality with effect from 1 January 1999 of the part of the property covered by the road. This decision was based on section 73 (1) of the Act of 13 October 1998 – the Public Administration Reform (Introductory Provisions) Act, hereinafter the Introductory Provisions Act 1998 (Ustawa -przepisy wprowadząjace ustawy reformujące administrację publiczną), regulating the status of properties taken over in the past by the State for the purposes of constructing public roads (see Relevant domestic law below, paragraph 21). Under this Act, owners whose land had ex lege become the State’s or local municipalities’ property on 1 January 1999 under its section 73(1), were entitled to request compensation if they applied for it between 1 January 2001 and 31 December 2005. On the latter date the period for submitting the compensation claim would expire. 9. On 14 August 2009 the applicants requested compensation for the land to which the decision of 2 July 2009 pertained. 10. On 28 September 2009 the Mayor of the Sochaczew District discontinued the proceedings for compensation, finding that the applicants’ request for compensation had been lodged after the period for submitting their claim had expired. The applicants appealed. 11. On 3 December 2009 the Mazowiecki Governor quashed the decision of 28 September 2009 in so far as it had discontinued the proceedings and refused to allow the applicants’ request for compensation, finding that the period for submitting their claim had expired on 31 December 2005. 12. On 10 November 2010 the Warsaw Regional Administrative Court dismissed the applicants’ appeal, considering that they should have sought compensation prior to 31 December 2005. The judgment was served on the applicants’ lawyer on 27 January 2011. 13. On 27 February 2011 the lawyer informed the applicants that there were no grounds on which to bring a cassation appeal before the Supreme Administrative Court as their entitlement to claim compensation claim had been extinguished under the provisions of the Introductory Provisions Act 1998. It followed that the cassation appeal would not have offered any prospects of success. 14. On 1 March 2007 the Łódź Regional Office informed the applicants that administrative proceedings had been instituted ex officio with a view to giving a decision confirming the ex lege expropriation with effect from 1 January 1999 of land taken from them prior to 1989 for road construction purposes. 15. On 13 March 2007 the applicants requested that compensation be paid to them. 16. On 2 July 2009 the Łódź Governor (Wojewoda Łódzki) issued a decision confirming the acquisition ex lege by the municipality with effect from 1 January 1999 of the land covered by the road. It was based on section 73 (1) of the Introductory Provisions Act of 13 October 1998 17. On 2 July 2008 the Łódź County Sheriff (Starosta) refused to pay compensation to the applicants, referring to section 73 (4) of the 1998 Act. The applicants appealed, relying on the constitutional protection of their right to the peaceful enjoyment of their possessions. They argued that the authorities had failed to deal with their case speedily, since the proceedings to confirm expropriation had not been instituted until 2006, eight years after the Introductory Provisions Act 1998 had entered into force. As a result, they had been deprived of their entitlement to compensation. Had the authorities instituted the proceedings before the relevant expiry date, the applicants would not have lost their entitlement. They referred in particular to their advanced age and to the fact that the second applicant was in poor health, which made it extremely difficult for her to take the relevant steps, in particular in the absence of any information about her legal situation. 18. On 25 May 2009 the Łódź Governor dismissed their appeal. The applicants appealed to the Regional Administrative Court. On 27 October 2009 the Łódź Regional Administrative Court stayed the proceedings, pending the outcome of the case No. K 20/09 instituted by the Ombudsperson which was at that time being examined by the Constitutional Court (see below, Relevant domestic law). 19. The proceedings were resumed at a later date. By a judgment of 24 August 2011 served on the applicants on 12 September 2011 the administrative court dismissed their appeal, referring to section 73(4) of the Introductory Provisions Act and to the judgments of the Constitutional Court (see paragraphs 27-33 below). It held that the period for submitting the compensation claim had expired in accordance with the terms specified in the Act. 20. As well as introducing general reforms to public administration, the Public Administration Reform (Introductory Provisions) Act 1998 of 13 October (Przepisy wprowadzające ustawy reformujące administrację publiczną) regulated the legal status of land taken over in the past for the purposes of road construction without a formal transfer of ownership of the land. 21. Section 73(1) of that Act conferred ex lege on the State Treasury or on the relevant local municipality ownership of such lands with effect from 1 January 1999 based on de facto possession. It further stipulated that the former owners had a right to compensation. 22. Section 73(4) of the 1998 Act provided that the former owners could submit compensation claims to the administrative authorities between 1 January 2001 and 31 December 2005. After 31 December 2005 the compensation claim had to expire. The original wording of this provision referred to a future statute which would govern the principles and procedures for the determination of the compensation to be awarded. It was amended in 2000 and the general reference to a “separate Act” therein was replaced by the specific reference to the Land Administration Act 1997 (see paragraphs 24-26 below). 23. The Act was published in the Journal of Laws of the Republic of Poland in 1998, no. 133, as item no. 872. It entered into force on the day of its publication, 29 October 1998. 24. On 1 January 1998 the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the Land Administration Act”) entered into force. It provides a generally applicable legal framework for expropriations. Although some of its provisions were modified in recent years, the substance of the provisions relevant to the present case remained unchanged. 25. In accordance with section 128 § 1 of the Act, compensation for expropriation has to correspond to the value of the property right concerned. Under section 130 § 1 of the Act, the amount of compensation is fixed regard being had to the status and value of the property on the day on which the expropriation decision was given. The value of the property is estimated on the basis of an opinion prepared by a certified expert. 26. Section 134 of the Act provides for the market value of the expropriated property to serve as a basis on which the amount of compensation is fixed. The following criteria are to be taken into consideration when establishing the market value of the property: its type, location, the use to which it has been put, the existence of any technical infrastructure on the property, its overall state and current prices of properties in the municipality. 27. In its judgment of 14 March 2000 (P 5/99) the Constitutional Court declared the section 73 (1) and 73 (5) of Introductory Provisions Act 1998 compatible with the Polish Constitution as well as with the Article 1 of the Protocol No. 1 to the Convention. It discontinued the proceedings in respect of the section 73(4) of Introductory Provisions Act 1998. The court stressed that the legislator intended to regulate in a general manner the question of land ownership in a domain of particular public importance. Sections 73 (1) and 73 (5) of Introductory Provisions Act 1998 concerned plots taken over during several decades for the purpose of road construction. The de facto taking of land and construction of roads created irreversible situations. The contested provisions pertained only to past situations and did not allow any further taking over of plots. The legislation under review served not only the public interest but also the interests of owners. It ended the state of uncertainty caused by the fact that they had not been able to exercise their ownership. The ex lege effect of the provisions was a rational solution which made it possible to bring the legal status of the plots into line with the realities. 28. In its judgment of 20 July 2004 (SK 11/02) the Constitutional Court declared section 73(4) of Introductory Provisions Act 1998 compatible with the Polish Constitution. The court stressed that Section 73 of Introductory Provisions Act 1998 concerned plots whose legal status did not reflect their actual situation existing for long periods of time, lasting for up to fifty years. The Constitutional Court emphasised that the owners concerned had in the past a possibility of asserting their rights but had failed to do so within the applicable time-limits. 29. The legislation vesting ownership of properties in the State Treasury or local municipalities by way of the 1998 Act was a one-off and exceptional solution the effects of which were limited in time. It concerned only land taken over for the purposes of road construction. It required special measures to be applied, partially departing from those envisaged by the Land Administration Act 1997. The solution consisting in assessing ex officio the status of all the plots concerned and issuing ex officio individual decisions confirming expropriation ex lege in each and every case could have not been carried out within a reasonable time. 30. The court observed that the special provisions created by the Introductory Provisions Act 1998 imposed certain limitations on the compensation paid to the owners whose lands had been in the past de facto expropriated for road construction purposes. These limitations included their inability to request compensation before 2001; a limitation on the period within which such applications could be made until 31 December 2005; a failure to specify exactly when compensation had to be paid to the person entitled; and a failure to take into account changes to the value of the property between the date ownership was formally transferred by way of a decision confirming the ex lege expropriation and the date the compensation was decided. However, the context and character of the set of measures created by section 73 of the 1998 Act justified these restrictions. 31. On 15 September 2009 the Constitutional Court gave a judgment (33/07) in reply to legal question put to it by the Gliwice Regional Administrative Court. That court requested the Constitutional Court to make an assessment of compatibility of section 73(4) of the 1998 Act with the Constitution in so far as this provision allowed for a compensation entitlement to be irrevocably extinguished regardless of whether an administrative decision confirming the acquisition ex lege, as from 1 January 1999, of land used for road construction purposes by the municipality (or the State Treasury) had been given. The Constitutional Court noted that proceedings concerning such decisions were governed by the generally applicable provisions of the Code of Administrative Procedure. Former owners were parties to these proceedings. The decisions confirming that the municipality or the State Treasury, as the case might be, had acquired ownership of properties taken de facto over by the State in the past were of a declaratory character. The fact that the 1998 Act did not provide for a time-limit for the authorities to give such decisions did not mean that it was impossible in law for former owners to claim compensation in absence of these decisions. These decisions were not a legal prerequisite for claiming compensation prior to the expiry of the substantive time-limit provided for by that Act, namely 31 December 2005. If a request for compensation was submitted in the absence of a decision, the compensation proceedings should be stayed. The authority to which the compensation request was submitted was obliged to request the governor to give a decision confirming the expropriation ex lege as from 1 January 1999, after which the compensation proceedings had to be resumed. The Constitutional Court referred to the practice of the administrative authorities, established by the courts (the Supreme Administrative Court, I OSK 260/08, 2 February 2008; the Warsaw Regional Administrative Court, I SA/Wa 1/06, 14 June 2006 and I SA/Wa 681/07, 10 July 2007). The court observed that the request for compensation under Section 73 the 1998 Act was in principle a second opportunity for owners to seek compensation as they could have claimed it in the past when their land had been taken for the road construction purposes. 32. On 30 November 2009 the Ombudsman challenged the constitutionality of the section 73(4) of the 1998 Act, submitting that it breached the proportionality principle enshrined in the Constitution by introducing an unclear and unconstitutional notion of “equitable” (słuszne) compensation, differing from that used for ordinary compensation purposes in the 1997 Land Administration Act. It was also in breach of the constitutional protection of the right to the peaceful enjoyment of possessions, as the compensation entitlement had irrevocably ceased to exist on 31 December 2005. It was further submitted that the period for submitting a compensation claim should not have been allowed to expire before the administration had given an expropriation decision. No provision was made in the 1998 Act obliging the authorities to issue the expropriation decisions prior to 31 December 2005, which rendered that regulation manifestly unfair (“regulacja pozorna”) and deprived owners of a reasonable protection of their rights. 33. In its judgment of 19 May 2011 (K 20/09) the Constitutional Court dismissed the Ombudsman’s challenge. It essentially rephrased its own reasoning adopted in 2004 and reiterated that the former owners had had ample time to take appropriate steps to obtain compensation; initially two years of vacatio legis after the 1998 Act had entered into force and, subsequently, five years within which to seek compensation. It had been possible for them to secure their rights by demonstrating adequate diligence. 34. In a number of decisions the courts held that the decisions given under the Introductory Provisions 1998 Act confirming acquisition ex lege of the land by the municipalities (or by the State Treasury) on 1 January 1999 were of a declaratory character. The courts also held that the fact that such a decision had not been issued did not prevent the persons concerned from claiming compensation under the provisions of that Act (see e.g. the Warsaw Regional Administrative Court, I SA/WA 694/09, 21 October 2009; the Poznań Regional Administrative Court, II SA/Po 558/90, 15 January 2009 and the Supreme Court, resolution III CZP 77/02, 21 January 2003).
| 0 |
test
|
001-164203
|
ENG
|
AZE
|
COMMITTEE
| 2,016 |
CASE OF MAMMADLI AND OTHERS v. AZERBAIJAN
| 4 |
Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
|
Carlo Ranzoni;Khanlar Hajiyev
|
4. The applicants’ dates of birth and places of residence are given in the Appendix. 5. Tahirov v. Azerbaijan (no. 31953/11, §§ 6-22, 11 June 2015) and Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 6-20, 22 October 2015). 6. The applicants stood as candidates in the parliamentary elections of 7 November 2010 and applied for registration as candidates in various single–mandate electoral constituencies (see Appendix). 7. The respective Constituency Electoral Commissions (“ConECs”) on various dates (see Appendix) refused the applicants’ requests for registration as a candidate after the ConEC working groups had found that some of the supporting voter signatures submitted by the applicants were invalid and that the remaining valid signatures had numbered fewer than 450, a minimum required by law. Signatures were found to be invalid on several grounds in each case. 8. None of the applicants, except the applicant in application no. 30750/11, were invited to the ConEC meetings where decisions to refuse their requests for registration were taken. In each case, despite the requirements of the law, all the relevant working group documents and the ConEC decision itself were made available to the applicants belatedly or never made available to them. 9. Each applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decisions. The points raised in their complaints were similar to those made by the applicants in Tahirov (cited above, §§ 13-14) and Annagi Hajibeyli (cited above, §§ 11-12). 10. On various dates, the CEC also rejected the applicants’ complaints (see Appendix), after another examination of the signature sheets by members of its own working group, which had found in each case that large numbers of signatures were invalid and that the remaining valid signatures were below the minimum required by law. 11. None of the applicants were invited to attend the relevant CEC or working group meetings. Moreover, in each case, all the relevant CEC documents were only made available to the applicants after the CEC decision had been taken. 12. On various dates, each of the applicants lodged an appeal with the Baku Court of Appeal against the decisions of the electoral commissions. They reiterated the complaints they had made before the CEC concerning the ConEC decisions and procedures. They also raised a number of other points similar to those raised by the applicants in Tahirov (cited above, § 19) and Annagi Hajibeyli (cited above, § 17). 13. On various dates (see Appendix), the Baku Court of Appeal dismissed appeals by the applicants, finding that their arguments were irrelevant or unsubstantiated and that there were no grounds for quashing the decisions of the CEC. 14. The applicants lodged cassation appeals with the Supreme Court, reiterating their previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the cases and had delivered unreasoned judgments. 15. On various dates (see Appendix), the Supreme Court dismissed the applicants’ appeals as unsubstantiated, without examining their arguments in detail, and found no grounds to doubt the findings of the electoral commissions or of the Baku Court of Appeal. 16. In addition to the applicants in the present cases, at the material time Mr Intigam Aliyev, the applicants’ representative in applications nos. 2326/11, 8055/11 and 30750/11, was representing a total of twentyseven applicants in cases concerning the 2010 parliamentary elections and a number of applicants in other cases before the Court. 17. On 8 August 2014 criminal proceedings were instituted against Mr I. Aliyev, which are the subject of a separate application brought by him before the Court (application no. 68762/14). On 8 and 9 August 2014 the investigation authorities seized a large number of documents from Mr I. Aliyev’s office including all the case files relating to the pending proceedings before the Court, which were in Mr Aliyev’s possession and which concerned over 100 applications in total. The files relating to applications nos. 2326/11, 8055/11 and 30750/11 were also seized in their entirety. The facts relating to the seizure and the relevant proceedings are described in more detail in Annagi Hajibeyli (cited above, §§ 21-28). 18. On 25 October 2014 the investigation authorities returned a number of the case files concerning the applications lodged before the Court, including the file relating to applications nos. 2326/11, 8055/11 and30750/11, to Mr Aliyev’s lawyer.
| 1 |
test
|
001-147041
|
ENG
|
RUS
|
COMMITTEE
| 2,014 |
CASE OF MAKOVOZ v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev
|
4. The applicant was born in 1968 and lived in St Petersburg before the events of the case. 5. In 2004 several criminal cases were opened against the applicant on suspicion of kidnapping, extortion and planning an assassination. 6. By final judgments of 15 March 2007 and 8 October 2009, the Supreme Court of Russia found the applicant guilty as charged and sentenced him to a total of twenty-three years’ imprisonment. 7. Starting from 10 March 2004, the date of his arrest, the applicant was detained in various custodial facilities in connection with the criminal proceedings against him. In particular, on 15 January 2010 the applicant was transported from a prison hospital to remand prison IZ-47/1 of St Petersburg, where he stayed until 18 February 2010. According to the applicant, the facility was overcrowded. Thus, cell 456 measuring 8 sq. m accommodated up to three inmates. The applicant further claimed that he had been denied the necessary medical treatment there. In support of his allegations, the applicant submitted several photographs of his cell.
| 1 |
test
|
001-173776
|
ENG
|
AZE
|
CHAMBER
| 2,017 |
CASE OF MALIK BABAYEV v. AZERBAIJAN
| 4 |
No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev
|
5. The applicant was born in 1966 and lives in Khachmaz. 6. The applicant’s son, Zakir Babayev (Z.B.), was born in 1991; on 3 July 2009 he was drafted into the army to perform his compulsory military service. From October 2009 he served as a sniper in Gadabay region in military unit no. 171. 7. On the morning of 14 November 2009 Z.B. was on guard duty with one other soldier (Q.S.) at a military post called “A” in Gadabay region. At around 11 a.m. he left his post and went into the nearby forest, where two peasants were cutting wood. Z.B. called the applicant using the telephone of one of the peasants and asked his father to provide him with some belongings. He also asked the applicant to send him a mobile telephone topup card worth ten Azerbaijani manats (AZN). During the telephone conversation he was in a good mood and did not complain about any problems. Z.B. also asked the applicant to tell his mother to leave her mobile telephone turned on as he would call her later. Following that conversation, the applicant bought mobile telephone top-up cards and sent their passwords to his son by a telephone message. 8. According to the material in the case file, following the telephone conversation with the applicant, Z.B. returned to his guard duty post. At around noon Q.S. left the post in order to change the guard and Z.B. remained alone. A few minutes later the soldiers heard a gunshot and went to the post, where they discovered Z.B.’s body. 9. On 14 November 2009 criminal proceedings were instituted under Article 125 (incitement to suicide) of the Criminal Code by the Gazakh Military Prosecutor. 10. On the same day a record of an inspection of the scene of the crime was drawn up and signed by the commander of military unit no. 171, Major A.F. It was also signed by two attesting witnesses, E.Q. and N.D., who were soldiers in the same military unit. The record states that the inspection began at 4.30 p.m. and ended at 6 p.m. According to the record, Z.B. had been wearing a shoe and four socks on his left foot; however, the shoe and the sock of his right foot had been taken off. His right shoe had been found next to his body. According to the record, one cartridge, a pen and a note written on a cigarette pack were found at the crime scene. Various photographs of Z.B.’s body, the cartridge, the pen and the note were taken. The note read as follows: “I, Z.B., commit suicide and nobody is responsible for that. I commit suicide because I don’t want to be a burden to anyone. Mum and Dad, forgive me. Goodbye to everyone; goodbye to life. Signature. Z.B.” 11. On the same day a record of the examination was drawn up by the investigator in charge of the case, who examined Z.B.’s body at the headquarters of military unit no. 171 in Gadabay region. According to the record, the examination began at 9 p.m. and ended at 10 p.m. Various photographs of Z.B.’s body were taken. 12. On 15 November 2009 a record of the examination of the body was drawn up in the presence of a forensic expert in the city of Ganja. 13. On the same date a post-mortem examination of Z.B.’s body was carried out. Report no. 02 dated 15 November 2009 showed that death had resulted from one gunshot wound to the left part of the rib cage. The expert found that the seam of the left pocket of Z.B.’s uniform had become unstitched. The expert did not find any other injury on Z.B.’s body or uniform. 14. On 17 November 2009 the investigator questioned nine soldiers of the military unit in which Z.B. had served. The soldiers stated that Z.B. had never been ill-treated during his military service. One of the soldiers, Q.S., further stated that when they had been on guard duty on 14 November 2009, Z.B. had been in a bad mood and had told him about his family problems. In particular, according to Q.S., the applicant’s son told him that he had talked to his mother-in-law, who had said that his parents had gone to Russia and would not be visiting him. However, another soldier (N.D.) stated that on 14 November 2009 Z.B. had been in a good mood and had told him that he had talked to his mother-in-law by telephone. 15. On 17 November 2009 the investigator also took signature and writing samples from the soldiers of the military unit in order to identify the author of the written note found at the crime scene. 16. On 19 November 2009 the investigator requested the Khachmaz District Department of Education to provide the investigation with the signature and samples of the applicant’s son’s writing. 17. On 24 November 2009 the investigator also sent an operational request (əməliyyat tapşırığı) to the head of the military counterintelligence department of military unit no. 171, asking him to investigate whether Z.B. had been subjected to unlawful actions during his military service. In a letter dated 30 November 2009 and marked “secret”, the head of the military counterintelligence department of military unit no. 171, a lieutenant-colonel (Y.S.), replied to the investigator’s request of 24 November 2009. He noted that according to the information obtained after having taken operational measures (əməliyyat tədbirləri), on 14 November 2009, before going to the guard post, Z.B. had had a dispute with a sergeant (S.H.) and a soldier (Q.S.), who had beaten him. Around five minutes after this incident, a gunshot had been heard and Q.S., S.H. and another soldier (K.M.) had gone to the post, where they had discovered Z.B.’s body. It was also indicated in the letter that the soldiers had removed Z.B.’s body after the incident in order to help him, but upon realising that he was dead they had laid the body back in its original place. 18. On 24 November 2009 the investigator sent another operational request to the head of the Khachmaz District Police Office, asking him to investigate whether Z.B. had had any family problems, whether Z.B. had been engaged to anyone, or whether any of his close relatives had been suffering from any psychological illnesses. By a letter of 7 December 2009, the head of the Khachmaz District Police Office informed the investigator that Z.B. had had no family problems, that he had not been engaged to anyone and that his relatives had not been suffering from any psychological illnesses. 19. By a decision of 25 November 2009, the investigator recognised the applicant as a legal heir of the victim (zərərçəkmiş şəxsin hüquqi varisi). On the same day the applicant was questioned by the investigator. He stated that at around 11 a.m. on 14 November 2009 he had talked to his son by telephone. Z.B. had been in a good mood and had not complained about anything. Z.B. had asked the applicant to tell his mother to leave her mobile telephone turned on as he would call her later. The applicant further stated that at the request of his son he had bought mobile top-up cards and sent their passwords to him by a telephone message. The applicant also stated that his son had not had a fiancée or a mother-in-law and that he had not had any family problems. 20. On 4 December 2009 the investigator ordered forensic medical, ballistic, chemical and trace examinations. Report no. 16771/72/73 dated 29 December 2009 showed that Z.B. had used his service weapon – an SVD-type D6197 sniper rifle – to commit suicide. The report further found that the seam of the left pocket of Z.B.’s uniform had become unstitched and that this could have resulted either from contact with a blunt object or the use of physical force. 21. On 7 December 2009 the investigator ordered a handwriting examination of the written note found at the crime scene. Report no. 16713 dated 28 December 2009 concluded that a comparison of the samples submitted to the examination showed that the note had similarities with Z.B.’s writing and signature. Report no. 709 dated 27 January 2010 concluded that the coloured elements used in the writing of the note in question and of the pen found at the scene of the crime had the same chemical characteristics. 22. According to a document entitled “Instruction” (Göstəriş) dated 14 December 2009 the Deputy Military Prosecutor of the Republic of Azerbaijan gave various instructions to the prosecuting authorities in connection with the criminal proceedings relating to Z.B.’s death. In particular, he asked the prosecuting authorities to inspect the scene of the crime. The relevant part of the document reads as follows: “It appears from the case material that the Gazakh Military Prosecutor’s Office received the information that Z.B. died ... and the agents of the prosecuting authorities went to the scene of the crime, but it was not possible for them to inspect the scene of the crime, given the foggy weather conditions in the mountainous area. The military commander who carried out the preliminary inspection of the scene of the crime presented the collected material evidence to the Gazakh Military Prosecutor’s Office. In order to reconstruct the conditions in which the incident took place, the scene of the crime should again be inspected ...” 23. On 11 January 2010 the investigator visited the “A” military post and inspected the scene of the crime. According to the record of the inspection (dated 11 January 2010), it began at 2.30 p.m. and ended at 3.40 p.m. The investigator took various photographs of the area where the military post was situated. 24. On the same day the investigator questioned four soldiers, including S.H. and Q.S. They denied having beaten Z.B. on 14 November 2009 and submitted that Z.B. had never been subjected to ill-treatment. As regards the investigator’s question regarding the fact that the seam of the left pocket of Z.B.’s uniform had been unstitched, they stated that they had not noticed it. 25. On 12 January 2010 the investigator questioned the two peasants who had seen Z.B. on 14 November 2009. They stated that on 14 November 2009, as they had been cutting wood in the forest, Z.B. and Q.S. had approached them. Z.B. had used their mobile telephone to call his father; Z.B. and Q.S. had then left the area. They also stated that Z.B. had been in a good mood before and after the telephone conversation. 26. On 18 January 2010 the investigator carried out a reconstruction of the events in order to establish whether Z.B. had been technically able to commit suicide with his service weapon. The investigator concluded that it would have been possible if he had pressed the trigger of the weapon with the toe of his right foot when standing up or lying down. 27. On 21 January 2010 the applicant was again questioned by the investigator. 28. On the same day the investigator ordered a post-mortem psychiatric and psychological examination (məhkəmə-psixiatrik və psixoloji ekspertizası) of Z.B. Report no. 19 of that examination, dated 1 February 2010, concluded on the basis of the statements available in the case file that Z.B. had not been suffering from any mental disorder, but that he had probably been in a state of depression before his death. However, it was not possible to determine the reason for that depression. 29. On 3 February 2010 the investigator questioned five soldiers of the military unit in which Z.B. had served. 30. On 9 February 2010 the investigator decided to terminate the criminal proceedings, finding that there had been no criminal element in Z.B.’s death. The investigator concluded that Z.B. had committed suicide because he had probably been in a state of depression. The investigator further held that it had not been established that Z.B. had been ill-treated by other soldiers. The investigator also decided to destroy the material evidence found at the crime scene, including the written note found next to Z.B.’s body. 31. On 27 February 2010 the applicant lodged a complaint with the Gazakh Military Court against the investigator’s decision of 9 February 2010, complaining of the ineffectiveness of the criminal investigation. He disputed the investigator’s conclusions relating to the suicide of his son, pointing out that Z.B. had not suffered from any mental disorder. He submitted in that connection that the statements of the soldiers had been contradictory and had been fabricated, as his son had never had a fiancée or a mother-in-law. The applicant alleged that his son had been either killed or had been driven to suicide by S.H. and Q.S. In that connection, he relied on the content of the letter of 30 November 2009 from the military counterintelligence department of the military unit. He also submitted that the fact that the seam of the left pocket of Z.B.’s uniform had become unstitched proved that his son had been beaten before his death. The applicant further pointed out that the note found at the crime scene had been written using certain words that his son had never used. In particular, he noted that even though Z.B. had never called his parents “ana” (mum) and “ata” (dad), but rather “mama” and “papa”, he had addressed them as “ana” and “ata” in that note. The applicant also complained that his son had been harassed by S.H., who had regularly forced Z.B. to ask the applicant to send mobile telephone top-up cards for S.H. In that connection, he asked for an examination of the list of calls made to and from his mobile telephone during the entire period during which his son had been undertaking military service. 32. On 18 March 2010 the Gazakh Military Court overruled the investigator’s decision and remitted the case to the prosecuting authorities for fresh examination. The court ordered the investigating authority to examine the applicant’s particular complaints. It further found that the investigator had not had the right to decide to destroy the material evidence found at the scene of the crime. 33. As can be seen from the documents submitted by the Government, following the Gazakh Military Court’s decision of 18 March 2010, on 19 March 2010 the investigator decided to continue the investigation. 34. On 23 March 2010 the investigator questioned the expert who had conducted forensic medical, ballistic, chemical and trace examinations (see paragraph 20 above). The expert stated that the seam of the left pocket of Z.B.’s uniform could have come unstitched because it had come into contact with his service weapon after his suicide. 35. On 25 March 2010 the investigator also questioned two soldiers, who stated that they did not remember whether Z.B. had called his parents “ana” (mum) and “ata” (dad) or “mama” and “papa”. 36. On 29 March 2010 the same investigator again decided to terminate the criminal proceedings. That decision was identical in its wording to the investigator’s previous decision of 9 February 2010, except for the part concerning the preservation of the written note found at the scene of the crime and two newly added paragraphs. In those paragraphs, the investigator noted that the two soldiers questioned during the investigation had not remembered whether Z.B. had called his parents “ana” (mum) and “ata” (dad) or “mama” and “papa”. Moreover, relying on the questioning of the expert on 23 March 2010, the investigator concluded that the seam of the left pocket of Z.B.’s uniform had been unstitched because it had come into contact with his service weapon after his suicide and not as a result of any ill-treatment. 37. On 10 April 2010 the applicant lodged a complaint with the Military Prosecutor of the Republic of Azerbaijan against that decision. He complained of the ineffectiveness of the criminal investigation, pointing out that, taking into consideration that there had been a national holiday in the country from 20 to 28 March 2010, it had been impossible to carry out a new investigation between 19 and 29 March 2010. The applicant also argued that the investigator should have questioned Z.B.’s parents and relatives – not the two soldiers in question – in order to establish whether Z.B. had called his parents “ana” (mum) and “ata” (dad) or “mama” and “papa”. He further disputed the investigator’s interpretation of the expert’s conclusion (see paragraphs 20 and 34 above), alleging that the investigator had substituted his own opinion for the expert’s conclusion. Lastly, he complained that his lawyer had not had access to the case file. 38. As can be seen from the documents in the case file, on 21 April 2010 the Military Prosecutor of the Republic of Azerbaijan overruled the investigator’s decision of 29 March 2010 and remitted the case for fresh examination. Despite the Court’s explicit request to the Government that they submit copies of all the documents relating to the criminal proceedings concerning Z.B.’s death, the Government failed to provide the Court with a copy of the decision of 21 April 2010 of the Military Prosecutor of the Republic of Azerbaijan. 39. The criminal case was allocated to another investigator at the Gazakh Military Prosecutor’s Office. 40. In May and June 2010 the new investigator questioned Z.B.’s parents, two schoolmates, and five soldiers (including Q.S.) who had served in the same military unit. During the questioning, despite stating that Z.B. had never complained before his death about being ill-treated, the applicant reiterated his previous complaints. It further appears that, even though on 5 June 2010 the investigator questioned the five soldiers separately, the wording of their statements was identical. They each stated that Z.B. had never been ill-treated during his military service. 41. On 18 June 2010 the investigator in charge of the case decided to terminate the criminal proceedings. The investigator found that the allegation of Z.B.’s ill-treatment by Q.S. and S.H. had not been proved during the investigation and that Z.B. had committed suicide because he had probably been in a state of depression. 42. On 13 July 2010 the applicant lodged a complaint against that decision, reiterating his previous arguments. He also noted that the investigator’s decision of 18 June 2010 was almost identical in its wording to the previous decisions of the prosecuting authorities. He further complained that the new investigator had failed to question S.H. again or to address the contradictions in the statements of the soldiers. In that connection, he pointed out that, although Z.B. had had no fiancée or mother-in-law – which had been confirmed in a letter dated 7 December 2009 from the Khachmaz District Police Office – the soldiers had referred in their statements to an alleged telephone conversation with a mother-in-law. The applicant lastly complained about the investigator’s failure to attach any importance to the letter dated 30 November 2009 from the head of the military counterintelligence department of military unit no. 171. 43. On 23 July 2010 the Military Prosecutor of the Republic of Azerbaijan again quashed the investigator’s decision and remitted the case to the prosecuting authorities for fresh examination. The Government failed to provide the Court with a copy of the decision of 23 July 2010 of the Military Prosecutor of the Republic of Azerbaijan. 44. On 27 July 2010 the investigator again questioned Z.B.’s parents, who reiterated their previous complaints. They also stated that Q.S. and S.H. had regularly harassed their son into obtaining mobile telephone top-up cards. 45. In August 2010 the investigator also questioned various soldiers, who denied any ill-treatment or harassment of Z.B. during his military service. 46. According to the documents submitted by the Government, on 27 August 2010 the investigator again sent an operational request to the head of the military counterintelligence department of military unit no. 171. The investigator noted that, although in the letter dated 30 November 2009 it was stated that Z.B. had been beaten by S.H. and Q.S. on the day of the incident, that allegation had not been proved during the investigation. The investigator further asked the head of the military counterintelligence department to investigate whether S.H. and Q.S. had tried to extort money from Z.B. during his military service. 47. By a letter dated 10 September 2010, the head of the military counterintelligence department of military unit no. 171, Y.S., replied to the investigator’s request of 27 August 2010. Y.S. noted that, although he had previously indicated in his letter of 30 November 2009 that Z.B. had been beaten by S.H. and Q.S., that information had not been subsequently confirmed. He further informed the investigator that the military counterintelligence department had not received any information relating to the extortion of money. 48. On 20 September 2010 the investigator at the Gazakh Military Prosecutor’s Office again decided to terminate the criminal proceedings, finding that there had been no criminal element in Z.B.’s death. In that connection, the investigator found that Z.B. had committed suicide because he had probably been in a state of depression. Relying on the letter dated 10 September 2010 from the intelligence department of military unit no. 171, he also concluded that the allegation that Z.B. had been ill-treated by S.H. and Q.S. had not been confirmed during the investigation. 49. On 9 October 2010 the applicant lodged a complaint against that decision with the Military Prosecutor of the Republic of Azerbaijan. He reiterated his previous complaints, pointing out that the investigator had tried to cover those who had ill-treated his son and driven him to suicide. 50. On 15 October 2010 the Deputy Military Prosecutor of the Republic of Azerbaijan dismissed the applicant’s complaint, finding that the criminal investigation had been effective. 51. On 1 November 2010 the applicant lodged a complaint against that decision with the Baku Military Court, arguing that the investigator had failed to carry out an effective investigation. In particular, he alleged that the appearance of a new letter from the military counterintelligence department of military unit no. 171 (see paragraph 47 above), which clearly contradicted the previous letter from the same organ, had shown that the domestic authorities had tried to cover S.H. and Q.S., who had beaten his son. He also complained of the investigator’s failure to address the contradictions in the statements of the soldiers relating to the alleged existence of a fiancée and a mother-in-law and the alleged family problems of Z.B. 52. On 13 November 2010 the Baku Military Court dismissed the applicant’s complaint. The court found, without providing any explanation, that the applicant’s complaints were groundless. 53. On 1 December 2010 the applicant appealed against that decision, reiterating his previous complaints. 54. On 29 December 2010 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the Baku Military Court’s decision of 13 November 2010.
| 1 |
test
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001-183370
|
ENG
|
MDA
|
COMMITTEE
| 2,018 |
CASE OF BOTNARI v. THE REPUBLIC OF MOLDOVA
| 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)
|
Paul Lemmens;Stéphanie Mourou-Vikström
|
5. The applicant was born in 1972 and is currently detained in Chișinău. 6. On 17 March 2010 the applicant was arrested by police office and charged with fraud and forgery of official documents. She was placed in the detention centre of the General Directorate for Fighting Organised Crime of the Ministry of the Interior (“the GDFOC”). 7. According to the applicant, she was held there in an underground cell which offered substandard conditions of detention. 8. The applicant further submitted that she was transferred to Prison no. 13, where she was detained in a cell with sixteen other inmates and was subjected to passive smoking. She was not provided with bedding and was not able to sleep normally. The cell was infested with vermin and the food was of a very poor quality. 9. According to the Government, the applicant was transferred from the detention facility of the Ministry of the Interior to Prison no. 13 on 29 March 2010. On 30 March 2011 she was released from detention and was placed under house arrest. On 26 January 2012, after having been declared a wanted person, the applicant was again arrested and again placed in detention in Prison no. 13. On 19 September 2012 she was released from prison and was placed under house arrest. On 5 June 2013 the applicant was again placed in detention in Prison no. 13. On 10 June 2013 the Centru District Court found the applicant guilty as charged and sentenced her to thirteen years and six months’ imprisonment. The case was pending before the Chişinău Court of Appeal at the time of the parties’ observations. 10. According to the Government, during her detention in Prison no. 13 after 5 June 2013 the applicant was held in cells nos. 108 and 110, each designed to hold eight detainees and measuring 18 sq. m, and in cell no. 109 designed to hold six detainees and measuring 18 sq. m. Cell no. 109 was lit by a 100-W bulb and had a window, as well as a tap and a toilet separated from the rest of the cell by a partition. All the cells were regularly disinfected. 11. On 26 February 2003 the applicant was diagnosed with non-Hodgkin lymphoma (“NHL” – a type of blood cancer). This disease affected her spleen, bone marrow and lymph nodes. She was also diagnosed with chronic hepatitis. 12. According to the applicant, while being detained in the detention facility of the GDFOC, her medical treatment was interrupted and the GDFOC administration refused to transfer her to a hospital. After she had been transferred to Prison no. 13, she was not provided the medical assistance required for her condition. 13. According to the applicant, while in detention, her state of health deteriorated. In both detention facilities there was no specialist oncologist and chemotherapy was unavailable. The applicant undertook her last chemotherapy session in a specialist civilian hospital in April 2013 while under house arrest. Following an enquiry lodged in December 2013 by the applicant’s lawyer about the medical care received by the applicant while in detention, the Prisons Authority replied on 14 February 2014 that she had been registered as an oncology patient since 5 June 2013 and had been provided with medical treatment in line with her diagnosis. 14. According to two extracts from the applicant’s medical records dated 26 June 2014 and 9 July 2015 and signed by the head and the deputy head of the medical unit of Prison no. 13, the applicant was in need of specific medical treatment from the Institute of Oncology and her medical condition was qualified as being of medium seriousness. 15. The Government submitted that from 24 April 2010 to 9 July 2012 the applicant had refused on several occasions to be hospitalised either in the prison hospital (Prison no. 16) or in the medical section of Prison no. 13. On two occasions the applicant had refused to undergo inpatient treatment at the Institute of Oncology, which was a specialist civilian hospital. The applicant had been examined on several occasions by a therapist and a haematologist and given medical treatment. Every year, the Prisons Authority concluded a service contract, with a budget amounting to 35,000 Moldovan lei (MDL – approximately 1,555 euros (EUR)), with the Institute of Oncology. Accordingly, specific types of treatment such as chemotherapy and radiotherapy were available.
| 1 |
test
|
001-150648
|
ENG
|
ROU
|
CHAMBER
| 2,015 |
CASE OF CIORCAN AND OTHERS v. ROMANIA
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Effective investigation)
|
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
5. The applicants are thirty-seven Romanian nationals of Roma origin. They all live in the Apalina neighbourhood in the town of Reghin, Romania. 6. On 7 September 2006 at around 2.30 p.m. the applicant Augustin Biga and his friend C.A had a quarrel in a bar with R.O., a policeman who worked for the Mureş County police. Consequently, R.O. filed a criminal complaint against the two men, accusing them of insulting behaviour. 7. In the context of the investigation of the above-mentioned complaint, at around 4 p.m. the same day, the chief of the Mureş County police gave the order by telephone for several police officers to go to Apalina, the neighbourhood where Augustin Biga and C.A lived, in order to summon them before the prosecutor. He advised them to exercise particular caution, mentioning on the phone that it would be difficult to get there owing to a large number of people (several hundred) blocking the way armed with bats, pitchforks, axes and scythes, and that the law-enforcement authorities had been unable to secure the area. He also requested the assistance of officers from the local special forces police (Detaşamentul de Intervenţie şi Acţiuni Speciale Mureş – DIAS). According to the operation order completed by the chief of the local special forces unit on 7 September 2006, the reason for the request was “to ensure the protection of the policemen conducting an investigation for insulting behaviour towards policeman R.O.” 8. Immediately afterwards, seven special forces officers (P.Ş., C.I., V.M., M.F., H.D.M., S.P. and G.P.J.) wearing special uniforms and masks covering their faces, together with two local police officers from the Reghin Police (B.M. and M.V.) and four plain-clothes officers from the investigations department of the Mureş County police (A.M., M.M., C.R.R. and S.C.L.) left for Apalina, taking a van and two cars. 9. On 7 September 2006 around 5 p.m., on seeing the police vehicles, the applicants and other inhabitants of the neighbourhood, mostly women and children, started gathering in the street out of curiosity. 10. In order to disperse the crowd, the special forces officers threw several tear gas grenades, which sent everyone into a panic, pushing each other and running around in all directions. At that point the police officers started shooting at the running crowd while backing up their vehicles and leaving the neighbourhood. 11. According to the prosecutor’s decision of 16 July 2007 (see paragraph 51 below), shortly after the police officers arrived in the neighbourhood, the local residents started gathering and a fight broke out between them and the special forces officers, who were forced to use their weapons. The prosecutor gave details about the incident, noting that shortly after all the State agents (except the one driving the van) got out of their vehicles, they found themselves surrounded by eighty to a hundred people, who began to jostle against them and pull at their equipment. In the meantime, the police officers recognised the mother of Augustin Biga and told her they were going to summon her son for a hearing before the prosecutor. As this discussion was taking place, some of the policemen heard shouting and noticed that about a hundred Roma were attacking the special forces officers with bats, pitchforks, empty bottles and stones. 12. According to statements made by the special forces officers to the prosecutor, they initially used three defensive tear gas sprays. This only infuriated the crowd, who got even more aggressive and started to throw stones and bricks. Two of the officers then fired shots into the air. V.M. stated that since the Roma would not stop, he had fired his hunting weapon twice into the air. He was then attacked by ten people, who pulled at his clothes and hit him with sharp objects until he fell to his knees, at which point he fired rubber bullets into the crowd. The crowd then partially retreated. 13. The incident, as presented in the prosecutor’s decision, continued with the State agents attempting to retreat while the Roma, hidden behind the houses, continued to throw stones, glass bottles and other objects at them. 14. As a result of the clash, six State agents suffered injuries which required medical treatment lasting between five and fourteen days (see paragraph 53 below). 15. More than twenty-five Roma were reportedly injured and/or shot. Some of them were issued medical certificates confirming their injuries, which were considered to need between eight and forty-five days of medical treatment. 16. Ms Susana Ciorcan as well as the following twelve applicants suffered injuries confirmed by medical certificates: According to her hospital observation sheet, Ms Ciorcan was shot in the stomach and was diagnosed with the following conditions: haemorrhagic shock, peritonitis, rupture of the iliac vein, rupture of the ureter, four traumatic lesions of the small intestine, and a lesion of the terminal ileum and colon. Following the incident, she underwent surgery and remained in hospital for eight days. Her forensic medical certificate issued on 11 October 2006 stated that the shooting had endangered her life, that she required forty to forty-five days of medical treatment, and that she and her aggressor had been face-to-face. Neither of the medical documents contained information about the type of bullet which might have caused her injuries. According to his forensic medical certificate issued on 11 September 2006, he had several gunshot wounds in the right arm, left knee and left thigh, with six bullets remaining in his body. He underwent surgery on 8 September 2006 and six bullets were extracted from his wounds. He remained in hospital for three days. His injuries were considered to have been caused by rubber bullets and to require twelve to fourteen days of medical treatment. According to his forensic medical certificate issued on 19 September 2006, he had an excoriation wound on the right cheek and a gunshot wound on the right elbow, with the bullet remaining in his body. His injuries were considered to have been caused by a rubber bullet and to require eight to nine days of medical treatment. According to her forensic medical certificate issued on 19 September 2006, she was shot in the left side of the thorax and also had a gunshot wound on her back in the left thorax area. Her wounds were considered to have been caused by rubber bullets and to require eight to nine days of medical treatment. According to his forensic medical certificate issued on 5 October 2006, he was shot in the right arm and the back right side of the chest, with several bullets remaining in his body. His injuries were considered to require twenty-two to twenty-four days of medical treatment. According to his hospital observation sheet, he underwent surgery on 22 September 2006, but the doctors only managed to take out five rubber bullets from his chest. According to her forensic medical certificate issued on 8 September 2006 and hospital notes, she had multiple gunshot wounds in the right leg, with one bullet remaining in her body. Her injuries were considered to require sixteen to eighteen days of medical treatment. On 7 September 2006, she underwent surgery to have the bullet extracted. Neither of the medical documents contained information about the type of bullet which might have caused her injuries. According to his medical certificate issued by the hospital on 14 September 2006, he had gunshot wounds in the left chest and on the back of his thigh, with the bullets remaining in his body, and excoriation wounds on his right chest and arm. He underwent surgery on 13 September 2006 and several bullets were extracted. The medical document contained no information about the type of bullet which might have caused his injuries. According to her forensic medical certificate issued on 11 September 2006, she had a gunshot wound in the left side of the chest and three gunshot wounds in the left thigh, with two rubber bullets remaining in her body, and two contusions in the umbilical region. She was considered to require eleven to twelve days of medical treatment. On 8 September 2006, she underwent surgery to have the bullets extracted. According to his forensic medical certificate issued on 11 September 2006, he had a wound beneath the left eye which could have been caused by being hit with a hard object. He was considered to require three to four days of medical treatment. According to his forensic medical certificate issued on 19 September 2006, he had an excoriation wound in the left zygomatic region and several wounds and ecchymosis on the right side of the thorax and on the abdomen which could have been caused by being shot with rubber bullets. He was considered to require eight to nine days of medical treatment. According to his forensic medical certificate issued on 19 September 2006, he had a gunshot wound in the right side of the thorax, with a rubber bullet remaining in his body. He was considered to require eight to nine days of medical treatment. According to her forensic medical certificate issued on 19 September 2006, she had a gunshot wound and an excoriation wound on the interior side of the lower part of the right leg, which may have been caused by a rubber bullet. She was considered to require eight to nine days of medical treatment. According to the certificate issued by the hospital on 9 September 2006 he had a contusion on the left shoulder. 17. The following twenty-two applicants: Ştefan Bidi, Margareta Biga, Iosif Biga Snr, Iosif Biga Jr, Liviu Bucunea Jr, Etelka Capo, Agneta Csiki, Edith Csiki (Biga), Lia Gabor, Ana-Narcisa Gorcs, Ladislau Horvath, Ildiko Kalanyos (Biga), Susana Kalanyos, Petru Kalanyos Snr, Ana Lingurar, Ancuţa Maria Moldovan, Violeta Pusuc, Edith Racz (Biga), Cornelia Simion (Biga), Ianos Ştefan, Ana Tina Snr and Ana Tina Jr declared to the national prosecutor that they had suffered various injuries, but did not produce any medical certificates to corroborate their claims. The remaining three applicants: Sonia Biga, Augustin Biga and Sorin Ciorcan, only complained about the injuries suffered by their mother, Susana Ciorcan. 18. On 7 September 2006 the Prosecutor’s Office of the Mureş County Court (“the Mureş prosecutor’s office”) launched a criminal investigation against the special force officers for the attempted first degree murder of Susana Ciorcan, under Article 20 in conjunction with Articles 174 and 175(i) of the Criminal Code. 19. The investigation began with an examination of the crime scene the next day. In the prosecutor’s report it was noted that: “The crime scene has suffered numerous alterations, namely the removal of the damaged vehicles, the bullets and bullet cases used by the State agents, as well as their other weapons, the transport of all of the victims to hospital ... finding the area has been cleaned to some extent compared to the rest of the street.” The report further stated that several traces of blood and holes were found on the ground, doors and walls of the houses surrounding the crime scene. The holes found on the houses were between 28 and 60 cm from the ground. Several clothes and other items stained with blood or presenting possible bullet holes were seized as evidence. According to the same report, the following materials were handed over to the investigators by the victims: three tear gas sprays, eleven STAR-70mm-RB-15 cartridge cases and nineteen 9x19-86-325 cartridge cases. Four other unidentified cartridge cases and two metal bullets were also collected. The objects allegedly used by the crowd to attack the policemen could not be found. In addition, a pitchfork and a 12 mm hunting gun were seized from the headquarters of the Reghin police. Fingerprints were also collected from the vehicles used by the police officers. 20. On 11 and 19 September 2006 the prosecutor ordered expert examinations of the guns used by the State agents during the incident, their cartridge cases and bullets, as well as the clothes and other items gathered from the crime scene. A first report issued on 14 September 2006 concluded that the eleven STAR-70mm-RB-15 cartridge cases had been fired from the hunting gun. The report did not state whether the eleven cartridge cases came from rubber bullets, but indicated that the bullets used in order to perform the tests had been hunting bullets. A second expert report issued on 10 October 2006 concluded that the other twenty-three cartridge cases had been fired from three of the pistols belonging to the special forces officers. However, with respect to the two metal bullets found at the scene of the incident it was noted that no resources were available to establish from which gun they had been fired. 21. Medical documents were also collected from the local hospital and requested from the Forensic Institute in respect of some of the Roma victims and all the police officers involved. 22. On 3 October 2006 twenty-seven victims of the incident filed a criminal complaint against the special forces officers for abusive conduct and causing bodily harm, a complaint which was joined to the pre-existing investigation. They were the applicants Liviu Bucunea Jr, Ancuţa Maria Moldovan, Mihai Moldovan Jr, Ana Tina Snr, Ana Tina Jr, Agneta Csiki, Lia Gabor, Ana-Narcisa Gorcs, Traian Kovacs, Costel Ciorcan, Lajos Panta, Ştefan Bidi, Etelka Capo, Violeta Pusuc, Ildiko Kalanyos (Biga), Susana Kalanyos, Edith Csiki (Biga), Cornelia Simion (Biga), Margareta Biga and eight other victims. 23. A report drafted on 6 October 2006 by an officer from the Mureş County police contained a list of the steps undertaken in the investigation to that date as well as a list of “questions to ask the Roma”. The relevant parts read as follows: “Did the gypsies know that the police officers and DIAS forces were coming to Apalina and why? Were the gypsies gathered near the houses of the two wanted criminals before the police officers arrived? How many gypsies were there?” The report also mentioned that, following a check of the census, it had been possible to identify the inhabitants of the neighbourhood who took part in the incident, some of whom had a criminal record. 24. On an unspecified date the criminal records of the Roma who had made statements to the prosecutor (see paragraph 25 below) were checked and the information was adduced to the investigation file. One of them had two previous convictions for theft and another had two convictions for robbery. 25. On 17 October 2006 eighteen of the applicants, Susana Ciorcan and three other victims made statements to the prosecutor. Their statements were consistent, in that they all said that on seeing the police vehicles they had come out of their houses with their spouses and children out of curiosity. While normal discussions had been taking place between Susana Ciorcan and the policemen, the special forces officers had started to spray the crowd with tear gas and throw tear gas grenades at them and as everybody ran around trying to protect their children and go back inside their houses, the same officers had started to shoot at them. 26. In her statement, Susana Ciorcan said that while she had been in her courtyard giving information to the plain-clothes officers about the whereabouts of her son, a “fight broke out between the masked men and the Roma” and a tear gas grenade had fallen by her feet. The five officers that she had been talking to ran away and one of them had shouted “Do not shoot!” and she had turned to run and hide inside her house. At that moment she had been shot in the back and lost consciousness. 27. In their statements, the applicants Ana Maria-Paula Bidi, Denes Biga, Erika Biga, Iosif Biga Snr, Iosif Biga Jr, Ladislau Biga, Rozalia Bucunea, Carol Ciorcan, Edith Csiki (Biga), Ladislau Horvath, Petru Kalanyos Snr, Petru Kalanyos Jr, Ana Lingurar and Lela Potra declared that they were thereby submitting complaints against the special force officers who ill-treated them and claiming compensation from them. 28. On 23 October 2006 the four officers from the investigations department of the Mureş County police were questioned by the prosecutor as witnesses. Their statements were practically identical, saying that while they had been talking to Susana Ciorcan, they had heard noise coming from where they had left their vehicles and when they had turned round they had seen: “...several armed individuals (around 100-150 ethnic Roma), attacking the DIAS fighters with bats, pitchforks, bottles, stones and other objects”. A.M., M.M. and C.R.R. declared that when they had left for the Apalina neighbourhood, they had not been aware that the “Roma from this neighbourhood might commit violent acts”. M.M., C.R.R. and S.C.L. further declared that they had neither assaulted nor been physically assaulted by the “ethnic Roma”. 29. On 10 January 2007 the special forces officers made statements to the prosecutor. They all declared that they had been forced to use their guns in order to defend themselves and their colleagues. 30. Officer P.Ş., head of the special forces unit, stated: “Immediately upon our arrival in the neighbourhood, a large number of Roma ethnic people started to gather in their yards, on the side of the road and behind us; they headed towards us after we parked our vehicles ... These people initially only verbally attacked [us]... Shortly afterwards, [they] started to push our colleagues from the judiciary [investigations department], who were in plain clothes and were not carrying weapons. At that moment, seeing that [the officers] could not fulfil the purpose of their operation ... I considered that we must immediately ensure their protection and then leave the neighbourhood ... Because the use of sprays and sticks had no effect on the people in the area, who, on the contrary, became more aggressive and continued attacking us and throwing stones and bricks, me and two colleagues fired warning shots in the air with our pistols ... V.M., who had a rifle with rubber bullets, started using it. I did not see when he started shooting, I just heard the first shots.” 31. Officer V.M. stated in his testimony: “Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by a few furious gypsies, who started assaulting us ... I was equipped with the following: a tear gas spray, a double-barrel hunting rifle which had rubber bullets, and a 9 mm Glock pistol with nineteen rounds of live ammunition, which I didn’t use ... I loaded my hunting rifle with two bullets and shouted ‘Freeze, police! We will use firearms!’ The shouting had no effect so I fired two shots in the air. These also had no effect on the furious crowd. My colleagues also fired their pistols with live ammunition in the air ... At one point, on hearing shouting coming from the upper side of the street, and seeing that stones were being thrown from that direction, I went to the crossroads and I saw a big crowd of gypsies coming towards us. I reloaded the gun with the intention of firing another shot in the air. At that moment, I was attacked by a group of around ten people, who were coming towards me. They started hitting me ... I was then hit in the head by a stone thrown by the group of people coming down the street ... After being hit, I fell to my knees and pulled the trigger of the gun, firing in the direction of the crowd.” 32. Officer C.I. said in his statement that: “... I saw my colleague P.J., who appeared to have been wounded, lying on a fence. Because I had heard my colleagues warn the assaulters to back up or weapons would be used, I took out the pistol and in order to ensure that I had enough space and time to help my injured colleague, I fired four shots in the air ... I personally only saw our commander Mr P.Ş. fire several shots in the air ... As far as I noticed, all shots had been fired in the air.” 33. Officer S.P. stated that he did not fire his gun saying that: “Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by some angry gypsies, who started assaulting us ... The gypsies were becoming more and more nervous ... We started defending ourselves, first using tear gas spray ... We then threw one or two grenades, also filled with tear gas ... We used our sticks ... I also had a Makarov pistol on me with live ammunition, but I did not manage to pull it out ... As far as I understood it, our boss and two other colleagues took out their guns and fired some shots in the air, in order to discourage the aggressors ... One of our colleagues, V.M., had a “hunting” type rifle with rubber bullets. This gun was used to fire several shots into the crowd ... After around three minutes, I managed to regroup with my colleagues in formation and make way for the two Logans [cars], which managed to retreat from the street ... I got behind the wheel of our vehicle and turned to leave the area.” 34. Officer H.D.M. also stated that he did not use his gun declaring: “Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by some angry gypsies, who started assaulting us ... The gypsies were becoming more and more nervous ... We started defending ourselves, first using the tear gas spray ... We then threw one or two grenades, also filled with tear gas ... We used our sticks ... I also had a Glock pistol on me with live ammunition, but I did not manage to pull it out ... As far as I understood it, our boss and two other colleagues took out their guns and fired some shots in the air, in order to discourage the aggressors ... One of our colleagues, V.M., had a “hunting” type rifle with rubber bullets. This gun was used to fire several shots into the crowd. After around four minutes, I managed to regroup with my colleagues in formation and make way for the two Logans [cars], which managed to retreat from the street ... ” 35. From officer G.P.J.’s testimony, it appeared that he too did not fire his gun: “Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by some angry gypsies, who started assaulting us ... I was immediately hit with a bat in the legs and then with a stone or brick in the head ... I fell to the ground ... A few moments later, I effectively lost consciousness and I cannot say what happened to my colleagues next ...” 36. Officer M.F. similarly declared that he did not use his gun. He further stated that: “Because our warnings had no effect and we continued to be attacked, I heard several gunshots and I saw my colleague C.I. next to me, firing a few shots in the air with his pistol ... I saw my other colleague, V.M., the only one of us carrying a rifle and he also fired shots in the air ... As far as I noticed, all the shots had been fired in the air.” 37. On 16 January 2007 the prosecutor decided to terminate the attempted first-degree murder investigation, with a decision not to bring charges against the State agents. He held that upon the arrival of the police officers in the neighbourhood, people started gathering in the street and “... a fight broke out between them and the DIAS unit”. The decision mentioned that according to the agents’ statements, on 7 September 2006 they had used “paralysing sprays and grenades, bats and firearms, discharged into the air in order to discourage the crowd”; V.M. had used a hunting gun with rubber bullets, shooting both into the air and at the crowd. Several people had been injured, both agents and local residents, but the injuries had not been very serious, with the exception of those sustained by Susana Ciorcan. Comparing the conclusions of Susana Ciorcan’s forensic medical certificate with the statements of the individuals involved in the incident, the prosecutor concluded that the officers under investigation did not intend to take the victim’s life, stating that “the agents’ intention had obviously been to discourage the large number of people gathered there, not to kill them”. The prosecutor’s decision also stated that: “This lack [of intent] may also be deduced from the approach taken – the person concerned was not targeted, we are dealing with a random shooting ...The acts of the above-mentioned [individuals] might constitute the offence of causing serious bodily harm ... with respect to Susana Ciorcan.” 38. The person who shot Susana Ciorcan or the type of bullet which cause her injuries were not identified and no explanation was given in this regard. The officers who fired their guns were not clearly identified in the decision either. 39. The Mureş prosecutor also acknowledged that twenty-seven victims had filed a criminal complaint requesting the investigation of the special force officers for the crimes of abusive conduct and causing serious bodily harm. Therefore, he ultimately decided that the investigation for the crimes of abusive conduct and causing serious bodily harm under Articles 180 and 182 of the Criminal Code should be continued by the Prosecutor’s Office of the Reghin District Court (“the Reghin prosecutor’s office”). 40. Susana Ciorcan’s representative lodged an appeal with the hierarchically superior prosecutor against the Mureş prosecutor’s decision of 16 January 2007. The core of his complaint was that the perpetrator had not been identified and that the evidence (expert reports) adduced to the file, which proved that there had been guns there that day which had not only used rubber bullets but also live ammunition, had been completely ignored. The State agents should have been aware that the use of such ammunition could have resulted in the death or fatal injury of the people they had shot at. Furthermore, not only had the perpetrator not been identified, no steps had been taken to establish whether Susana Ciorcan had been shot by a rubber bullet or a regular one. 41. On 29 June 2007 the appeal was dismissed as ill-founded by the Prosecutor’s Office of the Târgu Mureş Court of Appeal. The investigation was considered to have been properly conducted. 42. Susana Ciorcan’s representative also lodged a complaint with the Mureş County Court, stating that the prosecutor had not considered all the evidence in the file and had mainly relied on the version of events as presented by the State agents. He then reiterated the argument that the use of live ammunition shot at random should have made identifying those who had fired the shots a necessity. A ballistic report was also required in this regard. Attention was brought to two of the agents’ statements, one of them made by Mureş County police officer S.C.L., who said that “neither I nor any of my colleagues in our vehicle attacked the Roma or were attacked by them”. This was confirmed by M.M., who admitted that he had not been hurt at all. In another piece of evidence it was mentioned that none of the blunt objects allegedly used to damage the State agents’ vehicles had been found at the scene of the incident. In such circumstances, the conclusions drawn by the prosecutor appeared unfounded. 43. The complaint also claimed that there had been racist motives behind the ill-treatment Ms Ciorcan and the rest of the victims had been subjected to, with a request that this allegation be clarified. In this respect, relying on the Court’s case-law in Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, ECHR 2005VII) Ms Ciorcan’s representative complained that the disproportionate reaction of the State agents towards Ms Ciorcan and the rest of the victims constituted discrimination and together with the subsequent ineffective investigation were in breach of Articles 2 and 14 of the Convention. 44. On 3 July 2008 the Mureş County Court, basing its decision on the documents in the prosecutor’s investigation file, dismissed the complaint, holding that the prosecutor’s decision of 16 January 2007 had been correct. The existence of possible racist motives behind the victims’ ill-treatment had not been analysed by the court. 45. The applicants’ representative lodged an appeal on points of law against this decision, reiterating all the complaints submitted before the firstinstance court, and requesting that a further investigation for serious first-degree murder also be conducted, under Article 176 of the Criminal Code. 46. On 26 July 2008 Susana Ciorcan died at the age of fifty-six, two years after the incident. The proceedings were continued by her sons and daughters: Costel Ciorcan, Sorin Ciorcan, Carol Ciorcan, Sonia Biga, Ildiko Kalanyos (Biga), Augustin Biga and Edith Csiki (Biga). 47. The Târgu Mureş Court of Appeal dismissed the appeal by final decision of 19 November 2008, holding that the first-instance court had meticulously analysed the file and correctly concluded that there had been no intention to commit the offences under investigation, the agents having acted in accordance with the standard procedure regulating that kind of intervention. 48. Following the Mureş prosecutor’s decision to relinquish jurisdiction, a criminal investigation was launched by the Reghin prosecutor’s office for abusive conduct, under Article 250 of the Criminal Code. 49. The prosecutor questioned the State agents, who reiterated their previous statements. Eleven of the applicants amongst the twenty-seven victims who had filed the complaint on 3 October 2006 also made statements. Two of them had also made a statement to the Mureş prosecutor. The applicants Ancuţa-Maria Moldovan and Liviu Bucunea Jr alleged that the special forces officers had shouted: “go inside your house or I will kill you” and “go inside your house or I will blow your brains out” respectively. 50. The prosecutor also questioned eight other Roma victims, who had not made statements to the Mureş prosecutor’s office. They expressed their wish for the individuals who assaulted them to be held liable for their actions and declared that they would be claiming compensation in that regard. 51. On 16 July 2007, upholding the same facts as established in the decision issued by the Mureş prosecutor’s office, the Reghin prosecutor issued a decision not to bring charges against the seven officers under investigation, concluding that they had acted in self-defence, which under Article 10(1)(e) of the Code of Criminal Procedure eliminated the criminal element of the acts committed. In connection with the course of events, the decision started by repeating the Mureş prosecutor’s office findings that: “... superior officers from the Mureş County police ... pointed out that the scene could not be reached because there were a large number of people (several hundred) armed with bats, pitchforks, axes and scythes and the law-enforcement authorities could not secure the area ... Almost immediately upon arriving at the scene, several local residents started to gather and a fight broke out between them and members of the DIAS.” 52. Also referring to the facts, the decision mentioned that the special forces officers declared they had been grouped together during the incident, while quoting in support of this finding the statement made by H.D.M., who stated that they had initially been grouped together but had disbanded on being attacked by fifteen to twenty Roma each. 53. In order to substantiate the decision, the prosecutor first listed the injuries suffered by the State agents as follows: “H.D.M. was hit in the legs and the face, and according to the medical certificate ... suffered injuries which required eight to nine days of medical care; M.F. was hit in the right shoulder, in both cheeks, above the left temple, the right leg above the knee and all fingers, and according to his medical certificate ... suffered injuries which required eight to nine days of medical care; G.P.J. was hit with a stick in the legs and then immediately with a stone or a brick in the head, and according to his medical certificate ... suffered injuries which required seven to eight days of medical care; V.M. was hit with a stone in the head, and according to his medical certificate ... suffered injuries which required five to six days of medical care; C.I. was hit in the ribs, the right ankle, the tibia and calf of the right leg and the left shoulder area, and according to his medical certificate ... suffered injuries which required twelve to fourteen days of medical care; S.P. was hit in the legs, the head, the back and the hands, and according to his medical certificate ... suffered injuries which required eight to nine days of medical care.” 54. The prosecutor then gave details of the gunshot injuries suffered by thirteen Roma victims, including Susana Ciorcan, who was held to have been shot in the back. 55. Further on, the prosecutor listed the damage sustained by the vehicles used by the police officers to get to the Apalina neighbourhood on the day of the incident, namely cracks in the windscreen or side windows, scratches and bumps. 56. In view of the above elements and citing parts of the statements made by the special forces officers, the prosecutor concluded that the State agents could not be held liable for abusive behaviour as they had acted in self-defence. 57. Neither the officers who fired their guns nor the person who shot Susana Ciorcan were identified, nor was any explanation given in this regard. 58. The applicants’ representative complained against the 16 July 2007 decision on behalf of the same twenty-seven victims who had joined the criminal proceedings on 3 October 2006 (see paragraph 22 above). He alleged that the incident had been caused by the authorities’ lack of adequate preparation for their operation, the purpose of which had been to summon two individuals to appear before the prosecutor for the investigation of an alleged non-violent offence. He further complained that only the alleged perpetrators’ statements had been used as a basis for the prosecutor’s decision, and had disproportionately referred to the evidence favourable to them, without making the slightest attempt to try and identify who had fired their guns or the type of ammunition used. In addition, he complained that the prosecutor’s decision had completely failed to mention certain crucial elements, in particular the severity of the injuries inflicted by the State agents on the victims. Furthermore, the number of days of recommended medical treatment in the medical reports could not be relied on when determining the seriousness of the injuries suffered by the victims. For example, several applicants who were shot were considered to require the same number of days of medical care as State agents whose injuries had been visibly less serious. 59. On 31 August 2007 the complaint was rejected and the decision not to bring charges was upheld by the chief prosecutor. 60. The applicants’ representative contested the prosecutor’s decision before the Reghin District Court on behalf of the same twenty-seven victims who had joined the criminal proceedings on 3 October 2006 (see paragraph 22 above). He asked the court to order a reopening of the criminal investigation in order to efficiently identify the perpetrators and bring them to justice. He drew the court’s attention to the extraordinary and urgent deployment of police forces (two hours after the commission of the alleged offence) in order to serve two summonses which are normally sent by post, a situation which would never happen in cases involving non-Roma people. 61. On 16 July 2008 the Reghin District Court, basing its decision on the documents in the prosecutor’s investigation file, dismissed the complaint, holding that the prosecutor’s decision of 16 July 2007 had been correct. In dismissing the complaint, the court briefly stated that even if guilt had been established, the application of Article 44 of the Criminal Code (selfdefence) made it necessary for the prosecutor to adopt the decision not to bring charges. 62. The applicants lodged an appeal on points of law with the Mureş County Court, but it was dismissed on 12 February 2009. 63. Meanwhile, on 3 November 2008 the representative of the applicants Ana Maria-Paula Bidi (Beica), Denes Biga, Erika Biga, Iosif Biga Snr, Iosif Biga Jr, Ladislau Biga, Rozalia Bucunea, Carol Ciorcan, Edith Csiki (Biga), Ladislau Horvath, Petru Kalanyos Snr, Petru Kalanyos Jr, Ana Lingurar and Lela Potra, whose names were not mentioned by the prosecutor in the 16 January 2007 decision, submitted a request to the Mureş prosecutor’s office seeking information concerning the progress of their complaints against the special forces officers. On 10 December 2008 they were informed that the file concerning the death of Susana Ciorcan had been terminated with a decision not to bring charges, and that the investigation for the alleged abusive conduct on the occasion of the incident of 7 September 2006 was currently under way with the Reghin prosecutor’s office. They were informed that the statements they had made to the Mureş prosecutor had also been forwarded to the Reghin prosecutor’s office. Following this reply, the fourteen applicants submitted a request to the Reghin prosecutor’s office detailing their situation and seeking information about the current status of their complaints. On 31 July 2009 they received a reply, informing them that they had failed to quote the correct case number. They were asked to provide this information in order to receive a response. 64. On 21 December 2006 the Disciplinary Council held a meeting to assess whether A.M., the officer who ran the operations on behalf of the Mureş County police, had breached police disciplinary rules when fulfilling the order of 7 September 2006 given by his chief. 65. According to the minutes of the meeting, the Council heard evidence from A.M., as well as a witness in his defence, A.A., the prosecutor in charge of the investigation of the complaint for insulting behaviour filed by R.O. 66. In his statement A.M. first described the circumstances leading up to the incident. He stated that: “After a discussion with officer R.O., during which he told me about the incident that took place on the terrace of the “Ceres” bar in Reghin, I asked him to prepare a written report. Because it was not clear whether a crime had been committed, I decided that a team of officers should go to the bar in order to find witnesses and take statements from them, while I, together with another team, should go to the Apalina neighbourhood to take statements from the two suspects ...” He further described how the special forces agents were attacked by the “Roma”, while A.A. told the Council: “I consider that it was the strange reaction that Roma people have on seeing police cars or policemen that led to the clash that day.” 67. The Disciplinary Council unanimously decided that the policeman under investigation was innocent. 68. The complaint for insulting behaviour filed by R.O. on 7 September 2006 was dismissed at a later date by the prosecutor, since at the time of the incident R.O. had been off-duty and had not been acting in his official capacity, and there had been no physical violence between the parties. 69. The two summonses which justified the police operation of that day were never served on the two suspects, who were never questioned by the prosecutor in connection with the complaint filed by R.O.
| 1 |
test
|
001-164314
|
ENG
|
SRB
|
CHAMBER
| 2,016 |
CASE OF DIMOVIĆ v. SERBIA
| 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)
|
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicants were born in 1980 and 1964, respectively, and live in Hajdukovo. 6. On 12 February 2007 the applicants and their friend S.K. were indicted for allegedly having stolen a wine press (presu za grožđe). 7. On 25 January 2008 the Subotica Municipal Court acquitted all three defendants of these charges. In so doing, it explained that while there was evidence that they had been in possession of a press, there was nothing to suggest that they had obtained it through any criminal activity. The applicants themselves maintained that they had found the press abandoned, while S.K. denied the charge and thereafter exercised his right to remain silent. No material evidence was introduced during the trial and, apart from the statement by the alleged victim ‒ who maintained that the press worked and had been kept in a locked yard ‒ the statements of two witnesses supported the applicants’ defence. 8. On 8 April 2008 the prosecution lodged an appeal against this judgment, emphasising, in particular, that the first-instance court had failed to take into account a statement given to the police by S.K. on 26 January 2006 (albeit in the absence of the applicants and their counsel, who had not been invited to attend). 9. On 12 May 2008 the Subotica District Court quashed the impugned judgment and ordered a retrial. The court explained that the statement referred to by the prosecution was particularly important because on this occasion S.K. had confessed ‒ in the presence of his counsel ‒ that he had stolen the press together with the applicants. S.K. had subsequently revoked this confession claiming that it had been given under the influence of alcohol and then refused to answer any further questions, and all of these circumstances needed to be reconsidered by the Municipal Court, even though the prosecution itself had initially failed to request that S.K.’s statement of 26 January 2006 be admitted as evidence. The court found this failure by the Municipal Court to be “unclear and inexplicable”. 10. On 12 October 2008 S.K. died and on 29 December 2008 the Municipal Court discontinued the proceedings against him. 11. On 19 February 2009 the Municipal Court, having held a hearing and read out S.K.’s statement of 26 January 2006 before the parties, found the applicants guilty. The first applicant was sentenced to an effective prison term of six months while the second applicant was sentenced to six months’ imprisonment, suspended for a period of two years. In its reasoning the court primarily relied on S.K.’s statement of 26 January 2006. No evidence different from that admitted during the first trial was introduced during the retrial. 12. On 29 July 2009 the District Court upheld this judgment on appeal, and on 7 October 2010 the Supreme Court rejected the applicants’ further appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude). 13. In the meantime, on 11 September 2009, the applicants lodged a constitutional appeal with the Constitutional Court, alleging that their conviction had been based on the testimony of a person whom they had never had a chance to cross-examine and who had, in any event, revoked it subsequently. 14. On 14 October 2010 the Constitutional Court rejected the applicants’ appeal as manifestly ill-founded, adding that ‒ as a consequence of the death of S.K. ‒ the lower courts had had no choice but to accept his prior statement given to the police and, clearly, could no longer accommodate the applicants’ objection regarding his cross-examination.
| 1 |
test
|
001-158960
|
ENG
|
ARM
|
CHAMBER
| 2,015 |
CASE OF AMIRKHANYAN v. ARMENIA
| 3 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
|
5. The applicant was born in 1941 and lives in Yerevan. 6. A third person, G., owned a plot of land, a part of which, with her consent, was separated by a fence and used by another person, J. 7. On 21 April 1998 G. concluded an agreement with J., according to which she gave a part of her plot of land, measuring 285 sq. m., to him. It appears that the plot of land actually used by J., as separated by the fence, was 38.75 sq. m. bigger than the 285 sq. m. plot given by G. The 38.75 sq. m. also belonged to G. In this connection, another agreement was reached between G. and J., according to which G. gave her consent for J. to become the owner of the whole plot of land used by him. However, it appears that J.’s ownership rights were officially registered only in respect of the plot of land measuring 285 sq. m. 8. On 28 April 1998 the applicant bought the larger plot of land from J. and, since the fence was still in place, continued to use also the 38.75 sq. m. strip of land. 9. In 2004 G. instituted proceedings against the applicant, seeking to take the 38.75 sq. m. strip of land used by the applicant, claiming her ownership rights. 10. On 14 December 2006 the Erebuni and Nubarashen District Court of Yerevan granted the claim, ordering the applicant to release the strip of land to G. 11. On an unspecified date the applicant lodged an appeal. 12. On 9 March 2007 the Civil Court of Appeal granted the appeal and dismissed G.’s claim. In particular, the Court of Appeal found that since G. had agreed that J. become the owner of the plot of land used by him, as separated by the fence, she had relinquished her rights in respect of the strip of land in favour of J. and, consequently, in favour of the applicant. 13. This judgment was subject to appeal on points of law within six months from the date of its delivery. 14. On 26 March 2007 G. lodged an appeal on points of law against the judgment of 9 March 2007 with the Court of Cassation, claiming that it had been adopted in violation of substantive and procedural law. As a ground for admitting her appeal on points of law, G. submitted, pursuant to Article 231.2 § 1 (3) of the Code of Civil Procedure (the CCP), that the violations of the substantive and procedural law might have grave consequences, such as deprivation of her ownership rights in respect of the plot of land. 15. On 7 April 2007 amendments were introduced to the CCP which stipulated that there was no right to bring an appeal on points of law more than once, unless the Court of Cassation – when returning an appeal – fixed a time-limit to correct and re-submit it (see paragraph 26 below). 16. On 12 April 2007 the Court of Cassation decided to return G.’s appeal as inadmissible for lack of merit. The reasons provided were as follows: “The Civil Chamber of the Court of Cassation ... having examined the question of admitting [G.’s appeal lodged against the judgment of the Civil Court of Appeal of 9 March 2007], found that it must be returned for the following reasons: Pursuant to Article 230 § 1 (4.1) of [the CCP] an appeal on points of law must contain any of the grounds [required by] Article 231.2 § 1 of [the CCP]. ... At the same time, the Court of Cassation does not find it appropriate to fix a timelimit for correcting the shortcomings and lodging the appeal anew.” 17. This decision entered into force from the moment of its delivery and was not subject to appeal. 18. On 7 September 2007 G. lodged another appeal on points of law with the Court of Cassation against the judgment of the Court of Appeal of 9 March 2007, alleging violations of substantive and procedural law. As a ground for admitting her appeal G. indicated, in addition to the ground mentioned in her appeal of 26 March 2007, that the judicial act to be adopted by the Court of Cassation on her case might have a significant impact on the uniform application of the law, and that the contested judgment of the Court of Appeal contradicted a judicial act previously adopted by the Court of Cassation. 19. On 1 October 2007 the Court of Cassation decided to admit the appeal for examination. The reasons provided were as follows: “[The appeal] must be admitted for examination since it satisfies the requirements of Articles 230 and 231.2 § 1 of [the CCP].” 20. On 8 October 2007 the applicant lodged a reply to G.’s appeal with the Court of Cassation where, inter alia, he stated that the admission of G.’s second appeal by the Court of Cassation was in violation of the principle of res judicata and his property rights. When the Court of Cassation, by its decision of 12 April 2007, had returned G.’s appeal without fixing a timelimit to correct any shortcomings and to re-submit the appeal, the judgment of the Court of Appeal of 9 March 2007 became final and binding. 21. On 12 December 2007 the Court of Cassation examined G.’s appeal on the merits and decided to grant it partially by quashing the judgment of the Court of Appeal of 9 March 2007 in its part related to G.’s property claim in respect of the plot of land and remitting the case for a fresh examination. The Court of Cassation found that the Civil Court of Appeal, when reaching its conclusions, had failed to take into account an expert opinion which was among the materials of the case file, as well as to indicate the provisions of the domestic law on which its judgment had been based. 22. On 1 April 2008 the General Jurisdiction Court of Erebuni and Nubarashen Districts of Yerevan conducted a fresh examination of G.’s claim and granted it by recognising G.’s ownership rights in respect of the strip of land in question. 23. On an unspecified date the applicant lodged an appeal. 24. On 10 July 2008 the Civil Court of Appeal dismissed the applicant’s appeal and upheld the judgment of the District Court.
| 1 |
test
|
001-155778
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,015 |
HARABIN v. SLOVAKIA
| 4 |
Inadmissible
|
Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
1. The applicant, Mr Štefan Harabin, is a Slovak national, who was born in 1957 and lives in Bratislava. He was represented before the Court by Mr B. Novák, a lawyer practising in Banská Bystrica. 2 3. The applicant is a judge. At the relevant time, he was the President of the Supreme Court. 4. On 18 November 2010 the Minister of Justice initiated disciplinary proceedings against the applicant by way of representation. Such proceedings fell by law to be conducted by the Constitutional Court, which was to decide in its plenary composition, normally consisting of all thirteen judges (Articles 131 § 1, 134 § 1, and 136 § 3 of Constitutional Law no. 460/1992 Coll., as amended – “the Constitution”). 5. In order to sit as a plenary formation, at least seven judges have to be present. In order for a decision to be passed, an absolute majority of all the constitutional judges is required. If no such majority has been obtained, the request is to be dismissed (Article 131 § 1 of the Constitution and section 4(2) of Law no. 38/1992 Coll., as amended – “the Constitutional Court Act”). 6. In the course of the proceedings, the Minister challenged three of the constitutional judges for bias. The applicant, for his part, challenged four. 7. On 10 May 2011 the Constitutional Court dismissed the challenges for bias and declared the Minister’s representation admissible. It held inter alia that the fact that four of its judges (including two of those challenged by the applicant) had earlier been excluded from other sets of constitutional proceedings involving the applicant could not affect the position as regards their impartiality in the present proceedings. The Constitutional Court found that the determination of the disciplinary offence imputed to the applicant was within the exclusive jurisdiction of its plenary session. Excessive formalism and disregarding the statements of the individual judges posed the risk that the proceedings would be rendered ineffective. Examination of the case by a plenary session of the Constitutional Court represented a guarantee that constitutional principles, including independence, would be respected. Furthermore, all the constitutional judges had pledged to decide cases independently and impartially, to the best of their abilities and conscience. 8. On 29 June 2011 the Constitutional Court, sitting in plenary formation in which all thirteen judges took part, found the applicant to have committed the disciplinary offence in question. The decision was subject to no appeal (Article 133 of the Constitution, as applicable at that time; for comparison to the current version of the provision, see paragraph 21 below). 9. For more factual details concerning the background see the Court’s judgment of 20 November 2012 in the case of Harabin v. Slovakia (no. 58688/11) and decision of 29 June 2004 in Harabin v. Slovakia (no. 62584/00, ECHR 2004VI). 10. In application no. 58688/11, the applicant mainly asserted a violation of his rights under Article 6 § 1 of the Convention in the disciplinary proceeding against him mentioned above. 11. In its judgment of 20 November 2012 the Court found that in the impugned proceedings the applicant’s right to a hearing by an impartial tribunal had not been respected. There had therefore been a violation of Article 6 § 1 of the Convention on that account. 12. The Court’s finding was preceded by the following reasoning; “135. In the proceedings under consideration the Constitutional Court faced a situation where the parties challenged for bias seven of its thirteen judges. As regards the four constitutional judges challenged by the applicant, two of them [...] had been excluded for bias in earlier proceedings before a chamber of the Constitutional Court which had involved the applicant. The Constitutional Court did not attach decisive weight to that fact (similarly to the fact that two other constitutional judges challenged by the Minister of Justice had also been excluded for bias in the past) and decided not to exclude any of its judges. It noted, among other things, that the determination of the disciplinary offence allegedly committed by the applicant was within the exclusive jurisdiction of its plenary session, and considered that excessive formalism and overlooking the statements of the individual judges posed the risk of rendering the proceedings ineffective. The decision on the applicant’s case was taken by secret vote and, for that reason, the Constitutional Court joined no separate opinion of its judges to it. 136. The Court considers that the Constitutional Court, when balancing between the two positions, namely the need to respond to the request for exclusion of its judges and the need to maintain its capacity to determine the case, failed to take appropriate stand from the point of view of the guarantees of Article 6 of the Convention in that it did not answer the arguments for which the exclusion of its judges had been requested. 137. The Court notes, firstly, that two of the judges challenged by the applicant and two other judges challenged by the Minister had been excluded in earlier sets of proceedings before the Constitutional Court involving the applicant. Doubts were likely to arise on that ground as to their impartiality. Convincing arguments should be adduced to clearly indicate why the challenges in their respect could not be accepted in the case under consideration. 138. Secondly, as to the other judges challenged by the parties, the mere fact that a party requests the exclusion of a judge for bias, even repeatedly, does not automatically have a consequence that the judge should withdraw or be excluded. It does not appear from the documents submitted that the Constitutional Court took a stand as to whether the reasons invoked by the parties justified their exclusion. 139. It is only after answering the parties’ arguments and establishing whether or not the challenges to the judges were justified that the question could have arisen as to whether there was any need and justification for not excluding any of the judges. In that context the Court has noted that the Bangalore Principles of Judicial Conduct (see [the relevant paragraphs of that judgment]) include the ‘doctrine of necessity’ which enables a judge who is otherwise disqualified to hear and decide a case where failure to do so may result in an injustice. However, it is not required to examine whether that doctrine is compatible with the guarantees of Article 6 of the Convention as, for the reasons set out above, such situation was not shown to have obtained in the present case. 140. The reasons invoked by the Constitutional Court, namely the need to maintain its capacity to determine the case, cannot therefore justify the participation of two judges who had been excluded for lack of impartiality in earlier cases involving the applicant and in respect of whose alleged lack of impartiality the Constitutional Court failed to convincingly dissipate doubts which could be held to be objectively justified.” 13. The relevant part of the judgment concerning the applicant’s claim in respect of non-pecuniary damage reads as follows: “177. The Court further restates that a judgment in which it finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach occurred (see Lungoci v. Romania, no. 62710/00, § 55, 26 January 2006, with further references). 178. In the event of a violation of Article 6 of the Convention, the applicant should as far as possible be put in the position he or she would have been in had the requirements of this provision not been disregarded. The most appropriate form of redress in cases like the present one would be the reopening of the proceedings, if requested, by a tribunal complying with the requirement of impartiality within the meaning of Article 6. The Court has noted in that respect that the Constitution or the Constitutional Court Act 1993 do not expressly provide for the possibility of reopening of proceedings before the Constitutional Court. However, the Constitutional Court Act 1993 allows the Constitutional Court to apply as appropriate the Code of Civil Procedure and the Code of Criminal Procedure, which do provide for the possibility of proceedings being reopened where the Court concludes in a judgment that a court’s decision or proceedings prior to it were in breach of the fundamental human rights or freedoms of the party (see Vojtěchová v. Slovakia, no. 59102/08, §§ 23 and 27, 25 September 2012, and [the relevant paragraph of that judgment]).” 14. The judgment of 20 November 2012 became final on 20 February 2013. 15. On 18 February 2013 the applicant lodged a request with the Constitutional Court that his above disciplinary proceedings be reopened. He relied on the Court’s judgment of 20 November 2012, referring mainly to its paragraph 178 (cited above), and requested that, along with the reopening of the proceedings, the convicting decision of 29 June 2011 be quashed. 16. On 29 October 2013 the Constitutional Court decided to dismiss the request. It sat in its plenary formation, but only ten of its thirteen-judge bench took part. Those present included two of the four judges whom the applicant had challenged in the original disciplinary proceedings. One of those two had earlier been excluded from sitting in another matter before the Constitutional Court concerning the applicant on grounds of bias. 17. The Constitutional Court summarised the applicant’s request, its decision of 29 June 2011 (see paragraph 8 above) and the Court’s judgment of 20 November 2012 (see paragraph 11 above). It went on to recapitulate the applicable rules on the relevant quorum (see paragraph 5 above) and held that: “When voting on the rapporteur’s proposal [to accede to the applicant’s request], the proposal has not obtained the absolute majority of all [constitutional] judges. In view of the above, having examined this matter, the plenary of the Constitutional Court has dismissed the rapporteur’s proposal on procedural grounds.” 18. The President, the judge rapporteur, and one other constitutional judge dissented. In their separate opinions, attached to the Constitutional Court’s decision, they considered inter alia that, although there was no direct legal basis for it, the reopening of the applicant’s disciplinary proceeding was permitted by analogy with the relevant rules of the Code of Criminal Procedure and the Code of Civil Procedure, which in turn was authorised by the Constitutional Court Act. In their view, such interpretation was not contrary to the constitutional provisions under which there was no remedy against a decision of the Constitutional Court. That constitutional provision was to be interpreted restrictively, not in isolation, but rather in the context of Slovakia’s duties under international law. Such duties included those under Article 46 § 1 of the Convention and other Council of Europe instruments and it was the Constitutional Court’s task to use all resources in order to ensure the execution of the Court’s judgment of 20 November 2012. 19. The Constitutional Court’s decision was served on the applicant on 10 February 2014. 20. The execution of the Court’s judgment of 20 November 2012 is still pending before the Committee of Ministers of the Council of Europe. 21. On 11 June 2014 the respondent Government submitted an action plan which is under assessment. It contains the following passage: “Individual measures: The applicant was awarded just satisfaction for non-pecuniary damage. His request to reopen the disciplinary proceedings in his case before the Constitutional Court was rejected on procedural grounds [...] The Constitutional Court Act did not explicitly provide for the possibility of reopening the proceedings before this court. On 4 June 2014 an amendment to Article 133 of the Constitution was adopted, introducing the possibility to lodge a remedy against a decision of the Constitutional Court following a decision of an international organisation in the application of a binding international treaty. The amendment shall come into force on 1/09/2014. The applicant will then be able to apply for reopening of the proceedings. General measures: The judgment was published and disseminated among the judges of the Constitutional Court. The new wording of article 133 of the Constitution, as amended on 4 June 2014, shall enable the Constitutional Court to implement the requirements following from the judgment of the Court. The authorities committed to inform the Committee of the Ministers about further developments.” 22. The applicant has not made use of the possibility of reapplying for reopening of his disciplinary proceedings as referred to in the Government’s action plan (see paragraph 25 below).
| 0 |
test
|
001-165371
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF ARISTOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-160826
|
ENG
|
DEU
|
CHAMBER
| 2,016 |
CASE OF KLINKENBUSS v. GERMANY
| 3 |
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction)
|
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
|
5. The applicant was born in 1964 and is currently detained in a psychiatric hospital in Lippstadt. 6. In 1979 the applicant forced two seven-year-old girls, and in 1980 a four-year-old girl, to undress and hit them with a stick. In 1981 the applicant forced a seven-year-old girl to undress and lay on top of the girl on a bench. The criminal proceedings relating to these offences were discontinued because of the applicant’s lack of criminal responsibility as a minor. 7. On 21 January 1983 the Münster Regional Court convicted the applicant of attempted rape together with sexual assault and dangerous assault and of attempted murder and assault. Applying the criminal law relating to young offenders, it sentenced him to five years’ imprisonment and ordered his detention in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 28 below). 8. The Regional Court found that on 22 June 1982 the applicant, then aged seventeen, had forced a fourteen-year-old girl to follow him into a forest where he had attempted to rape her, sexually assaulted her with a stick and then attempted to kill her by strangling her to cover up his offences. When, on return to the crime scene, he realised that his victim was not dead, he forcefully hit her buttocks with a branch. 9. In the Regional Court’s finding, it was necessary to order the applicant’s detention in a psychiatric hospital under Article 63 of the Criminal Code. It considered that the applicant had acted with diminished criminal responsibility (Article 21 of the Criminal Code; see paragraph 27 below). Having regard to the findings of expert H., the court was convinced that the applicant had reduced mental capacities which had been caused by infantile brain damage. This damage, combined with failings in his upbringing (he had repeatedly been hit by his father with a stick himself), had caused a consciousness disorder and the sadistic sexual tendencies the applicant had disclosed in his offence. These disorders amounted to an “other serious mental abnormality” for the purposes of Articles 20 and 21 of the Criminal Code (see paragraphs 26-27 below). Moreover, a comprehensive assessment of the applicant’s personality revealed that, as a result of his condition and notably the sadistic tendencies which had manifested themselves in the offence of which he was found guilty, he could be expected to commit further unlawful acts and was therefore dangerous to the general public. 10. Since 29 January 1983 the applicant has been detained in a psychiatric hospital. 11. In December 1990, when the applicant was granted leave from detention, he attacked a twenty-six-year-old cyclist, threatened her with a knife and attempted to force her into a forest. He was chased away by a car driver. The criminal proceedings in this respect were discontinued with regard to his previous conviction. 12. The courts dealing with the execution of sentences reviewed the applicant’s detention at regular intervals. In particular, on 5 February 2010 the Paderborn Regional Court ordered the applicant’s detention in a psychiatric hospital to continue. It had noted, in particular, that the applicant had refused therapeutic discussions. There was stagnation in the applicant’s treatment, the representatives of the psychiatric hospital having explained that they considered substantial changes in the applicant’s personality by sex therapy no longer possible. 13. On 28 January 2011 the Paderborn Regional Court ordered the continuation of the applicant’s detention in a psychiatric hospital under Articles 67d and 67e of the Criminal Code (see paragraphs 29-31 below). 14. The Regional Court noted that external psychiatric expert T., in his report dated 28 January 2010, had diagnosed the applicant, whom he had examined in person, with an abnormality of the sex chromosomes (so-called Klinefelter syndrome). The latter had most probably caused an endocrine personality syndrome characterised by retardation and disorders in the development of a person’s personality and by an insufficient internalisation of ethical rules. The applicant had therefore developed a dissocial and schizoid personality. It was unclear whether the applicant still suffered from sadistic paraphilia. The expert considered that the applicant’s retardation had partially been offset by hormonal treatment. Moreover, the applicant’s dissocial conduct and schizoid personality disorder had been alleviated by social therapy and psychotherapy. 15. In assessing the risk emanating from the applicant, the expert considered that it had to be taken into account that the applicant had already committed a number of sadistic offences against children. Moreover, the seriousness of the offence of which the applicant had been convicted in 1983, and the attack on a woman at a time when he had already been detained in the psychiatric hospital in 1990, had to be taken into consideration. It appeared that it had not been possible to continuously pursue sex therapy with the applicant during his long psychiatric internment. There was a risk that, if the applicant were overstrained or frustrated, he might commit offences as a result of sadistic tendencies. The expert stated, however, that it was impossible for him to assess how far the applicant was still driven by sadistic fantasies. Consequently, the risk that the applicant would reoffend if released was difficult to assess and could only be determined in the course of further therapy. 16. A representative of the psychiatric hospital, in submissions to the court dated 7 December 2010, confirmed that the applicant had spoken with a psychologist on his request. However, he was still unable to reflect on the motives for his offence. Therefore, it was difficult to assess how dangerous the applicant was; there was a risk that he would reoffend if released. Furthermore, the therapist responsible for the applicant confirmed that it was impossible to make a proper assessment of the danger posed by the applicant. 17. The Regional Court, having heard the applicant and having regard to the evidence before it, considered that the continuation of the applicant’s detention in a psychiatric hospital had to be ordered. Despite the fact that the applicant had proved reliable during leave from detention during recent years, it could not be expected with sufficient probability that the applicant would not reoffend if released. In particular, it could not be ruled out that his sadistic tendencies persisted. The applicant was currently not undergoing therapy, in the proper sense of the term, and suffered from hospitalism. 18. The Regional Court further considered that the continuation of the applicant’s detention was proportionate. In support of this view, it referred to the serious offence which had led to the applicant’s placement in a psychiatric hospital, to the fact that he had relapsed during the execution of his detention order and to the potential risk, as confirmed by the expert and the psychiatric hospital staff, that the applicant would reoffend if released. 19. On 23 February 2011 the applicant lodged an appeal against the Regional Court’s decision. 20. On 15 March 2011 the Hamm Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. 21. By submissions dated 1 April 2011, the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his continued detention in a psychiatric hospital for more than twentyeight years was disproportionate and had therefore breached his constitutional right to liberty and the constitutional protection of the rule of law. It had been insufficient for the courts to base their assessment that he was currently still dangerous on offences dating back more than twentyeight years and on an incident during the execution of his detention order dating back more than twenty years. Moreover, the experts and courts had confirmed that he was no longer undergoing any therapy and that it was unclear whether he was still dangerous to the public. 22. On 27 July 2011 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint, without giving reasons (file no. 2 BvR 735/11). 23. The applicant underwent several courses of therapy, including social therapy and psychotherapy, during his detention in the psychiatric hospital. After the applicant had failed in his attempts to complete a sex therapy course on a number of occasions, the Lippstadt Psychiatric Hospital authorities decided to discontinue attempts at sex therapy for some time. The applicant was transferred to the so-called “long-stay” department of the hospital in 2006, where he was detained during the time covered by the proceedings at issue and where he did not undergo any sex therapy. The purpose of the applicant’s placement in the “long-stay” department was in fact to grant him a break from his failed attempts to complete sex therapy. He was being prepared for another attempt at completing sex therapy in psychotherapeutic one-to-one meetings with a psychologist. However, he had repeatedly declined offers to restart such individual or group therapy. 24. The applicant has been working in the factory on the premises of the psychiatric hospital. When granted leave under escort several times per year, he has visited members of his family. 25. On 18 January 2012 the Paderborn Regional Court, endorsing the reasons given in its previous decision, ordered the applicant’s continued detention in a psychiatric hospital. It agreed with the view expressed by the psychiatric hospital representative that sadism could not be cured and considered that there was a high risk that the applicant would again commit further serious offences against the life and sexual self-determination of others. On 20 March 2012 the Hamm Court of Appeal dismissed the applicant’s appeal.
| 0 |
test
|
001-149124
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,014 |
T.H.S. v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
1. The applicant, Mr T.H.S, is a Sri Lankan national, who was born in 1979 and lives in Ilford. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Ms V. Muruhathas, a lawyer practising in London. 3. The applicant, of Tamil ethnicity, ran an electronics shop in Sri Lanka. On 1 May 2006 a bomb exploded on the street near his shop. He was arrested by the Sri Lankan army on suspicion of being involved in the explosion because the bomb had been detonated remotely and his electronics skills made him a suspect. 4. The applicant was detained by the Sri Lankan authorities for six weeks before being released without charge. He claims that he was interrogated about his links to the Liberation Tigers of Tamil Eelam (“the LTTE” or “Tamil Tigers”) and ill-treated and tortured by Sri Lankan soldiers. He subsequently left Sri Lanka with the assistance of an agent on his own passport. He came to the United Kingdom via Dubai and Mauritius. 5. The applicant arrived in the United Kingdom on 30 November 2006 and claimed asylum on the same day. 6. On 11 April 2007 the Secretary of State refused his asylum application. 7. On 23 May 2007 the Asylum and Immigration Tribunal (“AIT”) dismissed his appeal as not credible on the basis of the inconsistencies in his various accounts. Specifically, the AIT commented that aspects of his account were “garbled” and “difficult to follow”. 8. On 3 July 2007 a senior immigration judge refused his application for reconsideration. 9. The applicant obtained a medical report dated 15 January 2008. The report concluded that the applicant’s account of his scarring was consistent with what he claimed had happened to him in Sri Lanka. In particular, the medical report concluded that the tramline scars on his back made it difficult to consider any innocent explanation for his injuries because they could not have been self-inflicted. The report stated that the applicant’s symptoms fulfilled the diagnostic criteria for post-traumatic stress disorder. 10. In 2010 the applicant submitted further representations to the Home Office on the basis of the medical report. 11. On 17 September 2010 the Secretary of State refused asylum on the basis of the fresh representations. She did not accept the conclusions of the medical report. The applicant was granted a further in-country right of appeal before the First-tier Tribunal (Asylum and Immigration Chamber) (“the Tribunal”). 12. On 19 November 2010 the Tribunal dismissed the applicant’s appeal. The judge accepted the findings of the medical report and was therefore satisfied that the applicant had been ill-treated while detained by the Sri Lankan army in 2006. However, he observed that the applicant had later been released by the Sri Lankan authorities without charge and had not been asked to attend court or report to the authorities. The judge therefore concluded that the Sri Lankan authorities had had no further adverse interest in the applicant after his detention. This was consistent with the fact that the applicant had been able to leave Sri Lanka in 2006 on his own passport without being picked up by the Sri Lankan authorities. 13. The judge further considered and applied the risk factors set out in the country guidance case of TK (Tamils, LP updated) Sri Lanka CG (see paragraphs 50-51 below). He found that the applicant would not be at risk upon return as a young Tamil male who had been detained by the Sri Lankan authorities and ill-treated in 2006. Although he accepted that past ill-treatment could be a guide to future risk, he did not agree that the applicant would be at risk of ill-treatment upon return to Sri Lanka. His previous record and “extensive scarring” were relevant risk factors but, on balance, the fact that he had been released without charge by the army in 2006 and had been able to leave Sri Lanka on his own passport was more significant because the authorities would not have released him unless they had not wanted him anymore. The judge therefore concluded that the applicant’s removal to Sri Lanka would not breach Article 3 of the Convention. 14. The applicant did not apply for permission to appeal to the Upper Tribunal. 15. In March 2011 the applicant was detained by the United Kingdom Border Agency (“UKBA”) to effect his removal to Sri Lanka. 16. On 17 and 23 March 2011 the applicant submitted further representations to the Home Office including an update of the general human rights situation in Sri Lanka and a reference to a purported Sri Lankan arrest warrant dated 12 January 2011 supported by a letter from a Sri Lankan lawyer attesting its validity. 17. On 12 May 2011 the applicant was interviewed by Sri Lankan High Commission officials at an immigration removal centre. He claims that they asked him questions about his asylum claim; that it was clear that they were aware of his past suspected LTTE membership and his arrest and detention in Sri Lanka; and that they accused him of having been involved in a bomb blast in 2006. 18. On 19 May 2011 the Secretary of State refused the applicant’s representations and did not accept that they amounted to a fresh asylum claim. She relied substantially upon the November 2010 findings of the First-tier Tribunal (see paragraphs 12-13 above) and concluded that the applicant was of no adverse interest to the Sri Lankan authorities and would not be at risk of ill-treatment on return. She further considered that the arrest warrant had been presented solely in an attempt to frustrate his removal and was not genuine given, inter alia, its failure to provide information of the alleged details for which the applicant was said to be wanted by the authorities; the timing of its production; the difficulty for accused persons in Sri Lanka to obtain copies of arrest warrants; the ease with which such documents could be fabricated; and the fact that there was nothing in the applicant’s past to suggest that he would be wanted by the authorities. 19. In conclusion, the Secretary of State accepted that the applicant was a Tamil who had been suspected in 2006 of some LTTE involvement after a bomb had exploded near his shop. However, considering all of the risk factors set out in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG and TK (see paragraphs 50-51 below), she did not accept that he would be at real risk of Article 3 treatment upon return to Sri Lanka. 20. On 31 May 2011 the applicant issued judicial review proceedings seeking to challenge the Secretary of State’s decision of 19 May 2011 that his further representations did not constitute a fresh claim for the purposes of paragraph 353 of the Immigration Rules (see paragraph 46 below). 21. On 6 June 2011 the applicant was served with removal directions to Sri Lanka set to take place on a charter flight on 16 June 2011. 22. On 15 June 2011 the applicant applied to the High Court for an order staying his removal until his application for permission to apply for judicial review had been decided. He also filed supplementary grounds of judicial review, including a claim that the Secretary of State had failed adequately to consider the arrest warrant; that UKBA had transmitted personal data and details regarding failed asylum seekers to the Sri Lankan High Commission; and that in light of the transmission of such information he would be at additional risk of ill-treatment, since he would be returning to Sri Lanka as an individual with an accepted history of torture and the date of his return on a charter flight would be known to the Sri Lankan authorities. 23. On 16 June 2011 the applicant’s representatives submitted an application under Rule 39 of the Rules of Court to stop his removal to Sri Lanka. On the same day the Acting President applied Rule 39 to stop the applicant’s removal to Sri Lanka. The Judge appointed as Rapporteur under Rule 49 § 2 of the Rules of Court asked the Government of the United Kingdom, under Rule 49 § 3 of the Rules of Court, to confirm whether the Sri Lankan authorities had been informed that the applicant had made an asylum application in the United Kingdom and whether any documents or details pertaining to his asylum application had been provided to the Sri Lankan authorities. 24. Also on 16 June 2011 the High Court granted a stay on removal until determination of the application for permission to apply for judicial review. 25. By letter dated 1 July 2011 the Agent of the Government of the United Kingdom informed the Court that a document had been inadvertently passed to the Sri Lankan High Commission in London which would have alerted the Sri Lankan authorities to the fact that the applicant had previously claimed asylum in the United Kingdom. However, the document had not contained any details of the nature of the applicant’s asylum claim and had only provided the date of the asylum claim and the date that the applicant had exhausted his appeal rights following that unsuccessful asylum claim. The Government requested that the Court lift the interim measure under Rule 39 of the Rules of Court. 26. On 26 August 2011 the Acting President refused the Government’s request to lift the interim measure under Rule 39 of the Rules of Court and adjourned the application pending the conclusion of the judicial review proceedings. 27. On 2 September 2011 the High Court refused the applicant’s application for permission to apply for judicial review on the papers. It found the Secretary of State’s decision of 19 May 2011 to be comprehensive and well-reasoned. 28. The applicant renewed his application for permission, relying on the existence of the arrest warrant, the disclosure of his asylum claim to the Sri Lankan authorities and his interview with the Sri Lankan officials to claim a risk to him of ill-treatment on return to Sri Lanka. 29. A rolled up hearing (i.e. a hearing where, if permission to apply is granted, the hearing on the merits immediately follows) on the judicial review application took place on 15 May 2012. The High Court granted the applicant’s renewed application for permission to apply for judicial review but rejected the application on the merits. 30. As regards the disclosure to the Sri Lankan High Commission, the court noted that the Secretary of State had accepted that the disclosure of the form, intended to be an internal checklist of data relating to the applicant, was in contravention of section 13(3) of the Immigration and Asylum Act 1999 (see paragraph 49 below) because it included reference to the fact that the applicant had claimed asylum in the United Kingdom and provided the date of the asylum claim and the date that his final appeal had been dismissed. However, the High Court did not accept that the disclosure had been deliberate, and noted that there was no suggestion that any details of the applicant’s asylum interview or documents linking him or his family to the LTTE had been disclosed. The court considered that the document which had been disclosed told the Sri Lankan authorities very little. The court rejected the argument that unlawful disclosure would automatically invalidate any later decision to set removal directions. The question was whether the disclosure changed the applicant’s risk profile so as to amount to a fresh claim. In this respect, the court pointed to country evidence suggesting that the situation seemed more relaxed than before and noted that even in 2007 the majority of returned failed asylum seekers were processed relatively quickly and with no difficulty beyond some possible harassment. 31. As regards the arrest warrant, the court acknowledged that its existence was potentially very significant because it might show that the Sri Lankan authorities had a continuing adverse interest in the applicant, contrary to the November 2010 findings of the Tribunal (see paragraphs 1213 above). If that were the case, the court said, it would undoubtedly give rise to a realistic prospect of success in any further appeal. The court went on to say that the warrant was a very strange document, since it appeared to relate to proceedings started in 2006 and, in the section detailing the particulars of the alleged offence or reasons for the warrant, referred only to a failure to appear before court. The accompanying lawyer’s letter explained that the warrant was “in respect of his absconding from detention”. Yet, the High Court commented, nobody had ever suggested that the applicant had absconded from detention or had failed to appear at court. The High Court further noted that there was absolutely no evidence of any attempt to execute this or any previous warrant, of any questioning or harassment of the applicant’s family in Sri Lanka, or anything else to suggest that the warrant really was a live document which provided valuable evidence about the likely treatment of the applicant if he were returned to Sri Lanka. The court also observed that the date of the warrant appeared fortuitous, since the judge in the applicant’s previous appeal had commented that the absence of any warrant was a significant feature and the warrant was dated shortly after that judgment. 32. Finally, as to the interview of the applicant by the Sri Lankan High Commission officials, the court observed that the officials had not seemed to be aware of the existence of an arrest warrant against him (even though they must have made inquiries about him because they had asked him about his involvement in the bomb blast near his shop) and they had failed to raise any details of any alleged absconding from detention or failure to appear before a Sri Lankan court. Indeed, the officials had appeared to reassure the applicant that they had rehabilitated LTTE members and that all the problems in Sri Lanka had been solved. 33. Having regard to all of the above, and even bearing in mind the potential significance of the arrest warrant and the presumption which lay behind the prohibition in section 13 of the Immigration and Asylum Act 1999 that mere disclosure of the fact that a person was a failed asylum seeker might expose him to an increased risk, the High Court found that there was no change to the risk to the applicant if returned to Sri Lanka. 34. The parties subsequently submitted written observations to the Court on the admissibility and merits of the case. 35. In their further observations, the Government requested the Court to adjourn the proceedings. They explained that a new country guidance case concerning Sri Lanka (GJ and others (post-civil war: returnees) Sri Lanka CG – see paragraphs 52-54 below) was pending before the Upper Tribunal. 36. On 30 April 2013 the President of the Section decided to adjourn the examination of the case pending the outcome of the proceedings in GJ and Others. 37. On 5 July 2013 the Upper Tribunal delivered its decision in GJ and Others. The Government subsequently informed the Court that they would review the applicant’s case in light of that determination. 38. On 4 November 2013 the Secretary of State informed the applicant that she did not consider his case to fall within any of the risk categories identified in GJ and Others and that she did not therefore accept that he would be at any real risk of ill-treatment on return to Sri Lanka. In particular, she emphasised that the Upper Tribunal in GJ and Others had not found that all Tamils, all failed asylum seekers or all students were at risk on return, or that past LTTE membership was sufficient to establish a risk. She noted that any risk facing a returnee had to be assessed by reference to the current objectives of the Government of Sri Lanka, who were mainly concerned with individuals who posed a threat to the stability of postconflict Sri Lanka. The Secretary of State expressed the view that the applicant would be “of little or no interest” to the Government of Sri Lanka and that he would accordingly not risk arrest or detention if returned. She remarked that he had not provided evidence of any outstanding arrest warrant or court order that would indicate that he was included on the Government’s “stop list” and lead to his detention for questioning upon arrival at Colombo airport. Similarly, there was no evidence of his inclusion in a “watch list” that would lead to monitoring in his home area. 39. By letter to the Court dated 17 December 2013 the Government confirmed that the applicant’s case had been reviewed and that he had been notified on 4 November 2013 that his asylum claim had been rejected. They confirmed that it was open to the applicant to bring judicial review proceedings in respect of the decision. By letter dated 13 January 2014 the Court invited the applicant’s representative to confirm by 3 February 2014 whether he intended to seek judicial review of the decision and, if not, why not. 40. By reply dated 31 January 2014 the applicant’s representative requested a stay of proceedings pending consideration of the domestic proceedings. She explained that he had not received notification of the 4 November decision. The Court invited her to provide an update by 11 March 2014 and, in particular, to confirm whether judicial review proceedings had been brought. 41. By letter dated 11 March 2014 the applicant’s representative informed the Court that she was still awaiting a copy of the letter of 4 November 2013. However, she invited the Court to proceed to examine the applicant’s complaints. She was asked by the Court to confirm by 17 April 2014 whether judicial review proceedings had been brought. By reply dated 17 April 2014, she confirmed that no judicial review application had been made. 42. In response to an invitation by the Court, the applicant and the Government provided updated submissions on 27 May 2014. 43. Sections 82(1) and 84(1) of the Nationality, Immigration and Asylum Act 2002 provide a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. 44. Until 14 February 2010 appeals in asylum and immigration were heard by the AIT. Section 103A of the 2002 Act provided that a party could apply for an order from the High Court requiring the AIT to reconsider its decision on the grounds that it had made an error of law. At the relevant time, all applications for reconsideration went through a “filter procedure”, so that it was first made to an authorised immigration judge of the AIT. If the immigration judge refused to make an order for reconsideration, the applicant was able to renew the application to the High Court, which would consider the application afresh. 45. Since 15 February 2010, appeals in asylum and immigration have been heard by the First-tier Tribunal (Immigration and Asylum Chamber). Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on a point of law. 46. Paragraph 353 of the Immigration Rules provides that further submissions made after an asylum claim has been determined will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) has not already been considered; and (ii) taken together with the previously considered material, creates a realistic prospect of success. 47. Until 8 August 2011 a claimant could lodge with the High Court an application for judicial review of a decision by the Secretary of State not to treat further representations as a fresh claim. Pursuant to Chapter 54 of the Civil Procedure Rules (“CPR”), permission is required before a judicial review claim can proceed. If the High Court refuses permission on the papers, the claimant can request reconsideration at an oral hearing. The court may order an oral hearing for permission with arguments on the substantive merits of the claims to be heard immediately at the hearing if permission is granted (a rolled up hearing). 48. Rule 52.3 CPR provides that if the High Court grants permission but refuses the application for judicial review on the merits, the claimant can apply for permission to appeal to the Court of Appeal. An application for permission to appeal can be made to the High Court or the Court of Appeal. If an application is made to the High Court, a further application can be made to the Court of Appeal. If the Court of Appeal refuses the application on the papers, the claimant can request a hearing unless the case has been found to be totally without merit. 49. Section 13 of the Immigration and Asylum Act 1999 provides, inter alia, as follows: “(1) This section applies if a person– (a) is to be removed from the United Kingdom to a country of which he is a national or citizen; but (b) does not have a valid passport or other document establishing his identity and nationality or citizenship and permitting him to travel. (2) If the country to which the person is to be removed indicates that he will not be admitted to it unless identification data relating to him are provided by the Secretary of State, he may provide them with such data. (3) In providing identification data, the Secretary of State must not disclose whether the person concerned has made a claim for asylum.” 50. The country guidance case-law applicable at the time of the proceedings in 2010-2012 was set out in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (subsequently endorsed by this Court in NA. v. the United Kingdom, no. 25904/07, § 95, 17 July 2008) and TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049. The findings in both cases are set out in detail in the Court’s judgment in E.G. v. the United Kingdom, no. 41178/08, §§ 13-16, 31 May 2011. 51. In short, the risk factors identified in LP and confirmed in TK were the following: (1) Tamil ethnicity; (2) a previous record as a suspected or actual LTTE member; (3) a previous criminal record and/or outstanding arrest warrant; (4) bail jumping and/or escaping from custody; (5) having signed a confession or similar document; (6) having been asked by the security forces to become an informer; (7) the presence of scarring; (8) return from London or other centre of LTTE fundraising; (9) illegal departure from Sri Lanka; (10) lack of an ID card or other documentation; (11) having made an asylum claim abroad; (12) having relatives in the LTTE. 52. On 5 July 2013 the Upper Tribunal promulgated its decision in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (“GJ”). In its judgment, the Upper Tribunal concluded that the focus of the Sri Lankan government’s concern had changed since the civil war ended in May 2009. It said: “The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war. The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state ... Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.” 53. The Upper Tribunal accepted that if a person was detained by the Sri Lankan security services there remained a real risk of ill-treatment or harm requiring international protection. In summary, the Tribunal identified the following risk factors: (1) individuals perceived to be a threat to the integrity of Sri Lanka because they were perceived to have a significant role in relation to postconflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka. (2) Journalists or human rights activists who had criticised the Sri Lankan government, in particular its human rights record, or who were associated with publications critical of the Sri Lankan government. (3) Individuals who had given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. (4) Individuals whose names appeared on a computerised “stop” list (a list of those against whom there was an extant court order or arrest warrant) accessible at the airport. 54. The Tribunal explained that the Sri Lankan authorities’ approach was based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. It noted that the Sri Lankan authorities were aware that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had had some level of involvement with the LTTE during the civil war. It continued: “In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.”
| 0 |
test
|
001-142081
|
ENG
|
SVN
|
COMMITTEE
| 2,014 |
CASE OF SLEMENŠEK v. SLOVENIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Ann Power-Forde;Helena Jäderblom
|
5. The applicant was born in 1970 and lives in Brežice. 6. The applicant served his prison sentence in the closed and semi-open sections of Ljubljana prison in the period between 29 February 2008 and 29 December 2010. From 29 February 2008 to 11 July 2008, from 20 October 2008 to 3 February 2009 and from 14 July 2009 to 29 December 2010 he was held in the closed section. From 11 July 2008 to 20 October 2008 and from 3 February 2009 to 14 July 2009 he was held in the semiopen section. 7. From 11 July 2008 to 20 October 2008 and from 3 February 2009 to 14 July 2009 he was held in cells 145 and 147 (third floor), which measured 18.8 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places. From 14 July 2009 to 14 June 2010 he was held in cell 7 (third floor), which measured 16.8 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places. From 14 June 2010 to 29 December 2010 he was held in cell 1 (third floor), which measured 18.4 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places. 8. All the cells in the closed and semi-open sections contained, apart from the furniture, five sleeping places (two bunk beds and one single bed). According to the applicant, five prisoners were being held in each of the cells during his detention. The Government, however, submitted that the number varied between four and five. Each cell had one 107 x 110 cm double casement window, which the prisoners could freely open or close. 9. As regards the general characteristics of the cells in the closed and semi-open sections, material conditions inside the cells therein, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011. 10. As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86). 11. As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years. 12. During his imprisonment the applicant had forty-nine consultations with a general practitioner and visited a dentist on seven occasions. He was treated by a psychiatrist on eight occasions and by a psychologist on five occasions. 13. As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.
| 1 |
test
|
001-182445
|
ENG
|
HRV
|
CHAMBER
| 2,018 |
CASE OF ČAKAREVIĆ v. CROATIA
| 3 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
|
5. The applicant was born in 1954 and lives in Rijeka. 6. On 10 December 1995 the applicant’s employment as an unqualified worker was terminated as a result of her employer becoming insolvent. At that time she had twenty-four years and ten months of service (radni staž) recorded in her “employment book” (radna knjižica). 7. The medical documentation submitted by the applicant shows that since 1993 she has been suffering from a psychiatric condition – depression and neurosis. The medical documents from various dates show her continuous incapacity of working. 8. On 5 November 1996 the Regional Office of the Croatian Employment Bureau in Rijeka (Hrvatski zavod za zapošljavanje, Područna služba u Rijeci, hereinafter “the Rijeka Employment Bureau”) granted the applicant unemployment benefits in the amount of 410.89 Croatian kunas (HRK – about 55 euros (EUR)) for 468 days, starting from 11 December 1995. There was no appeal, so that decision became final. 9. On 17 June 1997 the applicant lodged an application with the Rijeka Employment Bureau for the extension of the duration of unemployment benefits due to her ongoing temporary inability to work. She submitted a medical certificate that she had been ill and thus temporarily incapable of working. 10. On 27 June 1997 the Rijeka Employment Bureau, relying on section 25(1)(2) of the Employment Act, renewed her entitlement to unemployment benefits until further notice. She was to receive HRK 441 (about EUR 59) per month. This entitlement was to continue unless any legally prescribed conditions for withholding the payments occurred before the entitlement period expired, or until her right to compensation ceased to exist. 11. In December 1997 two additional pensionable years of service (staž osiguranja) were entered into the applicant’s employment book. However, that did not mean that the applicant was actually employed, but only that contributions for her pension and invalidity insurance had been paid. Such contributions are regularly paid by employers. However, since the applicant was not employed, these contributions were paid by the Croatian Employment Bureau. 12. On 26 May 1999 the Rijeka Employment Bureau provided the applicant with an “employment benefit card” (kartica korisnika novčane naknade). 13. On 27 March 2001 the Rijeka Employment Bureau terminated the applicant’s entitlement to unemployment benefits with effect from 10 June 1998. It held that the deadline prescribed in section 25(1)(2) of the Employment Act had expired on 9 June 1998. 14. On 3 April 2001 the Rijeka Employment Bureau established that the applicant was to repay it the amount of HRK 19,451.69 (about EUR 2,600). 15. The applicant lodged appeals against both decisions with the Central Office of the Croatian Employment Bureau (Hrvatski zavod za zapošljavanje, Središnja služba, hereinafter “the Central Employment Bureau”). She argued that she had the right to unemployment benefits until she retired. She also relied on her family circumstances and submitted that she was married and that her husband’s pension was HRK 1400 (about EUR 188), and that they had a child of school age and an older son who was employed. However, that body dismissed both her appeals as unfounded on 11 May 2001 and 15 May 2001. It held that she had been entitled to unemployment benefits for as long as she had been unable to work, but subject to a limit of twelve months. 16. On 25 July 2001 the applicant then lodged two administrative actions with the Administrative Court, seeking the annulment of the Central Employment Bureau’s decisions of 11 and 15 May 2001. She claimed that she had twenty-seven years of service, and as such was entitled to unemployment benefits until she was next employed or until she retired. 17. On 22 September 2004 the Administrative Court dismissed the claim concerning the decision of 11 May 2001 upholding the decision of 27 March 2001 (see paragraph 10 above) as ill-founded, endorsing the arguments and conclusions of the lower bodies. 18. In a separate judgment of the same day the Administrative Court quashed the decision of 15 May 2001 which upheld the decision of 3 April 2001 by which the applicant had been ordered to repay the sum of HRK 19,451.69 (see paragraph 14 above). It instructed the parties to seek relief in civil proceedings before a competent municipal court. 19. On 25 March 2005 the Rijeka Employment Bureau contacted the applicant by letter, proposing to reach an out-of-court settlement within fifteen days regarding the repayment of the unemployment benefits which she had received between 9 June 1998 and 27 March 2001, in total HRK 19,451.69. She was cautioned that the Rijeka Employment Bureau would otherwise be compelled to institute civil proceedings against her for repayment of the amount claimed. 20. The applicant replied that she was in poor health, unemployed and without any income, and that in these circumstances she could not accept the obligation to repay the money sought. 21. On 14 April 2009 the applicant lodged an application with the Rijeka Employment Bureau, seeking to overturn its 27 March 2001 decision to terminate her entitlement to unemployment benefits. It was dismissed on 29 June 2009 and this decision was upheld on appeal on 10 July 2009 as well as by the High Administrative Court on 5 July 2012. 22. A subsequent constitutional complaint by the applicant was declared inadmissible on 19 December 2012. 23. On 3 August 2005 the Rijeka Employment Bureau brought a civil action against the applicant for unjust enrichment, seeking repayment of HRK 19,451.69, together with statutory interest, on the basis of the unemployment benefits she had received between 10 June 1998 and 27 March 2001. 24. On 16 November 2005 the applicant responded to the civil action, alleging, inter alia, that the Rijeka Employment Bureau’s actions violated her human rights. She also submitted medical documentation demonstrating her fragile state of health, numerous health problems caused by her difficult personal situation due to long-term unemployment, the poverty in which she and her family lived, and her inability to work. She also brought a counterclaim against the Rijeka Employment Bureau, seeking payment of unemployment benefits from 31 January 2011 to the date of her future retirement, in the amount of HRK 55,680.15. 25. On 26 June 2006 the Rijeka Municipal Court (Općinski sud u Rijeci) dismissed the Rijeka Employment Bureau’s claim as unfounded, relying on section 55 of the Employment Mediation and Unemployment Rights Act (see paragraph 36 below). It held that the applicant could not be held responsible for the bureau’s errors and negligence, particularly bearing in mind that she had not concealed any fact or misled it. The same court also rejected the applicant’s counterclaim, given that a final and binding decision on her entitlement to unemployment benefits had already been adopted in the administrative proceedings, and that such a decision could not be contested in the context of civil proceedings. 26. Both the applicant and the Rijeka Employment Bureau lodged appeals against the firstinstance judgment. 27. On 25 February 2009 the Rijeka County Court (Županijski sud u Rijeci) dismissed the applicant’s appeal and upheld the first-instance judgment with regard to her counterclaim. It also allowed the Rijeka Employment Bureau’s appeal and, relying on section 210 of the Civil Obligations Act, reversed the first-instance judgment in respect of the unjust enrichment claim, and ordered the applicant to pay HRK 19,451.69 plus statutory interest running form 3 August 2005 (the date of lodging the claim against the applicant) to the Rijeka Employment Bureau. It held that the applicant was obliged to return the amount in dispute in view of the fact that a legal basis for the unemployment benefits had ceased to exist on 10 June 1998. 28. The applicant then lodged both an appeal on points of law and a constitutional complaint. 29. On 28 April 2010 the Supreme Court declared her appeal on points of law inadmissible. The applicant then lodged a constitutional complaint against that decision. 30. On 14 March 2013 the Constitutional Court dismissed both of her constitutional complaints as unfounded. It served its decision on the applicant’s representative on 27 March 2013. 31. Meanwhile, on 5 December 2012 the applicant had replied to the Rijeka Employment Bureau’s letter offering her an out-of-court settlement for the amount owed to be reimbursed in sixty instalments. She had stated that she was not able to repay the amount due because she was unemployed, in ill health and had no income. She asked the Rijeka Employment Bureau for debt relief. 32. On 22 April 2013, before the Rijeka Municipal Court, the Rijeka Employment Bureau lodged an application to enforce the Rijeka County Court’s judgment of 25 February 2009 against the applicant. 33. On 20 June 2013 the Rijeka Municipal Court issued a writ of execution in respect of the applicant’s bank account(s). 34. On 26 June 2013 the first-instance court ordered the applicant to pay court fees in the amount of HRK 540 (about EUR 72), on account of the enforcement application and the writ of execution. 35. By a letter of 14 August 2013 the Financial Agency (FINA) informed the first-instance court that there were no records of the applicant’s active bank accounts. 36. By a conclusion (zaključak) of 30 September 2013 the Rijeka Municipal Court informed the Rijeka Employment Bureau about the Financial Agency’s letter and ordered it to give the court information about the applicant’s bank account or make a further proposal. 37. On 22 October 2013 the Rijeka Employment Bureau lodged an application to change the object of the enforcement (prijedlog za promjenu predmeta i sredstva ovrhe), and requested enforcement in relation to the applicant’s movable property, given that she was unemployed and had no income, real property or motor vehicle. 38. By a decision taken on 8 December 2014 the Rijeka Municipal Court declared the application of 22 October 2013 inadmissible on the basis that it was premature, since changing the object of enforcement is not possible before a writ of execution becomes final. 39. The enforcement proceedings are still ongoing.
| 1 |
test
|
001-170045
|
ENG
|
POL
|
CHAMBER
| 2,017 |
CASE OF KORZENIAK v. POLAND
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal)
|
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1953 and lives in Krosno. 6. From 29 April 1997 to 29 April 1999 he was employed by a Polish company which was carrying out construction work in Germany. The Polish workers were employed on the basis of the international agreement signed on 31 January 1990 between Poland and Germany on the secondment of workers of Polish companies to carry out construction work (Umowa między Rządem Rzeczypospolitej Polskiej a Rządem Republiki Federalnej Niemiec o oddelegowaniu pracowników polskich przedsiębiorstw do realizacji umów o dzieło z 31 stycznia 1990 r., Dz.U. 1994, Nr 98, Poz. 474). The rates of the applicant’s pay were determined by an employment contract and the regulations which the contract referred to. 7. On 16 July 1999 the applicant lodged a civil claim against his former employer for payment. He claimed that, instead of the rate of 8 or 8,5 German Marks (DEM) per hour which he had been receiving under his employment contract in the period from 29 April 1997 to 29 April 1999, he should have been receiving a higher rate of pay. Relying on the provisions of the above-mentioned international agreement, he claimed that he should have been receiving a rate comparable to that of the German workers occupying the same positions. 8. On 19 June 2000 the Opole Regional Court gave a partial judgment in which it established that the applicant was entitled to the rates of pay fixed in the employment contract. The court observed that the essential issue in the case was whether the applicant was entitled to a higher rate of pay, equivalent to that paid to the German employees working in similar positions at the material time. It was noted in this connection that the parties had not chosen to regulate the employment contract under German law. Instead Polish labour law was applicable. In so far as the applicant relied on the provisions of the international agreement of 1990 (see paragraph 6 above) and argued that it should serve as the basis for setting his rate of pay, the court observed that this agreement was of a public-law character. Its object and purpose was to regulate relations between Poland and Germany in the construction market with a view to preventing unfair competition by Polish companies setting wages of construction workers working in Germany at too low a level, and to protect Polish workers against being paid too low a rate. 9. The applicant appealed. He argued that the Opole Regional Court had violated the provisions of the Labour Code. In the applicant’s opinion, the court’s finding that the applicant’s rates of pay were fixed in his employment contract was erroneous, because that contract did not contain any rates (only symbols which were not understood by the applicant). Besides, in his view, the court had violated the provisions of the abovementioned international agreement, according to which the rates of the applicant’s pay should be comparable to those received by the German workers occupying the same positions. 10. On 15 November 2000 the Court of Appeal quashed the first-instance partial judgment on account of its procedural shortcomings and remitted the case to the lower court. The Court of Appeal comprised three judges. Judge H.Sz. sat on the bench. He was not a judge rapporteur and he did not preside. 11. The Court of Appeal found that in the applicant’s case there were no grounds for delivering a partial judgment. It noted that a partial judgment could be delivered only when a part or some of the claims in a lawsuit had been sufficiently clarified for the decision. In the applicant’s case there was only one claim and thus there had been no grounds for delivering the partial judgment. In the final part of the written grounds for the judgment the Court of Appeal stated that the position of the Opole Regional Court as to the substance of the case was supported by the wording of the international agreements and existing domestic case-law. This part of the court’s reasoning read as follows: “As to the substantive grounds for the court’s legal view expressed in the judgment under appeal, it should be stated that it finds support in the content of the Agreement between the Governments of the Republic of Poland and the Federal Republic of Germany on the secondment of workers of Polish companies to carry out construction work (Journal of Laws 1998/84, items 474 and 475) as well as in the hitherto interpretation of this agreement in judicial decisions (see, e.g., III A Pa 29/00 Wrocław Court of Appeal, decision of 31 May 2000).” 12. On 10 December 2002 the applicant challenged one of the judges, alleging his partiality. He further requested that the case be transferred to another town because, in his view, the judges were not impartial and the defendant company “had enjoyed considerable influence in Opole.” 13. On 20 March 2003 the Wrocław Court of Appeal dismissed the applicant’s request. 14. On 5 April 2003 the applicant appealed. 15. On 16 January 2004 the Supreme Court dismissed the applicant’s appeal, finding no grounds for the judges of the Opole Regional Court to step down. 16. On 24 May 2004 the Opole Regional Court gave judgment granting the applicant’s claim in part and dismissing the remainder. The Regional Court ordered the defendant company to pay the applicant the sum of 11,934 Polish zlotys (PLN) for unused leave. As to the rate of the applicant’s pay, the court reiterated the reasoning of the judgment of 19 June 2000 and dismissed the claim (see paragraph 8 above). 17. The applicant appealed. 18. On 25 November 2004 the Wrocław Court of Appeal dismissed the appeal. The court accepted the reasoning of the first-instance court. 19. On 20 January 2005 the applicant’s lawyer lodged a cassation appeal on his behalf. 20. On 29 November 2005 the Supreme Court examined the cassation appeal, quashed the challenged judgment and remitted the case to the Court of Appeal. 21. The Supreme Court considered that the Polish-German agreement of 1990 was not a source of universally binding law and did not contain provisions applicable to labour relations. The agreement could not be regarded as constituting the legal basis for claims of employees concerning remuneration for their work. Moreover, Poland’s accession to the European Union did not have an impact on the applicability of that agreement. Furthermore, the European Union law did not apply retroactively to situations predating Poland’s accession. The fact that employees’ claims concerning the applicable minimum wages could not be regarded as having their legal basis in the said PolishGerman agreement did not mean, in the court’s opinion, that those claims could not be raised upon the basis of employment contracts. In the Supreme Court’s view, the Court of Appeal had not sufficiently clarified the meaning of those contracts in the light of statements made by the Polish company concerning the applicant’s employment conditions and the obligations imposed on the company by the provisions of German law to which those statements referred. 22. On 8 December 2006 the Wrocław Court of Appeal, having taken into account the recommendations of the Supreme Court, again dismissed the applicant’s appeal lodged against the Regional Court’s judgment of 24 May 2004. The court reiterated that the applicant was entitled to the rates of pay fixed in his employment contract. 23. On 28 March 2007 the applicant lodged a further cassation appeal with the Supreme Court. He first raised substantive arguments. He averred that the Opole Regional Court had disregarded the provisions of the Labour Code. In the applicant’s opinion, the court’s finding that his hourly rate of pay had been fixed in his employment contract had been erroneous, because that contract had not contained any rates (only symbols which the applicant had not been able to understand). Besides, in his view, the court had disregarded the provisions of the applicable international agreement (see paragraphs 6 and 8 above), according to which the applicant’s rate of pay should have been comparable to that received by the German workers occupying the same positions. He further complained that the appellate court had failed to take heed of the interpretation of the applicable law expressed by the Supreme Court in its previous judgment as to the applicable rate of the applicant’s salary. It was further argued that the court had failed to take into consideration the evidence gathered in the case. The court had also erred when refusing to allow certain requests for evidence to be taken. The applicant further complained that in the written grounds for its judgment the Court of Appeal had failed to provide reasons for which it had disregarded the interpretation of relevant applicable provisions made in the past by the Supreme Court – a substantive question which had been crucial for the outcome of the case. 24. On 14 May 2008 the Supreme Court, sitting as a bench of three judges, dismissed the applicant’s cassation appeal. Judge H.Sz., who had sat on the bench of the Court of Appeal deciding the case on 15 November 2000, had in the meantime been promoted to the Supreme Court. He sat on the bench of the Supreme Court. He was not a judge rapporteur and he did not preside. The Supreme Court noted that the appellate court, contrary to the applicant’s objection, had followed the interpretation of the applicable law expressed by the earlier judgment of the Supreme Court (pronounced on 29 November 2005) given in the same case. In this judgment the Supreme Court had confirmed that the international agreement referred to by the applicant could not be regarded as a legal source of employees’ and employers’ rights and obligations. The appellate court’s decision had followed this view and it had confirmed that the substantive provisions of that agreement had not applied to the setting of the applicant’s rate of pay, which had been fixed by his employment contract. 25. The Supreme Court stressed that in his cassation appeal the applicant raised the same complaint which had already been made in his earlier cassation appeal. This was inadmissible as under section 39820 of the Code of Civil Procedure (see paragraph 33 below) it was not allowed to found a cassation appeal against a judgment rendered after a new examination of a case upon complaints contrary to the interpretation previously established by the Supreme Court dealing with the earlier cassation appeal lodged in the same case. 26. Additionally, the Supreme Court noted that the interpretation made by the lower courts of the applicant’s contract of employment, seen as a whole, had taken into account the applicant’s employer’s declarations submitted to the German authorities and also a wealth of other evidence in so far as it had been relevant for the determination of the applicant’s working conditions and remuneration. 27. The Supreme Court further observed that the applicant’s remuneration had been set at the level of the minimal remuneration of German employees performing similar work determined on the basis of the Law on Collective Bargaining. 28. In so far as the applicant complained in his cassation appeal of the alleged failure of the courts to take further evidence and of the assessment of the evidence they had carried out, those complaints could not be examined in the context of those proceedings. It was not the task of the Supreme Court in cassation proceedings to act as an ordinary court of appeal and to examine issues concerning the admissibility and assessment of evidence and the factual findings made by the lower courts.
| 1 |
test
|
001-179854
|
ENG
|
ARM
|
COMMITTEE
| 2,018 |
CASE OF PAPOYAN v. ARMENIA
| 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)
|
Aleš Pejchal;Armen Harutyunyan
|
4. The applicant was born in 1949 and lives in Yerevan. 5. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation of tracts of real estate situated within the administrative boundaries of the Kentron district of Yerevan, to be taken for State needs, with a total area of 345,000 sq. m. 6. It appears that the applicant ran a small kiosk on a plot of land situated within the area to be expropriated. It also appears that the authorities demolished this kiosk for the development of that area within the framework of Decree no. 1151-N. 7. On 10 October 2002, as compensation for the applicant’s kiosk, the Mayor of Yerevan adopted decision no. 1785-A, granting her the right to lease a plot of public land of 5 sq. m. at a specified address in the Kentron district of Yerevan for seven years and to construct and run her kiosk on this land. By the same decision, the Mayor authorised the local authority of Kentron district to conclude the lease agreement with the applicant. 8. On 17 December 2002 the applicant received planning permission for the plot of land specified in decision no. 1785-A. 9. On 26 December 2006 and 24 August 2007, following the applicant’s enquiries concerning the implementation of decision no. 1785-A, the Kentron district authorities suggested that the applicant address her enquiries to the Mayor of Yerevan, while on 1 May and 6 September 2007 the latter suggested that the applicant address her enquiries to the Kentron district authorities. 10. On 26 February 2008 the applicant initiated proceedings in the Administrative Court against the Mayor and Kentron district, seeking to implement decision no. 1785-A. 11. On 30 July 2008 the Administrative Court granted the applicant’s claim and obliged the Mayor of Yerevan to conclude the agreement specified in decision no. 1785-A with the applicant. No appeals were lodged and this judgment became final on 30 August 2008. 12. On 9 September 2008 the Administrative Court issued a writ of execution for the judgment of 30 July 2008. 13. On 24 September 2008 the Department for the Enforcement of Judicial Acts (“the DEJA”) instituted enforcement proceedings against the city of Yerevan, obliging it to conclude the land-lease agreement with the applicant within ten days. 14. On 17 June 2009 the Mayor’s office offered the applicant a possibility to start negotiations. However, by her letter of 30 June 2009 the applicant refused to negotiate with the Mayor’s office. 15. On 2 March, 23 April, 3 and 31 July, 23 November, 23 December 2009, 17 and 18 March and 7 April 2010, upon the applicant’s enquiries concerning the enforcement of the judgment of 30 July 2008, bailiffs informed the applicant that the enforcement of the judgment of 30 July 2008 was in progress and that she would be informed of the results. 16. On 16 June 2010 the applicant initiated proceedings in the Administrative Court against the DEJA, requesting that the court oblige it to enforce the judgment of 30 July 2008. 17. On 22 June 2010 the Administrative Court declared the applicant’s claim inadmissible on the grounds that she lacked standing. The Administrative Court reasoned that the applicant had failed to show that her rights had been breached as a result of an administrative action by the DEJA. The Administrative Court noted that the DEJA had taken certain actions in order to enforce the judgment of 30 July 2008 and that the enforcement procedure was still pending. The decision of the Administrative Court of 22 June 2010 was upheld in the final instance by the Court of Cassation on 25 August 2010. 18. On 21 October and 4 November 2010, following an enquiry by the applicant, the bailiff responded that the enforcement was in progress and that the applicant would be informed of the results. 19. On 24 January 2011, pursuant to the applicant’s enquiries concerning the implementation of decision no. 1785-A, the Mayor of Yerevan informed her of the changes in legislation concerning land and reminded the applicant that she had to conclude the land-lease agreement with Kentron district. 20. On 3 May 2011 the Mayor’s office offered the applicant three different plots of land acceptable in terms of urban planning. However, by a letter sent to the Mayor’s office, she refused to accept any of the plots. 21. On 4 August 2011, relying on section 41(1)(8) of the Enforcement of Judicial Acts Act, the DEJA decided to discontinue the proceedings on the grounds that enforcement of the judgment of 30 July 2008 had become impossible. It reasoned that, by a letter of 17 June 2009 addressed to the applicant, the Mayor of Yerevan had suggested that the applicant approach the department of management of immovable property of the Yerevan Mayor’s office for the implementation of the judgment of 30 July 2008, but the applicant had failed to do so. 22. On 27 February 2012 the applicant instituted proceedings in the Administrative Court against the DEJA, seeking to declare the decision of 4 August 2011 null and void, as well as to oblige the DEJA to enforce the judgment of 30 July 2008. 23. On 15 February 2013 the Administrative Court rejected the applicant’s first claim, reasoning that there were not sufficient grounds for declaring the DEJA’s decision of 4 August 2011 null and void. It refused to examine the applicant’s second claim. 24. On 14 May 2012 the applicant initiated proceedings in the Administrative Court against the DEJA, seeking to oblige it to enforce the judgment of 30 July 2008. 25. On 12 June 2013 the Administrative Court terminated the proceedings on the grounds of lack of jurisdiction. This decision was upheld in the final instance by the Court of Cassation on 18 December 2013. 26. On 18 July 2013 the applicant initiated proceedings in the Administrative Court seeking, inter alia, that the DEJA reopen the proceedings discontinued on 4 August 2011. On 4 December 2013 the Administrative Court rejected the applicant’s claim, reasoning that, for the proceedings which had been discontinued on the grounds of impossibility, there were no legal grounds for reopening. 27. On 3 March 2014 the applicant initiated proceedings in the Administrative Court against the DEJA, seeking that the decision of the DEJA of 10 February 2014 refusing to initiate new proceedings be declared invalid, and that the DEJA be obliged to initiate new proceedings. 28. On 28 September 2016 the Administrative Court granted the applicant’s first claim, declaring the decision of the DEJA of 10 February 2014 invalid. As to the applicant’s second claim, the Administrative Court terminated the proceedings in that regard on the basis of the lack of jurisdiction. 29. The proceedings concerning the judgment of 28 September 2016 are pending before the Administrative Court of Appeal.
| 1 |
test
|
001-159203
|
ENG
|
HUN
|
CHAMBER
| 2,015 |
CASE OF BUDAHÁZY v. HUNGARY
| 4 |
No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
|
András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1969 and lives in Diósd. 6. On 4 July 2002 the applicant organised a demonstration aimed at forcing the authorities to preserve the ballot papers of the 2002 legislative elections with a view to a potential recounting. The Government submitted that the ballot papers were bound for statutory destruction on 20 July 2002 as per section 5(3) of Decree no. 48/2001. (XII. 29.) BM on the Procedural Time-limits for the Legislative Elections of 7/21 April 2002. In the applicant’s view, the relevant law could be understood – and was by many – to the effect that the ballot papers could be destroyed as early as 7 July 2002. Previously, on 2 July 2002, Parliament had decided not to put on the agenda a bill for the amendment of the 90-day statutory preservation period of the ballots. 7. The event organised by the applicant – which had not been announced to the police – consisted of completely blocking all six lanes of a centrally situated bridge over the Danube, Erzsébet Bridge, by parking six cars across it, with their doors locked. The demonstration started at about 8.20 a.m. The demonstrators, including the applicant, refused to comply with the police’s order to remove the vehicles and leave. Apart from ambulances, no vehicles could pass the blockade. By 9.00 a.m. a crowd had gathered and the situation evolved into a massive traffic jam all over Budapest. At about 11.00 a.m. the cars were finally towed away by the police, and the traffic flow resumed at about 12 noon. 8. On 5 July 2002 the Pest Central District Court imposed a regulatory fine of 50,000 Hungarian forints (HUF) on the applicant. The court held that the applicant, by not complying with the police’s instruction to leave the site of the demonstration, had committed the regulatory offence of disorderly conduct within the meaning of section 142 (1c) of Act no. LXIX on Regulatory Offences. 9. International observers, in particular the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE), found that the 2002 parliamentary elections had been conducted in a manner consistent with international standards and that the Hungarian electoral system had provided the basis for a generally transparent, accountable, free, fair and equal process. 10. The Hungarian media widely covered the events of 4 July 2002 and, in an official communiqué, the President of the Republic condemned the incident, declaring it illegal. He underlined that Hungary was a stable parliamentary democracy where human rights were observed and where even critical views should be voiced in a lawful manner. 11. On 2 September 2002 the Budapest XI District Police Department fined the applicant for a parking offence which consisted of his parking his car in the middle of Erzsébet Bridge on 4 July 2002, necessitating its being towed away. On appeal, on 15 May 2003 the Buda Central District Court reduced the fine to HUF 5,000. 12. Criminal proceedings were subsequently instituted against the applicant and his accomplices. On 16 June 2008 he was convicted of “disturbance of public works” within the meaning of section 260(1) of the Criminal Code. 13. The Pest Central District Court dismissed the defendants’ arguments according to which they had been exercising their freedom of assembly. Making reference to the Court’s judgment in the case of Bukta and Others v. Hungary (no. 25691/04, ECHR 2007III), the court made a distinction, holding that the applicant’s action could not be regarded as a spontaneous and prompt response to an event (the court was satisfied that the statutory date for ballot paper destruction was 20 July 2002 as per Decree no. 48/2001 (see above paragraph 6)), nor was it lawful like in Bukta, since it had contravened the Highway Code and disturbed the functioning of “public works”. In the latter regard, the court observed that the demonstration had caused the traffic to become paralysed all over the capital for several hours and disturbed the running of 29 bus lines in respect of 642 scheduled individual bus trips, concerning approximately 23,000 passengers. The applicant was sentenced to 30 days of community work. 14. On 26 November 2008 the Budapest Regional Court upheld this judgment. In response to the arguments of the accused on appeal, the court noted that “the message of the judgment is not that non-notified assemblies cannot be peaceful; the message is that an assembly, notified or non-notified, is not peaceful where, by its very manner, it constitutes unlawful conduct.” The court referred to section 2(3) of Act no. III of 1989 on the Right of Assembly, according to which “the exercise of the right of assembly may not constitute an offence, or instigation thereto, or violate the rights and freedoms of others”. Quoting the Court’s judgment in the case of Ezelin v. France (26 April 1991, Series A no. 202), the Regional Court established that “in peaceful assemblies the protection provided under Article 11 shall be ensured for the participants as long as they do not commit any reprehensible act on such an occasion”. In sum, the court held that “it directly follows from the case law of the Constitutional Court and the European Court of Human Rights that the peaceful or non-peaceful nature of an assembly does not depend on whether a participant broke or smashed an asset or applied violence against a property. An assembly may be rendered non-peaceful by passive conduct as well. In its outward appearance the accused parties’ conduct seemed to be peaceful; it is the causal result of their conduct, the major disturbance of road traffic, which rendered their conduct non-peaceful and thereby not protected under the law.” 15. On 3 December 2009 the Supreme Court dismissed the defendants’ petition for review. It added to the reasoning of the lower courts that “criminal law rules cannot be excluded or restricted by invoking the right of assembly; the exercise of the right of assembly shall not be exempt from compliance with criminal law restrictions.” This decision was served on the applicant on 18 January 2010. 16. Section 260 of the Criminal Code, as in force at the relevant time, provided: “(1) Any person who interferes with the functioning of public works to a considerable extent by damaging their equipment, cables or interfering with them in any other way, is guilty of a felony punishable by imprisonment of up to five years. ... (4) For the purposes of this section, ‘public works’ shall mean public utilities, public transportation operations, telecommunications networks, as well as plants producing war materials, energy or basic materials designed for industrial use.” 17. Section 1 of Act no. V of 1991 on Certain Amnesty Measures provided (see paragraph 30 below): “In connection with the road blockades paralysing the country’s life from 25 to 28 October 1990, no criminal proceedings shall be instituted or conducted for ... d) the disturbance of public works (section 260 of the Criminal Code).” 18. The relevant domestic law on freedom of assembly, in particular Article 62 of the Constitution and Act no. III of 1989, is outlined in paragraphs 19 and 20 of the judgment Éva Molnár v. Hungary (no. 10346/05, 7 October 2008).
| 0 |
test
|
001-167563
|
ENG
|
HUN
|
COMMITTEE
| 2,016 |
CASE OF KHARON KFT AND FREHA v. HUNGARY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
4. The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained of the excessive length of civil proceedings.
| 1 |
test
|
001-163501
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,016 |
PREDESCU v. ROMANIA
| 4 |
Inadmissible
|
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
|
1. The applicant, Mr Vasile Predescu, is a Romanian national who was born in 1975 and lives in Timişoara. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 6 January 2000 the applicant was employed as an electrical technician by the Timişoara office of a multinational company, F. 5. According to a report issued on 17 January 2009, the general assembly of the Solectron Free Trade Union (Sindicatul Liber Solectron – “the union”), formed by 206 of F.’s employees, organised elections for executive positions (funcțiile de conducere) at the union. According to the same report, the auditing committee was listed among the union’s executive functions and the applicant was elected as a member of that committee. 6. On 28 January 2009 F. gave the applicant notice that he would be dismissed. 7. On 16 February 2009 the union applied to the Timişoara District Court for authorisation for the changes made on 17 January 2009 in the composition of the union’s executive bodies (organe de conducere). F. was not a party to the proceedings. 8. On 18 March 2009 the Timişoara District Court allowed the union’s application and ordered the registration of the changes in the composition of the union’s executive bodies in the Special Register for Unions, held at the aforementioned court’s registry. 9. On 21 April 2009 the applicant was dismissed. The reason given in the dismissal decision, which was issued on the same date, was that the company had faced financial difficulties following a severe drop in client orders, which had forced it to reorganise and reduce its activities, to downsize and to remove 720 posts, including the applicant’s. The dismissal decision noted that the applicant was given the opportunity to apply for a position that had not been removed, but did not take up that opportunity. The dismissal decision also took account of the criteria established by the collective agreement concerning the order of priority in respect of dismissals and the fact that no other posts suitable for his professional qualifications or other posts in general had been available within the company. 10. On 19 May 2009 the applicant challenged the dismissal decision before the domestic courts and asked to be reinstated. He argued, inter alia, that on the dates that the dismissal notice and decision had been issued by the company he had already been an elected member of the union’s auditing committee and had therefore been occupying an elected position within the union. He stated that according to Article 60 of the Romanian Labour Code the company was not allowed to fire him while he held such a position. He further stated that he had been dismissed because on 15 January 2009 he had brought court proceedings for a salary increase and award of seniority bonuses and because as a union member he had caused problems for the company’s management in claiming his lawful rights. 11. F. defended itself by arguing that the applicant’s dismissal had been the result of a large downsizing process which had started in November 2008 and had been due to end in July 2009. Moreover, the dismissal had been lawful and had not breached the provisions of the collective agreement or the Romanian Labour Code. 12. On 25 November 2009 the Timiş County Court allowed the applicant’s claim, quashed the dismissal decision and ordered his reinstatement. It noted that the report of the meeting of 17 January 2009 had shown that the union had considered the auditing committee to be one of its executive bodies and that the applicant had been elected as a member of that committee. The court considered that even if it had accepted the company’s argument that the auditing committee had not been part of the union’s executive functions and that therefore the conditions set out by Article 223 of the Romanian Labour Code had not been met, the dismissal decision had still been unlawful because the provisions of Article 60 § 1(h) applied. The conclusion that at the time of his dismissal the applicant had been occupying an elected position in a union body (even if not an executive one, as Article 60 § 1(h) did not make the same distinction as Article 223) had become reasonable and even mandatory, given that he had been elected to the union’s auditing committee. Consequently, the dismissal decision had breached Article 60 § 1(h), given that that provision represented a legal safeguard against potential pressure on those occupying elected positions within the union from exercising their mandate. However, relying on the evidence before it, the court accepted F.’s argument that the selection of the staff affected by the downsizing process had been made by consulting with the trade union and by complying with the established criteria, in particular the level of professional performance and the order of priority set out in the collective agreement and the Labour Code. 13. F. appealed on points of law (recurs) against the judgment. It argued that the applicant’s dismissal had been lawful and justified by the company’s difficult financial situation. 14. The applicant reiterated the arguments raised before the firstinstance court. 15. By a final judgment of 21 April 2010, the Timişoara Court of Appeal allowed F.’s appeal on points of law, quashed the judgment of the firstinstance court and dismissed the applicant’s challenge to the decision to dismiss him. It held that Articles 9, 10 and 11 of Law no. 54/2003 concerned the protection enjoyed by representatives elected to a trade union’s executive bodies. The complimentary (complementare) provisions of Article 223 of the Romanian Labour Code concerned the same issues, while Article 60 § 1(h) prohibited dismissals during the exercise of the powers of an elected position. The collective agreement had also provided protection for representatives elected to the union’s executive bodies. Consequently, the court considered that it had been necessary to determine which of the union’s bodies were executive and whether the post of auditor had been an elected position. 16. In that connection, the court considered that Articles 8 and subsequent of Law no. 54/2003 provided that executive bodies were formed by elected union members. Moreover, the notion of an auditor and the functions of the auditing committee were regulated by Article 26 of Law no. 54/2003, which provided that the aforementioned committee operated according to the union’s constitution. Furthermore, according to the union’s constitution its executive bodies were the general assembly, the council and the permanent bureau. The union’s constitution also set out that the composition of the auditing committee was decided by the council and that its area of competence was approved by the general assembly. 17. The court held that according to the aforementioned legal provisions, taken together with the provisions of the union’s constitution, the auditing committee was neither an executive nor an elected body. While it was true that the applicant had been elected as an auditor, such a form of appointment had exceeded the provisions of the union’s constitution, which provided for the appointment of auditors by the council. In addition, the post of auditor could not have been an executive position because those positions had been clearly established by the union’s constitution. 18. The court also held that the provisions of Article 60 § 1(h) of the Romanian Labour Code had to be read in light of the provisions of Article 223 of the same code and Articles 8 to 11 of Law no. 54/2003. According to the aforementioned provisions, only workers occupying executive positions within the union enjoyed the protection claimed by the applicant. Consequently, the first-instance court had wrongfully held that the applicant’s dismissal had been unlawful. 19. Lastly, the court considered that it was unnecessary to examine the remaining aspects of the lawfulness of the decision in the context of F.’s appeal on points of law. 20. The relevant provisions of the Romanian Labour Code in force at the material time read as follows: “(1) Employees may not be dismissed: ... (h) while they hold an elected position within a union body, except in circumstances where the dismissal is ordered for serious or repeated disciplinary misconduct by those employees; ... (2) The provisions of the first paragraph do not apply if the dismissal was ordered for reasons flowing from the employer’s judicial reorganisation or bankruptcy, according to law.” “(1) Representatives elected to a trade union’s executive bodies shall benefit from the protection of the law against any form of conditions, constraints or limitations in exercising their function. (2) During their mandate and for two years after their mandate has ended, representatives elected to a trade union’s executive bodies cannot be dismissed for reasons which do not concern the employee’s person, for professional inadequacy, or for reasons connected to the exercise of a mandate received from other employees in the company. (3) Other measures for the protection of representatives elected to a union’s executive body are provided in special laws and the applicable collective agreement.” 21. The relevant provisions of Law no. 54/2003 on trade unions in force at the material time read as follows: “Trade unions’ constitutions shall contain provisions with regard to: ... (e) their executive bodies, name, method of election and removal, length of mandate and duties ...” “Members of a trade union with full legal capacity and who have not been prohibited as a complementary punishment from holding a position or practising a profession of the nature used by the sentenced person to commit the offence may be elected to executive bodies.” “The members of a trade union’s elected executive bodies shall benefit from the protection of the law against any conditions, constraints or limitations on exercising their function.” “(1) During their mandate, and for two years after their mandate has ended, representatives elected to a trade union’s executive bodies cannot have their work contracts terminated or changed for reasons not imputable to them, which the law leaves at the discretion of the employer, except with the written agreement of the elected executive collective body of the trade union. (2) A change or termination of the individual work contract of representatives elected to a trade union’s executive bodies and of their members at the employer’s initiative for reasons which concern the trade union’s activities are prohibited. (3) The provisions of the first paragraph do not apply to those who have been removed from executive positions held within the union for breaching the provisions of the [union’s] constitution or the law...“ “(1) Reviews of a trade union’s own financial activities and of their social and financial units is carried out by the Auditing Committee, which operates according to the constitution ...” 22. The relevant provisions of the Solectron Free Trade Union’s constitution in force at the material time read as follows: “The trade union’s organisational structure includes: the General Assembly, the Trade Union’s Council, the Permanent Bureau and the Auditing Committee.” “The General Assembly is the trade union’s highest executive body...” “The activities of the General Assembly are organised and run by the Permanent Bureau.” “The General Assembly has the following duties: ... approves the competences and the report of the Auditing Committee ...” “The Trade Union’s Council is the trade union’s executive body which has decision-making and deliberative character and decides on the measures needed to enforce the resolutions and decisions adopted by the General Assembly ...” “The Trade Union’s Council has the following duties: ... decides on the composition of the Auditing Committee and any changes to it ...” “(1) The Permanent Bureau is the permanent executive body which carries out the operational management of the trade union and enforces the decisions of the General Assembly and of the Trade Union’s Council ...” “The Auditing Committee is the financial control body of the trade union’s economic and financial activities ...”
| 0 |
test
|
001-153768
|
ENG
|
POL
|
COMMITTEE
| 2,015 |
CASE OF GAWRECKI v. POLAND
| 4 |
No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
|
Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney
|
5. The applicant was born in 1973 and is currently detained in Rawicz Prison. 6. On 13 November 2006 the applicant was arrested and charged with sexual abuse of twenty minor girls. 7. On 15 November 2006 the Wrocław-Śródmieście District Court (Sąd Rejonowy) decided to detain him on remand. The court relied on a reasonable suspicion that the applicant had committed the aforementioned offences. It attached particular importance to the likelihood that a severe sentence of imprisonment would be imposed on him and to the risk that he would attempt to obstruct the proceedings. The applicant’s appeal, lodged against the detention order, was dismissed by the second-instance court. 8. The applicant’s detention was subsequently extended by the Wrocław-Śródmieście District Court on 12 February, 8 May and 21 August 2007, by the Wrocław Court of Appeal (Sąd Apelacyjny) on 13 November 2007 and on 12 February 2008, by the Kalisz District Court on 9 May and 13 August 2008, as well as by the Łódź Court of Appeal on 5 November 2008, 18 February, 20 May and on 14 October 2009. 9. The courts justified their decisions by the particularly high risk of the applicant’s absconding abroad or otherwise obstructing the course of the proceedings and by the severity of the anticipated penalty. They also had regard to the nature of the offences with which he had been charged and considered that, given the applicant’s personality, a release on bail would not sufficiently secure the proper course of the proceedings. 10. Meanwhile, on 5 May 2008 a bill of indictment against the applicant and another person was lodged with the Kalisz District Court (Sąd Rejonowy). The prosecutor requested the court to hear 127 witnesses. 11. The trial started on 17 November 2008. Subsequently, the trial court held seven hearings in 2008, forty-six hearings in 2009 and four hearings in 2010. 12. On 19 January 2010 the Kalisz District Court convicted the applicant of sexual abuse of twenty minor girls. The court determined that the applicant had committed those offences in various ways. He had sexual intercourse with some of the victims and he sexually abused the others in different ways. He was also found guilty of aiding sexual abuse and of serving alcohol to minors. The first-instance court sentenced the applicant to a cumulative penalty of eight years and six months’ imprisonment. 13. On the same day, the Kalisz District Court extended the applicant’s detention. His detention was later prolonged by the same court’s decision of 27 April 2010. The applicant’s appeals against these two decisions were dismissed on 10 February 2010 and 26 May 2010, respectively, by the Kalisz Regional Court (Sąd Okręgowy). On 29 July and 27 October 2010 the same court granted further extensions of the applicant’s detention. The courts relied on the likelihood that a severe sentence would be imposed on the applicant, given that he had been sentenced at firstinstance to eight years and six months’ imprisonment. They considered that there was therefore a risk that the applicant might obstruct the proceedings by absconding. In establishing the existence of this risk they referred to the applicant’s knowledge of foreign languages and to the fact that he had previously travelled abroad. They also stressed the particularly drastic nature of the offences in question. 14. The applicant and the prosecutor lodged appeals against the firstinstance judgment. 15. On 2 December 2010 the Kalisz Regional Court altered the judgment in part and increased the applicant’s cumulative sentence to ten years’ imprisonment. 16. The applicant lodged a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). He later withdrew his cassation appeal.
| 0 |
test
|
001-147271
|
ENG
|
TUR
|
CHAMBER
| 2,014 |
CASE OF T. AND A. v. TURKEY
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on charge;Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);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)
|
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
|
8. The applicants were born in 1966 and 1996 respectively and live in Sheffield, the United Kingdom. 9. On 8 November 2010 the applicants arrived in Turkey from Iran. They were planning to fly to Manchester (the United Kingdom) from Istanbul Atatürk Airport on the next day. 10. At around 11 a.m. on 9 November 2010 the applicants were about to board the plane for Manchester, but were prevented from doing so by officers from the private airport security company. It was alleged that the second applicant’s passport photograph did not resemble him and could belong to someone else. Both applicants were taken to the “problematic passenger room” at the office of the passport police for an examination of the second applicant’s passport. 11. At 4 p.m. on the same day the applicants signed documents entitled “Report of apprehension and custody/rights of suspects and accused persons”, which set out their rights within the context of their arrest. According to the report which the first applicant signed, she had been apprehended on account of “being an accomplice to false identity”. The reports stated that a public prosecutor had been informed of the apprehension. However, the prosecutor did not order that the applicants be taken into police custody. The reports signed by the applicants do not bear the signature of an interpreter. 12. According to a report drafted by two police officers at 4 p.m. the same day, the police asked one of the public prosecutors at the Bakırköy public prosecutor’s office for instructions on how to proceed. The public prosecutor ordered that the photographs, fingerprints and statements of the first applicant, S.T., be taken; that the second applicant, K.A., be transferred to the Bakırköy police station juvenile department and that the passport in question be seized for an examination of its authenticity. 13. The second applicant was kept at the office of the passport police at Atatürk Airport until 10.50 p.m. on 9 November 2010. He was then transferred to the Bakırköy police station juvenile department following the instructions of the public prosecutor, before being sent to the police criminal laboratory in order to establish his identity. 14. On 10 November 2010 the Bakırköy Magistrates’ Court decided to confiscate the second applicant’s passport. 15. On the same day the second applicant was taken to the Bakırköy public prosecutor’s office. His statements were taken by the public prosecutor, who decided to impose an administrative sanction under the Misdemeanors Act and to release him. 16. Later on the same day the police criminal laboratory issued a report establishing the authenticity of the second applicant’s passport. 17. Subsequently, the police received instructions from one of the prosecutors from the Bakırköy public prosecutor’s office to either hand the second applicant over to a family member or transfer him to social services. 18. At around 4 p.m. on 11 November 2010 the second applicant was handed over to one of his relatives, Mr. B.M., who was also the first applicant’s husband. At the same time his passport was given back to him as its authenticity had been proved. 19. Meanwhile, following the arrest of the first applicant at the airport on 9 November 2010, her photograph and fingerprints were taken. At 9 p.m. on the same day she was questioned by two police officers at Istanbul Atatürk Airport with the help of another police officer, who acted as an interpreter. The first applicant was informed that she had been brought to the office of the passport police on suspicion that she had helped the second applicant to travel abroad with a passport which had not belonged to him. In her statements, the applicant maintained that the second applicant was a relative of her husband and that his mother was a British citizen. She denied the veracity of the allegations against her. 20. The first applicant continued to be detained at the airport detention facility until 12 November 2010. 21. At 4 p.m. on 12 November 2010 the first applicant was transferred from the airport detention facility to the Kumkapı Foreigners’ Removal Centre. 22. At 9.20 p.m. on 13 November 2010 the first applicant was deported to the United Kingdom. 23. On 12 November 2010 the applicants’ lawyer lodged a criminal complaint with the Bakırköy public prosecutor’s office against D.Ö., N.G. and Y.A., officers on duty at the time of the applicants’ detention at Istanbul Atatürk Airport. He requested that an investigation be initiated against the aforementioned officers who had abused their power and unlawfully deprived his client of her liberty. The lawyer submitted that the authenticity of the second applicant’s passport had been established and that the first applicant had been detained at the airport without a legal basis. He stressed that if his client had been suspected of having committed an offence, the police should have kept her for only twenty-four hours. He requested that his client be brought before a public prosecutor or be released. In his petition, the lawyer also complained of overcrowding and the material conditions of the airport detention room where his client had been held. 24. On 20 January 2011 the Bakırköy public prosecutor took statements from two police officers who had been on duty at the time of the first applicant’s detention. Both officers maintained that the first applicant had been kept in detention pending her transfer to the Kumkapı Foreigners’ Removal Centre attached to the Istanbul security directorate. 25. On 22 January 2011 the Bakırköy public prosecutor decided not to bring criminal proceedings against those police officers. In his decision, the public prosecutor noted that the first applicant had been subject to a criminal investigation following the instructions of the public prosecutor on duty and that she had been held at the foreigners’ detention centre (misafirhane - guesthouse) at the airport. The public prosecutor considered that the delay in the first applicant’s release had occurred on account of the administrative procedure regarding her deportation and that the police officers had not acted with the intention of committing the offence of abuse of power. 26. On 23 February 2011 the applicants’ lawyer objected to the decision of 22 January 2011. In his petition he brought to the attention of the Assize Court the issues of the alleged unlawfulness of the first applicant’s detention, the absence of information given to the first applicant about her arrest, the unlawfulness of her deportation without being notified by a deportation order and the alleged poor conditions of detention. 27. On 14 March 2011 the Istanbul Assize Court dismissed the first applicant’s objection, holding that the decision of 22 January 2011 had been in accordance with the law. 28. In the meantime, following the criminal complaint lodged by the first applicant, a disciplinary inquiry was initiated into D.Ö., N.G. and Y.A. by the Istanbul security directorate. On 16 February 2011 the Istanbul security directorate decided not to bring disciplinary proceedings against the officers in view of the Bakırköy public prosecutor’s decision of 22 January 2011. In the decision, it was noted that the applicants had been subject to misdemeanour proceedings and that the first applicant had not been in police custody but had been held in the foreigners’ detention centre (misafirhane - guesthouse) at the airport. 29. On 28 February 2011 the applicants’ lawyer objected to the decision of 16 February 2011. In his petition, he submitted the same arguments as those he had submitted to the Istanbul Assize Court on 23 February 2011. 30. On 2 June 2011 the Istanbul Regional Administrative Court held that it did not have jurisdiction to render a judgment on the merits of the first applicant’s objection, given that the decision of 16 February 2011 had not refused authorisation to bring criminal proceedings against the police officers. The court noted that in order to annul the administrative decision in question, the applicant should have lodged an action with the administrative courts. 31. The first applicant claimed that the detention room at Istanbul Atatürk Airport had been overcrowded at the time of her detention, which had lasted seventy-seven hours. She submitted that she had been kept in a room measuring approximately 32 sq. m, which had been divided into two sections by a partition. One of the sections had a window but the other one received no natural light. The applicant claimed that she had been kept in the latter section with at least twenty other people at a time. There was no fresh air and the overcrowding of the room led to problems of hygiene. The applicant also claimed that there had been no furniture in the room suitable for sleeping on, and that in any case it had been impossible to lie down due to the overcrowding. She also claimed that she had had no access to fresh air throughout her detention at the airport and that she had been unable to go to the toilets unless she had been accompanied by officers. 32. The Government maintained that the applicant had been detained in a waiting room located in the legal services department of the airport security directorate. The room in question measured 32 sq. m. It received direct sunlight through windows and had a ventilation system. They noted that the room had a padded sitting area for rest and sleep, and was cleaned every day. The Government contended that detainees used the toilet of the security directorate. According to the Government’s submissions, in total eighty-seven persons were detained in that room between 9 and 12 November 2010. 33. The Government submitted a black-and-white photograph of the room where the first applicant had been detained. The photograph shows two separate areas divided by a partition. The area on the right side of the photograph has two windows, two divans and three chairs. This part of the room appears to be well lit. The left side of the photograph shows a dark area without a window in which there are seven chairs and a divan. Both areas appear to be clean. 34. The Government further submitted two lists to the Court containing the names of the detainees kept in police custody at the Istanbul Atatürk airport detention facility on 9 and 12 November 2010, the reasons for their detention, the nationality of the detainees, and the date and time of their arrest. According to those lists, at 7 p.m. on 9 November 2010 a total of thirty-eight persons were detained at Istanbul Atatürk Airport (thirty-one men and seven women), whereas at 8 a.m. on 12 November 2010, there were forty-nine detainees in custody (thirty-seven men and twelve women). The first applicant’s name appears on the list of 9 November 2010 but not on the list dated 12 November 2010.
| 1 |
test
|
001-162765
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF TOPEKHIN v. RUSSIA
| 3 |
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No 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);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
6. The applicant was born in 1982 and until his arrest lived in Moscow. 7. On 27 February 2012 the police opened a criminal investigation into large-scale fraud. According to investigators, an unknown person had convinced a businessman to hand over 10,000,000 Russian roubles (approximately EUR 248,000) on the pretext of selling some equipment. However, the person had had no intention of selling the equipment or returning the money. 8. On 24 January 2013 the applicant was accused of aggravated fraud. The police ordered him not to leave his place of residence, but he fled and was put on a wanted list by the police. 9. On 16 July 2013 he was arrested and taken to a police custody facility. The next day the Tverskoy District Court of Moscow (“the District Court”) authorised his pre-trial detention until 16 September 2013, having regard to the seriousness of the charges against him and the risk of his absconding, reoffending and interfering with justice. 10. The applicant appealed. He referred to, among other things, his poor health. 11. On 19 August 2013 the Moscow City Court (“the City Court”) upheld the detention order on appeal after examining his recent medical documents, stating that his health did not preclude his detention on remand. 12. On 13 September 2013 the District Court extended the applicant’s detention until 16 November 2013, citing the risk of his absconding given his previous attempt to evade prosecution and the seriousness of the charges against him. The District Court also linked that risk to the applicant’s lack of stable income or work. In the court’s view, no alternative measure, such as house arrest or bail, could have ensured that the criminal proceedings ran smoothly. Lastly, the court noted the complexity of the case and several steps in the investigation which had yet to be performed, including some which required the applicant’s presence and participation. 13. The applicant appealed. He applied to the City Court to be released on bail because of his worsening health. He insisted that he could no longer move without assistance. In the meantime, in October 2013 he was served with the final version of the bill of indictment and was committed to stand trial before the District Court. 14. On 13 November 2013 the City Court upheld the detention order of 13 September 2013, endorsing the District Court’s reasoning. After examining medical evidence pertaining to the applicant’s health, it found that the illnesses he suffered from were not severe enough to warrant his release. 15. On an unspecified date the police searched the applicant’s flat and found a passport with his photograph but under another name. 16. On 14 November 2013 the District Court extended the applicant’s detention until 30 March 2014. It again cited his unemployment status and ability to abscond, in view of the seriousness of the charges and his having been on the run from January to July 2013. Noting that his state of health was compatible with the detention conditions, the court concluded that the extension of his detention was justified. 17. On 13 January 2014 the District Court dismissed the applicant’s request for release on bail or under a written undertaking not to leave Moscow. It reiterated the arguments contained in the preceding detention orders and noted the discovery of the forged passport in his flat during the police search, which for the court was a clear sign of his intention to flee. It also addressed his arguments that he had become paraplegic and thus no longer posed a flight risk. It noted that according to a recent conclusion of a medical panel (see paragraph 32 below), his health did not call for his release. 18. On the same day the District Court convicted the applicant of aggravated fraud and sentenced him to six years’ imprisonment in a correctional colony. 19. On 20 February 2014 the City Court upheld the conviction, but reduced the sentence to four years. 20. For about a week after his arrest on 16 July 2013 the applicant was kept in a Moscow police ward. 21. His cell measured 12 square metres, had three sleeping places and usually housed two or three inmates. He did not complain about his health and was not seen by a doctor, save for a general check-up on admission. 22. On 24 July 2013 the applicant was taken to remand prison no. IZ77/2 in Moscow. He underwent the usual general medical check-up on arrival. Informing the resident doctor about serious back injuries he had sustained in 2008 and 2010, he did not make any specific complaints, except about his hypertension. He was considered to be in good health. 23. According to the Government, he was placed in a cell which measured 26.96 square metres and housed four other inmates. Subsequently he was transferred between less spacious cells, which he shared with two or three inmates. The living space afforded to him varied between 3.8 and 5.7 square metres. Throughout his detention he slept on an individual prison bunk. The applicant did not dispute the above information submitted by the Government. 24. According to the applicant, in August 2013 he fell and hurt his back. Severe back pain was accompanied by numbness in the legs and resulted in him being unable to walk unaided. He spent the major part of his day in bed being assisted by his cellmates. They took him for walks in the prison yard, carried him to the toilet and washed him with wet towels, which was their way of showing that they were annoyed with his helplessness. 25. The applicant’s medical records show that on 8 October 2013 he complained to the resident doctor that he was suffering from a headache and back and abdomen pain. The doctor prescribed him drugs and a consultation with a neurologist. 26. On 19 October 2013 he was taken to a medical unit in the same remand prison for inpatient treatment. The attending doctor noted that, owing to a pain syndrome, he had been unable to move unaided. After blood tests and a CAT (computerized axial tomography) scan, he was injected with painkillers, muscle relaxants, nootropics and vitamins. 27. The applicant submitted that on 24 October 2013 during his transfer to a court hearing in a standard prison van, he had again severely hurt his back and head. 28. On 13 November 2013 the applicant was discharged from the medical ward to be transferred to the hospital in remand prison no. IZ-77/1 in Moscow for more comprehensive treatment. 29. The transfer occurred a week later. On admission to hospital the applicant complained of head and back pain and numbness in his legs. The hospital performed a number of medical tests, including blood and urine tests, a CAT scan and a cerebrospinal fluid analysis. As a result he was diagnosed with paraplegia of unknown origin, headaches and chronic inflammatory demyelinating polyneuropathy. He received antibiotics, muscle relaxants, vitamins and other medication. His health improved, but not significantly. The paraplegia remained unchanged. He was discharged from hospital on 9 December 2013 to undergo treatment in a civilian hospital and to check whether his state of health called for his early release. 30. From 9 to 13 December 2013 the applicant stayed in Moscow City Hospital no. 20, where he underwent a medical expert examination and received treatment. He had an MRI (magnetic resonance imaging) scan of his spinal column and spinal cord, a scintigraphy and an X-ray of his pelvis. According to a medical report dated 13 December 2013, he suffered the consequences of a reduced blood supply to the Adamkiewicz artery, including lower limb spasticity, dysfunction of the pelvic organs and bedsores developed outside the hospital. In addition, he was diagnosed with hypertension, a small hydrothorax on the right side and some residual effects of pneumonia that did not call for any treatment. The conditions did not fall within the established list of illnesses warranting early release. 31. The applicant was taken to the intensive care unit of remand prison no. IZ-77/1, where he continued his drug regimen in line with the hospital’s recommendations. The doctors were, however, unable to ensure any improvement in his conditions. A week later he was sent back to Moscow City Hospital no. 20. 32. A report drawn up on 31 December 2013 by a medical panel from the hospital stated that, in addition to the previous diagnosis, the applicant suffered from neurogenic bladder and bowel dysfunction. However, his conditions still did not reach the level of severity to warrant his release. 33. The stay in hospital was followed by two weeks of detention in remand prison no. 77/1. There is nothing to suggest that his treatment was interrupted during that period. 34. On 15 January 2014 the applicant was again taken to Moscow City Hospital no. 20 for a month of treatment. The hospital staff changed his drug regimen, completing it with antioxidant and neutrophil treatment, muscle relaxants, painkillers, and introducing physiotherapy, which resulted in “certain positive changes in [his] state of health”. 35. Meanwhile, the applicant’s lawyer asked an independent medical specialist to provide an opinion on the quality of medical care afforded to the applicant in the remand prison. In a report dated 11 February 2014 the specialist stated that the applicant’s conditions required enhanced medical attention and inpatient treatment that could only be performed in a neurological medical facility. Remand prison no. 77/1 was not licensed to provide neurological treatment or perform neurosurgery. His bedsores were a sign of insufficient medical attention. The report ended with a recommendation that he be classified as disabled. 36. On 14 February 2014 the applicant was taken to remand prison no. 77/1, where he was detained until 1 March 2014. According to the Government, he shared his cell measuring around 11.4 square metres with another inmate. As he was unable to care for himself, medical staff and inmates assisted him with his daily needs. It is apparent from the case file that he continued to receive treatment as prescribed. 37. On 1 March 2014 he was sent to serve his sentence in a correctional colony in Kostroma, over 300 kilometres away. 38. In the early hours of 1 March 2014 the applicant was taken in a Gazel minivan designed to transfer the seriously ill, to a Moscow train station. The trip took two hours. 39. At the train station he was placed on board a standard train carriage, where he had to stay for four hours awaiting departure. The journey to the destination, the town of Yaroslavl, took approximately five hours. The Government only stated that the applicant had shared his carriage with other detainees and had been accompanied by escort officers ready to assist him if necessary. 40. In Yaroslavl the applicant was taken from the train to a prison van. According to the written statements by escort officers submitted by the Government, he was put on a thin blanket on the floor of the van. In the next half hour he was taken to a remand prison, so that new escort officers could join the transfer team. The applicant had to wait for another hour, lying on the floor of the van, while the official procedure involving the escort officers was under way. He was then taken back to the train station in Yaroslavl. 41. At the station the applicant was taken to a prison train carriage, which he shared with other inmates. After another two hours the train departed for Kostroma. The trip took three hours. At around midnight the train arrived at the Kostroma train station. The Government did not provide any description of the conditions in which the applicant travelled. 42. Within the next hour a prison van took the applicant to a nearby remand prison, where he was detained from 2 to 6 March 2014. 43. On the morning of 6 March 2014 the applicant was taken in the same prison van to correctional colony no. IK-15/1 (“the correctional colony”). The trip took around an hour. 44. The parties disagreed whether the vehicles used to transfer the applicant, with the exception of the Gazel minivan, were equipped to accommodate ill inmates. While the Government argued that all vehicles could transport bedridden patients, the applicant stated that they had had no special equipment on board. He had been forced to lie on the floor of the prison vans on a thin blanket used as a stretcher. During the entire journey he had been in severe pain, but had not received any painkillers. 45. The applicant was placed in the medical unit of the colony. He continued receiving various drugs and injections, including nootropic drugs, muscle relaxants and antioxidants and vitamins, to improve the function of the central and peripheral nervous systems. He was regularly seen by doctors. His condition remained stable. 46. The applicant spent all his time in bed. Personal care workers provided him with bedside care, including basic nursing procedures. 47. The applicant was examined by a panel of doctors to check whether he should be released early on health grounds. In their report dated 15 April 2014 they concluded that his conditions, in particular his lower limb spasticity and bladder and bowel dysfunction called for his early release. 48. On the panel’s recommendation, the colony administration asked the court to authorise the applicant’s early release on health grounds. 49. The Sverdlovskiy District Court of Kostroma granted the request and on 3 July 2014 ordered his release. On 26 August 2014 the Kostroma Regional Court upheld the order on appeal. Two days later the applicant was released.
| 1 |
test
|
001-157969
|
ENG
|
UKR
|
CHAMBER
| 2,015 |
CASE OF SOKIL v. UKRAINE
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano
|
5. The applicant was born in 1981. According to the most recently available information, in January 2014 the applicant was released from detention having served his sentence. He did not inform the Court of his current whereabouts. 6. According to the available medical documents, the applicant has been using drugs since 1996. In 1997 the applicant was diagnosed with hepatitis C and hepatic cirrhosis. The applicant has been HIV-positive since 2008. In 2008 he also had tuberculosis. 7. In March 2010 the applicant was taken into custody and placed in the Kyiv Pre-Trial Detention Centre (Київський слідчий ізолятор) (“the SIZO”). On 13 July 2010 the Obolonskyy District Court, Kyiv, sentenced the applicant to five years’ imprisonment for drug-related offences and theft. On 4 September 2010 the applicant was transferred to serve his sentence in the Bilotserkivska Correctional Colony No. 35. In May 2011 the applicant was diagnosed HIV-positive at clinical stage 4. On 24 May 2011 the applicant’s CD4+ cell count was 687 (16.3%). On 7 July 2011 the Irpinskyy Town Court released him from serving the remainder of his sentence in view of his poor state of health. 8. On 25 July 2011 the applicant was registered for regular medical checks at the Kyiv City Aids Centre. 9. On 1 February 2012 the Dniprovskyy District Court sentenced the applicant to four years’ imprisonment for theft. 10. On 2 February 2012 the applicant was placed in the Kyiv SIZO. On arrival the applicant was examined by medical staff and had two chest Xrays. It was recommended that the applicant consult a tuberculosis specialist. 11. On 8 February 2012 the applicant was examined by a tuberculosis specialist and diagnosed with post-tuberculosis residual changes in the right lung. 12. On 16 or 20 March 2012 (relevant documents contain both dates) the applicant was placed in the SIZO medical ward. He stayed there until 18 February 2013 with the following diagnoses: acute haemorrhoidal bleeding, haemorrhoids, chronic multiple drug use, HIV at clinical stage 3, oropharyngeal candidiasis, chronic secondary candidiasis, acute enterocolitis, chronic hepatitis, residual post-tuberculosis changes, liver cell failure, and other conditions. The applicant was prescribed various medication. 13. According to the Government, the applicant was examined by doctors in the SIZO medical ward on numerous occasions. In particular, on 22 March 2012 the applicant was examined by a surgeon and was examined by a general practitioner on the following dates: on 11, 16, 21 and 25 May 2012 with complaints of fever and weakness; on 18 and 22 June 2012 with complaints of fever and weakness; on 16 July 2012 with complaints of coughing with sputum, sweating, general weakness and fever; on 1, 3, 10, 15, 23 and 28 August 2012; on 4 and 10 September 2012; on 4, 10, 15, 22 and 29 October 2012; on 5, 9, 16, 23 and 29 November 2012; and on 5, 11, 18, 24 and 27 December 2012. On the majority of those occasions it was decided to continue the prescribed treatment. 14. In addition to the above consultations, between March 2012 and 18 February 2013 the applicant received the following medical care: on 10 April 2012 the applicant had a chest X-ray and it was recommended that he see a tuberculosis specialist. Subsequently the applicant was examined and diagnosed with post-tuberculosis residual changes in the right lung. On 13 July 2012 he had another consultation with a tuberculosis specialist; on 24 October 2012 the applicant was examined by an infection diseases specialist and diagnosed, inter alia, with HIV at clinical stage 4. It was also suspected that the applicant had had a tuberculosis relapse, so an additional X-ray was recommended; on 7 November 2012 the applicant had an X-ray. On 14 November 2012 a tuberculosis specialist examined the applicant and concluded that there were no signs of active tuberculosis. 15. Between 18 April and 20 December 2012, according to the test results, the applicant’s CD4+ cell count dropped from 762 (18.4%) to 467 (14.3%). 16. Meanwhile, on 23 July 2012 the Kyiv City Court of Appeal quashed the decision of 1 February 2012 in the applicant’s criminal case and remitted the case for a fresh court examination. On 3 September 2012 the Dniprovskyy District Court, Kyiv, found the applicant guilty of drug-related offences and theft, and sentenced him to two years’ imprisonment. 17. On 14 January 2013 the applicant was examined in the Kyiv City Diagnostic Centre. Two days later the applicant was examined by a tuberculosis specialist and diagnosed with tuberculosis. The applicant was prescribed anti-tuberculosis treatment. 18. On 23 January 2013 the applicant’s CD4+ cell count was 314. 19. On 25 and 30 January and 4 February 2013 the applicant was examined by a general practitioner. The prescribed treatment was continued. 20. On 5 February 2013 the applicant requested under Rule 39 of the Rules of Court that the respondent Government be asked to secure an appropriate medical examination and treatment for him which, according to the applicant, was impossible in the Kyiv SIZO. On 7 February 2013 the Court refused the applicant’s request. 21. On 11 February 2013 it was recommended by a tuberculosis specialist that the applicant be transferred to a specialised tuberculosis hospital. 22. On 18 February 2013 the applicant was transferred to Zhovtnevska Correctional Colony No. 17 (Жовтневська виправна колонія №17). He arrived there on 21 February 2013 and was placed in a specialised tuberculosis hospital. Upon arrival the applicant complained of a cough with mucopurulent sputum, pain in the chest and armpits, headache, and abdominal pain and distension. It was concluded that the applicant’s state of health was of medium severity. He underwent various blood, urine and sputum tests, X-rays and ultrasound examinations. On 21 and 22 February 2013 the applicant was examined by an otolaryngologist, a psychiatrist and a general practitioner. The applicant was diagnosed with tuberculosis, HIV, encephalopathy, chronic hepatitis and other diseases. The applicant was prescribed anti-tuberculosis treatment. 23. The Government provided a detailed description of the examinations, prescriptions and treatment the applicant received in the hospital between February and October 2013. It included numerous X-rays, ultrasound examinations, blood, urine and sputum tests, examinations by hospital doctors and external specialists: a tuberculosis specialist (on 28 February 2013 and 15 August 2013), an otolaryngologist (on 26 March 2013: the applicant was diagnosed with otitis), a psychiatrist (on 22 February 2013: the applicant was diagnosed with opium narcotic addiction in remission); a dentist (3 April 2013), a general practitioner (on 13, 14, 19, 25 and 30 March 2013; on 1, 2, 3, 10, 12, 22, 26, 28 and 29 April 2013; on 7, 12 and 16 May 2013; on 1, 4, 15, 21 and 26 June 2013; and on 5, 8 and 17 July 2013); a surgeon (on 24 April 2013); a dermatologist (on 24 April 2013); an infectious diseases specialist from the Kharkiv Regional HIV/Aids Centre, who prescribed antiretroviral therapy (“ART”) for the applicant (22 July 2013); and a neuropathologist (on 13 August 2013). 24. On 3 May 2013 the applicant’s CD4+ cell count was 477 (15.7%). 25. On 21 August 2013 the applicant started the ART. 26. On 4 September 2013 the applicant’s CD4+ cell count was 297 (12.1%). 27. On 20 September 2013 a tuberculosis specialist from the Kharkiv Medical Academy of Postgraduate Education concluded that the applicant’s anti-tuberculosis treatment had been effective. 28. On 3 October 2013 the applicant was discharged from the hospital with the diagnosis of, inter alia, post-tuberculosis residual changes, HIV (clinical stage 4), chronic hepatitis in unstable remission, and chronic thrombophlebitis. The applicant was transferred to Buchanska Correctional Colony No. 85 (Бучанська виправна колонія №85) since his state of health had improved. He was provided with ART medication for two months. 29. According to the parties, while in the hospital the applicant also received various medication from his relatives. 30. The applicant spent the majority of the time between 1 November and 30 December 2013 in the Buchanska Correctional Colony Hospital. On 23 December 2013 the applicant’s CD4+ cell count was 314 (14.8%). 31. On 31 January 2014 the applicant was released, having served his sentence.
| 1 |
test
|
001-169477
|
ENG
|
MDA
|
COMMITTEE
| 2,016 |
CASE OF RUSU LINTAX SRL v. THE REPUBLIC OF MOLDOVA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Stéphanie Mourou-Vikström;Georges Ravarani
|
4. The applicant is a limited liability company incorporated under Moldovan law. 5. On 11 June 2008 the Supreme Court of Justice acknowledged the applicant company’s entitlement to a plot of land adjacent to a warehouse it owned. The judgment ordered the Public Property Agency to sell the plot of land to the applicant company. The judgment was final. 6. On 24 December 2008 the Supreme Court of Justice upheld an application for revision lodged by a third party, quashed the final judgment of 11 June 2008 and remitted the case for a fresh examination on the merits. As new evidence the court cited a letter dated 2 November 2007 from the Public Property Agency which, referring to the disputed plot of land and other plots, listed the legal provisions applicable to the sale of land that was public property. 7. After a fresh hearing, on 16 June 2010 the Supreme Court of Justice dismissed in a final judgment the applicant company’s claims in respect of the plot of land as unsubstantiated.
| 1 |
test
|
001-171533
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,017 |
YILDIZ v. TURKEY
| 4 |
Inadmissible
|
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
|
1. The applicant, Mr Recep Yıldız, is a Turkish national who was born in 1978 and lives in Rize. He was represented before the Court by Mr U. Ateş, a lawyer practising in Ankara. 3. On 14 July 2005, in connection with a police investigation into the alleged activities of a drug-trafficking operation, large quantities of heroin were seized in Küçükçekmece (a suburb of Istanbul) and a number of suspects were arrested. 4. On 28 August 2005 a police officer who had not been involved in that operation told his superior that certain police officers, including the applicant, had been offered money in exchange for leaving one of the suspects out of the investigation. He further alleged that some police officers in the unit had each received the sum of 1,000 euros (EUR) from the applicant in return for their turning a blind eye. The police officer’s superior prepared a report to that effect and initiated a disciplinary investigation concerning the allegations of bribery. 5. On the basis of the findings of the investigation concerning those allegations, the investigators in charge of the disciplinary investigation lodged a complaint with a public prosecutor and asked for a criminal investigation to be instigated against those police officers, including the applicant. 6. Accordingly, on 23 March 2006 the applicant was charged with bribery. A criminal trial was opened in the Istanbul Assize Court. 7. After hearing witnesses and assessing the evidence before it, the Istanbul Assize Court held that the accusations concerning the applicant and the co-accused did not go beyond hearsay and that there was nothing in the case file that proved the accused persons’ guilt. It therefore acquitted the applicant and his co-accused of bribery on 29 September 2006. 8. On 8 June 2007, on the basis of the findings of the disciplinary investigation, two sanctions were imposed on the applicant which deferred his advancement to a higher rank for a period of 16 months and of 24 months respectively. The relevant parts of the decision read: “Notwithstanding the fact that the charges against the accused police officers were not proved and that they have consequently been acquitted in the criminal proceedings and that the legal constituents of the crime of bribery were lacking, under section 131 of the Civil Servants Act the opening of criminal proceedings against a civil servant cannot delay disciplinary proceedings, which can be conducted in parallel with such proceedings. Furthermore, exoneration of criminal liability does not prevent the imposition of disciplinary sanctions. In the light of the foregoing, bearing in mind the fact that the report in question was signed by the supervising police officer and four senior officers and that the statement of Ş.G. confirming the veracity of certain aspects of the allegations and the statement of [police officer] N.İ. confirming the statement of the latter ... [the disciplinary board] considers that the applicant’s conduct constituted the disciplinary offence in question. Notwithstanding the fact that the misconduct in question cannot be characterised as criminal, it was still inappropriate and was of such a nature as to diminish the respect and the trust associated with the functions of a police officer ... Therefore, the applicant’s conduct amounts to “acts and conduct that discredit the respect and trust associated with the official function of a police officer”, ... as well as to “neglect of duty” in so far as the applicant left one suspect out of the investigation, despite there being strong suspicions [that he had been involved] ...” 9. On 4 August 2007 the applicant lodged a claim against the Ministry of Interior with the Kastamonu Administrative Court, challenging the disciplinary sanctions imposed on him. 10. On 30 November 2007 the court set aside both disciplinary punishments, holding that the findings of the investigation giving rise to the impugned disciplinary action had contained no proof beyond hearsay and accordingly concluding that the allegations were unfounded. 11. The Office of the Istanbul Governor lodged an appeal with the Supreme Administrative Court against the decision of the Kastamonu Administrative Court; the appeal was dismissed and the decision of 30 November 2007 was upheld and became final on 21 March 2013. 12. Meanwhile, on 15 December 2005 the applicant underwent an appraisal of his work. The appraisal was carried out by his immediate superior and signed by a senior police chief. He was given an unsatisfactory score of 56 out of 100 and received a disciplinary warning to this effect on 3 March 2006. The warning briefly stated that the applicant’s appraisal score was unsatisfactory and that unless he improved his score he could be subject to the relevant provisions of the Regulation on the Personnel Records of Civil Servants (Devlet Memurları Sicil Yönetmeliği). 13. On 27 March 2006 the applicant lodged a complaint with the Directorate of the Security Forces, contesting his poor appraisal score and requesting clarification of the circumstances of his appraisal. 14. On 10 May 2006 the applicant received a letter stating that his complaint had been examined on the basis of the documents relating to his appraisal and that his appraisal had been conducted in accordance with the law and the applicable procedure. 15. On 14 July 2006, the applicant instituted administrative proceedings before the Istanbul Administrative Court, requesting the court to stay and to set aside the appraisal decision of 3 March 2006. He argued that his superiors had only taken into account the allegations of bribery against him in connection with the narcotics operation carried out in 14 July 2005 and had failed to respect his right to the presumption of innocence given that the criminal proceedings concerning the same allegations were still pending. In that respect, he submitted that his appraisal had been biased. He further submitted that, owing to the fact that his appraisal had been poor, he had been transferred to a remote city and was therefore prevented from continuing his master’s studies at Marmara University in Istanbul. 16. During the course of the proceedings the applicant submitted to the Istanbul Administrative Court the judgment of 29 September 2006 acquitting him of the charges of bribery. 17. During the course of the proceedings the court requested from the Ministry of Interior the file regarding the applicant’s appraisal, as well as his appraisal records over the previous five years. The applicant’s previous appraisal in respect of the years 2003 and 2004 had been excellent, with a score of 95. No appraisals had been carried out in the years 2000 and 2002 owing to the fact that the applicant had taken unpaid leave. Lastly, for the year 2001, the applicant’s appraisal score had been mediocre, with a score of 74. 18. On 31 October 2007 the court dismissed the applicant’s request and held that his appraisal had been carried out in accordance with the law and had no appearance of arbitrariness. The relevant parts of the judgment read: “Appraisal exercises are carried out annually to assess a civil servant’s competence, skills, output and his or her professional conduct. On the one hand, an appraisal report necessarily contains observations that are based on the subjective impressions of the appraiser – which need not be substantiated by concrete evidence. In this last respect, however, if an appraisal report contains negative feedback in terms of a civil servant’s productivity, competence and work discipline, these points need to be substantiated with reasons ... On the other hand, all acts of the State are subject to judicial review ... As a safeguard against arbitrariness, appraisal reports need to contain reasons for their conclusions ... On the basis of the examination of the case file, it is understood that the applicant was implicated in a disciplinary investigation involving allegations of bribery. Following the disciplinary investigation he received two deferments of advancement to a higher rank of durations of 16 months and 24 months, respectively. Due to the fact that the applicant had received disciplinary sanctions, his appraisal report indicated that the applicant had demonstrated a tendency to put his own interests first [tavassuta düşkünlük]. Therefore, the court finds it established that the ... disciplinary misconduct attributed to the applicant was proved during the course of the disciplinary investigation and that the poor appraisal based on the perception of his tendency to put his own interests first is not incompatible with the law.” 19. The applicant appealed against the decision to the Supreme Administrative Court, reiterating the arguments he had raised before the Istanbul Administrative Court and further submitting that the Administrative Court had found a very similar appraisal report to be incompatible with the law in the case of a colleague who had also been subject to the same disciplinary proceedings concerning the narcotics operation of 14 July 2005. In the context of those other proceedings concerning the applicant’s colleague, the Kastamonu Administrative Court, acting as the court of first-instance, had held on 25 April 2008 that: “The appraisal system is the legal basis on which a civil servant receives a promotion, demotion or salary increase, or obtains a transfer to a different city or to a different function ... In consideration of the significance of the legal consequences of the appraisal and having regard to the legal nature of the appraisal report, the reasons set out in the appraisal report must clearly explain the conclusions reached and also support such conclusions with concrete background information and documents. ... In the circumstances of the present case, the court had regard to the plaintiff’s appraisal reports for the years preceding 2006 and noted that his appraisal reports concerning the previous five years had consistently been excellent. However, the ‘mediocre’ appraisal score given to the plaintiff for the year 2006 was not substantiated with reasons or documents and contained no explanation as to why the applicant had gone from excellent to mediocre. On the basis of the foregoing, the court sets aside the appraisal report for not being compatible with the law.” 20. On 27 April 2009 the Supreme Administrative Court rejected the applicant’s appeal as ill-founded and found the impugned decision to be in conformity with the law and the applicable procedure. One judge (out of five) expressed a dissenting opinion. She stated, in particular, the following: “The disciplinary sanction received by the applicant does not in itself merit a poor score in respect of all the areas assessed in the appraisal report. For this reason, I do not agree with the majority that the appraisal was in total conformity with the law.” 21. The applicant lodged an appeal, seeking the rectification of the decision of 31 October 2007. In its decision of 27 January 2010, served on the applicant on 17 May 2010, the Supreme Administrative Court rejected that appeal. 22. Section 2 of the Disciplinary Regulation of the Security Forces (Emniyet Örgütü Disiplin Tüzüğü), in so far as relevant, provided as follows: “Disciplinary measures shall comprise one of the following: ... D) Lengthy deferment of advancement: advancement to a higher grade may be deferred for a period of twelve, sixteen, twenty or twenty-four months.” 23. Section 8 of the Disciplinary Regulation of the Security Forces, in so far as relevant, set out the possible grounds for a police officer’s dismissal from the police force as follows: “The following acts, procedures, behaviour and conduct incur expulsion from the profession ... 6. Larceny, robbery, fraud, extortion, bribery, embezzlement, defalcation, rape, sexual assault, forgery, counterfeiting, intentional killing or attempting any of these offences, abuse of trust, bearing false witness, perjury, false accusation, slander ...” 24. Section 7 of the Disciplinary Regulation of the Security Forces, in so far as relevant, defined the types of misconduct sanctioned by a lengthy deferment of advancement as follows: “B) Deferment for a period of 16 months 1 – Conduct that is incompatible with the reputation and trust inherent in the official function. ... D) Deferment for a period of 24 months ... 2 – Neglecting one’s duty by failing to take the necessary actions against a suspect ...” 25. Section 17 of the former Regulation on the Personnel Records of Civil Servants (Devlet Memurları Sicil Yönetmeliği) provided, in so far as relevant, as follows: “Overall assessment of the Civil Servant’s Conduct: The appraiser shall take into consideration a) Appearance (professional attire); b) Intelligence and his or her ability to learn; c) Ability to persevere, the desire to excel, [and] the ability to be discreet; d) [A]ddictions such as gambling and alcohol consumption that are not compatible with civil service; e) Personality traits such as reliability, preoccupation with one’s own self-interest, honesty, tendency to gossip [or feel] jealousy ...” 26. Section 24 of the former Regulation on the Personnel Records of Civil Servants provided, in so far as relevant, as follows: “A civil servant who receives two poor appraisal scores in succession shall be assigned to a different appraisal unit and in the event that he [again] receives a poor score, he shall be dismissed from the profession ...”
| 0 |
test
|
001-156273
|
ENG
|
GEO
|
CHAMBER
| 2,015 |
CASE OF G.S. v. GEORGIA
| 3 |
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
|
George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
5. The applicant was born in 1981 and lives in Kharkiv, Ukraine. 6. The applicant lived with her partner, a dual Georgian-Ukrainian national, Mr G. Ch., in Kharkiv. On 29 July 2004 their first child, L., was born; he was registered in Ukraine at the applicant’s address and acquired Ukrainian citizenship. 7. Some time in mid-2005 G. Ch. left Ukraine for Russia. L. continued to live with his mother and attended a pre-school educational institution in Kharkiv. 8. In 2005 and 2006 G. Ch. visited the applicant and L. twice. In September 2006 the applicant gave birth to another child of the couple, T. 9. On 22 July 2010 T. died in an accident. She fell from an open window of an apartment. L., who had apparently witnessed the tragic incident, started receiving psychological help in the form of dolphin-assisted therapy. 10. On 30 July 2010 the applicant allowed G. Ch. to take their son for the first time to Georgia for the summer holidays. She signed a document authorising G. Ch. to travel with L. to Georgia and Russia between 30 July 2010 and 28 February 2011. According to the applicant, L. was expected to return to Kharkiv by the end of August in order to start in September at a primary school in which he had been pre-enrolled. 11. On 13 August 2010, the applicant learned when talking on the telephone with her son that the latter would not be returning to Ukraine and would be staying in Georgia. For two months the applicant tried to persuade her former partner to allow their child to return to Ukraine, to no avail however. It appears that soon after this G. Ch. left for Russia, while L. stayed in Georgia with his uncle, G. Ch.’s brother, and his grandfather. G. Ch. travelled occasionally to Georgia to see his son. 12. On 16 November 2010 L. was diagnosed with an adjustment disorder and began having outpatient treatment. 13. On 22 March 2011 the Kievskiy District Court of Kharkiv ordered L.’s return to Ukraine. The court ruled that L.’s place of permanent residence should be that of the applicant. 14. G. Ch. was not apparently informed of the institution of the above proceedings. He did not accordingly appeal against that decision. 15. In October 2010 the applicant initiated child return proceedings under the Hague Convention via the Ministry of Justice of Ukraine. On 18 November 2010 the latter contacted the Ministry of Justice of Georgia and requested legal cooperation on the matter. On 2 December 2010 the Ministry of Justice of Georgia, acting as the central authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant before the Tbilisi City Court. 16. On 10 February 2011 two social workers went to see L. at the request of the Tbilisi City Court. They visited him at his uncle’s apartment, where he was living with his cousins. According to the report drawn up thereafter, L. was being looked after by his uncle, since his father was mainly based in Russia. The boy spoke Russian, although he had started attending a Georgian school. L.’s uncle told the social workers that L.’s sister had died as a result of their mother’s lack of attention; hence it was dangerous for L. to live with his mother. The social workers also had a short conversation with L. during which he stated that he was happy with his uncle and cousins, and did not want to go back to Ukraine. In conclusion, the social workers noted that L. was living in appropriate living conditions, and that his basic needs were being met. 17. In April 2011 the social workers set up and attended three meetings between the applicant and her son. In the report drawn up thereafter they concluded the following: “On the basis of our intervention, which included visits, conversations with L. and observation of his behaviour, we consider his behaviour to be problematic. In particular, although L. wants to see his mother, and when seeing her expresses his love, warm feelings and happiness, he refuses subsequently to talk to her on the telephone. It should be underlined that when communicating with his mother he is following his father’s prompting and is stressed. Given that L. is living in the family of his uncle and grandfather, he lacks relationship with his parents (since neither of the parents lives with him). In order for a child to develop into a contented and healthy individual, and to have his interests protected, it is necessary for him to communicate with his parents.” 18. In the same report the social workers noted that during one of the meetings they noticed that the boy, prompted by his father, had stopped hugging his mother. This happened twice, until one of the social workers warned G. Ch. to stop doing this. 19. In April L. additionally underwent a psychological examination, which concluded that the boy was suffering from insufficient emotional relationship with his parents. It was noted that L. had a clearly positive attitude towards his father and the paternal family, while with respect to the mother his attitude was twofold: love and warm feelings on the one hand, and anxiety on the other. L. indicated to a psychologist that he wanted to live with his father and his father’s family and wanted his mother to be with them too. In her conclusions about his emotional condition the psychologist noted that the boy’s nervousness, aggression, distrust, and irritability, as well as low self-esteem, were caused by psychological trauma he had suffered in the past, as well as by his current complicated and barely comprehensible situation. 20. On 16 May 2011 the Tbilisi City Court refused the applicant’s request. The court concluded, having regard to the boy’s age and other circumstances of the case, that his return to Ukraine would expose him to psychological risk. It stated in this connection that it would be inappropriate to order the boy’s return to Ukraine, since the applicant had failed to show that she could create a stable environment for her son in which he could be protected from psychological risks related to the separation from his father. The court further noted the following: “The court considers that in the current case, having regard to a psychologist’s report which categorically states that L. suffered a serious psychological injury, it is with high probability that if returned to Ukraine the child would be exposed to “physical or psychological harm or otherwise place[d] in an intolerable situation” (Article 13 of the Convention).” 21. The court dismissed the applicant’s argument that her son was suffering from an adjustment disorder and lacked communication with his parents. It noted in this connection the following: “In view of a psychological examination the court particularly stresses the following – “L. Ch. has revealed ... high level of anxiety ... and fear of the future”, “twofold attitude towards his mother, which implies love and warm feelings as well as strong anxiety,” according to the same report, it was established that [he suffers from] “lack of emotional relationship with both parents” and “positive attitude towards his father and the paternal family” especially towards the grandfather (N. Ch.). The court further particularly underlines the fact that minor L. Ch. expresses the wish to live with his father and the paternal family. At the same time, he wants his mother (G. S.) to stay with them ... The court cannot accept the argument of the requesting party that the child is having adaptation difficulties because of the separation from his mother and because he is being kept in Georgia. The above opinion is not supported by any evidence and is not substantiated ... There is an attempt on the father’s side to take every possible measure ... to treat [the boy’s] psychological condition.” 22. As to the risks related to the boy’s return to Ukraine, the court stated: “Hence, the court considers that the return of L. Ch. to Ukraine (in view of his current condition) would imply his return to an uncomfortable situation, which would result in his psychological stress and would place him at psychological risk, even if he returned to Ukraine with his father. Separation from his father and the paternal family and his return to Ukraine (at this stage) would cause mental deterioration of the child and from a psychological point of view would inevitably create a risk [for the boy]. (The requesting party failed to prove the opposite).“ 23. That decision was overturned on 27 October 2011 by the Tbilisi Court of Appeal, which ordered L.’s return to Ukraine. The appeal court observed that L. had been born and had lived in Kharkiv, so he had adapted to the situation in Ukraine. Further, according to the psychological and social welfare reports, the boy was suffering from adaptation difficulties and lacked sufficient communication with his parents. In this connection, the court stressed that L. had indeed suffered psychological trauma as a result of the accidental death of his sister; but, according to the very same reports, he was also suffering because of the situation he was currently in. Hence, it was within the best interests of the child to be reunited with his mother. The court further noted: “The above-mentioned conclusions confirm that the current situation for [the boy] is complicated and hardly comprehensible. Accordingly, in view of the interests of L. Ch., since there is no obvious risk of a negative impact on his mental state if he were returned to his mother, it would be appropriate that he be returned to his parent (the applicant G. S.) and to his habitual place of residence.” 24. As to the death of L.’s sister, the appeal court noted that related criminal proceedings had been dropped, as it had been concluded that it had been a tragic accident. It further noted in connection with the psychological trauma the boy suffered as a result, that “... already traumatised child should not be separated from his parents. This should be viewed as a decision taken in the interests of the child. As was noted in the appealed decision, L. before his arrival in Georgia had been having dolphin-assisted rehabilitation treatment. At the same time, his stay with his mother cannot be harmful to him, since she has been doing an internship at the psychiatric hospital ...” 25. G. Ch. appealed against this decision on points of law, alleging that the court of appeal had incorrectly interpreted the Hague Convention and the facts of the case. On 22 August 2012, without holding an oral hearing, the Supreme Court allowed the appeal on points of law, thus reversing the judgment of 27 October 2011. On a general note, in connection with the purpose of the initiated proceedings the court noted the following: “The subject matter of the pending application is the return to Ukraine of a child (L. Ch.) wrongfully retained in Georgia ... The cassation court pays attention to the analysis developed in the preamble of the Convention concerning its aims, according to which the interests of the child are of paramount importance when examining childcare-related issues. At the same time, the High Contracting Parties to the Convention undertook an obligation to provide international protection to children against any harmful effects of their wrongful removal or retention. Accordingly, it implies that the procedures provided for by the Convention which aim at the speedy return of a wrongfully removed or retained child to his or her habitual place of residence serve the main purpose of protecting children’s interests. In view of all the above-mentioned, the cassation court when considering the lawfulness of the request to end wrongful retention of a child considers it appropriate within the scope of the appeal on point of law to also examine the issue as to what extent the child’s interests would be protected in the event of his return which together with other factors implies the creation of a safe environment for a child. The above analysis of the cassation court finds its basis in the exceptional clauses of the Convention which in individual cases allow the relevant bodies of the receiving state to refuse the return of a child (Article 13 of the Convention).” 26. The Supreme Court further considered that the applicant had failed to show that the return of L. to the pre-abduction situation would be possible without damaging his interests. Notably, the court concluded: “The cassation court wholly shares the view of the appeal court, according to which L. is suffering from lack of relationship with his parents; accordingly, in order for the child to develop into a contented and healthy individual and to have his interests protected it is necessary for him to communicate with his parents. However, as was noted above, when dealing with this type of case particular attention should be given to the consideration of exceptional circumstances ... The appellant alleges a violation of Article 13 § b of the Convention (there is a serious risk that if returned the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation) and considers that the impugned decision omits the primary reason for L. Ch.’s leaving Ukraine, namely the tragic death of T. Ch. in July 2010, which fact had a negative impact on the psychological condition of L. Ch. ... The cassation court notes the results of the available psychological examination, in which the psychologist along with other issues stressed the high level of traumatisation in L. Ch. as a result of the death of his younger sister. At the same time, the psychologist considers the psychological features observed to be the boy’s reaction to the psychological trauma which he had suffered and to the current barely comprehensible situation. It is noteworthy that even the court of appeal could not omit the fact that as a result of the death of T. Ch. (the sister of L. Ch.) the latter had suffered mental trauma and is as of 16 November 2010 registered at a ... psychiatric institution .... However, the above-mentioned circumstances were not sufficient [for the appeal court] to refuse the return of the boy. The cassation court considers that there is no evidence in the case file which would lead the court to believe that it would be possible to return the child to his pre-abduction environment without damaging his interests. In the opinion of the cassation court, the appellant validly substantiated, on the basis of relevant evidence, the risk factors which are inconsistent with the purposes of the Convention, while the respondent failed to show a higher purpose which could have been achieved by putting an end to the unlawful situation and [she had also] failed to demonstrate that in the event of the child being returned to Ukraine his interests and rights would not be even more violated. Accordingly, bearing in mind that the primary purpose of the Convention on Civil Aspects of International Child Abduction is the protection of the interests of a child, the cassation court considers that the appellant has lodged a substantiated complaint.” 27. To conclude, in reference to Article 13 § b of the Hague Convention, the Supreme Court observed that the main purpose of the Hague Convention was the protection of the best interests of a child, and that accordingly, given the well-substantiated risks that L. was facing upon his return to Ukraine, the exception clause should have been invoked. 28. The case file indicates that G. Ch. did not take part in the relevant court proceedings, as he was not in Georgia at the material time. L., according to the case file, is currently living with his uncle and grandfather in Tbilisi.
| 1 |
test
|
001-158472
|
ENG
|
BGR
|
CHAMBER
| 2,015 |
CASE OF MYUMYUN v. BULGARIA
| 3 |
Violation of Article 3 - Prohibition of torture (Article 3 - Torture;Positive obligations) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Pavlina Panova;Yonko Grozev
|
6. The applicant was born in 1979 and lives in the village of Gorno Sahrane. 7. In the morning of 20 February 2012 Mr N.K. and Mr I.K., officers of the Pavel Banya police force, went to the applicant’s house in connection with a complaint that a burglary had taken place several days earlier, on 16 February. They were making inquiries into the matter but a formal criminal investigation had not yet been opened. The applicant was not home but the officers obtained his mobile telephone number from his wife and called him, telling him to appear at the police station for inquiries. 8. The applicant went to the police station at about 1 p.m. According to the findings of the criminal courts which later examined the events (see paragraphs 20 and 21 below), he was taken to a room where there were Mr N.K., Mr I.K. and a third officer. Mr N.K. asked the applicant whether he had anything to tell them. After the third officer had gone out of the room, Mr I.K. took out a wooden bat and hit the applicant’s left shoulder. He hit him again and the applicant fell to the ground. After that Mr N.K. kicked him with his knee and repeatedly hit him with a rubber truncheon. Some time after that another officer, Mr T.A., came into the room carrying an electroshock prod. He administered an electric shock to the applicant’s left leg. The applicant curled up on the floor, while Mr N.K. and Mr I.K. kept beating him. The beating continued intermittently for some time, and the applicant was able to stand up on his feet. Another officer came into the room for a while. After he left, Mr N.K., Mr I.K. and Mr T.A. again administered electric shocks to the applicant and carried on hitting and kicking him. At one point, when the applicant’s head was low down, he was kicked on the nose and started bleeding, and the beating stopped. 9. The blows sustained by the applicant caused a haematoma on his nose and haematomas and bruises on the upper left back, the left side of the torso and the left shoulder. 10. At about 4 p.m. Mr N.K. drew up a written statement on behalf of the applicant that said that he knew nothing of the reported burglary, and presented it to the applicant for signature. The applicant was released at about 5 p.m. 11. The next day, 21 February 2012, the applicant was examined by a forensic doctor who noted the numerous haematomas and bruises on his face and upper body, which he believed to have been caused by “hard blunt objects and objects with cylindrical form”. 12. On 27 February 2012 the applicant complained about the incident to a member of Parliament, who forwarded his complaint to the prosecuting authorities. As a result, the Kazanlak District Prosecutor’s Office opened criminal proceedings against the three officers who had ill-treated the applicant, and on 1 February 2013 charged them with causing him minor bodily harm while carrying out their duties, an offence under Article 131 § 1 (2) read in conjunction with Article 130 § 2 of the Criminal Code 1968 (see paragraphs 28 and 29 below). 13. On 1 March 2013 the prosecutor in charge of the case informed the applicant that, since the penalty for this offence was up to one year’s imprisonment, the officers’ criminal liability would be waived and replaced with administrative penalties, as required under Article 78a of the Code (see paragraph 42 below). 14. On 28 March 2013 the applicant asked the Kazanlak District Prosecutor’s Office to consider bringing charges against the officers under Article 282 § 1 of the Code (see paragraph 31 below). He pointed out that under this Court’s case-law a mere fine, which was all that the charges under Article 131 § 1 (2) read in conjunction with Article 130 § 2 could lead to, was not an adequate penalty for the ill-treatment suffered by him. On 1 April 2013 that office replied that it had no competence to investigate and prosecute offences under that provision. 15. On 23 April 2013 the applicant asked the Kazanlak District Prosecutor’s Office to consider bringing charges against the officers under Article 287 of the Code (see paragraph 32 below), pointing out that that office was competent to investigate and prosecute such offences. It does not appear that he received a reply. 16. The prosecuting authorities maintained the original charges and on 29 April 2013 proposed to the Kazanlak District Court to waive the officers’ criminal liability and replace it with administrative penalties, as possible under Article 78a § 1 of the Code (see paragraph 42 below). 17. On 30 April 2013, when setting the case down for trial, the Kazanlak District Court noted that although the applicant had expressed the intention of bringing a civil claim when the case came for trial, under the applicable rules of criminal procedure that was not possible in proceedings under Article 78a of the Code (see paragraph 44 below); the applicant was to be notified accordingly. 18. On 21 May 2013 the applicant asked the court to refer the case back to the prosecuting authorities for them to consider whether the officers had committed an offence under Article 287 of the Code (see paragraph 32 below). The same day the judge rapporteur advised the applicant that his request could not be allowed because he was not party to the proceedings: under the relevant rules of criminal procedure the alleged victim of the offence could not take part as a civil claimant or private prosecutor in proceedings under Article 78a of the Code (see paragraph 44 below). It was moreover up to the prosecuting authorities to decide what charges to press. In any event, Article 287 of the Code did not apply to the facts as recited in the indictment. According to them, the applicant had been ill-treated before the institution of criminal proceedings in relation to the burglary in which he would have a capacity as a person charged with a criminal offence or a witness, which was a required element of the offence. Criminal law provisions could not be interpreted broadly. 19. The officers’ trial took place on 23 May, 5 August, 13 November and 12 December 2013. 20. On 12 December 2013 the Kazanlak District Court, based on the findings of fact made by it (see paragraphs 7-11 above), held that Mr N.K., Mr I.K. and Mr T.A., acting in concert, had wilfully caused the applicant light bodily harm, contrary to Article 131 § 1 (2) read in conjunction with Article 130 § 2 of the Criminal Code 1968 (see paragraphs 28 and 29 below). The court went on to hold that the case fell under Article 78a § 1 of the Code (see paragraph 42 below) and that the officers’ criminal liability was therefore to be waived and replaced by administrative fines ranging from 1,000 to 5,000 Bulgarian levs (BGN). In fixing the quantum of the fines, the court found that the officers’ good character and their having caused the applicant the least serious type of bodily harm under the Code were mitigating factors, whereas their having acted jointly and having infringed the applicant’s rights under the Convention were aggravating ones. It also took into account the officers’ family and financial situation, noting in particular that the monthly salary of the first was BGN 800 and those of the other two BGN 600 each. Based on all that, it held that the aims of the punishment could be attained by giving each of the officers a fine of BGN 2,000 (the equivalent of 1,023 euros (EUR)). There was no need additionally to disqualify them from working as police officers under Article 78 § 4 of the Code (see paragraph 42 in fine below). The fines were sufficient to make them rethink their conduct and refrain from resorting to violence in the future. 21. The officers appealed against that judgment, but on 25 April 2014 it was fully upheld by the Stara Zagora Regional Court, whose judgment was final. That court reviewed of its own motion the penalties imposed on the officers and fully agreed with the reasons given by the lower court on that point. 22. Following a complaint by the applicant, on 27 February 2012 the Kazanluk Regional Police Department opened an internal inquiry into the allegations that he had been ill-treated. On 6 March 2012 it informed the applicant that it had recommended the opening of disciplinary proceedings against the three officers. As a result of those proceedings, on 5 June and 18 October 2012, respectively, Mr N.K. and Mr I.K. were punished with non-admission to promotion competitions for a period of three years for having unlawfully detained the applicant, whereas Mr T.A. was not given a disciplinary penalty. The disciplinary commission found that none of the three officers had ill-treated the applicant. 23. In August 2014 the applicant brought a claim for damages under section 1 of the State and Municipalities Liability for Damage Act 1988 against the Stara Zagora Regional Police Directorate. The Stara Zagora Administrative Court heard the case on 17 December 2014, and in a judgment of 19 January 2015 found the Stara Zagora Regional Police Directorate liable for the ill-treatment suffered by the applicant at the hands of the three officers, and awarded him BGN 4,000 (the equivalent of EUR 2,045), plus interest, in non-pecuniary damages. The court noted, in particular, that the ill-treatment to which the applicant had been subjected had not been provoked by him in any way, and that it had caused him physical pain for about a month. It had also caused him to feel apprehensive and uneasy when going out of his home because of fear that he might be illtreated again. 24. It appears that that judgment has not yet become final.
| 1 |
test
|
001-174060
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF URUKOV v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
5. The applicant was born in 1959 and lives in Cheboksary. He is a former head of the civil law department in the Cheboksary State University. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 28 February 2004 baby V. was born. One month later her mother, H., sued the applicant to establish his paternity and to receive alimony. A genetic study confirmed the applicant’s paternity in respect of V.; however, a medical study concluded that the pregnancy “could not have occurred naturally”. 8. On 7 December 2004 the Moskovskiy District Court in Cheboksary held a hearing with the participation of the applicant and Ms H. and rejected her claim. On 31 January 2005 the Supreme Court of the Chuvashiya Republic quashed the District Court’s judgment and remitted the matter for a new examination. 9. On 17 October 2005 the District Court gave judgment in favour of H. It was quashed on appeal by the Supreme Court on 14 December 2005 in particular on the ground that the parties had not been informed of the date and place of the hearing in which genetics experts had been cross-examined. 10. In March 2007 the applicant was arrested on suspicion of large-scale bribery. He was detained in remand prison IZ-21/1 in Cheboksary. 11. On 15 March 2007 the District Court sent a letter of request (судебное поручение) to the director of the remand prison, asking him to clarify the applicant’s position on the merits of the dispute and to ascertain whether he agreed to having the matter examined in his absence or wished to appoint a representative. On 20 March the director interviewed the applicant who declared his wish to take part in the proceedings and to defend himself in person. The applicant also claimed that he possessed new evidence he wished to submit to the court. On 26 March the District Court refused the applicant leave to be present at the hearings on the ground that the Code of Civil Procedure made no provision for bringing detainees to courts. 12. On 4 April 2007 the District Court held the hearing in the presence of Ms H., as well as Mr K. and Ms U. who represented the applicant. The judgment of the same date was given in Ms H.’s favour. It mentioned that the applicant was held in a remand prison, that he did not recognise the paternity and that he had “previously given similar testimony before the court”. 13. On 16 May 2007 the Supreme Court rejected the applicant’s appeal. It held that the applicant’s absence from the hearing did not entail a violation of his rights because he had been represented and had previously given testimony to the court. 14. On 9 June 2007 the applicant was released on bail. 15. On 27 March 2008 the Moskovskiy District Court decided that he had breached the terms of the bail by exercising pressure on witnesses, issued a detention order and put the applicant’s name on the list of fugitives from justice. The applicant was not present at the hearing and could not be immediately re-arrested. 16. At about 11 p.m. on 8 April 2008 three police officers showed up at the entrance of the applicant’s residence. They had been allegedly tipped off that the applicant was there. As it happened, the applicant received in-patient treatment at the infections centre but his daughter was inside. 17. She did not open the door to the police immediately and told them that her father was in a hospital. According to her, the police began banging at the door and threatened her to break in. She was thus compelled to open the door. The police entered the flat, inspected all the rooms, opened closets and boxes, lifted the sofa and bed, and then left. 18. On the following day the applicant was arrested and placed in custody. 19. On 24 April 2008 the Supreme Court found that the detention order of 27 March 2008 was not justified. In its view, the District Court had wrongly attached decisive weight to the statements by witnesses who had not mentioned any actual threats emanating from the applicant. The Supreme Court quashed the detention order and released the applicant. 20. The applicant complained to a prosecutor about the unlawful actions of the police on 8 April 2008. On 16 May 2009 the prosecutor refused to institute criminal proceedings, finding that no criminal offence had been committed. 21. The applicant then sued the Ministry of Finance for compensation in respect of an unauthorised search of his home carried out by the police. The District Court heard a number of witnesses. The applicant’s daughter insisted that the police officers’ presence in the flat had lasted as long as two and a half hours. The officer K. testified that he had entered the flat with the consent of the applicant’s daughter and that he had stayed inside no longer than two or three minutes. He had not searched the flat or opened closets. S., a relative who was present at the scene, stated that the police had entered the flat with the daughter’s consent, that they had “moved beds, looked under the carpets, displaced closets and paintings, gone into the basement”. 22. By judgment of 29 October 2009, the Leninskiy District Court rejected the applicant’s claim. Citing section 11 of the Police Act and section 8 of the Operational-Search Activities Act, the District Court held that the officers had acted lawfully, on the basis of the detention order of 27 March 2008, and that they had the right to enter the applicant’s flat because they had information that he might have been at home. Since the Russian law only established the right to compensation in case of unlawful actions, the applicant’s claim was dismissed. 23. On 9 December 2009 the Supreme Court upheld the District Court’s judgment on appeal. 24. On 17 April 2009 the Moskovskiy District Court found the applicant guilty of forcing students to pay bribes into the account of his law firm in exchange of passing grades and gave him a custodial sentence. On 2 July 2009 the Supreme Court upheld the conviction on appeal. 25. The applicant sued the Ministry of Finance for compensation in connection of his unlawful detention from 9 to 24 April 2008. 26. By judgment of 27 November 2009, the Leninskiy District Court rejected his claim, noting that the applicant had been ultimately convicted in the criminal proceedings and given a custodial sentence and that the Supreme Court had quashed the detention order as being “unjustified” rather than “unlawful”. In the latter case, no compensation was payable. 27. On 11 January 2010 the Supreme Court rejected the applicant’s appeal.
| 1 |
test
|
001-174395
|
ENG
|
TUR
|
COMMITTEE
| 2,017 |
CASE OF BULUT v. TURKEY
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
|
Julia Laffranque;Paul Lemmens
|
4. The applicant was born in 1992 and lives in Istanbul. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 15 February 2009 the applicant was arrested by police officers from the Istanbul Police Headquarters on suspicion of being involved in the activities of a terrorist organisation. 7. On 18 February 2009 the applicant’s statement was taken by the public prosecutor. The same day the investigating judge at the Istanbul Assize Court ordered that the applicant be detained on remand taking into account the strong suspicion that the applicant had committed the offence he was charged with and risk of tampering with evidence. 8. On 27 March 2009 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court. He charged the applicant with membership of an armed terrorist organisation, making the propaganda of an armed terrorist organisation, contravening the Meetings and Demonstration Marches Act (Law no. 2911), and causing damage to public property. 9. On 5 May 2009 at the end of the preparatory hearing, the Istanbul Assize Court decided that the applicant’s detention should be continued taking into account the nature of the offence, the state of evidence and the fact that his statements had not yet been taken. 10. On 2 October 2009 the applicant’s trial resumed. At the first hearing, in the presence of the applicant, the court ordered that the applicant’s detention on remand be continued on the same grounds. 11. At hearings held on 16 February 2010 and 8 June 2010, respectively, the applicant’s requests to be released from detention on remand were rejected by the trial court. The applicant filed objections against these decisions. On 15 March 2010 and 7 July 2010, the Istanbul Assize Court dismissed the objections. The court decided on the basis of the case file, without holding a public hearing. In delivering its decisions, the court also took into consideration the written opinion of the public prosecutors, which had not been communicated to the applicant or his representative. 12. On 23 November 2010 the Istanbul Assize Court released the applicant from detention on remand taking into account the period he had remained in detention. 13. On 17 October 2010 the case was transferred to the Juvenile Court. 14. According to the information in the case file, the case is still pending before the Istanbul Anadolu Juvenile Court.
| 1 |
test
|
001-161540
|
ENG
|
LVA
|
CHAMBER
| 2,016 |
CASE OF SHARMA v. LATVIA
| 3 |
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens (Article 1 para. 1 of Protocol No. 7 - Expulsion of an alien);No violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
5. The applicant was born in 1973 and lives in New Delhi, India. 6. The applicant arrived in Latvia in May 1999 [in his observations, he mentions 1989 or 1992 and studies at Riga Aviation University]. He married a Latvian national on 2 July 1999. They have two daughters, born in Latvia on 19 January 1999 and 18 April 2000 respectively. 7. In August 1999 and August 2000 the applicant was issued a temporary residence permit for one year and four years respectively on the grounds of his marriage to a Latvian national. Under the domestic law which was applicable at the material time, following the expiry of the fouryear period the applicant was entitled to a permanent residence permit. 8. On 21 June 2004 the applicant’s documents for the permanent residence permit were accepted. 9. On 11 August 2004 the applicant’s wife asked the Office of Citizenship and Migration Affairs (Pilsonības un migrācijas lietu pārvaldes Ārzemnieku apkalpošanas departaments) to check the information submitted by the applicant for the permanent residence permit in relation to his employment in Latvia. 10. On 21 September 2004 the Office of Citizenship and Migration Affairs refused to grant the permanent residence permit to the applicant on the grounds that he had submitted false information and did not have sufficient financial means to stay in Latvia. 11. According to the Government, on 30 September 2004 the applicant’s wife wrote the Office of Citizenship and Migration Affairs a short letter stating that “my husband ... was refused a permanent residence permit; I would like to object to this.” This objection was accompanied by another letter requesting to ignore the former, as it had been drawn up under threat by the applicant. She asked for help and for the applicant to be refused leave to remain in Latvia. The applicant disagreed with the allegations contained in this letter. 12. On 13 November 2004 the Office of Citizenship and Migration Affairs overturned the decision of 21 September 2004 (see above). It was concluded that the applicant had sufficient financial means and that no false information had been submitted by him. A permanent residence permit, valid until 9 July 2010, was then issued for the applicant. 13. On 6 December 2004 the applicant’s wife reported a domestic conflict to the police. According to her, on 4 and 5 December, when she had attempted to talk to the applicant about a divorce, he had allegedly tried to suffocate her and had inflicted bodily injuries on her. The applicant disagreed with his wife’s version of events; he submitted to the police that he had not inflicted any bodily injuries on his wife. The cause of their conflicts had been the fact that his wife had taken their children to live in another city in Latvia. 14. Following a forensic examination, unspecified minor injuries were found on the applicant wife’s body. On 29 December 2004 the police refused to open criminal proceedings, on the ground that no offence had been committed. No appeal was lodged against that decision. 15. Meanwhile, on 9 December 2004, the applicant’s wife applied to the Office of Citizenship and Migration Affairs with a view to withdrawing the applicant’s permanent residence permit and expelling him from Latvia on the grounds that he presented threats to her life and health and those of their children. She mentioned her previous letters to the Office of Citizenship and Migration Affairs. When the applicant had found out about them, he had asked for them to be recalled and had promised to stop the abuse he had been engaging in. She had done so. Nevertheless, when the permanent residence permit had been issued “it had started all over again”. The applicant had allegedly threatened to cripple her if he had to leave Latvia, and also to kill her, the children and himself. The applicant denied the allegations contained in this letter. 16. On 15 December 2004 her letter was forwarded to the Security Police (Drošības policija) for an assessment of the applicant’s character and to determine if he presented threats to national security or public order. 17. On 10 January 2005 the Security Police informed the Office of Citizenship and Migration Affairs that the applicant constituted a threat to public order and safety. 18. On 20 January 2005 the Minister of Interior decided to include the applicant in the blacklist for an indefinite period of time, on the ground that he constituted a threat to public order and safety, and decided to refuse him entry to Latvia. This decision was not amenable to judicial review at the time. Following legislative changes (see paragraph 45 below) the persistence of the grounds for the inclusion in the blacklist could be re-examined by the Minister of Interior; the applicant attempted to avail himself of this remedy (see paragraph 21 below). 19. On 24 March 2005 the Minister of Interior replied to the applicant’s enquiry of 22 February 2005 and, having reviewed the applicant’s case, concluded that the applicant could not be removed from the blacklist. 20. On 14 April 2005 the applicant’s wife applied to the Ministry of the Interior claiming that notwithstanding her previous letters expressing her wish for the applicant to leave the country their relations had improved and she wished to maintain her family and not to separate the applicant from their children. If he had to leave she and their children would probably follow him. In reply, the Minister explained that her subjective feelings towards the applicant did not imply a change in the circumstances on the basis of which the applicant had been included in the blacklist. 21. On 25 May 2005 the applicant applied to the Minister of Interior with a view to removing the prohibition on entering Latvia. He submitted that the relationship with his spouse had improved and that she and their children did not wish him to leave Latvia. 22. On 27 May 2005 the Security Police wrote to the Ministry of the Interior informing them that the applicant constituted a threat to public order and safety. On 31 May 2005 the Security Police informed the Office of Citizenship and Migration Affairs that the applicant had been included in the list of persons prohibited from entering in Latvia, confirming their view that the applicant constituted a threat to public order and safety; there had been no change in those circumstances. In view of this, they asked the State Border Guard Service to detain and expel the applicant in accordance with section 51, paragraph 1, part 2 of the Immigration Law. 23. On 13 June 2005 the Minister of Interior adopted decision no. 121 and refused to remove the applicant from the blacklist. The decision was sent to the applicant’s address in Jēkabpils. In the decision, the Minister relied on the letter of 27 May 2005 informing him that the circumstances on the basis of which the applicant had been included in the blacklist had not changed. Thus the Minister could not remove the prohibition on entering Latvia. The applicant’s submissions could not serve as the basis for his removal from the blacklist, since a person could not choose his country of residence under either domestic or international law. States were not obliged to respect couples’ choices concerning their country of residence. Nor were there any reasons detected why the applicant’s family could not join the applicant in India and enjoy their family life there. The Minister concluded that the restrictions on the applicant’s right to respect for his family life were justified in the interests of public order and safety and were proportionate. As regards the procedure for appeal, a reference was made to section 76, paragraph 2 and section 188, paragraph 2 of the Administrative Procedure Law which provided for an appeal to the administrative court. 24. The applicant did not appeal. 25. On 1 February 2005 the Office of Citizenship and Migration Affairs adopted decision no. 823 by which the applicant’s permanent residence permit was withdrawn on the grounds that he had been included in the blacklist (section 36, paragraph 1, part 2 of the Immigration Law). The decision was based on the decision of 20 January 2005 (see paragraph 18 above). It was drawn up on the basis of information and documents received from the Ministry of the Interior. The decision indicated that pursuant to section 70 of the Administrative Procedure Law (see paragraph 50 below) it was to take effect upon notification to the applicant. The decision also stated that the applicant was obliged to leave the country within forty-five days. On 14 February 2005 the applicant was informed of the decision and of the fact that he was to leave the country by 26 March 2005. The applicant lodged an appeal against this decision with the Office of Citizenship and Migration Affairs. 26. On 15 March 2005 the Office of Citizenship and Migration Affairs rejected the applicant’s appeal against the withdrawal of the residence permit. It found that the applicant had been lawfully included in the list of persons prohibited from entering in Latvia. Taking into account that the decision to include the applicant in the blacklist was in force and had not been declared unlawful, it was impossible for the applicant to stay in Latvia. It further considered that the contested decision complied with the rule of law, and that it was taken in the interests of national security, public order and safety and for protection of the rights of others, namely the spouse and children. It was proportionate because the protection of the interests of society in assuring national security and public order and safety in the State outweighed the individual interests of the applicant. The applicant was not heard ’s case-law on immigration control, to Article 8 of the Convention under which the interference with the applicant’s family life could be justified, and to the 2004 report of the Committee on the Elimination of Discrimination against Women (CEDAW) concerning Latvia. 27. On 23 March 2005 the applicant’s appeal against the decision to withdraw his permanent residence permit was allowed by the Administrative District Court. 28. On 12 April 2005 the Administrative District Court forwarded to the applicant’s address in Jēkabpils the written submissions of the Office of Citizenship and Migration Affairs in his case. The applicant was asked to indicate by 2 May 2005 if he would agree for the court to examine his case in written proceedings (rakstveida procedūra). Since he did not reply, the court could not examine the case without a hearing. 29. Following four hearings (on 19 December 2006, 16 January and 12 June 2007, and 5 August 2008), the case was left without determination on the grounds that the applicant had failed to appear before the court. This decision took effect on 16 August 2008. All the court correspondence was sent to the applicant’s address in India. His wife was invited as a third party to the proceedings. 30. Meanwhile, on 7 June 2005 the applicant was detained by State Border Guard Service officials under section 51, paragraph 1, part 2 of the Immigration Law on the ground that he constituted a threat to national security or public order and safety. The detention record also stated that by a decision of the Minister of Interior the applicant had been included in the blacklist, and that on 14 February 2005 his permanent residence permit had been withdrawn. The applicant signed the detention record and he was placed in a short-term detention facility in Jēkabpils, where he stayed until 17 June 2005. 31. The applicant lodged a complaint with a prosecutor, arguing that he had been unlawfully detained on the grounds of lack of a valid residence permit. On 14 June 2005 a prosecutor replied that the applicant’s detention was lawful and had been ordered on national security or public safety and order grounds. He could be detained for ten days on these grounds, following which a court order was necessary for continued detention. It was noted that on 31 May 2005 the Security Police had informed the State Border Guard Service that the applicant had been included in the blacklist. Finally, it was noted that the applicant’s detention as such did not automatically entail his expulsion. An expulsion order should be issued within ten days of the applicant’s detention. The applicant was informed that he could lodge an appeal against this reply with a superior prosecutor. 32. On 13 June 2005 the Jēkabpils branch of the Office of Citizenship and Migration Affairs adopted an expulsion order, no. 23-7 (lēmums par ārzemnieka piespiedu izraidīšanu) under section 47, paragraph 1, part 2 of the Immigration Law, on the grounds that the applicant had been detained by the State Border Guard Service in Latvian territory. He was informed that he would be excluded from Latvian territory for a five-year period. The decision took effect the same day, when it was notified to the applicant. On 14 June 2005 the applicant lodged an appeal against the expulsion order with the Head of the Office of Citizenship and Migration Affairs. 33. On 16 June 2005, following a closed hearing, a judge of the Jēkabpils District Court authorised the applicant’s detention for two more months. The judge heard the applicant and decided that he was to be transferred to an accommodation centre for foreign detainees in Olaine. He could not yet be expelled because he had lodged an appeal against order no. 23-7, and thus the judge considered that it was necessary to extend his detention. No appeal against the decision was lodged. 34. On 17 June 2005 the applicant was transferred to an accommodation centre for foreign detainees in Olaine. 35. On 30 June 2005 the Office of Citizenship and Migration Affairs adopted a decision under section 61, paragraph 4, part 3 of the Immigration Law (see paragraph 46 below), including the applicant in the list of persons prohibited from entering in Latvia until 13 June 2010. The applicant did not lodge an appeal against this decision with the administrative courts. 36. On 11 July 2005 the Head of the Office of Citizenship and Migration Affairs dismissed the applicant’s appeal against the expulsion order (see paragraph 32 above). The decision stated that it came into effect pursuant to section 70 of the Administrative Procedure Law and could be amenable to judicial review by the administrative court within one month of its coming into effect. 37. On 13 July 2005 this decision was sent to the accommodation centre for foreign detainees in Olaine. It was not served on the applicant because meanwhile, on 12 July 2005, the applicant had been expelled from Latvia to India. 38. Upon the applicant’s request, on 30 March 2011 the Minister of Interior adopted decision no. 26 entitled “Removal of prohibition on entering the Republic of Latvia”. On the basis of information received from the State Police and the Security Police and section 64, paragraph 1, part 1 of the Immigration Law the Minister decided to remove the applicant from the blacklist. The decision took effect immediately. 39. On 29 April 2011, in response to an email from the applicant, the Ministry of the Interior explained that he had been included in the blacklist on the basis of decision no. 72 of 20 January 2005 and that he could not appeal against the decision, but he could ask the competent authority to review that decision (reference was made to paragraph 7 of the transitional provisions of the Immigration Law). They also informed him that according to the Immigration Law the reasons for the applicant’s inclusion in the list could not be disclosed. Having received the applicant’s request for a review of the decision, the Ministry of the Interior had made enquiries with the State Police and the Security Police. They had received answers that threats under section 61, paragraph 1 of the Immigration Law were not present. Accordingly, the above decision was adopted. Lastly, in response to the applicant’s question whether he could now enter Latvia or receive a permanent residence permit, reference was made to the Immigration Law and the procedure established therein.
| 1 |
test
|
001-142674
|
ENG
|
FIN
|
CHAMBER
| 2,014 |
CASE OF SALUMÄKI v. FINLAND
| 4 |
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
|
5. The applicant was born in 1978 and lives in Helsinki. 6. The applicant is a journalist with a nationwide evening newspaper, IltaSanomat. On 8 July 2004 Ilta-Sanomat published an article, written by the applicant, concerning the investigation into a homicide which had been committed a few days earlier. The article referred to K.U., a well-known Finnish businessman. The front page of the edition carried a headline: “Cruel killing in Vantaa: The executed man had connections with K.U.?” A photograph of K.U. also appeared on the front page. The article itself was entitled: “The victim of the Vantaa homicide had connections with K.U.?” Under a smaller heading, “The suspect in the cruel execution killing is a former member of the [motorcycle gang]”, the article read: “[P.O.], who was brutally killed in Vantaa, may have had connections with the businessman [K.U.]. In 2002 [P.O.] was captured trying to smuggle bags containing money from Estonia into Finland. The police suspect that those bags [with contents] belonged to [K.U.]. The incident is currently pending before the prosecutor for the consideration of charges. [P.O.] is suspected of an aggravated receiving offence and [K.U.] of aggravated debtor’s fraud in that connection. Other suspects besides [P.O.] and [K.U.] have also been exposed regarding that case. In practice, [P.O.] is being considered as a suspected receiver. The leader of the investigation, criminal inspector [M.I.] of the National Bureau of Investigation [(keskusrikospoliisi, centralkriminalpolisen)], says that the [K.U.] –connection is a part of the investigation into the Vantaa homicide.” 7. Under the following subheading “The suspect admitted to being at the scene” the article went on: “The police have detained a 39-year old man as a suspect in [P.O.’s] murder. ‒ In the light of the current evidence, the detained person has no connection with [K.U.], says [the inspector].” 8. The article continued with information concerning the detained person and the ongoing investigation into the homicide. It quoted the investigator’s statement that it was possible that the suspect had been acting under commission which, according to the applicant, implied the possibility of a contract killing. 9. The article was illustrated by a photograph, apparently taken in the vicinity of the crime scene. 10. Next to the article there was a separate information column concerning K.U.’s previous conviction for economic crimes and his academic achievements. Under a heading: “Who?” the column reproduced a photograph of K.U., taken at the public defence of his doctoral thesis. 11. On the same date the same information was published in the other evening newspaper Iltalehti in the form of an interview given by K.U. 12. On 11 April 2006 the public prosecutor preferred charges against the applicant and H.S., the newspaper’s editor-in-chief at the time. In his indictment the prosecutor maintained that by writing and allowing publication of the above article, the applicant and H.S. had given false information about K.U. in a manner that had been conducive to causing him suffering and damage and to subjecting him to contempt, and that they had also disparaged him in other ways. The prosecutor did not allege that the information imparted in the article had been false as such, but contended, inter alia, that the combination of large headings with question marks, the text of the article, the photographs of K.U. and his personal profile had aimed to insinuate to the readership that K.U. might have had a motive to commission the killing. 13. K.U., for his part, requested that the applicant and H.S. be punished and claimed compensation for suffering and legal costs in the same proceedings. He contended that the defendants had unlawfully connected him with murder in Finland’s largest evening newspaper. The use of his photograph, taken at the public defence of his doctoral thesis, had added to his suffering as he was thus defamed as an academic, which was to be his future career. According to K.U., the worst part of the criminal act had been the combination of the heading and his photograph, and the image thus created in the minds of those people who had not read the article itself. The defendants had sought to profit by their act. In addition to the permanent stigma, K.U. maintained that the offence had brought shame and distress to his family. 14. The applicant and H.S. contested the charge and the civil claims. Their main arguments were the following. The article did not contain any false information, nor could it have disparaged K.U. or caused him suffering. The latter point was highlighted by the fact that K.U. had himself given an interview concerning the same matter to another evening newspaper published on the same date. The article concerned a criminal investigation of general interest and was based on information given by the authorities. K.U. was a public figure and his connection with P.O. had been an issue of general interest and significance in itself. By pressing charges the prosecutor had unnecessarily interfered with the defendants’ freedom of expression, protected by the Constitution and Article 10 of the Convention. 15. When heard in person at the District Court’s oral hearing H.S. submitted, inter alia, that K.U. had contacted him after the article had been published. He had been very hurt and upset. H.S. had then offered him the possibility of rectification. According to the documents, K.U. had turned down that offer. 16. On 25 August 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) issued its judgment. It convicted the applicant and H.S. of defamation pursuant to Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code. The applicant was sentenced to 30 day-fines amounting to a total of 720 euros (EUR). She was also ordered to pay K.U., jointly and severally with H.S., EUR 2,000 for suffering and EUR 1,500 in legal costs. 17. In its reasons the court noted that it had to examine the conflicting interests of freedom of expression and the right to privacy, referring to sections 10 and 12 of the Constitution and Article 10 of the Convention. It also made reference to the Supreme Court precedent no. KKO:2006:20, where that court found that the freedom of expression did not justify violation of a person’s honour or private life. In assessing the article written by the applicant the court found as follows: “It is undisputed that in the summer of 2004 [K.U.] was a public figure. It is also undisputed that the article did not contain factual errors. Thus, each piece of information contained therein was accurate. The District Court has to assess whether the article included such insinuations that have been conducive to causing suffering or contempt or if it was disparaging in other aspects. The article ... covered the pre-trial investigation of a homicide which had taken place a few days earlier, as well as another large-scale case concerning economic crime, already pending before the prosecutor. The same person had been the victim of the homicide and one of the suspects in the economic offences. [K.U.] had known the victim of the homicide and was also one of the suspects in the case concerning economic offences. The defendants have pleaded, inter alia, that the newspaper had been obliged to report on crime. The article ... had emphasised the connection between [K.U.] and the victim of the homicide. In the District Court’s view no such circumstances have emerged in these proceedings which would have linked the fact that [K.U.] had known the victim of the homicide to his public activities. Nor has it been established that the fact that [K.U.] knew the victim ... had been of general interest or that this piece of news had had such significance to society that it had been important to publish it.” 18. The District Court concluded: “The most central topics of the article ... had been the connection with the victim of the homicide and [K.U.], suspicions of economic offences, organised crime, and a possible contract killing. The use of the heading ‘The victim of the Vantaa homicide had connections with [K.U.]?’ along with the background information on [K.U.] under a title ‘Who?’, illustrated with his photograph, had personified the whole article to [K.U.] Although the heading of the article carried a question mark and the first paragraph in the text mentioned that the victim might [italics added here] have had connections with [K.U.], the text does not provide an immediate answer to that question, nor does it state clearly that the victim and [K.U.] had known each other only from other circumstances. The article had left the answers open. As the text dealt with the connection between the victim of the homicide and [K.U.] and, at the end, a possible contract killing, [K.U.] had also been connected with a contract killing. Connecting a person groundlessly with a contract killing violates his honour. By combining information received and statements given by the head of the investigation and by mixing two different criminal investigations the article has given an ambiguous picture of the connection between those cases. The headings and the information concentrating on [K.U.]’s personal profile had made [K.U.] the main common feature of the crimes. The District Court finds that in the article [K.U.] had been linked with a homicide in a manner that insinuated a connection between [K.U.] and the commission of the homicide and a contract killing. Such an insinuation violates [K.U.’s] honour and has caused him suffering.” 19. The District Court was composed of one professional judge and three lay judges. One of the lay judges was in favour of an acquittal. In his dissenting opinion he stressed the fact that all the information presented in the article had been accurate. In his view the mere fact that a party to the case, his family or friends were shocked about the news coverage, or that the readers of a newspaper were not fully able to comprehend the text, could not constitute defamation. 20. The applicant and H.S. appealed against the judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten), relying mainly on their previous arguments. They also contested the lower court’s interpretation of the law. 21. On 14 November 2007 the Court of Appeal upheld the District Court’s judgment. In its reasoning the appellate court reiterated that giving false information or making false insinuations about another person in a manner conducive to causing damage or suffering to that person, or subjecting that person to contempt, constituted defamation as set out in Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code. It referred to the relevant Government Bill for the amendment of that provision (HE 184/1999 vp) in stating that it was characteristic of that offence to concern false factual information or a false insinuation bearing a close resemblance to factual information. In principle, the veracity of an argument may be reviewed afterwards. If an argument is accurate, or if the insinuation concerns a fact, the act may nevertheless be punishable as defamation under point 2 of the provision, if the information is given or insinuation made with a view to disparaging another person deliberately. 22. The court then found that: “It is undisputed that the information in the article published in Ilta-Sanomat on 8 July 2004 concerning two different criminal matters was accurate as such. The common feature of those matters has been the fact that [K.U.] and the victim of the homicide had been suspects in one of the criminal cases mentioned in the article. The headings of the article, the text, and the photographs of [K.U.] on the cover and on the article have, however, created a connection falsely implying that [K.U.] was somehow involved in the homicide. The heading of the article and its tone were such that the fact that [K.U.] was not, strictly speaking, an accomplice to the homicide only became clear on reading through the article more closely. It followed that Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code was to be applied in this case, as indicated by the District Court.” 23. The Court of Appeal went on to assess in detail whether the defendants’ conduct could be regarded as intentional. The court found that the applicant was a professional journalist and that she must have considered it probable that her article contained a false insinuation and that this false insinuation was capable of causing suffering. Reaching thus an affirmative conclusion, the court found no reason to deviate from the outcome of the lower court’s judgment. 24. On 7 November 2008 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. 25. The Finnish Constitution (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides in relevant parts: “Section 10 – The right to privacy Everyone’s private life, honour and the sanctity of the home are guaranteed. ... ... Section 12 – Freedom of expression and right of access to information Everyone has the freedom of expression. Freedom of expression entails the right to express, impart and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. ...” 26. Chapter 24, Article 9, paragraphs 1 and 2, of the Penal Code (rikoslaki, strafflagen; Act no. 531/2000) provide: “A person who 1) gives false information or makes a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or 2) disparages another person in a manner other than referred to in point 1 shall be convicted of defamation and sentenced to a fine or imprisonment for a maximum period of six months. Criticism that is directed at a person’s activities in politics, business, public office, public position, science, art or in comparable public activity, and which does not clearly overstep the limits of what can be considered acceptable, does not constitute defamation as set out in point 2 of paragraph 1.” 27. Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974, as amended by Act no. 509/2004), provides that a person may be awarded compensation for suffering if, inter alia, his or her liberty, peace, honour, or private life has been violated through a punishable act. In assessing the level of that suffering the nature of the violation, the status of the victim, the relationship between the offender and the victim as well as the possible public exposure of the violation are to be taken into account. 28. According to the government bill to amend the Tort Liability Act (HE 116/1998), the maximum amount of compensation for pain and suffering arising from, inter alia, bodily injuries had in the recent past been approximately FIM 100,000 (EUR 16,819). In the subsequent government bill to amend the Tort Liability Act (HE 167/2003, p. 60), it is stated that no changes to the prevailing level of compensation for suffering are proposed. In the recommendation of the Personal Injury Advisory Board (Henkilövahinkoasiain neuvottelukunta, Delegationen för personskade-ärenden) in 2008, compensation awards for distress in defamation cases can go up to EUR 10,000 and in cases concerning dissemination of information violating personal privacy, up to EUR 5,000. On the other hand, the maximum award for, for example, attempted manslaughter, murder or killing varies between EUR 3,000 and EUR 5,000.
| 0 |
test
|
001-147866
|
ENG
|
AZE
|
CHAMBER
| 2,014 |
CASE OF ISLAM-ITTIHAD ASSOCIATION AND OTHERS v. AZERBAIJAN
| 4 |
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)
|
Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
5. The Association, which has now been dissolved, was a nonprofitmaking non-governmental organisation (NGO). It was active between 1991 and 2003. Mr Azer Samadov was Chairman of the Association, and Mr Ilgar Allahverdiyev was a member of its management board. They were born in 1961 and 1973, respectively, and live in Baku. 6. The Association was registered by the Ministry of Justice (“the Ministry”) on 12 January 1995 and acquired the status of a legal entity. 7. Clause 1.1 of the Association’s Charter defined it as an association with voluntary membership of citizens of the Republic of Azerbaijan, conducting its activities within the framework of the Constitution and the laws of the Republic of Azerbaijan, as well as its own Charter. 8. According to clause 2 of its Charter, the main aims of the Association included the repair and maintenance of abandoned mosques and other places of worship, organising pilgrimages to Islamic shrines, providing material and moral aid to orphanages as well as elderly, ill and disabled people, and publishing books with a religious content. 9. The Association’s actual activities included the repair and maintenance of several mosques and projects aimed at promoting respect for human rights and building a civil society. The Association also engaged in a number of humanitarian activities, such as assistance to disabled children, campaigning against drugs and alcoholism, and a programme dedicated to promoting tolerance between representatives of different religions in Azerbaijan. 10. The highest governing body of the Association was the general assembly of members, held once a year, as provided for in clause 4 of its Charter. At the general assembly, the members elected the Association’s chairman and the three members of its management board. They also discussed and commented on the Association’s annual activity and submitted their proposals for its future activity. 11. It appears from the documents submitted to the Court that at the general assembly held on 8 August 1997 the members discussed the Association’s annual activity and decided to assist financially orphaned children and economically disadvantaged sections of the population and to raise awareness about the historical and religious values in the society. 12. The Association held its next general assembly on 4 January 1998. According to the minutes of the assembly, after having discussed the Association’s annual activity, the members decided to repair the Juma mosque in Baku and to participate actively in the process of building a civil society in the country by raising this issue in the media. They further decided to inform the public about the unlawfulness of the existing monopoly in organising pilgrimages to Islamic shrines. It was also decided to provide pilgrims with relevant information about the organisation of their visits. 13. On 29 December 2001 the Association held another general assembly at which the members adopted the Association’s annual activity report and decided, inter alia, to hold a conference on Prophet Muhammad on the occasion of his birthday and to prepare for the forthcoming seminar on the dialogue between civilizations, which would be held in Baku. They also agreed on the necessity to write articles in the media about subjects relating to existentialism and humanism. 14. On an unspecified date in 2002, the Ministry commenced an inspection of the Association’s activities in order to determine whether its activities had been carried out in compliance with its Charter. 15. According to an undated inspection report, the Association had twenty-seven members who did not pay any membership fees. The sources of the Association’s financing were not clear. It did not have a bank account. It was also noted in the report that, despite having a different registered legal address, the Association’s actual headquarters were located in a mosque. The Association’s chairman was also the head of a religious community and all of the Association’s members were also members of that community. The inspection concluded that, generally, it was difficult to establish whether the Association functioned as a non-governmental organisation or a religious organisation. 16. On 4 February 2002 the Ministry sent an official warning to the Association, claiming that its primary activities involved religious propaganda and agitation. The Ministry noted that, in accordance with the Law on Non-Governmental Organisations (Public Associations and Funds), public associations were not allowed to engage in religious activities. The Association was requested to remedy this breach of the law and, within ten days, report to the Ministry about the measures taken. The relevant part of the letter reads as follows: “Religious activity is without any exception the duty and function of religious organisations and their status is governed by the Law on Freedom of Religion. In accordance with Article 7 of this Law, religious organisations are ‘voluntary organisations established for the purpose of spreading religious belief and religion’. In accordance with Article 1.4 of the Law on Non-Governmental Organisations (Public Associations and Funds), this Law is not applicable to religious organisations. Therefore, any religious activity on the part of your association is unlawful.” 17. On 3 August 2002 the Association replied to the Ministry, claiming that it had carried out numerous social programmes providing assistance to the population, as well as activities related to the establishment of a civil society and the promotion of human rights. The Association denied any involvement in religious activities, noting that the Ministry had failed to specify which of the Association’s activities was qualified as “religious activity”. Moreover, the Association pointed out that Azerbaijani legislation did not provide any precise definition of what constituted a “religious activity”. 18. On 6 September 2002 the Ministry sent a second written warning to the Association, demanding that it cease its unlawful activities. It appears from the letter that the Ministry considered as “religious activities” some of the decisions taken by the Association’s general assembly. The relevant part of the letter reads as follows: “Although it was denied in your letter of 3 August 2002 that the Association engaged in religious activities, the decisions of the Association’s general assembly, as well as some provisions of the Association’s Charter, confirm that it carries out religious activities. In fact, at the general assemblies held on 4 January 1998, 7 January 1999 and 29 December 2001, religious matters were included in the agenda and discussed, and relevant decisions were taken. We reiterate that non-governmental organisations have no right to engage in religious activities.” 19. On 3 October 2002 the Ministry sent a third written warning. It pointed out that, despite two prior warnings, it had not been informed about any measures taken by the Association to comply with the Ministry’s demands that the Association cease its religious activities. 20. On 2 July 2003 the Ministry lodged an action with the Sabail District Court. It claimed that the Association unlawfully engaged in religious activities and requested the court to order its dissolution. In support of its claim, the Ministry noted that the fact that the questions relating to pilgrimages to holy shrines and the activity of the Caucasus Muslims Board (Qafqaz Müsəlmanlar İdarəsi, the official governing body of Muslim religious organisations in Azerbaijan) had been discussed at the Association’s general assembly proved that the Association had been engaging in religious activities. 21. In reply to the Ministry’s action, on an unspecified date the Association lodged an objection with the court, claiming that it had not engaged in religious activities. In particular, the Association submitted that decisions such as holding a conference dedicated to the birthday of Prophet Muhammad or criticising the Caucasus Muslims Board’s monopoly in the organisation of pilgrimages to Islamic shrines did not constitute religious activities. The Association also noted that all of its activities had been carried out in compliance with its charter, which the Ministry had never requested it to modify. 22. On 28 August 2003 the Sabail District Court ordered the Association’s dissolution. The court found that the Association had unlawfully engaged in religious activities and, despite three warnings by the Ministry, had failed to take any measures to cease such activities. The relevant part of the judgment reads as follows: “It appears from minutes no 5 of the Islam-Ittihad Association dated 4 January 1998 ... that the fifth and eighth points relating to questions on the agenda concerned, respectively, ‘active participation in building a civil society’ and ‘pilgrimages to holy shrines’. One of the participants in the assembly, A.N., took the floor on this matter, stating that the Association should take an active stance in building a civil society in the country and proposed to participate in it actively by appearing in the media. This proposal was voted on and adopted unanimously. It appears from minutes no 6 of the Islam-Ittihad Association dated 7 January 1999 ... that the sixth point relating to questions on the agenda was about ‘the Caucasus Muslim Board’ and M.Q., who took the floor on this matter, criticized the position of the Caucasus Muslim Board. Those who participated in the discussions said that this organisation had a monopoly on Islam in the country and that its officials had weakened the social and moral situation of the country, which was already low, by accusing each other of corruption in the media ... In accordance with Article 7 of the Law on Freedom of Religion, ‘religious organisations are voluntary organisations established for the purposes of spreading religious belief.’ Article 8 of this Law provides that the religious community is a voluntary religious organisation of devout persons associated for exercising together prayer and meeting other religious needs ... The court considers that in compliance with this requirement of the Law any religious activity by non-governmental organisations is unlawful. Under Articles 1 and 4 of the Law on Public Associations, a public association may not be established for political purposes. Moreover, a non-governmental organisation may not carry out activities contrary to the aims provided for in its charter ... At the court hearing the respondent failed to submit to the court any reliable evidence proving that it did not really engage in any religious activity.” 23. On an unspecified date the Association appealed against that judgment, reiterating that it had not engaged in religious activities. It complained that the court had put the burden of proof on the Association, holding that the respondent had failed to prove that it had not engaged in religious activities. It also complained that although it had been dissolved on account of its alleged engagement in religious activities, the relevant legislation provided no definition of “religious activity”. 24. On 20 November 2003 the Court of Appeal dismissed the Association’s appeal. The wording of the appellate court’s judgment was identical to the first-instance court’s judgment. 25. On 26 February 2004 the Association lodged a cassation appeal, reiterating its previous complaints. It also submitted that actively participating in building a civil society and criticising the activity of a religious authority were not unlawful activities. 26. On 21 July 2004 the Supreme Court upheld the Court of Appeal’s judgment.
| 1 |
test
|
001-177939
|
ENG
|
TUR
|
COMMITTEE
| 2,017 |
CASE OF TAŞ v. TURKEY
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
|
Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström
|
5. The applicant was born in 1992 and lives in Istanbul. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 7 December 2009 the applicant was arrested. 8. On 9 December 2009 the applicant was placed in detention on remand by the judge at the Istanbul Assize Court on suspicion of committing crimes on behalf of an illegal terrorist organisation, disseminating propaganda for the same organisation, storage of hazardous materials, and damage to public property. 9. On 30 December 2009 the Istanbul public prosecutor filed his indictment with the Istanbul Assize Court. 10. On 6 May 2010 the first hearing was held before the Istanbul Assize Court. At the end of the hearing the court ordered the continuation of his detention in the presence of the applicant. 11. The applicant filed an objection against this decision. On 20 May 2010 the 10th Chamber of Istanbul Assize Court dismissed this objection without holding an oral hearing. In delivering its decision, the court took into consideration the written opinion of the public prosecutor, which had not been communicated to the applicant or his representative. 12. On 10 December 2010 the applicant was released from detention on remand. 13. At the time when the application was lodged, the proceedings against the applicant were still pending before the first-instance court.
| 1 |
test
|
001-174994
|
ENG
|
LTU
|
COMMITTEE
| 2,017 |
CASE OF ALEKSANDRAVIČIUS AND OTHERS v. LITHUANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque
|
4. The applicants were born in 1981, 1982, 1986, 1974 and 1971 respectively. Mr Žanas Aleksandravičius, Mr Andrej Gailiun and Mr Artem Novikov are currently detained in Pravieniškės Correctional Facility. Mr Gražvydas Dūda lives in Kupiškis and Mr Darius Antonovas is detained in Alytus Correctional Facility. 5. The first applicant was detained in Lukiškės Remand Prison from 23 June 2011 to 30 September 2011. The documents submitted to the Court show that he was held in various different remand prison cells where most of the time he had between 1.8 and 2.46 square metres of living space, except for the following periods: - from the evening of 24 June 2011 to the morning of 27 June 2011 he had 3.69 square metres of personal space; - on the evening of 23 June 2011, the morning of 24 June 2011 and the morning of 31 August 2011 he had between 7.38 and 7.8 square metres of personal space. 6. In 2012 the applicant instituted proceedings for damages. He argued that the conditions in which he had been held in Lukiškės Remand Prison had been degrading: the cells had been overcrowded and the conditions unsanitary. 7. On 19 April 2012 the Vilnius Regional Administrative Court established that the applicant had been held in overcrowded cells for three months and three days, given that for that duration he had been held in cells where he had had less than 3.6 square metres of personal space. Nonetheless, the court dismissed the applicant’s complaint about unsanitary conditions in the prison as not actually proven. It noted that the applicant’s complaints had been expressed in abstract terms and that he had not provided accurate information about the conditions in question. The court awarded him 1,000 Lithuanian litai (LTL, approximately 290 euros (EUR)) in compensation for non-pecuniary damage on account of overcrowding. 8. The applicant appealed but on 4 December 2012 the Supreme Administrative Court upheld the first-instance decision. 9. From 22 October 2008 to 10 November 2010 the second applicant was detained in Lukiškės Remand Prison, except for the following periods when he was moved to Švenčionys police station: - from 3 December 2008 to 10 December 2008; - from 23 September 2009 to 29 September 2009; - from 23 December 2009 to 29 December 2009; - from 3 February 2010 to 16 February 2010. The documents submitted to the Court show that he was held in several different remand prison cells where he had between 1.2 and 2.68 square metres of personal space, except for the following days: - the whole of 29 October 2008, the morning of 31 October 2008, the morning of 3 March 2009, the morning of 15 June 2009, the evening of 20 July 2009, the whole of 21 July 2009, the morning of 22 July 2009, the evening of 21 September 2009, the morning of 22 September 2009, the morning of 31 December 2009, the evening of 9 March 2010, the morning of 10 March 2010, the morning of 7 April 2010, the morning of 26 April 2010, the morning of 14 June 2010, the evening of 28 June 2010, the morning of 29 June 2010, the evening of 3 November 2010 and the morning of 4 November 2010. During those periods he had between 3.74 and 3.97 square metres of personal space; - the morning of 23 November 2008, when he had 7.94 square metres of personal space. 10. In 2012 the applicant instituted proceedings for damages. He argued that the conditions in which he had been held in Lukiškės Remand Prison had been degrading: the cells had been overcrowded, had had rats and insects and mould on the walls. They had also been damp and his health had deteriorated. 11. On 7 September 2012 the Vilnius Regional Administrative Court established that the applicant could only request compensation for the period from 3 April 2009 onwards because the applicant had missed the three-year time-limit to lodge a complaint for the preceding period. The court further held that the relevant period was 559 days, and that the applicant had been held in conditions that satisfied the personal space requirement for only 2.5 days. Nonetheless, the applicant’s complaint about unsanitary conditions was dismissed as unsubstantiated as he had not complained about them to the prison authorities. The court awarded him LTL 1,000 (approximately EUR 290) in compensation for non-pecuniary damage on account of overcrowding. 12. The applicant and Lukiškės Remand Prison appealed. On 25 February 2013 the Supreme Administrative Court upheld the firstinstance decision. 13. From 20 July 2009 to 16 June 2010 the third applicant was detained in Lukiškės Remand Prison, except for 9 June 2010 to 11 June 2010. He complained about his conditions of detention from 20 July 2009 to 16 June 2010. The documents before the Court show that he was held in several different remand prison cells where he had: - between 1.8 and 2.65 square metres of personal space from 23 July 2009 to the morning of 24 July 2009; from the evening of 27 July 2009 to 25 August 2009; from the evening of 1 September 2009 to 22 September 2009; from the evening of 23 September 2009 to 27 September 2009; from the evening of 28 September 2009 to 4 November 2009; from the evening of 6 November 2009 to 22 December 2009; from the evening of 23 December 2009 to 16 February 2010; on the evening of 17 February 2010 and on 18 February 2010; from the evening of 19 February 2010 to 22 February 2010; from the evening of 23 February 2010 to 2 March 2010; on the evening of 3 March 2010; from the evening of 4 March 2010 to 19 April 2010; from 21 April 2010 to 12 May 2010; from the evening of 13 May 2010 to 23 May 2010; from the evening of 11 June 2010 to the morning of 12 June 2010; on the morning of 14 June 2010; - between 3.7 and 3.97 square metres of personal space from the evening of 24 July 2009 to the morning of 27 July 2009; from 26 August 2009 to the morning of 1 September 2009; on the morning of 23 September 2009; on the morning of 28 September 2009; on the morning of 5 November 2009; on the morning of 23 December 2009; on the morning of 17 February 2010; on the morning of 19 February 2010; on the morning of 23 February 2010; on the morning of 3 March 2010; on the morning of 4 March 2010; on 20 April 2010; on the morning of 7 May 2010; on the morning of 13 May 2010; on the evening of 12 June 2010; - between 3.13 and 4.3 square metres of personal space from 24 May 2010 to the morning of 9 June 2010; - between 7.24 and 7.31 square metres of personal space from 13 June 2010 to the morning of 16 June 2010. 14. In 2012 the applicant instituted proceedings for damages. He argued that the conditions in which he had been held in Lukiškės Remand Prison had been degrading: the cells had been overcrowded, his health had deteriorated and he had become bald. 15. On 23 October 2012 the Vilnius Regional Administrative Court held that until 10 April 2010 the statutory norm for personal space per prisoner per cell had been five square metres and that since 14 May 2010 it had been 3.6 square metres. The court also held that the applicant had been held for only ten days in conditions that had satisfied the statutory personal space requirement and awarded him LTL 800 (approximately EUR 232) in compensation for non-pecuniary damage on account of overcrowding. The applicant’s complaints about his health and baldness were dismissed as unsubstantiated as the applicant had not provided any evidence that he had ever complained to doctors or the prison authorities about those issues. 16. The applicant argued in an appeal that the compensation amount was too low and stated that he had asked the prison administration to take him to a doctor. Lukiškės Remand Prison argued that the applicant’s complaint was unfounded because the courts imposed sentences on people, it could not refuse to accept prisoners and thus it had no control over their number. On 5 July 2013 the Supreme Administrative Court held that the applicant had not had enough cell space for 319.5 days and increased his compensation to LTL 5,000 (approximately EUR 1,450). The court reiterated that the applicant’s complaints about his health were unsubstantiated and that the applicant himself had not been able to prove that his health had deteriorated or that he had complained to a doctor. 17. The fourth applicant was detained in Lukiškės Remand Prison from 25 February 2011 to 27 August 2012, except for the following periods when he was in a prison hospital: - from 17 May 2011 to 1 June 2011; - from 8 September 2011 to 19 September 2011; - from 21 November 2011 to 24 November 2011; - from 15 January 2012 to 15 February 2012; - from 18 June 2012 until 26 June 2012; - from 5 July 2012 to 19 July 2012; - from 8 August 2012 to 13 August 2012. The documents before the Court show that he was held in several different cells in the remand prison where he had: - between 1.2 and 2.7 square metres of personal space from the evening of 25 February 2011 to the morning of 28 February 2011; from the morning of 3 March 2011 to 15 March 2011; from the evening of 16 March 2011 to 7 April 2011; from 13 May 2011 to the morning of 16 May 2011; on the evening of 1 June 2011; on 27 July 2011; on the evening of 28 July 2011; from 26 August 2011 to 29 August 2011; from 20 September 2011 to the morning of 21 September 2011; on the evening of 24 November 2011; from the evening of 30 November 2011 to 7 December 2011; from the evening of 8 December 2011 to 10 January 2012; from the evening of 11 January 2012 to 21 February 2012; from the evening of 22 February 2012 to the morning of 7 March 2012; from the evening of 8 March 2012 to 14 March 2012; from the evening of 15 March 2012 to 28 March 2012; from the evening of 29 March 2012 to 1 April 2012; from the evening of 2 April 2012 to 3 April 2012; from the evening of 4 April 2012 to 5 June 2012; from the evening of 6 June 2012 to 26 June 2012; on the evening of 26 June 2012; on the evening of 27 June 2012; from the evening of 28 June 2012 to 1 July 2012; from 19 July 2012 to 22 July 2012; from the evening of 23 July 2012 to 7 August 2012; from the evening of 16 August 2012 to the morning of 21 August 2012; from the evening of 23 August 2012 to the morning of 27 August 2012; - between 3.27 and 4 square metres of personal space from the evening of 28 February 2011 to 2 March 2011; on the morning of 16 March 2011; from 8 April 2011 to 20 April 2011, from the evening of 21 April 2011 to the morning of 12 May 2011; on the evening of 16 May 2011; on the evening of 2 June 2011; on the evening of 3 June 2011; from 4 June 2011 to 16 June 2011; on the evening of 17 June 2011; from 18 June 2011 to 20 June 2011; on the evening of 21 June 2011; on the evening of 22 June 2011; from 23 June 2011 to the morning of 21 July 2011; from the evening of 21 July 2011 to 26 July 2011; on the morning of 28 July 2011; from the evening of 30 August 2011 to 7 September 2011; from the evening of 27 September 2011 to 9 October 2011; from the evening of 10 October 2011 to 12 October 2011; on the evening of 13 October 2011; from the evening of 14 October 2011 to 1 November 2011; from the evening of 5 November 2011 to 17 November 2011; from the evening of 18 November 2011 to 20 November 2011; from 29 November 2011 to the morning of 30 November 2011; on the morning of 11 January 2012; from the evening of 7 March 2012 to the morning of 8 March 2012; on the morning of 15 March 2012; on the morning of 29 March 2012; on the morning of 2 April 2012; on the morning of 4 April 2012; on the morning of 6 June 2012; on the morning of 27 June 2012; on the morning of 28 June 2012; from 2 July 2012 to 4 July 2012; on the morning of 23 July 2012; from the evening of 14 August 2012 to the morning of 16 August 2012; from the evening of 21 August 2012 to the morning of 23 August 2012; - between 6 and 10.6 square metres of personal space on the morning of 8 April 2011; on the morning of 21 April 2011; on the evening of 12 May 2011; on the morning of 2 June 2011; on the morning of 3 June 2011; on the morning of 17 June 2011; on the morning of 21 June 2011; on the morning of 22 June 2011; from 29 July 2011 to 25 August 2011; on the morning of 30 August 2011; on the evening of 19 September 2011; from the evening of 21 September 2011 to the morning of 27 September 2011; on the morning of 10 October 2011; on the morning of 13 October 2011; on the morning of 14 October 2011; from 2 November 2011 to the morning of 5 November 2011; on the morning of 18 November 2011; from 25 November 2011 to 28 November 2011; on 22 February 2012; from the evening of 13 August 2012 to the morning of 14 August 2012; on the evening of 27 August 2012. 18. On an unspecified date the applicant instituted proceedings for damages. He argued that the conditions in which he had been held in Lukiškės Remand Prison had been degrading: the cells had been overcrowded; he had been held together with prisoners who smoked; the toilets had not been separated from the rest of the cell; and his health had deteriorated. 19. On 2 January 2012 the Vilnius Regional Administrative Court held that the applicant’s personal space had not corresponded to the statutory norms and awarded him LTL 1,000 (approximately EUR 290) in compensation for non-pecuniary damage on account of overcrowding. As regards his other complaints, the court held that there was no evidence that his health had deteriorated because of overcrowding and stated that his health condition, according to medical data, was hereditary. The domestic courts also held that the toilets had had a partition of at least 1.5 metres and dismissed the applicant’s complaints in this respect as unsubstantiated. 20. The applicant and Lukiškės Remand Prison appealed; however, the Supreme Administrative Court upheld the decision of the court of first instance on 28 May 2012. 21. In the application form, the fifth applicant complained about his conditions of detention in Lukiškės Remand Prison from 29 November 2007 until 9 March 2010. However, in his reply to the Government’s observations, he claimed that the period to be considered was from 10 June 2009 to 27 September 2011. The applicant was not in prison between 2 July 2009 and the morning of 13 July 2009 as he was in a prison hospital while from 12 January 2010 to the morning of 26 January 2010 he was held in Tauragė police station. It can be seen from the documents before the Court that he was held in several different remand prison cells where he had: - between 1.2 and 2.8 square metres of personal space from 17 June 2009 to 1 July 2009; from the evening of 13 July 2009 to 3 November 2009; from the evening of 4 November 2009 to the morning of 2 December 2009; from 3 December 2009 to the morning of 7 January 2010; from the evening of 26 January 2010 to 5 February 2010; from 8 February 2010 to 10 February 2010; from the evening of 27 February 2010 to 28 February 2010; from the evening of 1 March 2010 to the morning of 2 March 2010; - between 3 and 3.97 square metres of personal space on the morning of 4 November 2009; from the evening of 7 January 2010 to 11 January 2011; from 6 February 2010 to 7 February 2010; from the evening of 11 February 2010 to the morning of 27 February 2010; on the morning of 1 March 2010; from the evening of 2 March 2010 to 8 March 2010; - 7.45 square metres of personal space on the evening of 2 December 2009; - 5.3 square metres of personal space on the morning of 11 February 2010. 22. On 11 June 2012 the applicant instituted proceedings for damages for the period from 29 November 2007 until 9 March 2010 when he was in Lukiškės Remand Prison. The applicant later further specified the period for which he was complaining as being from 29 November 2007 to 27 September 2011. He argued that the conditions in which he had been held in the remand prison had been degrading: the cells had been overcrowded; there had been rats and insects; and his sight had deteriorated owing to insufficient lighting. The court applied the three-year period of limitation and found that the relevant period to be considered was from 10 June 2009 to 10 June 2012. The court held that the applicant had been held in overcrowded cells for two years, although the period was nonconsecutive, and awarded him LTL 300 (approximately EUR 87) in compensation for non-pecuniary damage. The court held that the applicant had failed to substantiate his other complaints with evidence. 23. In an appeal, the applicant also stated that the cells had been damp and the beds uncomfortable. Lukiškės Remand Prison and the Prisons Department argued that the applicant had failed to substantiate his complaints. On 20 May 2013 the Supreme Administrative Court, without examining the additional complaints, held that the applicant had been held in overcrowded cells for a non-consecutive period of ten months and nine days. It increased the award for non-pecuniary damage to LTL 3,000 (approximately EUR 870).
| 1 |
test
|
001-150309
|
ENG
|
DEU
|
CHAMBER
| 2,015 |
CASE OF CLEVE v. GERMANY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6-2 - Charged with a criminal offence)
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
|
5. The applicant was born in 1963 and lives in Xanten. 6. The applicant’s daughter A. was born on 9 March 1994. Since their separation in September 1994, the applicant and A.’s mother, Ms J., have been quarrelling over the custody of and contacts with A. The child was initially living with her mother. In 2004, A. was placed in a home. 7. On 9 November 2006 Ms J. laid an information against the applicant with the police, accusing him of having raped their daughter since 1998. As A. had persistently declared not to be ready to make a statement before the police, the proceedings were initially discontinued. Following a visit of A. to her mother, the latter informed the police that A. was now ready to testify. A. was heard by the police twice in May 2007. On 5 November 2007 psychological expert K., having examined A., submitted a report on the credibility of A.’s submissions. 8. On 18 January 2008 the Münster Public Prosecutor’s Office charged the applicant with fifteen counts of serious sexual abuse of children (Article 176a of the Criminal Code, see paragraph 19 below) and of sexual abuse of a person entrusted to him for upbringing (Article 174 of the Criminal Code, see paragraph 20 below), his daughter A., committed between the beginning of 2002 and summer 2004 mostly in or in the vicinity of Senden. The applicant was accused of having raped A. in his car on thirteen occasions and in a holiday apartment on two occasions when he met her on weekends and during vacations following her parents’ separation. 9. The applicant was in detention on remand between 14 February 2008 and 26 February 2008, when the execution of the detention order was suspended. 10. On 17 September 2008 the Münster Regional Court, having held five hearings, acquitted the applicant of the charges on account of insufficiency of proof. It further ordered the Treasury to bear the costs of the proceedings and the applicant’s necessary expenses and to pay the applicant compensation for his detention on remand from 14 to 26 February 2008. 11. The Regional Court, having regard to the testimonies of several witnesses and the (diverging) reports of two psychological experts, K. and B., on the credibility of A.’s submissions, found that the offences the applicant had been charged with had not been proven with the certainty necessary for a criminal conviction. It noted that the applicant had contested the charges. He was only incriminated by A.’s statements. The Regional Court stated that it has not been convinced by A.’s testimony in the hearing that the charges were completely correct, in particular, in terms of a clear definition of the criminal acts and their time frame. 12. The Regional Court, having regard to the witness statements of two educators who had noted signs of sexual abuse in A.’s conduct, two psychologists who had treated A. and a friend of A., was not persuaded that A. had been influenced by third persons, including her mother, so as to incriminate her father. 13. The Regional Court then stated in its judgment: “... To sum up, the Chamber does not discern any signs of suggestive influence. Therefore, the Chamber assumes, in sum, that the core events described by the witness have a factual basis, that is, that the accused actually carried out sexual assaults on his daughter in his car. Nevertheless, the acts could not be substantiated, in terms of either their intensity or their time frame, in a manner that would suffice to secure a conviction. The inconsistencies in the witness’s testimony were so marked that it was impossible to establish precise facts.” [“... Zusammengefasst sind Anhaltspunkte einer Suggestion für die Kammer nicht ersichtlich. So geht die Kammer im Ergebnis davon aus, dass das von der Zeugin geschilderte Kerngeschehen einen realen Hintergrund hat, nämlich dass es tatsächlich zu sexuellen Übergriffen des Angeklagten zu Lasten seiner Tochter in seinem Auto gekommen ist. Die Taten ließen sich aber dennoch weder ihrer Intensität noch ihrer zeitlichen Einordnung nach in einer für eine Verurteilung hinreichenden Art und Weise konkretisieren. Die Inkonstanzen in den Aussagen der Zeugin waren so gravierend, dass konkrete Feststellungen nicht getroffen werden konnten.“] 14. In coming to that conclusion, the Regional Court took into account that witness A. had made the impression of being authentic. It was true that her statements had been short and she had appeared being relatively uninvolved. However, seven witnesses who knew A. partly for a longer period of time had confirmed that she generally spoke and acted in that manner and did not discuss problems in detail. 15. The Regional Court observed, however, that even having regard to these elements, the inconsistencies in witness A.’s statements prevailed to an extent that it was not in a position to establish concrete offences. There were inconsistencies in the witness’s statements on the number of the acts described by her (between 25 and 50), the place of these acts (notably concerning acts in a holiday apartment which the witness mentioned only at a later stage) and the time frame in which they took place (starting when the witness was between four and eight and ending either on the witness’s placement in the home or continuing also after that placement). Moreover, A. had been uncertain in the hearing about the exact manner in which the acts described by her were committed in the car and did not recall any details on several points. A. had, for instance, been very uncertain in the hearing whether the applicant had moved within the car onto the front passenger seat where she had sat or whether he had left the car and walked around it to come on her seat. Moreover, A. had declared several times in the hearing not to have any precise recollection of the events any more. 16. The judgment was served on the applicant’s counsel on 11 November 2008 and subsequently became final. 17. On 9 December 2008 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed that the Regional Court’s statements “that the core events described by the witness have a factual basis, that is, that the accused actually carried out sexual assaults on his daughter in his car” had breached his constitutional right to a fair trial, his personality rights and human dignity. 18. On 10 March 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2499/08). The decision was served on the applicant’s counsel on 19 March 2009.
| 1 |
test
|
001-142450
|
ENG
|
HRV
|
ADMISSIBILITY
| 2,014 |
ZAHI v. CROATIA
| 4 |
Inadmissible
|
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
1. The applicant, Mr Khouri Zahi, is a Croatian and Syrian national, who was born in 1964 and lives in Zagreb. He was represented before the Court by Ms K. Ferdelji, a lawyer practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1961 a flat, measuring a total of 57.28 square metres and located in Zagreb city centre (hereinafter: “the flat”), was nationalised from its previous owners D.B. and S.N. 5. M.M., who was subsequently granted a specially protected tenancy of the flat, lived there with her heir G.B. The latter, however, left to study in the United States but stayed in the flat during her visits to Croatia. 6. In an unspecified period in early 1990, M.M. was treated in the Sestre Milosrdnice Clinical Hospital Centre (Klinički bolnički centar Sestre milosrdnice) where the applicant worked as a trainee physician and his wife, N.Z., worked as a nurse. In these circumstances they came to meet M.M. 7. On an unspecified date in 1990 M.M. died. 8. After the breakout of the armed conflict in Croatia in 1991, N.Z.’s family (her mother A.P., her brother Jo.P. and sister I.P.) came to live in Zagreb as displaced persons coming from an occupied territory of Croatia. It appears that upon their arrival in Zagreb they were provided with accommodation by the local refugee agencies. When the conflict ended, A.P. and her children submitted a request for reconstruction of their family home in the former occupied territory which had been damaged in the conflict. The request was granted and the house was renovated in 2001, after which they lost their right to accommodation as provided for in section 1 of the Temporary Accommodation Act (Zakon o privremenom korištenju stanova) (see paragraph 42 below). 9. On 6 November 1991 the applicant, who was living at the time with N.Z. in a city near Zagreb that was not in a part of the country affected by the armed conflict, entered the flat by breaking a window and the front door. The neighbours immediately informed the police, who attended at the scene on the same day where they found the applicant, N.Z. and her mother A.P., as well as the tenant of the flat G.B. (see paragraph 5 above) and another person accompanying her. The applicant argued that the late M.M. had promised to leave the flat to him and the police left without taking any further action at the scene. 10. The next day, the police informed Zagreb Municipal Council (Grad Zagreb) that the applicant and his family had forcefully entered the flat. A council official who came to the scene found that the applicant and his family had entered the flat without having any legal right to be there and therefore ordered him to vacate the flat. The applicant ignored these orders, requesting a written decision on the matter. The eviction was disrupted after the civil defence siren signalled an attack on Zagreb. 11. On 26 November 1991 Zagreb Municipal Council ordered the applicant and his family (his wife N.Z., and her relatives A.P., I.P. and Jo.P.) to vacate the flat within three days. This decision was made enforceable on 3 December 1991, which was later confirmed on appeal on 7 February 1992. 12. An attempt to evict the applicant from the flat was made on 6 December 1991. Zagreb Municipal Council offered the applicant the opportunity to move to another flat where he could live with his family free of charge but he refused that accommodation, stating that he would only move out of the flat if the council provided him with accommodation in one of the most expensive hotels in Zagreb. 13. A further attempt to evict the applicant from the flat was made on 10 December 1991 but again to no avail, because the applicant refused to move and his wife was now pregnant. 14. On an unspecified date the police lodged a criminal complaint against the applicant and his wife with the Zagreb Municipal State Attorney’s Office. The Zagreb Municipal State Attorney’s Office rejected the criminal complaint on 26 March 1992, finding that while it had been undoubtedly established that the applicant had broken into the flat unlawfully, given his personal circumstances and particularly the fact that he had a pregnant wife and a small child, a criminal prosecution was not necessary since the eviction proceedings would in any event settle the issue. 15. Parallel to the administrative eviction proceedings, on 3 December 1991 G.B. lodged a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking the applicant’s eviction from the flat. The claim was granted on 3 November 1992 and this decision became final on 21 June 1993. 16. On 23 September 1993 the Zagreb Municipal Court issued a writ of execution ordering the applicant and his family to vacate the flat. 17. This decision of the Zagreb Municipal Court was never enforced because for a while the applicant could not be reached, and on 11 April 1994 the eviction was postponed after it was determined that no alternative accommodation had been found for the applicant’s two small children. In this regard an attempt was made on 12 July 1994 to find accommodation for the applicant and his family, but the only possibility which existed at the time was to accommodate them outside Zagreb. A further attempt was made by G.B. to settle the dispute, but the applicant also refused her offer. Eventually, on 11 March 2005 the enforcement proceedings were discontinued after G.B. withdrew her enforcement request. 18. On 9 December 1991 the applicant, his wife N.Z. and her relatives lodged a request with the Zagreb Municipal Council asking that they be granted temporary accommodation in the flat under the Temporary Accommodation Act, which was enacted on 4 December 1991 and came into force on 9 December 1991 with a view to solving the problem of accommodation of refugees – internally displaced persons by providing them with accommodation in publicly-owned lodgings (see paragraph 42 below). 19. On 1 April 1992 Zagreb Municipal Council’s housing department granted the applicant’s wife, N.Z., and her family (mother A.P., brother Jo.P. and sisters I.P. Ja.P.) temporary accommodation in the flat after having found that they could be considered refugees – internally displaced persons within the meaning of the Temporary Accommodation Act. The applicant was not granted temporary accommodation. 20. The decision stated that the accommodation was granted for six months and that upon the expiry of that period the occupants were obliged to vacate the flat. It also stated that by being provided with temporary accommodation the occupants did not obtain, nor could they obtain, a specially protected tenancy of the flat. 21. In the period between September 1992 and May 1996 the applicant requested several times that he and his family be given the opportunity to purchase the flat, relying on his personal situation and the status of his family. 22. In a letter of 6 October 1992 Zagreb Municipal Council indicated that temporary accommodation in the flat had been granted to the applicant’s family even though they had omitted to reveal in their application that they had unlawfully entered the flat. Therefore, they had no legal right to stay in the flat. In two letters of 8 December 1995 and 6 May 1996 Zagreb Municipal Council stressed that if the applicant’s application for housing was given priority it would be acting contrary to the domestic law establishing priority lists for housing allocation. It also emphasised that the only reason why the eviction had never been carried out was the fact that the applicant’s family were not able to return to their home. 23. On 29 March 1997 the applicant applied to Zagreb Municipal Council for the right to purchase the flat on favourable terms. He relied on the decision to grant temporary accommodation and his status as a disabled war veteran, since he had in the meantime served the Croatian army and obtained the status of disabled war veteran. 24. On 3 March 1998 Zagreb Municipal Council granted the applicant’s request and sold him the flat. On 4 March 1998 a copy of the purchase contract was submitted to the State Attorney’s Office, which gave its approval. The applicant paid the price of 21,432 Crotian kunas (HRK) and registered his ownership with the land registry. 25. In May 1999 Zagreb Municipal Council discovered that the applicant was in fact not on the list granting disabled war veterans, who had been allocated flats for temporary accommodation, the right to purchase flats owned by the Municipal Council on favourable terms, and that the applicant had therefore had no legal right to be granted the right to purchase the flat on such terms. 26. On 14 May 1999 Zagreb Municipal Council invited the applicant to settle the existing situation amicably by agreeing to the voluntary annulment of the contract and repayment of the purchase price. After the applicant ignored that offer, the Municipal Council referred the case to the Zagreb Municipal State Attorney’s Office. 27. On 29 September 1999 the Zagreb Municipal State Attorney’s Office, on behalf of Zagreb Municipal Council, lodged a civil action in the Zagreb Municipal Court seeking to have the purchase contract between the applicant and Zagreb Municipal Council declared null and void on the grounds that the applicant had had no legal right to buy the flat on favourable terms. It pointed out that the applicant himself had never been granted temporary accommodation in the flat and that he had not been on Zagreb Municipal Council’s list of disabled war veterans who had the right to purchase a flat on favourable terms. 28. The applicant defended the civil action and lodged a counterclaim seeking damages in the amount of HRK 824,356. His counterclaim was severed into a separate case, and those proceedings were discontinued on 27 May 2010 due to the applicant’s procedural inactivity. 29. During the proceedings concerning the annulment of the purchase contract the applicant contended that his wife had been granted temporary accommodation in the flat, which had given her the right to buy the flat under section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act. He also considered that the civil action had been lodged outside the relevant statutory time-limit of one year after the contract had been concluded, as provided under the Specially Protected Tenancies (Sale to the Occupier) Act (see paragraph 43 below). 30. On 18 February 2004 the Zagreb Municipal Court declared the purchase contract for the flat null and void. It explained that the applicant had not been granted temporary accommodation in the flat and that therefore he had never satisfied the requirements of applicable domestic law for the purchase of the flat on favourable terms. The relevant part of the judgment reads: “Section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act provides that disabled Homeland War [veterans], as well as the spouses, parents and children, adopted children, father’s or mother’s spouses and adoptive parents of a deceased, incarcerated or missing Homeland War veteran have the right, on the terms provided in this Act, to purchase a flat in which they were temporarily accommodated under the Temporary Accommodation Act and the Homeland War Veterans Act [Zakon o pravima hrvatskih branitelja iz domovinskog rata]... Bearing in mind the above provision, this court notes that temporary accommodation in the flat in question was granted to N.[Z.] as a refugee, while the defendant is not one of the individuals who was provided with temporary accommodation under the Temporary Accommodation Act. This court finds that the purchase contract was concluded contrary to section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act, since the defendant had not been granted temporary accommodation under the Temporary Accommodation Act or the Homeland War Veterans Act and therefore, under section 103 of the Obligations Act, the claim should be accepted and the contract declared null and void. Furthermore, the argument that the civil action was lodged outside of the relevant statutory time-limit is unfounded given that, under section 110 of the Civil Obligations Act, the right to claim nullity [of a contract] cannot be extinguished. ...” 31. The applicant lodged an appeal against the first-instance judgment before the Zagreb County Court (Županijski sud u Zagrebu) on 2 March 2004 in which he reiterated his previous arguments. 32. On 15 February 2005 the Zagreb County Court dismissed the applicant’s appeal as without merit and upheld the first-instance judgment. 33. On 30 June 2005 the applicant lodged a constitutional complaint before the Constitutional Court (Ustvani sud Republike Hrvatske), reiterating his arguments before the lower courts. 34. The Constitutional Court dismissed the applicant’s constitutional complaint on 1 October 2008, endorsing the reasoning of the lower courts. In particular, it noted: “The reasoning of the impugned judgments is based on a correct interpretation of the relevant law and can be accepted from the perspective of constitutional rights. The Constitutional Court finds that the lower courts, based on the established facts, provided sufficient reasons in their judgments and that their reasoning does not disclose any arbitrariness in the application of the law.” 35. On 27 April 2006 the applicant’s wife lodged a civil action against Zagreb Municipal Council in the Zagreb Municipal Court, seeking the right to purchase the flat. This civil action was dismissed on 17 June 2008 on the grounds that the process of privatisation of the flat had been started in the meantime (see paragraph 38 below) and therefore that the flat was no longer able to be sold by the Municipal Council but rather belonged to a special privatisation fund. This judgment was appealed against, but it was upheld by the Zagreb County Court on 12 May 2009. 36. Meanwhile, on 16 July 2008, the Municipal Council repaid the applicant the purchase price of HRK 21,432 together with statutory default interest in the amount of HRK 47,729.85. 37. On 2 May 2005 the applicant opened a private medical practice in gynecology and obstetrics in the flat, while in June 2004 his family moved to another flat which he had bought in Zagreb. 38. On 20 July 2006, as part of the privatisation process, the ownership of one half of the flat was returned to D.N., a successor of the original owners. 39. On 12 November 2008 D.N. sold his ownership in the flat to the applicant. 40. Throughout the period to date, the applicant has been running his private medical practice in the flat. 41. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010) read as follows: “The home is inviolable ...” “Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.” “The right of ownership shall be guaranteed ...“ 42. The relevant provisions of the Temporary Accommodation Act (Zakon o privremenom korištenju stanova, Official Gazette no. 66/1991) read: “This Act provides for the terms and the manner of [the provision of] temporary accommodation in publicly-owned flats ... which are empty or abandoned, with a view to allocating refugees – internally displaced persons, and defenders of the Republic of Croatia and their families.” “Individuals who have been granted temporary accommodation and their family members are not [thereby] granted a specially protected tenancy nor can they obtain a specially protected tenancy of the flat in question.” 43. The Specially Protected Tenancies (Sale to the Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette nos. 43/1992, 69/1992, 25/1993, 48/1993, 2/1994, 29/1994, 44/1994, 58/1995, 11/1996, 68/1998 and 96/1999) regulates the conditions of sale of flats let under specially protected tenancies. The relevant part of this Act reads: “Disabled Homeland War [veterans], as well as the spouses, parents and children, adopted children, father’s or mother’s spouses and adoptive parents of deceased, incarcerated or missing Homeland War veterans have the right, on the terms provided in this Act, to purchase a flat in which they have been temporarily accommodated under the Temporary Accommodation Act and the Homeland War Veterans Act, if no other person has a specially protected tenancy of the flat in question.” “The seller shall submit the sale contract for approval to the competent State Attorney within eight days. If the State Attorney finds that the statutory conditions for entering into such a contract have not been met or that the price stipulated in it is lower than that established by this Act, he or she shall disapprove of the sale. If the State Attorney finds after a sale contract has been concluded that the statutory conditions for entering such contract had not been met, he or she shall seek the annulment of that contract within one year after the contract has been concluded.” 44. The relevant provisions of the Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99), as then in force, provided: “(1) Each contractual obligation shall have a permissible [legal] basis [causa]. (2) A basis is not permissible if it contravenes the Constitution, fundamental principles of law, or morals. ...” “Where there is no [legal] basis [for a contract] or where its [basis] is not permissible, the contract is null and void.” “A contract which is contrary to the Constitution, fundamental principles of law, or morals is null and void, unless there is some other [applicable] sanction or the law provides differently in a particular case.” “The right to plead nullity shall be inextinguishable.” 45. The relevant provisions of the Enforcement Act (Ovršni zakon, Official Gazette nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005, 121/2005 and 67/2008) provide: “A court shall order enforcement only on the basis of a final and enforceable instrument, unless otherwise provided under this Act.” “A decision by which a court has ordered the fulfilment of a claim through payment or performance shall be enforceable when it is final and if the period for voluntary compliance with that decision has elapsed. ... “ “An enforcement instrument may be [used as a basis for] execution only if the creditor and debtor, and the nature, type, scope and time of the obligation are set out [in the relevant decision]. ... “
| 0 |
test
|
001-180503
|
ENG
|
RUS
|
CHAMBER
| 2,018 |
CASE OF POLIKHOVICH v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) read in the light of Article 10 - (Art. 10) Freedom of expression-{general} (Article 10-1 - Freedom to hold opinions)
|
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1990 and lived in Moscow until his arrest. 6. The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below. 7. On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square, which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it became apparent that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd the police cordon forced the protestors to remain within the barriers; there were numerous clashes between the two sides. At 5.30 p.m. the police ordered the meeting to finish early and began to disperse the participants. It took them about two hours to clear the square. 8. On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day. 9. At the time of his arrest the applicant was a second-year student at the Moscow University of Social Studies and worked part-time as a courier for an insurance company. According to him, on 6 May 2012 he arrived at Kaluzhskaya Square to take part in the march and walked with other participants to Bolotnaya Square. Upon arrival there he discovered that the police cordon had blocked access to the square. When passage to the stage of the rally taking place along the embankment was opened, the applicant went in that direction. The police started to disperse the protesters, using excessive force and beating them with truncheons. In response, the protesters dragged metal barriers in place to protect themselves from the police. At one point the applicant observed a protester in a green T-shirt, who five or six police officers were holding and beating with truncheons. He grabbed the protester and pulled him back, trying to protect him from the blows. The applicant was later arrested by the police and taken to a police station before being released shortly after. After the events in question he continued to live at his usual address and pursue his studies. 10. On 26 July 2012 the applicant was arrested on suspicion of having participated in acts of mass disorder on 6 May 2012. 11. On 27 July 2012 the Basmannyy District Court ordered that the applicant be placed in pre-trial detention until 26 September 2012. It referred to the gravity of the charges and information about the applicant’s character, including a report by Moscow Police’s chief of department at the Centre for Counter-Extremism. According to that report, the applicant was an active member of organisations of a destructive character. If he were to stay at liberty, he planned to threaten witnesses, abscond and obstruct the investigation. The court concluded that those circumstances gave sufficient grounds to believe that the applicant was likely to flee to avoid the investigation and trial, destroy evidence or otherwise obstruct the investigation of the criminal case, which was still at an initial stage. 12. On 1 August 2012 charges were brought against the applicant under Article 212 § 2 (participation in acts of mass disorder accompanied by violence). He was accused, in particular, of resisting police officers by pushing them away when they were arresting other protestors and by trying to liberate the latter. 13. On 27 August 2012 the Moscow City Court upheld the detention order of 27 July 2012. 14. On 24 September 2012 the Basmannyy District Court examined an application from the investigator for an extension of the applicant’s pre-trial detention. The applicant asked for the preventive measure to be changed to house arrest, a written undertaking not to leave a specified place, bail or personal guarantees. On the same day the District Court granted the investigator’s application and extended the applicant’s detention until 6 November 2012. It considered that the circumstances justifying the detention order had not changed. 15. On 1 October 2012 Police Officer T. identified the applicant during an identification parade as a participant in mass disorder who had used violence against him. In particular, when T. and other officers had been arresting a protester, the applicant had grabbed his hand and pulled it off the protestor, thereby causing the police officer pain. Another police officer, L., also identified the applicant as a participant in acts of mass disorder who had tried to prevent the police arresting another protestor. 16. On 22 October 2012 the Moscow City Court dismissed the applicant’s appeal against the extension order of 24 September 2012. 17. On 29 October 2012 the Basmannyy District Court granted an extension of the applicant’s detention until 6 March 2013, essentially on the same grounds as earlier, noting that the circumstances justifying the detention order had not changed. In particular, it dismissed an objection from the applicant to the use of the operational-search reports concerning his character and rejected his contesting of the alleged membership of any organisations of a destructive nature. 18. On 15 November and 21 December 2012 the charges against the applicant were reformulated. It was stated that the applicant, who had been wearing a surgical mask to conceal his face, had used violence against the police while trying to liberate protestors who had been arrested and that he had pushed police officers away. In particular, he had grabbed Officer T.’s hand and pulled it off a protester, thereby preventing his arrest. He had also built a line of metal barriers to block the police and had tried to repel the police with them. The applicant’s alleged offences were classified additionally under Article 318 § 1 of the Criminal Code (use of violence against a public official). 19. On 5 March 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 6 July 2013, essentially on the same grounds as before. On 17 April 2013 the Moscow City Court upheld the extension order. 20. On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges. 21. On 6 June 2013 that court granted another extension of the applicant’s detention, until 24 November 2013. The decision concerned eleven defendants. Along with the gravity of the charges, the court based its decision on the findings that “the reasons which initially warranted the detention have not changed” and that “no other measures of restraint would secure the aims and goals of the judicial proceedings”. The applicant’s request for an alternative preventive measure was dismissed on the grounds that no other measure could secure the proper course of justice in the case. The Moscow City Court upheld the extension order on 2 July 2013. 22. On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of nine defendants, including the applicant. It ordered their detention until 24 February 2014 on the grounds of the gravity of the charges and the nature of the offences imputable to them. On 17 December 2013 the Moscow City Court upheld that extension order. 23. The applicant was held in IZ-77/2 for the whole period of his pre-trial detention from 4 September 2012. According to him, the conditions of his detention had been poor. The applicant referred to cases against Russia in which the Court had previously found a breach of Article 3 because of overcrowding in IZ-77/2 in 2004-2005 (see Lind v. Russia, no. 25664/05, §§ 42 and 58-63, 6 December 2007; Zentsov and Others v. Russia, no. 35297/05, §§ 25-29 and 40-44, 23 October 2012; and Vyatkin v. Russia, no. 18813/06, §§ 2627 and 38-43, 11 April 2013). The applicant submitted that his conditions of detention had been similar. 24. The applicant’s description of the conditions of detention during his transfer from the remand prison to court and back and the Government’s submissions in that regard were identical to those in the case of Yaroslav Belousov (cited above, §§ 69-73). 25. As regards the conditions of detention in the convoy room of the Moscow City Court, the applicant submitted that it was poorly lit and that access to the toilet was limited to once an hour. In addition, he had been required to strip naked and to perform sit-ups during the body search conducted in the convoy room. 26. On 6 June 2013 court proceedings began in hearing room no. 338 at the Moscow City Court, moving at the end of July 2013 to hearing room no. 635. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued at the Nikulinskiy District Court of Moscow in hearing room no. 303, while in January and February 2014 they took place at the Zamoskvoretskiy District Court in hearing room no. 410. Those hearing rooms were equipped with metal cages in which nine defendants (seven from 19 December 2013), including the applicant, sat during the hearings. 27. For a detailed description of the conditions in those hearing rooms see Yaroslav Belousov (cited above, §§ 74-77). 28. On 6 June 2013 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing in a criminal case against ten participants in the demonstration at Bolotnaya Square, who were charged with participation in acts of mass disorder and committing acts of violence against police officers. On 18 June 2013 the same court began the trial on the merits. 29. On 5 September 2013 Police Officer T., the alleged victim of the applicant’s assault, was examined as a witness. He testified that the applicant had impeded him and two other police officers from arresting a protester by grabbing T.’s hand and pushing the officers away. The applicant had caused him pain but had not inflicted any injuries. During the hearing the applicant and his lawyers applied to deprive T. of victim status because no harm had been caused to him, but the court refused that request as unsubstantiated. 30. On 21 February 2014 the Zamoskvoretsky District Court of Moscow found the applicant guilty as charged. It held, in particular, as follows: “Between 4 p.m. and 8 p.m. on 6 May 2012 ... at Bolotnaya Square ... unidentified persons ... called those present [at the venue] to move outside the agreed meeting venue, to defy the lawful orders of the police ..., to use violence ... which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [and] the destruction of property. On the same day at 5 p.m. at the latest [the defendants] acquired the criminal intent to participate in mass disorder and to use violence against ... police officers ... Moreover ... the participants of the acts of mass disorder threw chunks of tarmac, stones, sticks and other objects at the police ... which hit them on various parts of their body, and [the defendants] ... [who] participated in the acts of mass disorder ... implemented their criminal intent to use violence against public officials ... applied physical force which was not a danger to the life or health of those [officials] ... [The applicant] ... who was wearing a surgical mask to hide his face, together with unidentified persons ... tried to liberate those arrested by the police for a breach of public order and pushed the police officers away ... ... [the applicant] used violence against Police Officer [T.] which did not endanger his life or health ... [The applicant] ... from 5 p.m. to 9.40 p.m. ... when unidentified participants of acts of mass disorder tried to break the police cordon, acting intentionally and using force, grabbed [T.’s] hand and then pulled it off the person whom [T.] was arresting, thus impeding his apprehension, which caused [T.] pain. In addition, [the applicant] together with unidentified persons ... built a line of metal barriers blocking the police’s movements, and ... tried to repel the line of police officers ... with the help of those barriers. [The applicant] pleaded not guilty and testified that ... he had decided to attend the public gathering on 6 May 2012 ... for the purposes of personal security he wore a surgical mask ... [The applicant] was at the bridge when a blockage occurred. He did not see what was happening, but at one point ... he had been able to proceed with the flow of people towards the stage. There [the applicant] saw the mass beating of people by police officers and participants of the rally starting to bring forward metal barriers ... and to put them close to the police officers, trying to protect themselves from the latter. [The applicant] was standing close to the barriers, taking his hands off when the police officers used their truncheons to hit over the barriers. Then ... [the applicant] saw a group of five or six police officers who were trying to seize a young man in a green T-shirt. They hit the man with their truncheons, and [the applicant], considering that the man was in danger because the police actions were unlawful, tried to snatch him from the officers’ hands. He grasped the young man’s waistband, pulled it and turned his back to protect him from the truncheon blows. [The applicant] finds it conceivable that in this turmoil he might unintentionally have pushed someone and asks for attention to be paid to [T.’s] statements that the latter did not feel any pain. Then [the applicant] was arrested and taken to a police vehicle. ... the court considers the [defendants’] arguments that they were protecting somebody from police officers or happened to be victims of the police’s use of force as farfetched and aimed at the mitigation of their responsibility ...” 31. The applicant was sentenced to three years and six months’ imprisonment, calculated on the basis of a three-year prison term under Article 212 § 2 of the Criminal Code, partly concurrent with a term of one year and three months under Article 318 § 1. The applicant’s pre-trial detention counted towards the prison sentence. 32. The applicant appealed. He complained that the same acts imputed to him had been classified under both Article 212 and Article 318 of the Criminal Code. He insisted that he had not used violence against T. because the latter had not suffered any pain or injuries. 33. On 20 June 2014 the Moscow City Court upheld the first-instance judgment.
| 1 |
test
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001-147623
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ENG
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GBR
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CHAMBER
| 2,014 |
CASE OF GOUGH v. THE UNITED KINGDOM
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Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
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Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
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5. The applicant was born in 1959 and lives in Eastleigh. 6. The applicant adheres to a firmly held belief in the inoffensiveness of the human body. This has in turn given rise to a belief in social nudity, which he expresses by being naked in public. In 2003 he decided to walk naked from Land’s End in England to John O’Groats in Scotland, earning the nickname “the naked rambler”. 7. The following chronology is a summary of the details provided by the parties pertaining to the applicant’s arrests, prosecutions, convictions and sentences of imprisonment since July 2003. All arrests listed were the result of nudity in public unless otherwise indicated. 8. The applicant began his trek at Land’s End in 2003. 9. He was arrested in Scotland on five occasions between 29 July 2003 and 18 August 2003 on charges of breach of the peace (see paragraphs 100102 below) and public indecency for being naked in public. No further action was taken in respect of the first two offences. He was released on bail in respect of the others but no further action was ultimately taken. 10. On 19 August 2003 he was arrested and detained for breach of the peace. He was released on bail on 26 August after agreeing to remain clothed. However, he was rearrested on 27 August on a charge of breach of the peace committed while on bail for being naked in public. On 3 October 2003 he was convicted at Dingwall Sheriff Court in respect of the 27 August offence and admonished. He was then released. He lodged an appeal which was later dismissed for unknown reasons. 11. Meanwhile, on 3 October 2003 following his release, he was arrested and charged with breach of the peace committed while on bail. He was remanded in custody. On 7 November 2003 he was convicted at Dingwall Sheriff Court and sentence was deferred. On 28 November 2003 a sentence of three months’ imprisonment was imposed, backdated to the date of his arrest. He was released on 29 November 2003. 12. On the same day he was arrested and charged with breach of the peace committed while on bail. He was remanded in custody. Following a trial on 7 January 2004 he was convicted and sentenced to three months’ imprisonment, backdated to 1 December 2003. He lodged an appeal which was later dismissed for unknown reasons. He was released on 15 January 2004 and resumed his trek. 13. All periods of detention were spent in HMP Inverness in segregation as the applicant refused to dress. 14. On 22 January 2004 the applicant completed his trek at John O’Groats and returned to his home in Eastleigh, England. 15. In June 2005 the applicant commenced a second trek at Land’s End, intending to walk to John O’Groats. 16. On 1 September 2005 he was arrested in Scotland and charged with breach of the peace. He was detained on remand and convicted on 9 September. He was sentenced to fourteen days’ imprisonment. He was released on 15 September 2005. 17. Upon leaving the prison, the applicant was arrested and charged with breach of the peace. He was released on bail. 18. On 20 September 2005 the applicant was arrested and charged with breach of the peace. He was released on bail. 19. On 3 October 2005 he was arrested and charged with breach of the peace and an offence under section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 (breach of bail conditions – see paragraph 103 below). He was detained on remand. On 21 October 2005 he was convicted in Dingwall Sheriff Court of a breach of bail conditions and sentenced to imprisonment for two months, the sentence being backdated to 4 October 2005. He was found not guilty of breach of the peace. 20. He was released on 3 November 2005 and immediately rearrested. He was charged with breach of the peace and a breach of bail conditions for being naked in public. On 15 November 2005 he appeared at Edinburgh Sheriff Court naked to be tried on the charges relating to the arrest on 3 November 2005. The Sheriff found the applicant to be in contempt of court and sentenced him to three months’ imprisonment. 21. On 1 December 2005 it was decided that no further action would be taken in respect of the applicant’s arrest on 20 September 2005. 22. On 19 December 2005 the applicant appeared again for trial at Edinburgh Sheriff Court but refused to wear clothes. The Sheriff again found the applicant to be in contempt and deferred the matter of sentence. 23. On 21 December 2005 the applicant was due to stand trial at Edinburgh Sheriff Court on the charges relating to the arrest on 15 September 2005. He refused to dress. The Sheriff found him to be in contempt of court. She adjourned the trial proceedings and deferred consideration of the matter of sentence for the contempt charge until 9 January 2006. 24. On 9 January 2006 the applicant’s plea of not guilty to the two outstanding breach of the peace charges was accepted. He was convicted of breaching of bail conditions and admonished. Sentence was further deferred in respect of the contempt findings and the applicant was released on bail on 10 January 2006. 25. On 12 February 2006 the applicant was arrested for breach of the peace. No further action was taken. 26. On 14 February 2006 the applicant was again arrested for breach of the peace. He was released on bail. 27. On 21 February 2006 he completed his trek at John O’Groats. 28. On 1 March 2006 he entered Edinburgh Sheriff Court naked to face proceedings related to the outstanding findings of contempt of court. He was arrested and charged with breach of the peace. 29. On 2 March 2006 he appeared on those charges before the Sheriff. He was found to be in contempt of court for appearing naked in court and sentenced to two months’ imprisonment. He lodged an appeal against the sentence. 30. On 15 March 2006 it was decided that no further action would be taken in respect of the applicant’s arrest on 14 February 2006. 31. On 6 April 2006 the applicant was convicted of breach of the peace committed while on bail in respect of his nudity on 1 March 2006. He was sentenced to three months’ imprisonment, backdated to 2 March. It appears that he was released on 14 April 2006 and returned home to Eastleigh. 32. All periods of detention except for a week from 16-23 November 2005 were spent in segregation in HMP Inverness and HMP Edinburgh because the applicant refused to wear clothes. 33. On 18 May 2006, during a flight from Southampton to Edinburgh to attend the appeal hearing in respect of the sentence for contempt of court, the applicant removed his clothes. Upon arrival at Edinburgh airport, he was arrested for breach of the peace and public indecency committed while on bail. He was detained on remand. On 23 June 2006 he was convicted of the charges and sentenced to four months’ and two months’ imprisonment respectively, to run concurrently backdated to 19 May. He lodged an appeal which was later dismissed for unknown reasons. He was released on 19 July 2006. 34. On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 25 August 2006 and a seven-month prison sentence was imposed. He lodged an appeal which was later dismissed for unknown reasons. He was released on 3 November 2006. 35. On the same day, he was arrested in the prison car park on a charge of breach of the peace committed while on bail. He was detained on remand. He appeared naked in court on 6 November 2006 and was found to be in contempt of court. A two-month sentence was imposed. On 13 December 2006 he was found guilty of breach of the peace in respect of the 3 November charge. He was sentenced to six months’ imprisonment, backdated to 5 December. He was released on 5 March 2007. 36. Upon his release, he was rearrested on a charge of breach of the peace in the prison car park. He was detained on remand. On 9 April 2007 he was found not guilty of a charge of breach of the peace as the Sheriff was not persuaded that he had caused any alarm or disturbance. He was subsequently released. 37. On 10 April 2007 he was arrested on a charge of breach of the peace and detained on remand. He was convicted on 9 May 2007 and sentenced to three months’ imprisonment, backdated to 11 April. He lodged an appeal which was later dismissed for unknown reasons. He was released on 25 May 2007. 38. On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 25 June 2007 and sentenced to sixty days’ imprisonment, plus fourteen days outstanding from his previous sentence. He lodged an appeal; the outcome of the appeal is not known. He was released on 31 July 2007. 39. On the same day, he was arrested on a charge of breach of the peace and detained on remand. He was convicted on 3 September 2007 and sentenced to sixty days’ imprisonment, plus twenty-three days outstanding from his previous sentence. He lodged an appeal which was later dismissed for unknown reasons. He was released on 12 October 2007. 40. On the same day he was arrested and charged with breach of the peace. It appears that he was not held in custody. Three days later, on 15 October 2007, he was arrested on a charge of breach of the peace and detained on remand. A decision was made to take no further action in respect of the 12 October arrest. 41. On 7 November 2007, while the applicant was on remand, his appeal against sentence for contempt of court was rejected by the Appeal Court of the High Court of Justiciary (“the Appeal Court”). 42. On 15 November 2007 he was convicted in respect of the 15 October arrest. Sentence was deferred and the applicant remained in detention. 43. On 30 November 2007 the applicant was sentenced to three months’ imprisonment for contempt of court in respect of a contempt finding dating back to December 2005. 44. On 4 December 2007 the applicant was sentenced to thirty days’ imprisonment in respect of each of the two outstanding contempt of court rulings, to run concurrently. 45. On 18 January 2008 the applicant appeared at Edinburgh Sheriff Court in respect of the deferred sentence for the 15 November 2007 conviction. Sentence was further deferred and the applicant was released. As he emerged from court naked, he was rearrested on a breach of the peace charge and detained on remand. On 26 February 2008 he was convicted and sentenced to four months’ imprisonment. He lodged an appeal which was later dismissed for unknown reasons. He was released on 7 March 2008. 46. On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 15 April 2008 and sentenced to twelve months’ imprisonment. 47. On 23 April 2008 he was admonished in respect of the breach of the peace conviction of 15 November 2007. 48. On 14 October 2008 the applicant was released. He was arrested in the prison car park on a charge of breach of the peace and detained on remand. On 14 November 2008 the Sheriff ruled that there was no case to answer. 49. The applicant was released but was immediately rearrested on a charge of breach of the peace and detained on remand. On 18 December 2008 he was convicted at Glasgow Sheriff Court. He was sentenced to eight months’ imprisonment. 50. The applicant’s detention throughout this period was spent in HMP Edinburgh, HMP Barlinnie, HMP Glenochil and HMP Perth in segregation because he refused to put on clothes. 51. At around 7.45 a.m. on 18 June 2009 the applicant was released from HMP Perth. He walked out of the prison naked and was arrested, after refusing to get dressed when asked to do so by two police officers waiting some metres from the prison gates, on Edinburgh Road. He was charged in the following terms: “... [Y]ou ... did conduct yourself in a disorderly manner, did walk in a public place naked, refuse to wear any clothing when asked to do so, indicate that you had no intention of wearing any clothing when in public and did commit a breach of the peace.” 52. He pleaded not guilty and was detained in prison on remand in segregation as he refused to dress. 53. On 16 July 2009 the applicant’s trial took place at Perth Sheriff Court. He chose to remain naked and represented himself. He was asked by the Sheriff if he wished the services of a lawyer but replied that he did not. He maintained his plea of not guilty. The Sheriff indicated that he risked being found in contempt of court if he failed to put on clothes. The applicant refused to dress. The Sheriff allowed him to be present in court after a screen covering the lower half of his body was hastily constructed. 54. The two police officers who had arrested the applicant gave evidence. Police Officer A described Edinburgh Road as a “major route into Perth” from the motorway. It was a “busy road” and at the material time there was a continuous flow of traffic along the road. He was firmly of the view that the applicant’s nudity in a public place would cause alarm to anyone. During cross-examination by the applicant, Police Officer A agreed that the human body was in itself decent and was not harmful or alarming. He accepted that nothing in the applicant’s behaviour at the time of his arrest, other than his nakedness, gave the police any cause for concern. Police Officer B gave evidence that she considered the fact that the applicant had no clothes on in a public place to be very strange and unusual and that she was “quite shocked” by it. She explained that at the time, Edinburgh Road had been very busy with vehicular and pedestrian traffic. She had previously seen elderly people and children in the area, and there were schools and housing nearby. In cross-examination she also agreed that the human body in itself was not harmful, indecent or bad but maintained that although she had been forewarned that she would be likely to see a naked man in public she had still been shocked. She confirmed that no complaints had been received from members of the public. 55. The applicant gave evidence in his defence. When asked by the prosecution why he was wearing no clothes, he replied that he was making a stand and that “we’re innocent until we do something wrong”. He did not believe that he was causing harm by not wearing clothes. He said that he did not wear clothes in order to provoke a reaction: although he had not always been like that, as he had grown older he had thought more about his beliefs. When asked what he hoped to achieve by making his stand, the applicant replied that he did it because he felt that it was right and that the world changed in its own way. 56. The Sheriff found the applicant guilty of breach of the peace and contempt of court. He considered that being naked in a public place and refusing to wear clothes in a public place was conduct that would be alarming and disturbing, in its context, to any reasonable person. In his stated case prepared in the context of the applicant’s later appeal, the Sheriff explained: “56. ... There was no dispute on the facts of the case ... I accepted that the police officers were concerned that if the appellant did not put clothes on there was a very real likelihood of him causing fear and alarm to other members of the public ...” 57. He continued: “58. The position of the appellant is somewhat difficult to understand. He made it clear to the two police officers that he had no intention whatsoever of putting clothes on. He insisted on being naked in a public place. He believed that he was doing no wrong by being naked in a public place. He did not accept that he had committed an offence.” 58. He noted that in questioning the police officers, the applicant had chosen not to differentiate between private and public places when it came to nakedness. He concluded: “60. I was entirely satisfied that the conduct of the appellant with the aggravation of his refusal to wear clothing in a public place amounted to a breach of the peace. The criteria for a breach of the peace as discussed in the case of Smith v. Donnelly had been met ... The evidence of the appellant did not raise a doubt in my mind. Accordingly I convicted the appellant as libelled.” 59. At sentencing, the Sheriff had before him the applicant’s previous convictions. According to the stated case, the applicant confirmed to the Sheriff that all previous convictions were for breach of the peace. The Sheriff’s stated case continued: “61. ... He acknowledged that he had spent the last five years or thereby in prison for the same offence. A pattern has emerged namely that on his release from prison when he ‘stepped out’ of the prison gate, always naked, he was immediately arrested. 62. I asked the appellant what he was hoping to achieve by insisting on being naked in public. He talked about ‘his beliefs’. I simply could not understand what he had to say in this regard. He did not appear to be waging any campaign or making a protest. He informed me that he would rather not be in prison. If he was not in prison, he would go back to live with his mother in a village in Cornwall. He had previously worked as a driver of large goods vehicles ...” 60. The Sheriff discussed sentencing options with the applicant. In his stated case he explained: “32. ... I enquired of him if I was minded to defer sentence for whatever reason and admit him to a bail order would he then wear clothes. After some thought the appellant stated that he would not be prepared to wear clothes ...” 61. The Sheriff’s stated case concluded: “63. Taking all these matters into account I could see no alternative to a custodial sentence. In view of the content of the Notice of Previous Convictions I deemed it appropriate to impose the maximum of 12 months’ imprisonment which I backdated to the date that he had been taken into custody.” 62. A further four months’ imprisonment, to run concurrently, was imposed for contempt of court. 63. The applicant sought to appeal his conviction and sentence by way of note of appeal and a draft stated case was prepared by the Sheriff in September 2009. 64. The applicant was provided with a copy of the stated case and was asked for details of any proposed changes. By letter of 5 October 2009 the applicant proposed a number of changes. 65. On 12 October 2009 a hearing was held to consider the proposed adjustments to the case stated. The applicant was brought from HMP Perth to attend the hearing and blankets were provided to facilitate his attendance. He was told that if he refused to wear clothes or make use of the blankets he would not be admitted into the court. He refused to wear clothes or to make use of the blankets and was accordingly not permitted to attend the adjustment hearing. The hearing proceeded in his absence and his requested adjustments were considered by the Sheriff. Two adjustments were allowed and the remaining adjustments rejected. 66. Concerned that the stated case was biased, the applicant did not lodge it with the Justiciary Office. On 29 October 2009, the expiry of the applicable time-limit for lodging, his appeal was deemed abandoned. 67. The applicant spent his sentence in segregation at HMP Perth as he refused to wear clothes. On 17 December 2009 he was released from prison. 68. Minutes after his release on 17 December 2009, the applicant was arrested and charged with breach of the peace for being naked in public. He was detained on remand. 69. On 11 January 2010 he was convicted of breach of the peace. Sentence was deferred to 8 February for up-to-date psychiatric and psychological assessments. 70. On 8 February 2010 the applicant was sentenced to a term of twelve months’ imprisonment plus 180 days unserved from previous sentences. He lodged an appeal; the outcome of the appeal is not known. He was kept in segregation at HMP Perth while in prison because he refused to dress. 71. He was released on 29 October 2010. 72. Minutes after his release on 29 October 2010, the applicant was arrested and charged with breach of the peace for being naked in public. He was detained on remand. 73. On 24 November 2010 he was found guilty of breach of the peace and contempt of court. On 25 November he was sentenced to 312 days’ imprisonment in respect of the breach of the peace charge together with 74 days unserved from previous sentences plus 90 days for contempt of court, to be served consecutively. He was not kept in segregation while in prison at HMP Perth. 74. He was released on 20 July 2011. 75. Minutes after his release on 20 July 2011 at around 9 a.m., the applicant was approached by two police officers on Manson Terrace, a public road leading from HMP Perth to Edinburgh Road. The officers suggested that he put on some clothes but he refused to do so. He was arrested him for breach of the peace and detained on remand. He appeared in court on 21 July 2011 and pleaded not guilty. 76. The trial commenced on 24 August 2011. The applicant appeared in court naked and was warned by the Sheriff that if he refused to dress or to cover himself he might be held in contempt of court. He refused to put on clothes. 77. The prosecution led evidence of two police officer witnesses at trial. Their evidence was similar to that given at the 2009 trial and the applicant’s cross-examination was also in similar terms and elicited similar responses (see paragraph 54 above). 78. The applicant did not give evidence in his defence. He argued that his arrest and trial violated the Convention. He relied, inter alia, on Article 5, arguing that there was no reasonable suspicion which would satisfy an objective observer that he had committed an offence; Article 8, arguing that his arrest was arbitrary as it was based on the subjective belief that his nakedness was offensive; Article 9, arguing that he had a strong view that there was nothing indecent about his body and that view was not being respected; Article 10, arguing that he ought to have been given the right to express his views that nakedness was not indecent in the way that he had chosen to do; and Article 14, arguing that he was being discriminated against because he had different views from the majority of people. 79. The Sheriff found that the applicant’s conduct on 20 July 2011 was severe enough to cause alarm to ordinary people; threatened serious disturbance to the community; and presented as genuinely alarming, in its context, to any reasonable person. He therefore convicted the applicant. In his stated case prepared in the context of the later appeal proceedings, the Sheriff referred to the applicant’s Convention arguments and continued: “14. I should say that none of these arguments were developed to any extent and it was not always easy to see what [the applicant’s] full argument was. I came to the conclusion that none of the articles suggested by the appellant had been contravened in the procedure ...” 80. As to the conviction handed down, he explained: “15. In my view there was no doubt about the facts in this case ... The question was whether the conduct amounted to a breach of the peace. I was of the view that the first part of the test was easily met by the conduct. The appellant was walking along a public street in full view of anyone passing and he was completely naked with his private parts entirely on show. Such conduct would be severe enough to cause alarm to ordinary people especially when it was being carried out in an ordinary public street. It might be different if he had been naked somewhere in private, even in a public place which was remote or where fewer people would be congregated, but in or near one of the main streets of a busy town his appearance in that state would be alarming. 16. The question which was more troubling was whether the second part of the test was met. Would the conduct cause serious disturbance to the community? I came to the conclusion that the context in which the conduct was taking place – being naked in a brazen fashion in the public street with no attempt to cover himself and no obvious explanation or reason for the conduct – would cause serious disturbance to the community because of the reaction of ordinary people to his presence in that state in that place. That would be particularly so if the community could see that children or vulnerable old people might be present. I considered that the test was met and that the charge was proved beyond reasonable doubt. I therefore found the appellant guilty.” 81. The applicant was sentenced to a term of imprisonment of 330 days for the breach of the peace and 90 days for the contempt charge, together with 237 days unspent from his previous sentence, a total of 657 days. The sentences were not backdated and they were to run consecutively. The total length of the sentence was therefore one year, nine months and eighteen days. 82. The applicant sought to appeal his conviction by way of note of appeal and a draft stated case was prepared by the Sheriff. 83. Adjustments to the stated case were proposed by both parties and a hearing was held. The applicant was not permitted to attend the hearing since he refused to wear clothes. 84. On 28 October 2011 the applicant lodged an appeal by way of case stated, relying on Articles 5, 6, 7, 8, 9, 10 and 14 of the Convention. 85. On 18 November 2011 the applicant’s application for leave to appeal was considered by the first sift judge. Leave was refused for the following reasons: “The appeal is not arguable. The Sheriff has carefully explained the reasons for arriving at his decision. There was no infringement of the appellant’s rights in terms of the European Convention on Human Rights.” 86. On 22 December 2011 the applicant was refused leave on the second sift. The judges found that for the reasons given by the first sift judge the appeal was not arguable. 87. The applicant was not kept in segregation while serving his sentence at HMP Perth. He was released on 17 July 2012. 88. On the same day the applicant was arrested and charged with breach of the peace. He was not held in custody. On 2 August 2012 a decision was made to take no further action. 89. Meanwhile, on 20 July 2012 he was arrested on the outskirts of Dunfermline and charged with breach of the peace. He was detained on remand and appeared at Kirkcaldy Sheriff Court in August 2012. He was convicted of breach of the peace and detained at HMP Edinburgh and HMP Kilmarnock. He was kept in segregation during his detention. 90. He was released on 5 October 2012 and headed south towards his home in Eastleigh. 91. In April 2011 the applicant discovered a lump on his right testicle. He was examined in his cell but was required to wear clothes for external appointments. He refused to dress and subsequently made prison complaints about alleged inadequate medical treatment. When they were unsuccessful, he referred the complaints to the Scottish Ministers but on 10 August 2011 he was informed that they were not upheld. The applicant then contacted the Scottish Public Services Ombudsman (“the Ombudsman”). However, he was advised that his complaint was not one which the Ombudsman could pursue. On 8 February 2012 he was told that the lump had gone. 92. On 27 August 2011 the applicant made a prison complaint that he was not allowed visits. He was told in reply that he was permitted visits provided that he was appropriately dressed. He referred the complaint to the Internal Complaints Committee (“ICC”) on 1 September 2011. He was advised on 26 September 2011 that the ICC had fully endorsed the suggestion that visits be accommodated in the segregation unit. He was told to discuss this with the relevant staff and book a visit. No visits took place. 93. On 9 November 2011 the applicant contacted the Ombudsman with a complaint that the Scottish Prison Service (“SPS”) was unreasonably refusing to enable him to receive visits. By letter dated 10 January 2012 he was informed that the Ombudsman had not upheld the complaint because according to information from the SPS, he had been asked to cover his genitalia when walking from A Hall, where he was detained, to the segregation unit. He had refused to do so. 94. On 14 September 2011 the applicant made a prison complaint about refusal of dental and general medical treatment over the previous five years while he was in detention. By reply dated 20 September 2011 he was advised that the full range of clinical services were available to prisoners and that he was required to comply with the dress code to attend appointments. He referred the complaint to the Scottish Ministers, who did not uphold his complaint. 95. As noted above, the applicant spent much of his detention in segregation. Even when not in segregation, his ability to participate in activities and to associate with other prisoners was generally limited as long as he remained naked. He was not permitted to access the gym, for health and safety reasons. However, efforts were made to give him access to books and to explore further work or hobbies that could be conducted in his cell. Throughout his time in segregation, the applicant was reviewed regularly by health care professionals. 96. On 29 January 2012 the applicant complained to the prison authorities that he was not allowed to associate with other prisoners or to exercise. By reply dated 31 January 2012 he was told that he was not being denied association or exercise but had excluded himself from these activities by refusing to wear clothes. The applicant referred the complaint to the ICC on 2 February 2012 but the ICC decided that the current arrangements were satisfactory. It noted that if the applicant were to wear clothes, he would be permitted to associate with other prisoners. However, his choice to remain naked gave rise to serious concerns that he might be the victim of violence or unwarranted comments, and the prison had an obligation to ensure his safety. 97. In March 2012 the applicant complained to the Ombudsman that the SPS had given an unreasonable explanation for denying him access to association and exercise. By reply dated 24 May 2012 the Ombudsman informed him that his complaint had not been upheld because prison staff had confirmed that if he wore clothes, he would be able to associate with other prisoners and exercise. 98. The applicant contacted the Law Society of Scotland seeking details of solicitors in Edinburgh experienced in judicial review. He received a list containing the names of fourteen firms, which he duly contacted. None were willing to represent him. However, a further seven firms were recommended to him. He contacted them and was informed that none were willing to represent him. 99. He then contacted the Court of Session to request information regarding exemption from court fees, with a view to commencing judicial review proceedings without legal assistance. He was advised that as he was a prisoner and not in receipt of any State benefits, he was not eligible for exemption from court fees.
| 0 |
test
|
001-166741
|
ENG
|
SRB
|
CHAMBER
| 2,016 |
CASE OF ZDRAVKOVIĆ v. SERBIA
| 4 |
No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1973 and lives in Belgrade. 6. The applicant and S.S. (“the respondent”) married in 1998. Their son V.S. was born in August 1999. They lived in the respondent’s parents’ house in a neighbourhood of Belgrade. 7. In May 2008 the applicant moved to her parents’ house in the same neighbourhood. V.S. continued living with his father and his paternal grandparents. 8. On 19 May 2008 the applicant filed a request for interim custody with the competent first-instance court. 9. On 8 July 2008 the first-instance court rejected the applicant’s request for interim custody, but granted her extensive access rights in respect of the child pending the final outcome of the custody proceedings. This interim access order was immediately enforceable. 10. It appears that the interim access order was respected, with some resistance on the part of the child, until 13 August 2008, when the child ran away from the applicant during a visit and went back to the respondent’s house. 11. On 22 September 2008 the enforcement judge ordered enforcement of the said access order. After several failed attempts by the applicant to spend time with the child in accordance with the order, the enforcement judge sent a bailiff on 18 and 20 November 2008 to make an unannounced visit to monitor the applicant’s attempt to make contact with the child. During the visit, the bailiff informed the enforcement judge that the respondent had brought the child to the front gate of the house, but the child had refused to leave with the applicant, even after the respondent tried to persuade him, and had gone back inside. After receiving the report, the enforcement judge scheduled an enforcement hearing for 5 December 2008. 12. On 5 December 2008 the enforcement judge ordered a child support team from V.S.’s school to implement a system of psychological preparation to assist the child’s acceptance of contact with his mother. 13. On 9 January 2009 the enforcement judge asked the Social Care Centre to contemplate initiating corrective monitoring of the respondent’s exercise of parental rights in the light of the respondent’s substantial influence on the child’s hostility toward his mother. 14. On 7 April 2009 the Social Care Centre placed the respondent under formal corrective supervision (korektivni nadzor nad vršenjem roditeljskog prava). On 19 June 2009 the Social Care Centre, with the approval of the enforcement judge, applied the same measure to the applicant so as to enhance the parents’ collaboration with a view to satisfying the child’s emotional needs. 15. In the meantime, on 5 June 2009, the enforcement judge heard a psychologist working with the child. The psychologist advised the judge that interviewing the child within the proceedings would not be in his best interest. 16. Due to the respondent’s failure to prepare the child appropriately for the contact with his mother, on 4 May 2009 the enforcement judge ordered the respondent to pay a fine in the amount of 10,000 Serbian dinars (RSD) and on 6 June 2009 a fine in the amount of 150,000 RSD, both within three days. On 5 October 2009 the competent second-instance court rejected the respondent’s appeals against the fines. On 19 February and 10 May 2010, after the failure of the applicant to pay the fines, the enforcement judge ordered their mandatory enforcement. 17. On 26 November 2009 the Social Care Centre asked the enforcement judge to postpone enforcement of the access order for three months in view of the pending parental therapy. The Centre further asked for, and the judge approved, a further three months of therapy, stating that an improvement in the child’s attitude as well as in the parents’ relationship had been achieved. The Centre also proposed to the applicant and the respondent to stay the ongoing court proceedings until the therapy had ended. They observed that the court proceedings, in which the parents acted as opponents, jeopardised the progress achieved to date. It would appear that the applicant and the respondent did not accept this recommendation. 18. The parental therapy, which at that time had already lasted for six months, included 23 sessions in which the Social Care Centre’s professionals continuously and intensively worked with the applicant, the respondent, the child and the paternal grandparents to reach mutually acceptable arrangements and enforce the interim measures in line with the best interest of the child. 19. On 13 July 2010 the custody judgment of 24 November 2009 became final (see paragraph 33 below) and the decision on interim custody rights came to an end. The enforcement proceedings were later formally terminated by the enforcement judge on 28 February 2011. The enforcement judge, however, explicitly ordered continuation of the enforcement in respect of the fine of June 2009. 20. On 25 October 2008 the applicant lodged a new request for interim custody after the Mental Care Institute (Institut za mentalno zdravlje, hereafter “MCI”) conducted an examination of the parental capacity of both parties at the request of the first-instance court. The MCI report recommended that custody be awarded to the applicant. 21. On 11 November 2008 the first-instance court granted interim custody to the applicant and ordered the respondent immediately to surrender the child to her. It also quashed the part of the interim order of 8 July 2008 containing its decision not to grant custody to the applicant. The rest of the interim access order remained in force. 22. On 4 December 2008 the enforcement court ordered enforcement of the interim custody order. The respondent appealed on 26 December 2008, claiming that the child himself did not want to live with the applicant. The appeal was rejected on 29 September 2009. 23. The first attempt to reunite the applicant with the child took place on 22 December 2008. The enforcement judge, a bailiff, several representatives of the Social Care Centre, two uniformed policemen, three plain clothes policemen, the applicant and her lawyer all entered the courtyard of the respondent’s house, expecting that the child would be surrendered. The judge and the Centre’s representatives explained to the child in front of the others that he should leave and go with his mother to her house, but the child rejected the planned reunion and went back inside. The respondent allegedly would not allow the enforcement to take place in the house. He maintained that he had informed the child that various officials would come, but had not prepared him for reunion. The applicant refused forceful removal of the child. The enforcement judge noted that the child was not yet prepared for a transfer of custody and postponed the enforcement until January 2009 at the Social Care Centre’s premises. The enforcement judge asked the parties and the Social Care Centre’s representative to prepare the child adequately for the next reunion. 24. On 15 January and 4 February 2009 the enforcement judge adjourned the custody transfer scheduled for those dates as it was awaiting an opinion from the Social Care Centre regarding the formal corrective supervision of the respondent, as requested in the interim access enforcement proceedings (see paragraph 14 above). 25. The enforcement judge re-scheduled the transfer of custody for 1 April 2009 at the Social Care Centre’s premises. The attempt of transfer was conducted in the presence of the enforcement judge, the psychologist, the psychiatrist and the lawyer from the Social Care Centre and police officers. The child again refused to be separated from his father. The police explained that they could not forcefully remove the respondent from the premises to enable the social experts and the judge to facilitate a conversation with the child in his absence, since the child was clinging on the father, crying and refusing to let him go. It appears that the applicant was also against the use of force (according to a report to the enforcement judge by the Social Care Centre of 31 March 2010, the applicant refused the possibility of the use of force throughout the proceedings). The Social Care Centre recommended that psychotherapeutic support be provided for the child. The enforcement of the custody transfer was postponed. Shortly afterwards, the respondent was placed under the corrective supervision of the Social Care Centre (see para. 14 above). 26. On 5 June 2009 the enforcement judge held a hearing which appears to have been the last one within these enforcement proceedings. 27. The applicant petitioned the enforcement judge to fine the respondent for obstructing her contact with the child, hoping that this would compel him to surrender the child. 28. On 26 June 2009 the enforcement judge imposed on the respondent a fine in the amount of 150,000 RSD for failing to appropriately psychologically prepare the child for the reunification. It would appear that the fine has been paid. 29. On 12 February and 31 March 2010 the Social Care Centre informed the enforcement judge that its psychological therapies in respect of the family in question had produced no results (see paragraphs 17-18 above). According to their reports, it became clear that the respondent had cooperated in form only and had in fact failed to take steps to encourage the child to have substantive contact with the applicant. 30. On 13 July 2010 the custody judgment of 24 November 2009 became final and the decision on interim custody rights came to an end. From that moment, efforts to enforce the final custody judgment commenced (see paragraphs 38-42 below). On 25 March 2011 the enforcement judge formally terminated the enforcement proceedings. 31. On 19 May 2008 the applicant lodged a civil claim requesting the dissolution of her marriage with S.S., sole custody of V.S. and maintenance. 32. On 24 November 2009 the first-instance court dissolved the applicant’s marriage, granted her sole custody of V.S. and specified the respondent’s access rights. 33. On 13 July 2010 and 18 January 2011 the second-instance court and the Supreme Court of Cassation, respectively, upheld this judgment. 34. On 28 December 2009 the applicant filed a constitutional appeal with the Constitutional Court of Serbia (Ustavni sud Republike Srbije). She relied on various Articles of the Constitution, Articles 6, 8 and 13 of the Convention and Articles 3 and 9 the UN Convention on the Rights of the Child. She sought redress for the protracted length of the custody and subsequent criminal proceedings and the non-enforcement of the judicial interim access and custody decisions in her favour which, she claimed, violated her rights to a fair trial and to family life. She also complained that she had not had any legal avenue available to expedite those proceedings. 35. On 22 July 2010 the Constitutional Court rejected the applicant’s appeal. 36. As regards the protracted length of the custody proceedings, the Constitutional Court considered that the first-instance court had acted diligently, without any substantial periods of inactivity. It found the case to have been particularly complex, as the expert findings regarding the best interests of the child had conflicted with the latter’s own wish as to who to live with. 37. It also found that the non-enforcement of the interim access and custody orders during the same period had been attributable to the particular complexity of the case, as the child had objected to being reunited with the applicant. It found that the enforcement court had undertaken, without any delay, all necessary measures, including fining the respondent, for the purpose of enforcing effectively the applicant’s rights. 38. The judgment of 24 November 2009 became enforceable on 27 September 2010 and the enforcement order was issued on 29 November 2010. 39. The first forcible transfer of custody was scheduled for 9 March 2011, but the child refused any kind of contact with the applicant. The court noted that the respondent had failed to prepare the child for reunion. The applicant explicitly refused to countenance the use of force against the respondent and the child as the means of enforcement. The enforcement was therefore adjourned. 40. On 23 March 2011, upon the initiative of the Social Care Centre, the applicant and the respondent signed an Agreement on Access Rights designed to assist the re-establishing of contact between the applicant and V.S. in order to facilitate the enforcement of the custody judgment. 41. Despite this agreement, on 25 March 2011 the enforcement court imposed a fine on the respondent in the amount of RSD 100,000 because of his failure to comply with the judgment of 24 November 2009. It also ruled that the respondent was to be given three days from the date of receipt of that order to surrender the child voluntarily to the applicant and with the added condition that, should he fail to do so, he would have to pay a further fine of RSD 150,000. The respondent did not comply with the order and it seems that the fine in the amount of 100.000 RSD was subsequently imposed and paid. 42. The court scheduled a new forcible transfer of custody for 9 March 2011. In preparation for the enforcement, the Social Care Centre’s psychologist drew up a detailed plan of action. The psychologist’s assessment, after working with the child, was that such a transfer would be impossible or highly traumatic for the child and the enforcement was postponed once again. 43. On 9 February 2011 the respondent filed a claim for revision of the judgment of 24 November 2009, seeking sole custody of V.S. He also requested an interim custody order to the same effect. 44. On 24 June 2011 the Social Care Centre provided the first-instance court with an expert opinion. The Social Care Centre acknowledged that there had been no mechanisms available to facilitate a forcible physical transfer of child custody to the applicant in view of the respondent’s refusal. According to the report, the only feasible proposal would be for the child to continue living with his father. Even though, taking into account the chronology of events, parental capacity, justice and equity, the opposite proposal would be more appropriate, it could propose only this arrangement “not as an expression of their wish, but as the sole solution which is possible to impose and enforce in practice”. A change of residence would in any event have a negative impact on the child’s development. 45. On 20 June 2012 the first-instance court granted sole custody to the respondent, ordered the applicant to pay child maintenance and specified the applicant’s access rights as eight hours every weekend, as well as specified periods of school holidays. 46. On 29 August 2008 and 23 June 2009 the applicant filed criminal complaints against the respondent for parental child abduction and continuous non-compliance with the interim access and custody orders. On 2 June 2009 and 28 September 2010 the competent prosecutor’s office charged the applicant with those crimes. None of the scheduled hearings was held. In September 2011 the first-instance court stayed the criminal proceedings as the prosecutor’s office had dropped the charges. The applicant subsequently took over the prosecution as subsidiary prosecutor. On 20 June 2012 the first-instance court, in a reasoned judgment, acquitted the respondent. It found, on the basis of numerous testimonies, three expert opinions, four expert reports from the civil proceedings case-file and other documentary evidence that the respondent always made the child available for enforcement, that he never physically or verbally, actively or passively obstructed enforcement at any point, and that there were no indications that the child ever showed signs that he was under pressure or undue influence not to have contact with his mother. On 25 October 2012 the second-instance court upheld this judgment. 47. It would appear that the applicant and her son have re-established contact with each other since the signing of the Agreement on Access Rights of 23 March 2011 and the revision of the custody judgment of 20 June 2012. It would appear that they have been meeting every weekend for at least an hour without supervision. The child still lives with the respondent.
| 0 |
test
|
001-148260
|
ENG
|
SVK
|
CHAMBER
| 2,014 |
CASE OF MRÁZ AND OTHERS v. SLOVAKIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
|
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
5. The particulars of the applicants appear in the appendix. 6. This application and three others (nos. 18803/10, 42812/10 and 48554/10) concern the regularisation of the relationship between ownership and use of real property located in the cadastral area of Košice-Sever. 7. Certain land in that area was expropriated in the 1980s by the (then socialist) State and a public sports centre was built on it. The sports centre comprises buildings and various other facilities, such as a tennis court, a grandstand, a water station and paved areas. 8. After the post 1989 political, constitutional and legal changes, litigation took place with a view to resolving various property claims made by the original owners (or their legal successors) against the entities that owned or operated the sports centre or various parts of it. 9. The land concerned is divided into a number of plots with various owners, many of whom are linked by family relations and history, and who had the same legal representation in the above-mentioned proceedings. Their lawsuits followed a similar pattern, but sometimes had varying results, and included the following proceedings. 10. The applicants in the present case are successors in title to a plot of land in the above-mentioned area, having inherited their title from the original owners, who died in 1970 and 1997. 11. On 17 May 1994 the latter of the original owners lodged an action against a sports club seeking to obtain a court order for the removal of the constructions on the land. The principal line of argument was that the expropriation decision of 24 February 1984 was invalid in law. The applicants were therefore the lawful owners of the land in question, in particular of plots nos. 10620/1 and 10620/2 (recorded on sheet no. 6946 in the “old” records), and that the defendant had no lawful title to have the constructions on the applicants’ land. 12. The action was subsequently amended to state that, alternatively, the applicants sought a judicial ruling establishing an easement on their land for the benefit of the owner of the sports centre in return for financial compensation to be paid to the applicants. It was also extended to two more defendants: the municipality concerned and a private company. 13. The action was examined and determined at first instance by the Košice I District Court (Okresný súd). In its judgment (rozsudok) of 2 April 2009, the District Court acknowledged that (i) the expropriation of 1984 was legally ineffective on account of procedural flaws; (ii) as a consequence, the applicants were the owners of the land in question; (iii) the constructions on it had been built without a valid legal title in so far as the land was concerned; and (iv) the applicants were eligible to seek redress under general civil law, that is to say Article 135c of the Civil Code (Law no. 40/1964 Coll., as amended), which was not subject to any statute of limitation, unlike the special legislation on restitution, which contained specific time-limits (see paragraph 23 below). 14. The District Court further held that, for practical reasons, it was out of the question to regularise the situation by establishing the applicants as the owners of the constructions and ordering them to pay the current owners financial compensation. Furthermore, in the circumstances, it was likewise not practical to order the physical removal of the constructions in question. 15. However, contrary to the applicants’ assertions, the District Court found that no easement could be established on the land. The bone of contention was the legal nature of the constructions concerned. Unlike in construction law, in civil law those constructions could not be considered as “buildings” (stavba) in legal terms. An easement over land could however only be established for the benefit of the owner of a building in the given sense. In that connection, the courts relied on Article 135c § 3 of the Civil Code (Law no. 40/1964 Coll., as amended) (see paragraph 20 below). The court also noted that it was bound by the legal classification of the applicants’ claim. It concluded that since the constructions on their specific plots of land were not buildings, the claim had to be dismissed. 16. The applicants challenged the first-instance judgment by means of an appeal (odvolanie) to the Košice Regional Court (Krajský súd).They argued, in particular, that the District Court had failed to appreciate that the property in question was part of a large complex serving a single purpose and that the claims raised in respect of that property were structurally identical and had been raised separately only because they concerned different plots of land with different owners. 17. On 10 May 2010 the Regional Court, sitting in chambers, upheld the first-instance judgment, albeit on different grounds. It concurred with the District Court that the expropriation of 1984 was legally ineffective. As a consequence, the State was to be considered as having taken the land in question without legal title within the meaning of section 6(1)(p) of the Act on adjustment of ownership rights in respect of land and other agricultural property (Law no. 229/1991 Coll., as amended – “the Land Ownership Act”) and as having subsequently acquired its title by way of prescription. The restitution of land in such circumstances fell under the regime of the said legislation and any claims for it had to be lodged by 31 December 1992 at the latest (see paragraphs 21 et seq. below). The applicants had failed to pursue that course of action. Asserting their property rights under general civil law, as the applicants had done, was not permissible. In support of its conclusions, the Regional Court referred specifically to the judgments of the Supreme Court concerning appeals on points of law in unrelated but similar cases nos. 3 Cdo 120/03 (of 29 April 2004) and 4 Cdo 130/2007 (of 25 February 2009) (see paragraphs 30 et seq. below). 18. On 29 July 2010 the applicants lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 § 1 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). They considered the dismissal of their action arbitrary and alleged that their rights under, inter alia, Article 6 § 1 of the Convention (access, fairness, adequate reasoning) and the constitutional equivalent of Article 1 of Protocol No. 1 had been violated. Among other things, they argued that – on the specific facts – their case fell outside the purview of the restitution laws cited in the Regional Court’s judgment and that the existence of the restitution laws as leges speciales did not exclude the application of the rules on protection of property rights under the Civil Code as a lex generalis. In addition, the applicants submitted that judicial practice had varied. They referred to the District Court’s judgment in case no. 15C 251/94 and its judgments in a number of other cases concerning the same sports centre, in which the application of general civil law in an identical context had been accepted. Their specific arguments about such differing practice had gone unanswered. Moreover, the applicants emphasised that it had been sixteen years since the introduction of their action, a protracted period for which they bore no responsibility. They considered that, therefore, any case-law that may have meanwhile been established should not be detrimental to them. 19. On 12 May 2011 the Constitutional Court declared the complaint inadmissible as being manifestly ill founded. It cited extensively from the Regional Court’s judgment and concluded that its assessment of the case conformed to the Constitution. As to the applicants’ argument concerning the differing judicial practice, the Constitutional Court noted that the applicants’ action had been lodged sixteen years before the Regional Court’s judgment; that, since then, the decision-making practice had evolved; and that, at the relevant time, it had supported the Regional Court’s interpretation. The decision was served on the applicants’ lawyer on 28 June 2011.
| 1 |
test
|
001-158470
|
ENG
|
BIH
|
CHAMBER
| 2,015 |
CASE OF HADŽIMEJLIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
| 3 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev
|
6. The applicants were born in 1959, 1978 and 1958, respectively, and are currently in the Drin social care home (“Drin”). 7. On 23 November 2006, at the request of the Visoko Social Work Centre, the Visoko Municipal Court deprived the applicant of legal capacity. It was established that she had been diagnosed with paranoid schizophrenia and that placement in a social care home would be in her best interest. 8. On 26 December 2006 the Visoko Social Work Centre placed the applicant under the guardianship of her sister. 9. On 23 January 2007 the Visoko Social Work Centre placed the applicant in Drin in accordance with the social care legislation. 10. On 13 June 2011 the applicant lodged a constitutional appeal concerning the lawfulness of her detention. 11. On 25 April 2013 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as she had been held in psychiatric detention without a decision of the competent civil court. It also found that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Visoko Social Work Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention. The relevant part of the decision reads: “27. The Constitutional Court recalls that it examined the same factual and legal situation in the decision no. AP 2472/11[...]. Therefore, instead of a separate legal analysis in this case, it refers to the reasoning set out in that decision... 28. As regards Article 5 § 1 of the European Convention...the Constitutional Court concluded that the appellant was placed in the social care home under the social care legislation of the Federation of Bosnia and Herzegovina and of the [Zenica-Doboj] Canton, which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes. That procedure is regulated in the sections 22-42 of the Mental Health Act 2001. Section 41 of that Act prescribes that a mentally ill person released from a hospital, who is incapable of living on his/her own and has no relatives or others who are required by law to care for him/her, shall be placed in a social care home under the social care legislation of the Federation of Bosnia and Herzegovina. However, in that case, a hospital is under a duty to inform the competent court of such placement immediately... [I]t is evident from the case-file that the appellant was detained without a decision of the competent civil court...thus her initial deprivation of liberty was not in accordance with the Mental Health Act 2001... [T]herefore the court concludes that the deprivation of liberty in the appellant’s case was unlawful and thus in violation of Article 5 § 1(e) of the Convention. ... 30. In the above-mentioned decision, the Constitutional Court noted that the Federal and the Cantonal social care legislation, under which the appellant was placed in a social care home, do not envisage mandatory judicial control of the lawfulness of such placement... ... 32. There has been a violation of Article 5 § 1(e) of the Convention in the present case because the appellant was placed in the social care home under the Federal and Cantonal social care legislation, whereas the compulsory placement of mentally ill persons is regulated by the Mental Health Act 2001 which was not applied in this case. In view of that, her placement was not ‘lawful’. There has also been a violation of Article 5 § 4 of the Convention because the appellant’s placement and the prolongation of that placement was never examined by the competent court...” 12. On 3 June 2014 the Visoko Social Work Centre asked the Kiseljak Municipal Court to examine the necessity of the applicantʼs placement in Drin in accordance with the Mental Health Act 2001 and the Constitutional Courtʼs decision of 25 April 2013. 13. On 8 September 2014 the Kiseljak Municipal Court concluded, on the basis of the expert medical report, that the applicantʼs current state of health did not warrant continued confinment in Drin. That decision became final on 26 September 2014. 14. The applicant has not yet been released from Drin. 15. At the recommendation of the Psychiatric Clinic in Sarajevo where the applicant was treated for schizophrenia, on 15 September 2004 the Vareš Social Work Centre placed him in Drin in accordance with the social care legislation. It was established that his illness rendered him incapable of living on his own and that his family circumstances did not allow proper care at home. 16. On 25 March 2005 the Visoko Municipal Court deprived the applicant of his legal capacity. 17. On 21 April 2011 the applicant was placed under the guardianship of N.G., a director of the Vareš Social Work Centre. 18. On 2 September 2011 the applicant lodged a constitutional appeal concerning the lawfulness of his detention. 19. On 25 June 2013 the Constitutional Court held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of the competent civil court. It also found that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Vareš Social Work Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention and awarded him 3,000 convertible marks (BAM). The relevant part of the decision reads: “34. The Constitutional Court recalls that it examined the same factual and legal situation in the decision no. AP 2472/11 [...]. Therefore, instead of a separate legal analysis in this case, it refers to the reasoning set out in that decision... 35. As regards Article 5 § 1 of the European Convention...the Constitutional Court concluded that the appellant was placed in the social care home under the social care legislation of the Federation of Bosnia and Herzegovina and of the [Zenica-Doboj] Canton, which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes. That procedure is regulated in the sections 22-42 of the Mental Health Act 2001. Section 41 of that Act prescribes that a mentally ill person released from a hospital, who is incapable to live on his/her own and has no relatives or others who are required by law to care for him/her, shall be placed in a social care home under the social care legislation of the Federation of Bosnia and Herzegovina. However, in that case, a hospital is under a duty to inform the competent court of such placement immediately ... [I]t is evident from the case-file that the appellant was detained without a decision of the competent civil court...thus his initial deprivation of liberty had not been in accordance with the Mental Health Act 2001..[T]herefore the court concludes that the deprivation of liberty in the appellant’s case was unlawful and thus in violation of Article 5 § 1(e) of the Convention. 36... In the above-mentioned decision, the Constitutional Court noted that the Federal and the Cantonal social care legislation, under which the appellant was placed in a social care home, do not envisage mandatory judicial control of the lawfulness of such placement... 37. Turning to the present case, the Constitutional Court notes that the appellant was placed in the social care home at the recommendation of the Psychiatric Clinic in Sarajevo...It was established that he had been diagnosed with SCH, F23, a condition which requires constant supervision and regular therapy which he cannot have at home in view of his family’s circumstances (a mother was also deprived of her legal capacity due to mental illness, a father’s whereabouts are unknown, and his sister is placed under guardianship)...The court further notes that since 2004, when the appellant was placed in the social care home, the Social Work Centre revised his placement on three occasions, at the recommendation of the relevant Ministry and with the consent of his guardian Ms N.G. However, those revisions were focused on the financial aspect of the appellant’s placement without any consideration for his health condition and a potential release. The fact that the Social Work Centre was the only domestic body which ever examined the appellant’s placement...raises issues under Article 5 §§ 1(e) and 4 of the Convention. 38. Furthemore, although under the Mental Health Act 2001 a decision about compulsory admission of mentally ill persons must be made by a court, the appellant’s case has never been examined by the competent court... 39. Accordingly, as regards “deprivation of liberty”, the placement in the social care home and the review of the lawfulness of such placement, the court concludes, in view of the facts of the case and the reasons set out in the decision no. AP 2472/11 of 31 January 2013, that there had been a violation of Article 5 §§ 1(e) and 4 of the Convention in the present case.” 20. On 25 September 2013 the applicant received BAM 3,000 awarded to him by the Constitutional Court. 21. On 29 November 2013 the Kiseljak Municipal Court concluded, on the basis of the expert medical report, that the applicantʼs current state of health did not warrant continued confinment in Drin. 22. On 18 March 2014 the Novi Travnik Cantonal Court upheld the decision of 29 November 2013 and it thus became final. 23. On 6 May 2014 the Vareš Social Work Centre informed the Visoko Municipal Court that it considered that the applicant’s continued placement in Drin was in his best interest for reasons of social protection. 24. The applicant had not yet been released from Drin. 25. In different intervals in 1997, 1998 and 1999 the applicant was treated for schizophrenia at the Psychiatric Clinic in Tuzla. 26. On 8 October 1999 the Tuzla Municipal Court deprived the applicant of his legal capacity. 27. On 8 December 1999 the Tuzla Social Work Centre placed him in Drin. 28. On 2 March 2000 the applicant was placed under the guardianship of A.B., his cousin. On 10 June 2010 he was placed under the guardianship of S.P., his sister.
| 1 |
test
|
001-170874
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,017 |
ÖZ v. TURKEY
| 4 |
Inadmissible
|
Jon Fridrik Kjølbro;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
|
1. The applicant, Ms İmihan Öz, is a Turkish national who was born in 1960 and lives in Malatya. She was represented before the Court by Mr M. Eryaman, a lawyer practising in Ankara. 3. On 13 March 2007 the applicant’s son Murat Öz, a construction worker, fell from a scaffold while working on a private construction site and died shortly afterwards as a result of the injuries he had sustained. 4. Right after the incident, an investigation into the death of the applicant’s son was initiated. Accordingly, a report on the scene of the incident was prepared, witnesses were interviewed and the applicant’s son’s employers were questioned as possible suspects. The Ankara public prosecutor’s office also commissioned an expert report to establish the causes of the applicant’s son’s death, in particular to determine whether his employers bore any responsibility for the fall. 5. The expert report submitted to the Ankara public prosecutor’s office on 21 March 2007 found that the applicant’s son had been primarily responsible for his fall, on account of his failure to take the necessary precautions to ensure his safety on the scaffold, which he would have been expected to do as an experienced construction worker. It added, however, that the construction site managers and the civil engineer in charge were also responsible for the accident, as they had not set up a system of checks to ensure work safety on the construction site, and had not provided the deceased with sufficient training on safety measures, contrary to the requirements of the relevant legislation. 6. On 22 March 2007 the Ankara public prosecutor’s office filed with the Ankara Criminal Court of First Instance a bill of indictment against four people in charge of the construction site in question, for causing the applicant’s son’s death by negligence. The applicant joined the proceedings as a civil party. 7. On an unspecified date the Ankara Criminal Court of First Instance appointed a panel of three experts, with a view to determining liability for the death of the applicant’ s son. The expert report submitted to the criminal court on 15 February 2009 found that the scaffold from which the applicant’s son had fallen had not been sufficiently secured, and this was the responsibility of the construction site manager, L.K. Accordingly, the expert report established that L.K. bore the main responsibility for Murat Öz’s death. 8. Relying on that second expert report, on 14 October 2009 the Ankara Criminal Court of First Instance convicted L.K. of causing the applicant’s son’s death by negligence. However, it decided to suspend the pronouncement of the judgment, in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271). 9. Following the death of her son, the Social Security Institution started paying the applicant a monthly “survivor’s pension” in the amount of 424.95 Turkish liras (TRY – approximately 227 euros (EUR)) as of 1 April 2007, in accordance with the Social Security Act (Law no. 506). 10. In the meantime, an investigation had been initiated into the death of Murat Öz by the Social Security Institution, which concluded on 12 June 2008 that the accident which had claimed his life had been a “work-related accident”. 11. Following that decision, the Social Security Institution allocated the applicant a monthly “work-related accident pension” as of 13 March 2007 in the amount of TRY 175.22 (approximately EUR 90), in addition to the survivor’s pension she was already receiving. However, relying on sections 92(2) and 96(5) of the Social Security Act, which concerned the calculation of payments to persons entitled to several different types of pension, it recalculated the amount of the applicant’s survivor’s pension and reduced it to TRY 63.10 (approximately EUR 32). Moreover, the Social Security Institution asked the applicant to pay back the excess from the survivor’s pension she had been receiving up to that date. 12. On 16 March 2009 the applicant filed an action with the Ankara Labour Court against the Social Security Institution, arguing that the latter had erroneously interpreted the relevant sections of the Social Security Act on the calculation of benefits, and had thus miscalculated her survivor’s pension. 13. On 17 February 2010 the Ankara Labour Court allowed the applicant’s claim and ordered the Social Security Institution to pay her the benefits she was due retrospectively, together with interest. 14. On 3 June 2010 the Court of Cassation upheld the judgment of the Ankara Labour Court. 15. Below is a table of the monthly payments received by the applicant from the Social Security Institution following the death of her son, based on the documents she submitted to the Court: 16. In addition to the amounts noted above, the applicant received a lump sum payment of TRY 8,937.5 (approximately EUR 4,335 in December 2010) on an unspecified date in 2010, in accordance with the judgment of the Ankara Labour Court, to cover the past benefits of which she had been deprived owing to the erroneous calculations of the Social Security Institution.
| 0 |
test
|
001-182596
|
ENG
|
UKR
|
COMMITTEE
| 2,018 |
CASE OF ZELENTSOV AND OTHERS v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 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)
|
André Potocki;Mārtiņš Mits;Síofra O’Leary
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. In application no. 25925/17, the applicant also raised another complaint under the provisions of the Convention.
| 1 |
test
|
001-140922
|
ENG
|
HUN
|
COMMITTEE
| 2,014 |
CASE OF TURUL KFT. v. HUNGARY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
|
András Sajó;Egidijus Kūris;Nebojša Vučinić
|
4. The applicant is a limited liability company with its seat in Lovas. 5. The Veszprém County Administrative Office rejected the request of the applicant, a real-estate developer, for a building permit to construct a three-flat condominium. The Office was of the view that the project was irreconcilable with the planned location, the historical neighbourhood of Veszprém town. 6. On 21 June 2001 the applicant challenged this decision in court. 7. On 25 March 2003 the Veszprém County Regional Court quashed the administrative decision and remitted the case to the administrative authorities. 8. In the resumed administrative proceedings, on 2 March 2007 the applicant’s request was again dismissed. 9. On 18 April 2007 the applicant renewed its action. 10. On 31 October 2007 the Regional Court dismissed the action, holding that the administrative decisions had been given in compliance with the law. 11. On 25 February 2009 the Supreme Court dismissed, on the merits, the applicant’s petition for review (service: 14 April 2009).
| 1 |
test
|
001-147440
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF DAVYDOV v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
|
5. The applicant was born in 1962 and lives in Saransk. 6. In 2005 the applicant brought civil proceedings against the Ministry of Internal Affairs of the Republic of Mordoviya (“the Ministry”) seeking compensation for damage to his health caused during his service in the police (“the compensation”). 7. On 7 November 2005 the Leninskiy District Court of Saransk (“the District Court”) found in the applicant’s favour and ordered the Ministry: (a) to pay the applicant the compensation due to him for the period from 19 November 2004 to 31 October 2005 in the amount of 77,250.12 Russian roubles (RUB); and (b) starting from 1 November 2005, to make monthly compensation payments to the applicant of RUB 6,892.92 with subsequent indexation in accordance with the law. The judgment was not appealed against and became final on 22 November 2005. 8. However, on 12 October 2006, following a request lodged by the Ministry, the Presidium of the Supreme Court of the Republic of Mordoviya (“the Presidium”) quashed the final judgment by way of supervisory review and dismissed the applicant’s claims. The Presidium found that the firstinstance court had erroneously applied and interpreted substantive legal provisions which had resulted in their significant violation. The Presidium held that there was no basis under domestic law for awarding the applicant the compensation sought and that he was entitled instead to insurance payments. The applicant did not provide the Court with information as to whether he had applied for those payments and/or was receiving them. 9. The District Court’s judgment of 7 November 2005 had been duly enforced until it was quashed by way of supervisory review.
| 1 |
test
|
001-176837
|
ENG
|
DEU
|
CHAMBER
| 2,017 |
CASE OF D.J. v. GERMANY
| 4 |
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
|
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev
|
5. The applicant was born in 1952. At the time of lodging his application, he was detained in Berlin Tegel Prison. He now lives in Berlin. 6. On 1 October 1998 the Berlin Regional Court convicted the applicant of dangerous assault. It sentenced him to six years and six months’ imprisonment and ordered his preventive detention under Article 66 § 1 of the Criminal Code (see paragraph 36 below). The court found that the applicant had stalked his former girlfriend, terrorised her and her family with telephone calls, sudden appearances and threats against their life and limb, had finally waylaid his former girlfriend in front of her workplace and had stabbed her twice in the neck with a pair of scissors with the intention of killing her. He had stopped short of stabbing his victim to death. Endorsing the findings psychiatric expert A. had set out in his report, the court was of the view that the applicant had acted with diminished criminal responsibility as he had been in a state of affective excitement and suffered from a neurasthenic syndrome at the time of the offence. The court found that the applicant, who had previously been convicted in 1975, 1977, 1981, 1983 and 1988 of comparable offences including dangerous and sexual assault and rape, committed mostly against former girlfriends at the end of their relationship with him, had a propensity to commit serious violent offences and was dangerous to the public. 7. The applicant served his full term of imprisonment, which ended on 27 February 2005, essentially in Berlin Tegel Prison. 8. The applicant was not released at the end of his prison sentence but remained in factual preventive detention without a formal decision of the competent courts for the execution of the preventive detention order under Article 67c of the Criminal Code (see paragraph 36 below), because the proceedings were delayed. 9. On 15 June 2007 the Berlin Court of Appeal decided that the applicant’s further preventive detention without a court decision ordering its execution was unlawful, and ordered its interruption. The applicant was released on that day. 10. On 9 July 2007 the Berlin Regional Court ordered the execution of the applicant’s preventive detention in accordance with Article 67c § 1 of the Criminal Code as it was not reasonable to expect that the applicant would commit no further unlawful acts if released. It took note, in this context, of the view expressed by psychotherapy expert B., who had considered that the applicant’s impulsive and offensive behaviour in the hearings in June 2007 had confirmed the finding in his report dated 15 September 2005 that the applicant was still dangerous to the public. 11. The applicant appealed against the decision. He remained at liberty while the appeal was pending. 12. While he was at liberty, he found a flat and a job and voluntarily started psychotherapy treatment with a female psychologist, So. He regularly attended weekly therapy sessions with So. and did not commit any criminal offences while at liberty. 13. On 27 May 2008 the Berlin Court of Appeal upheld the Berlin Regional Court’s decision. Just like the Regional Court, it based its decision on a medical expert opinion drawn up previously by psychotherapy expert B. and psychologist S. Expert B. had examined the applicant on four occasions between February and September 2005. S. had performed psychological tests with the applicant in March 2005. Both experts had issued their common written medical report on 15 September 2005 and had supplemented it with a further medical statement answering the questions of counsel representing the applicant on 20 April 2006. The original report was moreover based on the examination of the applicant’s prison files and a large number of investigation files, as well as on an interview with one of his fellow prison inmates. 14. In their written report, the experts came to the conclusion that the applicant suffered from a narcissistic and antisocial personality disorder. They were of the view that there was a very high risk that the applicant would reoffend because of his personality structure and could be expected to commit serious criminal offences mainly directed against potential female victims’ physical and sexual integrity. The applicant had continually committed new offences while on probation, so that his probation had been revoked on five occasions. He had mostly committed crimes against the physical and sexual integrity of women and usually at the end of his relationships, when he had been unable to accept that his girlfriend had left him. Therapeutic treatment had not been successful so far. 15. The court endorsed the findings of the psychiatric experts. It ruled that although the applicant had not committed any offences during his year at liberty, and although he had voluntarily and regularly undergone psychological treatment during that year, there was no reason to believe that he would abstain from reoffending. In the past the applicant had already abstained from committing further offences for longer periods. Situations similar to those in which the applicant had previously committed offences, especially against the physical and sexual integrity of his female partners, at the end of relationships, were likely to arise and to escalate again just as in the past. 16. On 30 May 2008 the applicant returned voluntarily to Berlin Tegel Prison for the continuation of his preventive detention. 17. On 2 September 2008 the Federal Constitutional Court declined to consider the constitutional complaint lodged by the applicant against the Regional Court’s and the Court of Appeal’s decision on the execution of the preventive detention order (file no. 2 BvR 1612/08). 18. On 20 December 2012 an application (no. 12132/09) lodged with this Court in this context was declared inadmissible by a Single Judge in a procedure pursuant to Article 27 of the Convention. 19. On 12 October 2009 the Berlin Regional Court decided in its first periodic review proceedings, in accordance with Articles 67d § 2 and 67e §§ 1 and 2 of the Criminal Code in their then relevant version (see paragraph 36 below), that the applicant’s preventive detention was to continue. It found that it was not reasonable to expect the applicant to commit no further unlawful acts on his release. 20. The court heard the prison authorities which, in their written statement of 6 March 2009, submitted that the applicant was not willing to work on his problems and refused any therapeutic treatment in the detention centre. The court also heard the applicant on 25 September 2009. It further based its decision to extend the applicant’s preventive detention on the opinion of psychotherapy expert B. and psychologist S. of 15 September 2005, supplemented on 20 April 2006 (see paragraph 13 above). It had regard to the fact that the applicant had been convicted fifteen times since 1971, including ten convictions for violent crimes. 21. The Regional Court further dismissed the applicant’s request for a new psychiatric expert opinion. It found that Article 454 § 2, read in conjunction with Article 463 § 3 of the Code of Criminal Procedure (see paragraph 37 below), only required a new psychiatric expert report as a basis for a periodic review decision if the court was considering releasing a detainee from preventive detention on probation, in order to ensure that he was no longer a danger to the public. The court held that, in accordance with the case-law of the Federal Constitutional Court (see decision of 3 February 2003, file no. 2 BvR 1512/02) and of the Constitutional Court of Berlin (see decision of 4 March 2009, file no. VerfGH 104/07) it was otherwise within the discretion of the court assessing the need to extend the preventive detention order to decide whether a new expert opinion was necessary. As a rule, an expert opinion would be necessary if the detainee suffered from psychiatric anomalies that demanded a psychiatric expert’s assessment in order to be able to predict the danger he represented for the public. Otherwise, a new psychiatric expert report was generally not necessary unless special new circumstances demanded a new examination of the detainee. 22. The court found that, in accordance with the legal standards described, there was no necessity to seek a new expert opinion. It referred to the arguments given in the Court of Appeal’s decision of 27 May 2008, adding that there had been no significant changes since then. The applicant had refused to undergo therapeutic treatment within the detention centre since he had been returned to preventive detention. His age of 57 years did not warrant a different conclusion as regards the danger he represented in the circumstances of his case. The written expert opinion of B. and S. of 15 September 2005, supplemented on 20 April 2006 and explained by B. at two hearings, lasting a total of six hours, before the Regional Court in June 2007, was therefore still recent enough. 23. The court was, however, of the view that the applicant should be allowed to continue his therapy with the external psychologist So., which he had not been authorised to pursue since his renewed preventive detention. The prison authorities should allow him to continue and organise escorted short-term leave for therapy sessions with his psychologist outside the detention centre. 24. On 24 March 2010 the Berlin Court of Appeal dismissed the applicant’s appeal. The court considered that releasing the applicant on probation on the condition that he underwent therapeutic treatment outside the detention centre would be irresponsible. There were no convincing and verifiable indications that the applicant had tackled his offences or the flaws in his character that had led to them. The year he had spent at liberty during the interruption of his preventive detention did not prove otherwise, although he had not reoffended during that period of time. The applicant had already abstained from committing offences for longer periods of time in the past, but had nevertheless repeatedly committed serious offences against the physical integrity of his female partners when they had ended their relationship with him. Having regard also to the personality disorders leading to his dangerousness, the period of one year at liberty was therefore too short to prove that the applicant was no longer dangerous. In this regard, the court referred to the reasoning in its decision of 27 May 2008 and the expert opinion of B. and S. on which that decision was based (see paragraphs 13-15 above). 25. The court further recognised that the applicant had voluntarily undergone psychological treatment once per week with the psychologist So. while at liberty. However, it considered that there was no proof of the success of this treatment. Instead, the impulsive and offensive way in which the applicant treated other people, notably those working in the detention centre, showed that his attitude and his character had not changed and that he was still unwilling to cooperate. 26. Moreover the court found that, although the prison authorities had, without giving proper reasons, refused to grant the applicant escorted shortterm leave from prison, especially short-term leave for the purpose of meeting his external therapist So., such deficiencies in the execution of the preventive detention did not justify the applicant’s release. The court recognised that prison leave was necessary in order to enable the applicant, in the long run, to prove his capacity to live at liberty again without committing further offences. However, the court was of the view that, even if the applicant had been granted the necessary leave since his readmission into preventive detention, the period passed since then would have been too short to prove that he was no longer dangerous. Therefore, the continuation of the applicant’s detention was not yet excessive. 27. The Court of Appeal was moreover of the view that the Regional Court’s decision not to commission a new medical expert opinion was lawful and did not breach its duty to establish the relevant facts. As explained above, a new psychiatric expert would not be confronted with a significantly different situation to the one B. and S. had found when they prepared their expert report. The applicant’s refusal to cooperate and to accept further psychological treatment within the detention centre showed that the therapy with So. had not significantly changed his character and behaviour. 28. On 16 June 2010 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the decisions of the Berlin Regional Court and the Berlin Court of Appeal, in which the applicant had alleged breaches of his constitutional rights to liberty and to a fair trial (file no. 2 BvR 903/10). 29. On 24 March 2010, upon the applicant’s appeal, the Berlin Court of Appeal, in a separate decision, quashed the prison authorities’ and the Regional Court’s decision refusing the applicant short-term leave to continue his psychotherapy treatment with So. as from October 2008. The court ordered the prison authorities to grant the applicant escorted shortterm leave at least every second week in order to undergo further psychotherapy treatment with the external psychologist, So. 30. The applicant was enabled to attend psychotherapy sessions with So. until his relationship of trust with the psychologist came to an end in September/October 2010. On 9 December 2010 the Berlin prison authorities thereupon suspended the applicant’s prison leave, finding that the applicant had repeatedly threatened So. On 29 April 2011 the Berlin Court of Appeal upheld that decision. It found that there was a risk that the applicant would use the prison leave to commit further offences, seeing that his dispute with So. resembled the situation arising in the applicant’s past relationships with women prior to his committing serious offences against them. 31. The applicant’s subsequent requests to be granted access to treatment with the external psychiatric expert Dr P. in a Berlin clinic were turned down by the prison authorities, confirmed by the Regional Court. The Berlin Court of Appeal quashed these decisions on 3 November 2011 and 4 May 2012 and ordered the prison authorities to reconsider the applicant’s requests in view of the court’s findings. In its decision of 4 May 2012 the Court of Appeal found that, as it had explained in its decision of 24 March 2010, the applicant could not be obliged to undergo therapy in prison. The applicant resumed external psychotherapy in September 2012. 32. On 22 May 2012 the Berlin Regional Court issued its decision in the fresh periodic review proceedings. It held that the execution of the preventive detention was to be suspended on probation as from 20 November 2013, ordered the applicant’s probationary supervision for five years and ruled, inter alia, that the applicant was to avoid any contact with his former external psychologist So. and her family, as he had started to stalk her and threaten her with e-mails and telephone calls. 33. The court, endorsing the findings in a new external psychiatric expert opinion issued by P., held that although the probability that the applicant would reoffend at liberty was still high, it would be possible to release the applicant on probation after a preliminary period of about one year if the pre-operational phase was mastered by the applicant without further problems. As the prison authorities had ignored and boycotted the court’s orders to grant the applicant access to external psychological treatment for years in a way the court had never seen before and which it found to be unconstitutional, the applicant’s interest in being at liberty now outweighed the public interest. 34. On 12 October 2012 the Court of Appeal upheld that decision on appeal. It found that the applicant’s immediate release was not to be ordered owing to the danger he represented. Referring to a report drawn up by expert D. in 2010, it stressed in that context that the fact that the applicant had not reoffended while at liberty in 2007/2008 was not conclusive of his not representing a danger. The applicant had previously committed offences in the context of relationships with women. However, he had not had such a relationship during the time he was at liberty. Furthermore, he did not have a right to choose freely his therapist. 35. The applicant was released on parole on 20 November 2013.
| 0 |
test
|
001-146384
|
ENG
|
HUN
|
CHAMBER
| 2,014 |
CASE OF KARÁCSONY AND OTHERS v. HUNGARY
| 3 |
Preliminary objections dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 13+10-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award
|
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
|
5. The applicants were born in 1975, 1981, 1985 and 1977 respectively and live in Budapest. 6. At the material time, the applicants were members of the Hungarian Parliament and the opposition party Párbeszéd Magyarországért. Mr Szilágyi was notary of Parliament. 7. At a plenary session on 30 April 2013, during a pre-agenda speech, Mr Karácsony and Mr Szilágyi showed a billboard in the session hall displaying the text “FIDESZ [the party on government]. You steal, you cheat, and you lie.” On the same day, Mr Szilágyi made a speech in the general debate on Bill no. T/10881 amending Certain Smoking-related Acts, accusing the government parties of corruption. 8. On 6 May 2013 the Speaker presented a proposal to fine Mr Karácsony 50,000 Hungarian forints (HUF) (approximately 170 euros (EUR)) and Mr Szilágyi HUF 185,520 (approximately EUR 600) for having gravely disrupted the plenary proceedings, in application of section 49(4) of Act no. XXXVI of 2012 on Parliament. 9. The Speaker proposed that the maximum fine as regards Mr Szilágyi (a third of his monthly remuneration) be applied, since he was an elected official of Parliament, not just an ordinary MP. A decision approving the proposal of the Speaker was adopted by the plenary on 13 May 2013, without a debate. 10. On 21 May 2013 during the final vote on Bill no. T/10881 Mr Dorosz and Ms Szabó presented a billboard with the text “Here Operates the National Tobacco Mafia”. 11. On 27 May 2013 the Speaker submitted a proposal to fine them HUF 70,000 (EUR 240) each, for gravely disrupting the plenary proceedings, in application of section 49(4) of Act no. XXXVI of 2012 on Parliament. The proposal stated that an increased fine was necessary, since similar, seriously disruptive conducts had occurred before. The plenary adopted the proposal on 27 May 2013 without a debate. 12. A constitutional complaint was filed, concerning a sanction for disruptive conduct, by MP E.N., a member of the opposition party Jobbik, and rejected by the Constitutional Court on 4 November 2013 (decision nos. 3206/2013. (XI.18.) AB and 3207/2013. (XI.18.) AB, see paragraph 16 below). The Constitutional Court found that MP E.N. had been fined under sections 48(3) and (6), 50(1) and 52(2) – rather than section 49(4) – of Act no. XXXVI of 2012 on Parliament. It held in particular that the restrictions imposed on him for conduct falling under the above provisions – that is, “gravely offensive expression” – were in compliance with the Fundamental Law. His complaint in respect of section 49(4) was rejected because this provision, concerning “gravely offensive conduct”, was not applicable in that case. The Constitutional Court went on to observe that there was no remedy available to that complainant against the measure. Lastly, the Constitutional Court held that parliamentary disciplinary law concerned Parliament’s interior business and the MPs’ conduct as parliamentarians, rather than citizens’ rights or obligations; and that therefore no requirement of a remedy against a parliamentary disciplinary measure could be deduced from Article XXVIII(7) of the Fundamental Law.
| 1 |
test
|
001-178874
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF MIKRYUKOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)
|
Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties.
| 1 |
test
|
001-156419
|
ENG
|
FRA
|
CHAMBER
| 2,015 |
CASE OF GHEDIR AND OTHERS v. FRANCE
| 3 |
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Just satisfaction reserved (Article 41 - Just satisfaction)
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano
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5. The applicants were born in 1983, 1985, 1937 and 1947 respectively and live in Villepinte, apart from the second applicant, who lives in Drancy. The second, third and fourth applicants are the first applicant’s brother, mother and father, respectively. 6. During the afternoon of 30 November 2004 the first applicant, who was smoking a cigarette in the Mitry-Villeparisis railway station, was identity-checked by officers of the General Security Service (“SUGE”) of the French National Railway Company (“SNCF”). 7. Just before 8 p.m. on the same day two police officers from the Mitry Mory police station, S.D. and S.G., were called out to that railway station after a report that an individual had been throwing stones at the trains. Arriving at the railway station, they saw a man who did not correspond to the description provided, who appeared to be drunk, and who reacted aggressively when approached. They called for reinforcements just as five SUGE officers arrived on the scene. The individual in question, who was later identified as the first applicant, ran off towards an underground passageway. 8. The SUGE officers, who included L.P., Y.F. and O.D.B., stopped and questioned the first applicant. The latter put up no resistance to his arrest. The SUGE officers then took him outside the main entrance to the railway station had placed him against a wall. 9. The statements given by witnesses to that scène diverge concerning the subsequent events (see paragraphs 15 to 18, 20 and 34 to 44 below). 10. The first applicant was forced to the ground by the SUGE officers, who handcuffed him behind his back, before frisking him. He was then placed in a police vehicle parked nearby. The operation ended at 7.59 p.m. 11. During his transport to and arrival at the police station, the first applicant complained of nausea, and had to be helped out of the vehicle by the police officers. The latter mentioned that he was bleeding profusely from the chin. 12. Having arrived in the police cells, the first applicant lost consciousness and went into a coma. A doctor present in the police station administered first aid, before the arrival of the fire brigade ambulance at 8.14 p.m. and then the emergency medical services (SMUR) at 8.45 p.m. He was then transferred to the Lagny-sur-Marne hospital, and later, to the Beaujon hospital in Clichy. 13. The first applicant was remanded in custody at 8.15 p.m. on charges of insulting members of the police force and deliberate violence against a public-service employee, although the measure could not be notified to him owing to his state of alcoholic intoxication, according to the police report. The police custody was terminated at 10.10 p.m. on the instructions of the State Prosecutor. 14. The duty officer at the Meaux public prosecutor’s office was advised of the case at 8.40 p.m. He ordered the opening of a flagrante delicto procedure on charges of deliberate violence against persons performing public duties, assigning the task to the Versailles Regional Police Department (“DRPJ”). 15. The police and SUGE officers who had been involved or present during the first applicant’s arrest were questioned. Their versions contradicted each other: the SNCF employees spoke of a model arrest, whereas some of the police officers described it as “robust”. Among the latter, N.T., D.F. and R.D. pointed out that they had seen a SUGE officer, identified as Y.F., kneeing the first applicant in the face while he was being held on the ground by two other officers. They added that, noticing that Y.F. was about to knee him again, police sergeant A.H. had restrained him by the leg and said “that’ll do”. 16. A.H. did not mention that fact during his first questioning. He was interviewed again, and he explained that when he had arrived at the railway station on the evening in question he had noted the presence of five SUGE officers surrounding the first applicant, who was waving his arms. One of them had attempted to take the latter by the arms, but he had brushed him off. The officer identified as Y.F. had replied “don’t you hit me”, and had become “annoyed” with the first applicant. With the help of three colleagues he had brought him to the ground. Given the applicant’s refusal to allow himself to be handcuffed, he had struck him on the head with his left knee. A.H. said that he had then approached the scene. Seeing Y.F. moving his left leg back to knee him again, he had prevented him from doing so. When asked why he had not mentioned these facts in his first witness statement, the police officer stated that he had “thought that it was for the person concerned to shoulder his responsibilities”. 17. N.T. submitted that before being brought to the ground the first applicant had not been violent, but when an SUGE officer had touched him he had tried to remove his hand. One of the SUGE team had then, unsuccessfully, attempted to punch him in the face. 18. Some of the police and SUGE officers mentioned that the first applicant had had a cut on his chin before his arrest. 19. On 2 December 2004 L.P., Y.F. and O.D.B. were remanded in custody. 20. On 3 December 2004 the scene was reconstructed in the presence of two members of the prosecutor’s office and the five SUGE officers and the six police officers who had been involved in the arrest. The SUGE officers said that the arrest had been effected without any particular difficulties, the first applicant having been handcuffed on the floor, emphasising that he had displayed no injuries on being handed over to the police officers. The latter presented a different version of events, explaining how the applicant had been kneed in the head. 21. Dr M.K., who had operated on the first applicant at the Beaujon hospital, told the investigators that the injuries noted might have been compatible with one very violent blow, such as a hard slap, a kick or a knee strike, a blow from a medium-weight blunt instrument, or even a heavy fall. He did not consider the injury compatible with a truncheon blow. 22. At the Lagny-sur-Marne hospital, a brain scan showed an acute subdural haematoma of the left hemisphere. Blood tests showed alcohol levels of 1.51 grams per litre of blood and the presence of active cannabinoids (THC), pointing to exposure to cannabis between 2 and 24 hours before the testing. 23. The first applicant was admitted to the Beaujon hospital on 1 December 2004 and immediately taken to the operating theatre, where he underwent emergency surgical evacuation of his haematoma. A control scan carried out the same day showed a residual subdural haematoma. 24. On 1 December 2004 a forensic doctor was called upon to examine the first applicant, and noted that he was in a stage-3 coma on the Glasgow Coma Scale (on which stage 0 corresponds to death and stage 15 to a wakeful state). The doctor described a temporo-parietal fracture on the left-hand side, a closed 3.4 centimetre-long wound on the left side of the chin, two haematomas on the left tibia and a scratch on the left cheek. He also mentioned a subdural haematoma of the left hemisphere which was extended and compressive and had been the reason for the applicant’s emergency transfer to hospital. 25. A second scan carried out on 3 December 2004 showed an odontoid fracture associated with a fracture of the lateral mass of vertebra C2. 26. On 15 and 28 December 2004 the first applicant underwent further operations. 27. From 14 February to 12 December 2005 he was hospitalised at the Bouffémont Functional Rehabilitation Centre. 28. The discharge assessment drawn up by the said Centre mentioned a large number of neurological after-effects, including the partial loss of active motor skills in all four limbs, and serious cognitive and behavioural disorders (disinhibition, maladjustment, inability to concentrate, temporal disorientation, demotivation and loss of initiative, and passive opposition). 29. On 12 December 2005, since his condition had not improved, the first applicant was transferred to another rehabilitation centre. On 26 June 2008 the first applicant’s residual rate of permanent partial disability (IPP) was estimated at 95 %, given his lack of autonomy in respect of all the basic activities of everyday life. He was confined to a wheelchair and was unable to engage in any autonomous occupational activity. 30. On 3 December 2004 the Meaux Public Prosecutor requested the instigation of a judicial investigation against L.P., Y.F. and O.D.B. on charges of intentional violence having caused over eight days’ total unfitness for work (ITT), aggravated by the following three circumstances: the violence had been jointly, by persons performing public duties, in a place used for acceding to public transport. 31. On the same day the three persons targeted by the request for an investigation were formally charged. L.P. and O.D.B. were placed under judicial supervision, while Y.F. was placed in preventive detention until 28 July 2005, when he would be released under judicial supervision. 32. The applicants, assisted by counsel, applied to join the proceedings as civil parties. 33. On 8 December 2006, in view of the evolution of the first applicant’s state of health, the State Prosecutor requested further investigations, reclassifying the charges as intentional acts of violence have caused a permanent disability. The three SUGE officers were formally charged on this new basis. 34. A large number of witnesses were heard by the investigators on letters rogatory, and some of them were directly questioned by the investigating judge. 35. Three train passengers present at the material time stated that they had not seen the first applicant being struck. 36. Two individuals who had been with the applicant on the day in question, S.M. and S.Gh., were also questioned. S.M. explained that during the afternoon he and the first applicant had drunk alcohol and had been fined for smoking in the railway station. They had then reasoned with a person who had been on the railway tracks throwing stones at the trains. S.M. pointed out that the first applicant had a swollen lip and small scars on his face, around the chin. While they had been together the first applicant had neither fallen nor bumped his head. 37. S.Gh. told the investigators that the first applicant had been “shoved” by one of the officers involved, who had forced him face-down on to the ground, without his head actually touching the floor. She added that when he had been on the ground an SUGE officer had kicked him, with medium force, on the head or his upper body, although she was unable to say whether the kick had landed on his head. She further stated that when the first applicant refused to get into the vehicle, one of the staff involved had hit him lightly on the back of the head or upper body with a black objet, possible a truncheon, but that the blow had not been violent. The investigating judge summoned S.Gh. four times to appear before him, but she did not attend. Moreover, having subsequently mentioned the violent acts during a TV interview, she had explained that “she had been all over the place”, that she had been “taken by surprise” and that she “had overdone it a bit in front of the TV cameras”. 38. Furthermore, on 9 May 2006 an SNCF employee informed the investigators that he had been confided in by a dog-handler, claiming that he had been talking to some of the first applicant’s friends and had discovered that he had been fighting on the afternoon in question and that someone had smashed a bottle over his head. The employee explained that she had not spoken up earlier because her information was only second-hand. Furthermore, she had not considered the dog-handler particularly reliable, as he had previously given her information which she knew to be false. However, this witness statement could not be compared with other evidence or corroborated by the witness as he had died since the material time. On 26 May 2006 the police had telephoned the six dog-handlers who could have made the statements in question. The only one who had worked in the company in question at the material time had stated that he had not heard about the case and had never spoken to any friends of the victim, with whom he was not acquainted. 39. S.D. and S.G., the two police officers who had first arrived on the scene, gave statements. One said that the arrest had been carried out “robustly” and that the first applicant’s head had possibly hit the ground, as he had “fallen with his whole weight, all at once”, and the other stated that the applicant had fallen “to the ground heavily, face down”, with his head hitting the floor. The latter added, before the investigating judge, that he was virtually sure that the applicant’s head had hit the ground, even though his view was partially blocked by a vehicle. He further added that he had not seen the person being kneed. 40. The four police officers sent as reinforcements, D.F., N.T. R.D. and A.H., stated that they had witnessed a kneeing incident. R.D. affirmed that when the first applicant had been brought to the ground there had been a loud “bump”. A.H. went back on the statements made during the flagrante delicto procedure, informing the investigating judge that he did not know whether the applicant’s head had “bumped on the ground”. 41. The two SUGE officers who had been present but had not taken part in the operation explained that there had been no violence, and one of them suggested that if there had been any blows they must have been delivered in the police car or the police station. 42. As regards the persons formally charged, O.D.B. stated that no blows had been delivered. He said that the episode during which the first applicant had been brought to the ground had been a “textbook example”, explaining that there had been no violence, and that the person had just been placed on the ground. He was sure that his head had not hit the ground. He added that Y.F. had not kneed the first applicant, explaining to the investigating judge that in his view things had gone badly in the police station and the police officers were trying to “shift the blame on to them”. He added that the wound to the first applicant’s chin after his arrival in the detention area bore no comparison to the scratch which they had noted earlier on. He considered that his colleague had used the level of force strictly necessary to bring the arrestee to the ground. 43. L.P. affirmed that while the first applicant had still been standing, he had deliberately punched Y.F. on the arm. The latter had then seized him by the sleeve to knock him off balance. The applicant had ended up on his knees, and had been laid out on his side and then on his stomach. O.D.B. and he had held him by the ankles while Y.F. was handcuffing him. L.P. stated that the first applicant had been brought to the ground quite normally and that he had neither fallen to the ground nor been struck. He justified the use of that technique by the fact that the arrestee had been struggling and making incoherent statements. He added that he had had traces of blood around his nose, something which he had already noticed when fining him during the afternoon. He told the investigating judge that the first applicant’s head could not have hit the ground, after having stated while in custody that he had not been able to see his head when the person had been brought to the ground. 44. Finally, Y.F., a former trainer in the field of operational techniques, confirmed that he had fined the first applicant during the afternoon, without any further incidents occurring, even though the latter had already been consuming alcohol. He described the applicant’s annoyance and disgraceful language when they had met up again later. He complained that he had been punched deliberately and violently on his right forearm. He had pulled at the first applicant’s sleeve to bring him to his knees, and had then forced him to the ground with L.P.’s help, laying him on his right side and then turning him on to his stomach. He had personally handcuffed the arrestee by placing his knees on his body, his left knee on the back and his right knee on the posterior. His colleagues had been holding the arrestee’s legs. He specified that the latter had been “brought to the ground” and not “pushed to the ground”. The applicant’s head had not collided with anything and he had not been struck in any way, in the knowledge that he had had a slight cut on his chin and dried blood around his nose. Y.F. said that something must have happened at the police station or during his time in the police vehicle, because the injury to the chin which had been visible during the arrest had nothing in common with the wound which he had displayed at the police station; that wound had been four centimetres deep and bleeding, leaving a pool of blood. If the SUGE officers had noted such a wound on handing him over to the police, they would have immediately called an ambulance. 45. Y.F.’s administrative file showed that he had repeatedly complained of abuse and threats. 46. Consultation of the SNCF operational handbooks had shown that the head was singled out as a part of the body which should never be struck. 47. No images of the handcuffing episode could be obtained from the CCTV footage at the railway station. On the other hand, the footage did show the identity check carried out in the afternoon and the attempts by the first applicant to calm down an individual standing on the railway tracks. 48. On 29 December 2004 the investigating judge commissioned an expert report on the matter from Dr T., a forensic doctor, and Professor L, a brain surgeon. They submitted their report on 25 April 2005. 49. The reports concluded that the first applicant had had a subdural haematoma of the left hemisphere which had caused brain damage. 50. In view of the nature and consequences of that haematoma, the experts considered that the length of time required to constitute it had probably been less than thirty minutes from the time of the head injury, and could not have been less than fifteen minutes. Having regard to the timescale of the events and the witness statements, the experts stated that the shock could not have occurred during the few minutes’ drive from the railway station to the police station, or on arrival at the latter. On the other hand, they found that the injuries could have been caused by the applicant being pushed to the ground, being kneed or falling full length during his arrest. Alcohol or drug consumption could not have had any direct and/or definite influence on the traumatic brain injury. 51. Dr G., a neurologist, and Ms D., a neuropsychologist, examined the first applicant on 3 January 2006. They submitted their report on 24 January 2006. 52. They noted a deficiency of all four limbs and a serious deterioration of the cognitive and mental functions. They concluded that the neurological condition was directly responsible for the first applicant’s state of total dependency, and considered that it was too soon to determine the chances of consolidation but that the situation was unlikely to change greatly. 53. On 26 June 2006 Dr G. and Dr S. examined the first applicant. In their report of 19 October 2006 they noted that he could neither stand nor walk, that he was completely dependent as regards everyday activities and should be placed under guardianship. His total unfitness for work was still being assessed. 54. They mentioned that the injuries observed could only have been the result of violent trauma, and that if they had been caused by being pushed to the ground, he must have been pushed extremely violently. The hyperextension of the cervical rachis and the fracture of the C2 vertebra could have been caused by a violent blow from a knee, but not the haemorrhagic lesions or the left temporal contusion, the latter having been caused either by direct blows to the skull or by the head violently hitting the ground. They confirmed that alcohol or drug consumption could not have been factors in the injuries, although they explained that the state of intoxication could have diminished the person’s reactivity in attempting to limit the consequences of falling. 55. The experts considered that the timescale of the events as reported pointed to the conditions surrounding the arrest in the railway station as having very probably, indeed certainly, been the cause of the traumatic cranio-cerebral and rachidial lesions. They pointed out that they had no information at their disposal to rule out the possibility that the first applicant had sustained other violent attacks while in the police vehicle or at the police station, but added that if such violence had indeed occurred, it was conceivable that it had caused injuries. Nevertheless, the lapse of time between the arrest and the arrival at the police station had been so short that that hypothesis was “improbable”. 56. They further explained that the bleeding in the chin area could not have been caused by the subdural haematoma, but might have resulted from the person having been violently pushed to the ground or having received any other type of blow. 57. The experts concluded that the first applicant suffered from an infirmity which would leave him with permanent motor, cognitive and mental after-effects. 58. On 6 September and 30 November 2007 the investigating judge appointed four experts, Dr G., Dr S. and Dr L., and also M.F., an expert in “martial arts, combat and self-defence sports and the ballistics of body movements and blows”, to assist in the reconstruction of events and conduct a fresh medical examination of the first applicant. They were also mandated to determine whether the first applicant’s statement as recorded on 22 November 2007 could be deemed reliable. 59. The reconstruction took place on 23 November 2007. Police officers S.D. and S.G. confirmed that when they had first encountered the first applicant he had been acting rather nervously, seemed to have consumed alcohol, displayed an injury on his chin, and was red in the face. The SUGE officers who had met S.D. and S.G. had informed them that they had already fined the applicant that afternoon. SUGE officer C.A. explained that since the police officers had informed them that they had been insulted the decision had been taken to arrest the person concerned and the SUGE officers had asked him to come with them. C.A. had put him in an armlock. For his part, Y.F. stated that he had seized his left sleeve. 60. According to the SUGE officers, they had taken the first applicant outside the railway station, and there had been some hesitation when S.D. had told them that this was not the man who had been throwing stones at the trains. O.D.B. pointed out that Y.F. had then released him and stepped back. Y.F. explained that the first applicant had then turned angrily to face him and punched him on the forearm. He had seized the applicant by the collar, forced him to his knees and placed him on his right side. He had then placed him face down on the ground and put his hands behind his back in order to handcuff him. After frisking him, he had taken the first applicant by the right arm, and the latter had stood up otherwise unaided. 61. A.H. confirmed that the applicant had made a gesture towards Y.F.’s arm, and Y.F. had warned him: “don’t you touch me”. However, he explained that because he was resisting handcuffing, Y.F. had struck him with his left knee. 62. One of the other police officers, D.F., confirmed that he had seen the person being struck by Y.F.s left knee, while R.D. mentioned a blow from the right knee. N.T. confirmed the action described by A.H., although he was not sure which leg had been used. 63. The police officers added that the first applicant had been placed in the police vehicle and that when they had almost reached the police station he had said that he was going to vomit. They pointed out that the man had been very calm, but when he was about to leave the vehicle he said that he would need help because his knee hurt. D.G. had helped him out of the car, holding one of his legs. That was when the applicant’s head had slid along the head-rest and hit the car doorframe. D.G., seeing that he had fainted, had asked a colleague to help him. Outside the vehicle the first applicant had vomited liquids and remained inert, mumbling rather than speaking. He had then been dragged into the sobering-up area. 64. The experts submitted their report on 9 March 2009. They observed that in Y.F.’s version of events there had been no mention of blows or of the first applicant’s head hitting the ground. They also noted that in A.H.’s version, the blow was described as incapable of having had a major impact. They found that during the manoeuvre to bring the first applicant to the ground, he had been in a position to break his fall and, possibly, if he had been kneed, to protect himself. Moreover, they stated that if the kneeing incident was taken on board, the time which had elapsed between the latter and the arrival at the police station, when the first symptoms of the brain damage became evident, would have been between 2 minutes and 10 seconds and 3 minutes and 30 seconds. They concluded that in view of the minimum period of evolution (the “response time”) between the traumatic injury and the first symptoms, that is to say between fifteen and twenty minutes, the kneeing could not be deemed to have caused the brain injury. 65. The experts considered that the various statements by the persons charged and the witnesses, as well as the reconstructions of the different versions, were “completely incompatible with the forensic medical findings as regards the nature and/or seriousness of the injuries described in the various hospital and forensic reports”, such injuries being “necessarily the outcome of violent traumatic injuries”. 66. They pointed out that the observations made during the reconstruction meant that it was unlikely, or even impossible, that the fracture had occurred during the events that had taken place at the railway station or the police station, explaining that such a fracture usually caused serious neck pain and stiffness in the cervical rachis, which had not been noted by the victim, the witnesses or the participants. 67. As regards the hypothesis mentioned during the investigation to the effect that the first applicant might have been hit by a bottle during a fight that had taken place during the afternoon of 30 November 2004, the experts pointed out that they had not received any evidence to support that affirmation, but that a blow with a bottle could have caused an internal contusion which would not have produced any external symptoms on the scalp but would have caused a subdural haematoma such as that discovered on the first applicant’s admission to hospital. The first manifestations felt by the first applicant on his way to the police station had most likely stemmed from just such a traumatic injury. The manifestations in question had therefore reflected the brain’s intolerance of the mounting pressure exerted by the subdural haematoma, which had been tolerated for a few hours and had then decompensated during the transfer to the police station. 68. The experts emphasised that the lapse of time between the applicant’s arrest by the SUGE brigade and the emergence of the traumatic brain injuries had been too short to conclude that the actions carried out and the blows struck by members of that brigade might have caused the brain damage. Furthermore, the actions of the SUGE officers, as studied in detail on the day of the reconstruction, could not have explained the intracranial lesions. 69. As regards the first applicant’s condition, the experts considered that his residual rate of permanent partial disability (IPP) could be estimated at 95 %, given his lack of autonomy in respect of all the basic activities of everyday life and his inability to engage in any autonomous occupational activity. His suffering and disfigurement were estimated at 6/7, and his loss of amenity and professional damage were declared absolute, total and definitive. 70. The experts observed that the first applicant had said that he had been “attacked”. They added, however, that any memory on the applicant’s part had necessarily been “reconstructed”, either through unintentional, spontaneous fabrication or by repeating something overheard from people around him and possibly deformed by himself. He could certainly have had no direct memories of the events. 71. The National Security Ethics Committee, which had been contacted by two members of parliament concerning the circumstances of the first applicant’s arrest, assessed the procedural documents and interviewed the SUGE officers, apart from the persons formally charged, and also the police officers. It adopted an opinion on 19 December 2005. 72. It first of all noted that when the applicant had been arrested in the underground carpark of the railway station he had not been accused of an offence, as the police officers had acknowledged that his profile did not match that of the person sought. It added that the two police officers who had initially been involved had pointed out that they had not wanted to arrest the first applicant, but simply to check his identity, while the head of the SUGE team had stated that he had stopped the applicant for questioning because he had thought that the police officers had been insulted and he had considered them as victims. The committee noted that the head of team had admitted that “it was a bit topsy-turvy”, and that on leaving the railway station he had been unable to understand why the officers had not handcuffed the man and taken him to the police station. 73. The committee observed that the arrest had been carried out in a confused and confusing manner. The SUGE officers had explained that they had decided to handcuff the first applicant because he had insulted them and had struck Y.F. on the forearm. 74. The committee noted that A.H. had partly confirmed that version, and pointed out that there had been a kind of confused “stand-off” between the SUGE and the police officers outside the railway station. A.H. had noted that the first applicant had been insulting the SUGE officers, that he had lunged at one of them, hitting him on the arm or the shoulder, and that the officer in question had said “Don’t you touch me!”. After the applicant had been handcuffed, A.H. had decided to apprehend him on charges of violence against persons performing public duties, which violent acts he considered to have been committed in his presence. 75. The committee observed that S.G., who had taken the first applicant to the police station, had stated that he did not know the reason for the arrest. 76. The committee noted that even supposing that the head injury might have been caused by one of the SUGE officers, the police officers whom it had interviewed had provided no further information such as to establish its origin or the time of its causation. The only conclusions to be drawn from their statements were that the arrest had been violent, because the first applicant had initially resisted handcuffing. 77. The committee observed that the police and SUGE involvement in the case had been extremely confused. It stated that the police sergeant, who had been assisted by five police officers, ought to have taken control of the situation as soon as he arrived on the scene. He should have intervened between the SUGE officers and the first applicant, immediately placing the latter under his protection, and have asked the SUGE officers why he had been stopped and questioned, with a view to deciding on the appropriate action to take. The committee noted that instead of shouldering that responsibility, the police officers had passively looked on as the SUGE officers used force which the former’s mere presence had rendered illegitimate. 78. The committee considered that the lawfulness of the apprehension had been highly questionable. Indeed, the first two police officers arriving on the scene had taken the view that the apprehension had not been justified by the first applicant’s attitude outside the railway station. Interrogation of the various parties involved had not made clear whether a serious act of violence had been committed against Y.F. or whether the first applicant had merely pushed him away. The committee noted that the incident appeared in fact to have amounted to a mere scuffle to which Y.F. had reacted impulsively. 79. It further noted that the SUGE officers had imposed the decision to apprehend the first applicant on the police officers, who were not in control of the situation. The latter had merely passively accepted the applicant’s handover in order to transport him to the police station. That confusion explained why the injury could not be imputed with any certainty to either of the services in question. The committee further stated that even supposing that the injury had been caused by the SUGE officers during the handcuffing operation, at a time when the first applicant should have been under police protection, it was surprising, at the very least, that none of the police officers present had been able to identify the act of violence which had occasioned the injury. 80. In the committee’s view, the injury under the applicant’s chin raised issues. Even supposing that it had already been there prior to the apprehension and that the wound had reopened, as the police officers affirmed, it pointed at the very least to a very rough mode of transport of an injured person. Lastly, the committee pointed out that it was not its task to issue an opinion on the origin of the head injury or to attribute it to either of the services. It added that the possibility of a joint police/SUGE operation required the respective competences to be strictly defined. It should be reiterated that the arrival of the police removes the SUGE mandate, immediately placing the operation under the sole authority of the most senior police officer present. Moreover, SUGE officers should also be aware of the conditions for the lawfulness of in flagrante apprehensions and should in fact, like police personnel, undergo compulsory conflict management training. 81. Lastly, the committee decided to transmit its opinion to the public prosecutor for assessment of the expediency of prosecuting those concerned on charges of failure to assist a person in danger. 82. On 15 February 2010 the investigating judge of the Meaux Regional Court issued a discontinuance order. 83. She considered that the serious brain damage suffered by the first applicant had originated in events preceding his questioning by the SUGE officers and his transport to the police station by the police officers. She observed that the investigation had failed to establish the precise circumstances under which the events had occurred and to identify the perpetrator. No further investigation had been possible because all the witnesses identified had been heard and the first applicant was no longer capable of providing further information on the series of events of which he had been the victim. 84. The investigating judge added that the circumstance surrounding the apprehension had been caused by the first applicant’s insulting and violent behaviour. No proof had been provided of illegitimate violence, since it had transpired from the proceedings and the witness statements that the applicant’s head had not hit the ground, and that even supposing that Y.F. had kneed him, such acts did not fall within the category of deliberate violence. The judge stated that the investigation had shown that, owing to the position in which Y.F. had been standing, the intensity of his action had necessarily been limited, forming part of an operational technique. 85. The applicants, all of whom had joined the proceedings as civil parties, appealed against the discontinuance decision, seeking: - its annulment pursuant to Articles 184 and 802 of the Code of Criminal Procedure on the grounds that it was identically worded to the public prosecutor’s final submissions; - the appointment of a panel of experts mandated to produce a fresh report under the supervision of a member of the Investigations Division, and; - in the alternative, the committal of the defendants for trial by the criminal court for the acts of violence perpetrated against the first applicant. 86. By judgment of 3 September 2010 the Investigations Division of the Paris Court of Appeal dismissed all those requests. It held that the civil parties had sustained no damage as a result of the grounds of nullity on which they had relied, since they could have adduced their claims in adversarial proceedings before it; it also pointed out that the entire proceedings had been submitted to it and that it was empowered to deal with all aspects of the case. As regards the request for a new expert report, the Investigations Division noted that the first expert report had been drawn up by a panel of four experts with complementary specialities, who had all attended the extremely long and detailed reconstruction organised by the investigating judge, during which they had seen all those involved in the impugned events repeat several times the gestures which they had described, covering all the different versions presented. It held that another expert opinion, for which all this input could not be replicated, would be of no real value for establishing the truth, and that it was neither necessary nor practicable to repeat such a complex reconstruction, which had at no stage been criticised by the various parties involved in the proceedings. The Division added that in medical terms, the civil parties had provided no scientific evidence capable of contradicting the conclusions of the panel of experts, merely affirming that the extremely serious injuries sustained by the first applicant must have originated in the manner of his arrest. 87. As regards the violence in question, the Investigations Division noted that the first applicant had suddenly lost his temper and struck Y.F. violently on the arm, which had been a deliberate, aggressive act. They therefore considered that the SUGE officers’ intervention to neutralise him had been amply justified, subject to the operation having taken place under appropriate conditions. It nevertheless noted that the operation seemed to have been more “robust” than the SUGE officers had admitted, the latter having spoken of a “textbook” operation, which evoked a theoretical ideal and seemed “too perfect”. Furthermore, the other parties involved had described a swifter series of events than the “takedown” in three separate stages described by Y.F. As regards the possibility that the first applicant had been kneed in the head, the Investigations Department noted divergences in the various witness statements, and concluded that some uncertainty remained as regards both whether such a blow from the knee had actually been administered and whether it had been intentional. 88. Finally, as regards the causal link between the arrest and the first applicant’s injuries, the Investigations Division noted the general consensus that the applicant had been “in good shape” on being installed in the police vehicle after his handcuffing, and that neither his position in the vehicle nor the speed of transport had suggested that he had been the target of any violence at this stage of events. Referring to the reconstruction, the Investigations Division considered that by reprising all the descriptions of the actions by all those involved and taking on board the hypotheses least favourable to the SUGE officers in question, the experts had been able to ascertain that the arrestee’s head had not hit the ground in any of the reconstructed actions, that the blow from the knee, if such a blow had ever actually occurred, would have affected the right craniofacial region, that if it had been struck as described it could only have had a minor impact and that the actions carried out could not explain the intracranial lesions noted, especially the cranial fracture on the left side of the head. The Court of Appeal further observed that the experts’ findings had been very clear, considering it highly unlikely, or indeed impossible, that the fracture had been caused during the incidents at the railway station or at the police station. 89. The Division pointed out that the experts had extensively justified their change of mind on the basis of factors which they had noted from the reconstructions of all the different versions, which they had attended, and that the medical evidence gathered would appear to support the existence of a previous traumatic injury which had taken some time to manifest. Lastly, it noted that the previous findings concerning the first applicant’s physical state during the afternoon had lent credence to that eventuality. Furthermore, the time taken for the symptoms to appear would have been incompatible per se with the short lapse of time between the arrest and the first symptoms, too soon after the operation to have been caused by it. 90. The Investigations Division concluded that the investigation had failed to gather sufficient evidence that a criminal offence had been committed. 91. On 27 September 2011 the Court of Cassation dismissed the applicants’ appeal on points of law. It held that the applicants could not complain about the reasons given for the discontinuance decision because, owing to the devolutive effect of the appeal, the Investigations Division had substituted its own reasoning for the original one. Moreover, it considered that that Division had analysed all the facts criticised in the complaint, answered all the main points set out in the civil parties’ memorial and determined, on the basis of sufficient and non-contradictory grounds, that there was insufficient evidence that any individuals had committed the offence of collective assault having caused a permanent disability or any other offence. 92. In observations received by the registry of the Bobigny Compensation Board for Crime Victims (“CIVI”) on 16 March 2012, the Guarantee Fund against acts of terrorism and other criminal offences requested the reimbursement of provisional awards made to the first applicant to a total of 490,000 euros (EUR), under three CIVI decisions of 30 October 2006, 5 July 2007 and 8 December 2009. ...
| 1 |
test
|
001-166964
|
ENG
|
GBR
|
CHAMBER
| 2,016 |
CASE OF DANIEL FAULKNER v. THE UNITED KINGDOM
| 4 |
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
|
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
|
5. The applicant was born in 1982 and is detained in HM Prison Dovegate, Uttoxeter. 6. On 3 August 2001 the applicant was sentenced by the Crown Court to custody for life for causing grievous bodily harm. The minimum period (“tariff”) was set at two years, eight and a half months, less time spent on remand. The tariff expired on 18 April 2004 and he became eligible for parole. 7. The Parole Board subsequently examined his case in order to review whether his detention remained necessary for the protection of the public. On 26 May 2005 it decided not to direct his release but recommended that he be transferred to open conditions. That recommendation was rejected by the Secretary of State. 8. A second recommendation to the same effect was made, following the applicant’s second Parole Board review on 31 January 2007 and rejected by the Secretary of State on 23 May 2007. At the conclusion of its statement of reasons for rejecting the Board’s recommendation, the National Offender Management Service (“NOMS”) wrote: “The Secretary of State has therefore decided that you should remain in closed conditions and your next review will conclude in January 2008.” 9. The accompanying letter stated: “It has been decided that your case will next be referred to the Parole Board for a provisional hearing to take place in JANUARY 2008. ... You will be notified by the Parole Board nearer the time about the exact date of that hearing. At your next review the Parole Board will consider your suitability for release by way of a paper panel. This consideration will take place approximately 12 weeks prior to your provisional hearing [in January 2008]. If you are not content with the paper panel’s decision you may request that the case proceeds to the arranged oral hearing.” 10. The case was referred to the Parole Board on 21 December 2007. On 6 May 2008 the applicant and the Parole Board were sent relevant reports as required by the applicable rules. On 16 May 2008 the Parole Board gave case-management directions requiring additional reports. On 8 October 2008 the Parole Board received the further reports requested. The hearing took place on 8 January 2009. On 23 January 2009 the Parole Board directed the applicant’s release. He was released from prison four days later. 11. Meanwhile, in autumn 2008, the applicant commenced judicial review proceedings against the Secretary of State and the Parole Board seeking damages for the delay in holding the hearing. He relied on Article 5 § 4 of the Convention. He was granted permission to bring proceedings on 13 October 2008. 12. On 5 June 2009 the claim was dismissed by the High Court. Leave to appeal was granted by the Court of Appeal on 27 October 2009. 13. On 14 December 2010 the Court of Appeal handed down its judgment. After carefully reviewing the facts and the individual periods of delay encountered, it concluded that there had been a delay of ten months, from March 2008 to January 2009, in the holding of the Parole Board hearing which was unjustified and for which the Secretary of State was responsible. This delay had prevented the applicant from having the lawfulness of his continued detention decided in accordance with Article 5 § 4. On the question of damages, the court was satisfied that the applicant had shown, on a balance of probabilities, that he would have been released had the review taken place in March 2008. Damages on the basis of a loss of liberty were therefore appropriate. 14. In its judgment of 29 March 2011 on the amount of damages to be awarded, the court considered a number of just satisfaction awards in cases before this Court in which breaches of Article 5 § 4 had been found. It distinguished between cases where the delay had merely led to feelings of frustration and those where it had been established that, but for the delay in the holding of the hearing, the applicant would have been released earlier. It awarded the sum of 10,000 pounds sterling (“GBP”) by way of compensation for the loss of ten months’ conditional liberty. 15. The applicant sought leave to appeal to the Supreme Court on the ground that the award was inadequate. The Parole Board sought leave to appeal on the ground that the award was excessive. Leave was granted to both parties, and the applicant was in addition given permission to argue that his detention after March 2008 constituted false imprisonment at common law or a violation of Article 5 § 1 of the Convention. In respect of his latter argument, he relied on this Court’s findings in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012. 16. In its judgment of 1 May 2013 the Supreme Court unanimously rejected the applicant’s appeal and allowed the appeal of the Parole Board, reducing the damages award to GBP 6,500. 17. As regards the alleged violation of Article 5 § 1 of the Convention, Lord Reed, giving the leading opinion, observed that Article 5 § 4 provided a procedural entitlement designed to ensure that persons were not detained in violation of their rights under Article 5 § 1. However, he added, a violation of Article 5 § 4 did not necessarily result in a violation of Article 5 § 1. He considered this Court’s judgment in James, Wells and Lee, cited above, not to be directly relevant to the applicant’s case since that judgment concerned lack of access to rehabilitation courses and the just satisfaction awards made were for the feelings of distress and frustration resulting from continued detention without access to courses, and not for loss of liberty. Lord Reed noted that the delay in the applicant’s case appeared to have been the result of errors by administrative staff, “of a kind which occur from time to time in any system which is vulnerable to human error”. While it was extremely unfortunate that the errors had occurred and had resulted in the prolongation of the applicant’s detention, they were not of such a character, and the delay was not of such a degree, as to warrant the conclusion that there had been a breach of Article 5 § 1. 18. On the matter of damages for the violation of Article 5 § 4 of the Convention, Lord Reed reviewed relevant case-law of this Court where a violation of Article 5 §§ 1, 3 or 4 had been found, focusing in particular on cases concerning a delay in holding a hearing intended to address the question whether a convicted prisoner should be released. He considered that no clear guidance could be derived from the cases since none concerned awards for loss of liberty resulting from a violation of the speedy decision guarantee in Article 5 § 4. While, he said, an appellate court would not interfere with an award of damages simply because it would have awarded a different figure if it had tried the case at first instance, in the applicant’s appeal the court was being invited to give guidance as to the appropriate level of awards in cases of this character. For that purpose, the court had undertaken a fuller analysis of the case-law of this Court than the Court of Appeal. Lord Reed concluded: “87. ... In the light of that analysis, and applying the general approach which I have described ..., it appears to me that an award in the region of £6,500 would adequately compensate Mr Faulkner for his delayed release, bearing in mind the conditional and precarious nature of the liberty foregone. That amount falls well short of the award of £10,000 made by the Court of Appeal. In the circumstances, it is in my view appropriate for this court to allow the Board’s appeal and to reduce the award accordingly.”
| 0 |
test
|
001-184659
|
ENG
|
ARM
|
CHAMBER
| 2,018 |
CASE OF HOVHANNISYAN v. ARMENIA
| 3 |
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
|
5. The applicant was born in 1958 and lives in Yerevan. 6. She is a civil servant working for the Ministry of Environmental Protection (hereinafter “the Ministry”) as a State inspector. She suffers from cardiac problems, including a heart rhythm disorder. 7. According to the applicant, on 10 January 2012 H.A., her head of division, and A.K., his deputy, used violence against her in H.A.’s office. In particular, they assaulted her, grabbed her hands, insulted her and forcibly took a document concerning her which she had taken in to them in order to write down her objections. As a result of the violence she fainted, sustained bodily injuries, received numerous bruises on her hands and was seriously humiliated. 8. On 12 January 2012 the applicant filed a written report with the head of staff of the Ministry, giving a detailed account of what had happened. She stated, inter alia, that she had returned her appraisal report for the second half of 2011 to H.A. since she had disagreed with the assessment received. On 10 January 2012 she had been informed by one of her colleagues that H.A. wanted to see her in his office. During their meeting, H.A. had given her the appraisal report and asked her why she had not signed it. She had responded that she wanted to discuss it. H.A. had refused to provide any clarifications, stating that he was the one to make decisions and would submit the report to the relevant division without her signature. H.A. had then ordered her to return the appraisal report, which she had refused to do, stating that she would write down her objections, sign the document and then return it to him. When she had been about to leave, H.A. had immediately closed and locked the door to his office and had started to approach her, shouting that she was a thief and had stolen a document from his office. Using physical violence and personal insults, he had tried to take the papers from her. After she had called for help, A.K. had entered the office and instead of diffusing the situation had also insulted her and ordered her to hand him the documents. The two of them had grabbed her hands, causing her serious pain, and forcibly taken away the papers. As a result of the stress and pain she had fainted for a short period of time, after which she had been told that she could leave as there was nothing else to discuss. She concluded by stating that as a result of the violent behaviour of H.A. and A.K. she had suffered injuries, health problems and serious distress. She requested that the relevant measures be taken in accordance with the law. 9. After the incident, the applicant felt unwell and underwent a medical examination. She was diagnosed with acute bronchitis and WolffParkinson-White syndrome (a heart rhythm disorder) and was put on sick leave from 13 to 27 January 2012. 10. On 14 January 2012 the applicant reported the incident to the police, stating that on 10 January 2012 she and H.A., her head of division, had had an argument during which he had been violent and caused her bodily harm. She made a statement giving an account of events similar to that in her report to the head of staff of the Ministry. 11. The investigator ordered a forensic medical examination the same day to determine whether the applicant had any bodily injuries and, if so, their nature, origin, seriousness and the time and manner of their infliction. 12. On 15 January 2012 H.A. gave a statement to the police. In particular, he stated that the applicant had refused to return her appraisal report to him, after which he had left his office, closed the door and called A.K., asking him to come to see him with the other employees. During that time the applicant had kept shouting and swearing. She had called their superior to say that he had locked her in. He denied harassing the applicant either physically or verbally and said that she had used foul language. 13. On the same day A.K. made a statement and similarly denied using violence against the applicant. Between 16 and 25 January 2012 a number of the applicant’s colleagues who were at work on the day of the incident were questioned and denied that H.A. and A.K. had been violent towards the applicant. 14. On 18 January 2012 the forensic medical examination was completed. The relevant parts of the expert’s opinion read as follows: “Complaints: At present [the applicant] complains of a nervous breakdown. Results of personal examination: An irregularly shaped, non-homogenous, greenishyellow ecchymosis measuring 6 x 2 cm is present on the mid-third of the inner right upper arm. Two similar round-shaped ecchymoses are present on the inner surface of the same area measuring 1 cm in diameter: on the mid-third of the inner left upper arm measuring 1 cm in diameter; on the lower third of the inner left upper arm measuring 2 x 1 cm and 1.5 x 1.2 cm and on the mid-third of the outer left forearm measuring 2.5 x 1.5 cm. Conclusion: [The applicant’s] bodily injuries in the form of ecchymoses [around] the right and left upper arms and the left forearm have been inflicted with blunt, hard objects possibly in the period mentioned; [the injuries] taken separately as well as all together do not contain elements of [short-term] damage to health.” 15. On 24 January 2012 the investigator took an additional statement from the applicant. She stated that she had no objections to the opinion of the forensic medical expert and intended to pursue her complaint. 16. On 25 January 2012 the investigator took another additional statement from the applicant. The relevant parts read as follows: “Question: In the course of collecting evidence H.A. and A.K. said that they did not hit you and did absolutely not grab your hands. What can you say about this? Answer: ... I do not know why H.A. and A.K. said that but it is logical that they would deny committing such acts. I will reiterate once again that H.A. and A.K. pulled and pushed me and grabbed my hands thus causing me injuries.” 17. On 27 January 2012 the investigator took a further additional statement from the applicant. She stated: “I inform you that since the time I [went] to the police ... [H.A.] and [A.K.] have not even apologised; moreover, they have created such an atmosphere that it is impossible to work, since other employees ignore me and avoid contact with me for fear of losing their jobs. Since H.A. and A.K. are continuing this kind of behaviour, abusing their official capacity, in the circumstances I am unable to reconcile with them. I am complaining and requesting that H.A. and A.K. be prosecuted. I also wish to add that because of their actions I have had health problems and as a result have been on sick leave from 13 to 27 January ...” 18. On 28 January 2012 H.A. was questioned again and stated, inter alia, that the applicant had made a false statement. He had never harassed her or grabbed her hands and had remained seated in his chair until she had left. As for the injuries discovered on the applicant’s body, H.A. stated that he had never touched her and did not know how they had been inflicted. 19. It appears that no decision was taken by the investigator for about a month. 20. On 24 February 2012 the applicant sent a written request to the head of the Marash Division of the Central Police Department for criminal proceedings to be brought against H.A. and A.K. She stated in her request, inter alia, that she had been informed of the provisions of Article 183 of the Code of Criminal Procedure, under which criminal proceedings could only be instituted on the basis of a complaint by her. She further stated that she had not reconciled with H.A. and A.K. and was calling for them to be prosecuted. On the same date the investigator took an additional statement from the applicant. A further additional statement was taken from her on 27 February 2012. 21. On 1 March 2012 the prosecutor instructed the investigator to refuse to bring criminal proceedings against H.A. and A.K. on the grounds that no crime had been committed. It was suggested that the applicant had perceived the events subjectively and that her supervisors had never used violence against her. 22. On 5 March 2012 the investigator refused to bring criminal proceedings against H.A. and A.K. for lack of corpus delicti in their actions. The decision stated, in particular, that the applicant had made unclear and contradictory statements with regard to the incident. It further stated that the evidence collected had revealed that on 10 January 2012 first H.A. and then A.K., who had gone to the latter’s office, had tried to calm the applicant down, as she had been insulting H.A. During the incident A.K. had caught hold of her hand and taken the document that she had taken from H.A. Intentional infliction of bodily harm was punishable under Article 118 of the Criminal Code, but negligent infliction of bodily harm was not punishable. In the case at hand the applicant’s injuries had been caused by H.A. and A.K.’s negligence; it had not been established that they had intentionally caused her injuries. 23. On 13 March 2012 the applicant lodged a complaint with the prosecutor against the investigator’s decision. She argued, inter alia, that contrary to what was stated in the decision she had described in detail how she had been treated. In particular, she had submitted that first H.A. had grabbed her hands using force, harassed her and locked her in his office so that she could not leave. Thereafter A.K. had come in and also assaulted her. The applicant complained that the conclusion in the investigator’s decision, according to which H.A. and A.K. had caused her injuries by negligence, could not be substantiated and pursued the purpose of exonerating public officials from responsibility. She further complained that, as a result of deliberate violence on the part of H.A. and A.K., she had experienced severe emotional suffering as a woman since her superior had debased her and caused her serious bodily harm without good reason, right in the workplace. In addition, the applicant stated that the incident had taken place in the workplace and naturally all the witnesses questioned by the investigator were the subordinates of H.A. and A.K. If criminal proceedings were instituted, they would be questioned as witnesses and warned about criminal liability for making false statements. 24. H.A. also lodged a complaint against the investigator’s decision, claiming that it had not been established that he or A.K. had ever hit the applicant. 25. On 15 March 2012 the prosecutor dismissed the applicant’s complaint and allowed H.A.’s complaint. In particular, the prosecutor upheld the investigator’s refusal to institute criminal proceedings but changed the grounds for it, stating that no crime had been committed involving H.A. and A.K. The decision stated that no evidence had been obtained that would establish that H.A. and A.K. had inflicted injuries on the applicant, except her own unspecified and contradictory statements. As regards the applicant, the decision stated, inter alia, that because the stress she had suffered as a result of the incident in H.A.’s office she had perceived and described what had happened in a subjective manner. In these circumstances, her contradictory statements did not correspond to the evidence gathered but that did not create grounds for prosecuting her for false accusations. 26. On 4 April 2012 the applicant lodged a complaint with the Kentron and Nork-Marash District Court (hereinafter “the District Court”), requesting that criminal proceedings be instituted. She reiterated her previous arguments and complained, in particular, that the question of her injuries had not been addressed at all in the prosecutor’s decision, which had ignored the results of the forensic medical examination. In the end, it had never been established who had inflicted her injuries. The applicant further complained that the prosecution had relied on the statements of subordinates of those who had committed the offence in question. Their statements could not be considered objective and reliable in view of the serious fear of those concerned losing their jobs. If criminal proceedings were instituted, they would have the procedural status of witnesses and would be warned about criminal liability for making false statements. 27. On 18 May 2012 the District Court dismissed the applicant’s complaint. In doing so, it found that the disputed decision had been lawful, while the applicant’s arguments stemmed from an individual and subjective interpretation of the events in question and the procedural measures undertaken in relation to them. 28. The applicant lodged an appeal against the District Court’s decision. She argued, inter alia, that it had failed to examine her arguments. In particular, the issue of the existence of a number of injuries on her body as established by the forensic medical examination had not been addressed at all. 29. On 12 July 2012 the Criminal Court of Appeal dismissed the applicant’s appeal and fully upheld the District Court’s decision. In doing so, it stated that the applicant had made unclear and contradictory statements about the circumstances of the incident which had not been corroborated by other evidence, namely the statements of H.A., A.K. and others questioned in relation to the incident. 30. On 2 August 2012 the applicant lodged an appeal on points of law. She argued that the decisions of the District Court and the Criminal Court of Appeal had failed to explain the existence of injuries on her body or the fact that H.A. had locked her in his office. She also reiterated her arguments in relation to the refusal to institute criminal proceedings and the unreliability of the statements made by her colleagues. 31. On 6 September 2012 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.
| 1 |
test
|
001-172553
|
ENG
|
DEU
|
CHAMBER
| 2,017 |
CASE OF KLEIN AND OTHERS v. GERMANY
| 3 |
Remainder inadmissible (Article 35-3-a - Manifestly ill-founded;Ratione materiae);No violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion)
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Síofra O’Leary;Yonko Grozev
|
7. The applicants were born in 1964, 1935, 1963, 1965 and 1963 respectively. 8. The status of Churches and religious societies is governed mainly by Articles 137 to 141 (known as the “Church Articles” – Kirchenartikel) of the Weimar Constitution of 11 August 1919 (Weimarer Reichsverfassung), as incorporated into the Basic Law by Article 140 of that Law. A couple of Churches and religious societies, including the Catholic Church (about 23.7 million members) and the Protestant Church of Germany (about 22.2 million members), commonly known as the two “big Churches” (Grosskirchen), have the status of publiclaw entities. Other religious denominations have legal capacity under civil law. 9. As regards their financing, churches and religious societies with the status of public-law entities are entitled to levy a church tax, which accounts for a significant portion of their total budget. The churches decide independently whether to levy a tax and what its rate should be. The rate of church tax has been over many years either 8% or 9% of the tax on an individual’s income and, in most German Länder, is collected by the State tax authorities on behalf of churches and religious societies, which in return pay 3% to 5% of their tax revenue to the State. 10. The church tax is guaranteed by Article 140 of the Basic Law read in conjunction with Article 137 § 6 of the Weimar Constitution (see paragraph 49 below). Only members of a particular religious denomination authorised to levy the tax are obliged to pay it. Any church member who does not want to pay church tax can leave that church by declaration towards the authorities. 11. If spouses are members of different churches entitled to levy taxes (konfessionsverschiedene Ehe) and if they have opted for a joint income tax assessment (gemeinsame steuerliche Veranlagung), both churches levy the tax on the spouses in the form of an additional levy on the income tax of both spouses. The amount of each spouse’s church tax is calculated on the basis of half of the declared income tax. 12. In marriages where only one spouse belongs to a church entitled to levy taxes (glaubensverschiedene Ehe), the church entitled to the tax levies it in accordance with that person’s tax assessment. Churches calculate the tax on the basis of the income tax attributable to the spouse liable to pay tax rather than on the basis of that spouse’s share of the total income. According to the Federal Constitutional Court’s settled case-law, if the spouse belonging to a church has no income in terms of the regulations of the Income Tax Code, the church tax cannot be levied (see 56 paragraph below). In that case, in some German Länder (inter alia, BadenWürttemberg, Bavaria and Thuringia), the church entitled to levy taxes charges its members a special “church fee” (besonderes Kirchgeld). Although called a fee, the levy is, however, treated legally as a tax. The church fee amounts to about one-third of the relevant church tax. 13. Churches only levy the special church fee if spouses decide on a joint income tax assessment. The special church fee is not levied if spouses make separate tax declarations (getrennte Veranlagung). It is important to note that in case of a joint income tax assessment the spouses benefit from a special calculation method for the income tax (the so-called “incomesplitting”, “Splitting-Verfahren”) and furthermore from the progressive effect (Steuerprogression) of the German tax system, which generally leads to a lower tax burden. 14. If spouses decide on a joint income tax assessment, they submit a tax declaration (Steuererklärung). In most of the German Länder (except of the Land of Bavaria), in their tax calculation procedure (Steuererhebungverfahren) the tax authorities set the special church fee according to the calculation regulations of each church. The basis for calculating the special church fee is the church member’s living expenses (Lebensführungsaufwand), which are calculated on the basis of the spouses’ joint income. The special church fee is only levied on the spouse who is a church member. The remaining tax liability is applied to both spouses. 15. If a tax authority’s calculation on income tax leads to a tax reimbursement for the spouse not being a member of a church and who is liable to pay income tax, only that spouse will be credited with it. At the same time, the special church fee levied on one spouse can be offset against any tax reimbursement due to the other spouse. If the calculation of the income tax leads to a demand to pay more tax, offsetting cannot take place. 16. Either spouse can file an objection (Einspruch) against that part of the tax bill which applies to them. If the special church fee has been offset against a tax reimbursement due to the spouse who is not a member of a church that spouse can apply for a settlement notice (Abrechnungsbescheid) in accordance with Article 218 of the Fiscal Code (Abgabenordnung, see paragraph 51 below) and thus have the possibility to be repaid the offset amount. 17. The facts of the cases, as submitted by the parties, may be summarised as follows. 18. The first applicant lives in Heidelberg, in the Land of BadenWürttemberg. He is married. His wife is member of the Protestant Church, which is authorised to levy church taxes. In 2005 the first applicant left his church and was no longer obliged to pay church taxes. 19. For the tax assessment period of 2008 the spouses opted for a joint tax assessment. 20. Their 2008 tax bill, dated 22 April 2010, included a special church fee for the first applicant’s wife of 2,220 euros (EUR). As the spouses were jointly liable for income tax and the applicant’s wife’s income was below the minimum taxable amount, the wife’s special church fee was calculated as a proportion of her living expenses, which in turn were calculated on the basis of the spouses’ joint income (see paragraphs 12-14 above). 21. The tax bill applied to both the first applicant and his wife. Page one showed the authority’s tax calculation (Ergebnis des Steuererhebungsverfahrens) in a table, with one column for income tax (Einkommensteuer), one for solidarity tax (Solidaritätszuschlag) and one headed “Protestant Church tax, wife” (Kirchensteuer evangelisch Ehefrau). The third column showed the amount of EUR 2,220. The table further showed that the first applicant had a tax reimbursement claim of EUR 3,423.00, which had been offset against the church fee of EUR 2,220 of his wife. It finished with a credit for the first applicant of EUR 1,203.00. 22. Pages two to four of the tax bill contained a detailed assessment of the taxable annual income of the first applicant and his wife. The document then had explanations of the items. Line 40, out of 114 lines of explanations altogether, stated as follows: “Only the wife is liable for church tax.” Following the explanations, the tax bill provided information on possible legal remedies. As regards the special church fee, it stated as follows: “An objection can be raised to the setting of the church tax and to the fixing of advance payment of church tax. ... An objection can be filed by the person on whom the church tax has been levied” (“Gegen die Kirchensteuerfestsetzung und die Festsetzung der Kirchensteuervorauszahlung ist der Einspruch gegeben. ... Zur Einlegung des Einspruches ist derjenige befugt, gegen den sich die Kirchensteuerfestsetzung richtet.”). 23. The first applicant filed an objection against the tax bill. On 17 December 2010 the tax office dismissed the objection, referring to the Federal Constitutional Court’s decision of 28 October 2010, fully endorsing its reasoning (see paragraph 32 below). 24. The second applicant lives in Sulzbach-Rosenberg in the German Land of Bavaria. 25. The second applicant is a member of the Protestant Church. In 2005 he had an annual income of EUR 10,144. His wife, who was not member of a church, had income of EUR 162,522. In 2005, the second applicant and his wife were jointly liable for annual income tax. 26. On 7 February 2007 the competent tax office charged the second applicant a special church fee of EUR 1,500. The fee was calculated on the basis of his living expenses, which in turn were calculated on the basis of his and his wife’s income (see paragraphs 12-14 above). 27. The second applicant filed an objection to the decision. On 12 December 2007 the tax office dismissed the objection, relying on the Federal Constitutional Court’s case-law that has been settled since 1965 (see paragraphs 56-58 below). 28. The second applicant lodged an action with the Nuremberg Tax Court, asserting a violation of his basic rights. 29. On 18 June 2009 the Tax Court dismissed the action. It argued that the special church fee had not violated the second applicant’s right to equality or his right to freedom of religion or freedom of action and relied on the Federal Constitutional Court’s settled case-law. It refused leave to appeal. 30. On 29 January 2010 the Federal Tax Court dismissed an appeal by the second applicant against the decision refusing him leave to appeal and endorsed the Nuremberg Tax Court’s reasoning. 31. On 14 April 2010 the second applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that he had no income and therefore could not pay the special church fee on his own because it had been calculated on the basis of both spouses’ income. As a consequence, the freedom of religion of both spouses had been violated and spouses in their kind of marriage had been discriminated against when compared with other kinds of marriage. The second applicant argued that he could only remain a member of his religious community if his spouse was willing to pay his special church fee, otherwise he would have to sue her for maintenance. 32. On 28 October 2010, the Federal Constitutional Court declined to consider the second applicant’s constitutional complaint (file no. 2 BvR 816/10) after joining it, inter alia, with those of the third, fourth and fifth applicants. It considered that the constitutional complaint had not touched on any constitutional questions which needed to be decided as the relevant questions had been settled in a judgment delivered on 14 December 1965 (file no. 1 BvR 606/60, see paragraph 57 below). That judgment was still applicable and there was no doubt that the calculation of a person’s living expenses on the basis of the spouses’ income was in conformity with constitutional law. 33. The third and fourth applicants are a married couple who live in Gera in the German Land of Thuringia. The third applicant is a member of the Protestant Church and had the higher income of the two. The fourth applicant is not a member of a church. In 2004 the third applicant’s income amounted to EUR 53,511 while the fourth applicant’s income was EUR 11,720. In 2005 the sums were EUR 55,033 and EUR 4,928 respectively, while in 2006 they were EUR 54,996 and EUR 12,640. 34. On 29 August 2005, 5 February 2006 and 26 June 2008 the competent tax office levied church tax on the third applicant for the years 2004 to 2006. As the applicants had opted for a joint tax assessment, the third applicant’s church tax was calculated with his income tax as a proportion of the income tax attributable to him, rather than in proportion to his share of the spouses’ total income (see paragraph 12 above). 35. On 23 June 2008 the competent tax office dismissed an objection by the third and fourth applicants against the church tax calculation. 36. The two applicants lodged an action with the Gera Tax Court, asserting a violation of their basic rights. 37. On 31 March 2009 the Tax Court dismissed the action, arguing that the calculation had not violated their right to equality or freedom of religion. The court stressed that the German tax authorities had a wide margin of appreciation regarding tax regulations. The fact therefore that the third applicant’s church calculated its church tax on the base of a percentage of his income tax rather than on a percentage of income raised no doubts as to its legitimacy. The tax court refused leave to appeal. 38. On 8 May 2009 the third and fourth applicants appealed against the decision refusing them leave to appeal, alleging, inter alia, a violation of their freedom of religion. They argued that in spite of the fourth applicant’s decision not to be member of a religious community, the tax authorities had taken her income into account when calculating her husband’s church tax. 39. On 16 November 2009 the Federal Tax Court declared the applicants’ appeal inadmissible for lack of sufficient reasoning. 40. On 21 January 2010 the applicants lodged a constitutional complaint with the Federal Constitutional Court, alleging a violation of their right to equality and freedom of religion. 41. On 28 October 2010, the Federal Constitutional Court declined to consider the third and fourth applicants’ constitutional complaint after joining it, inter alia, with those of the second and fifth applicants (file no. 2 BvR 2715/09, see paragraph 32 above). 42. The fifth applicant lives in Nuremberg, situated in the German Land of Bavaria. In 2004 and 2005 the fifth applicant, who had no income, was a member of the Protestant Church of the German Land of Bavaria. Her husband was not member of a church. The spouses opted for a joint income tax assessment for 2004 and 2005. 43. The competent tax authority levied no church tax on the fifth applicant as she had no income, but on 2 February 2007 applied a special church fee of EUR 3,600 for 2005 and on 27 June 2007 it charged her EUR 1,860 for 2004. The amounts were calculated on the basis of the fifth applicant’s living expenses, which were calculated on the basis of her and her husband’s joint income. 44. The fifth applicant raised an objection against those decisions and applied for a suspension of enforcement. On 23 October 2008 the tax office dismissed her objection, arguing that there had been no violation of the right to equality because there had been an objective and reasonable justification for the difference in treatment. 45. The fifth applicant lodged an action with the Nuremberg Tax Court, again applying to have enforcement suspended and asserting a violation of her right to equality. 46. On 15 June 2009 the Tax Court dismissed the request for suspension of enforcement, arguing that the special church fee did not violate the fifth applicant’s right to equality in view of the Federal Constitutional Court’s settled case-law. 47. On 22 July 2009 the fifth applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging, inter alia, a violation of her right to freedom of religion. She argued that she could not remain in her religious community if her husband, who was not a church member, did not agree to pay her special church fee. 48. On 28 October 2010, the Federal Constitutional Court declined to consider the fifth applicant’s constitutional complaint after joining it, inter alia, with those of the second, third and fourth applicants (file no. 2 BvR 1689/09, see paragraph 32 above).
| 0 |
test
|
001-147610
|
ENG
|
DEU
|
CHAMBER
| 2,014 |
CASE OF EREREN v. GERMANY
| 3 |
No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)
|
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
|
5. The applicant was born in 1955 and lives in Hagen in Germany. 6. The applicant was arrested on 8 April 2007. His identity papers proved to be forgeries. On 9 April 2007 the Hagen District Court (Landgericht) issued an arrest warrant against the applicant based on possession of forged documents. 7. On 11 April 2007 the General Public Prosecutor took over the investigation. On 23 May 2007 the Federal Court of Justice (Bundesgerichtshof) quashed the arrest warrant and issued a fresh arrest warrant based, inter alia, on the suspicion of membership of a foreign terrorist organisation (the Revolutionary People’s Liberation Party-Front, DHKP-C). 8. On 21 June 2007 the Federal Court of Justice rejected the applicant’s appeal against the arrest warrant. 9. On 30 August, 30 October 2007 and 14 February 2008 the Federal Court of Justice upheld the arrest warrant and ordered that the applicant’s detention be continued. 10. On 27 May 2008 the Federal Court of Justice issued a new arrest warrant. According to the new warrant, the applicant was strongly suspected of having played a leading role in the activities of a foreign terrorist organisation, and of having committed two counts of murder and six counts of attempted murder. The applicant had, in particular, telephoned witness G.G. from Germany to instruct him to carry out a terrorist attack which took place in Istanbul on 1 April 1993 and in which two policemen were killed. The applicant was further suspected of having ordered several terrorist attacks carried out by detonating explosives in Turkey between January 2001 and July 2005. 11. On 17 June 2008 the Federal Court of Justice ordered the extension of the applicant’s detention. 12. On 24 June 2008 the General Public Prosecutor lodged a bill of indictment against the applicant comprising 286 pages plus a list of evidence covering another 81 pages, based on the same grounds as the arrest warrant dated 27 May 2008. 13. On 2 October 2008 the Federal Court of Justice ordered the applicant’s continued detention. 14. On 21 November 2008 the Düsseldorf Court of Appeal (Oberlandesgericht, no. III-2 STS 1/08), sitting as a first instance court for proceedings concerning State security, decided to open the trial against the applicant. The hearing started on 15 January 2009 and took place on 95 days. 15. On 28 April 2009 witness G.G. was heard by a court in Istanbul in the presence of all parties to the proceedings. 16. On 9 June 2009, after 16 days of court hearing, the Court of Appeal quashed the arrest warrant insofar as it had been based on the suspicion that the applicant had ordered the attack which had taken place in Istanbul on 1 April 1993 and ordered the applicant’s continued detention based on the remaining grounds of the arrest warrant. The Court of Appeal considered that witness G.G., relied upon by the prosecution, had not confirmed the testimony he had given to the Turkish authorities in 1993. Conversely, he had stated that he had been tortured by Turkish civil servants and had been forced to sign a prepared protocol. He did not know the applicant. Under these circumstances, no strong suspicion persisted that the applicant had ordered the above-mentioned criminal act. 17. The Court of Appeal considered that the applicant remained under strong suspicion of having committed the other crimes of which he was accused. There was, in particular, sufficient documentary and witness evidence supporting the allegation that the applicant, as a leading member of a terrorist organisation, was responsible for causing explosions and committing other criminal acts. The Court of Appeal inter alia referred to the minutes and decisions of the founding congress which established that the applicant had been elected as a member of the central committee of the DHKP-C in the beginning of 1999. 18. The Court of Appeal further considered that the applicant might abscond and that there was a risk of collusion. The court observed that the applicant, who had been residing illegally in Germany, had neither a fixed residence nor sufficient social ties to ensure his appearance before the court. There were thus no milder means available to secure his presence at the trial. 19. The Court of Appeal further considered that the proceedings were expedited as required in cases involving pre-trial detention. The Court of Appeal included a detailed account of the trial, explaining that on several occasions witnesses could not be questioned by the court because they exercised their right not to testify. The court had heard testimony from nine witnesses and was then hearing four further witnesses. In order to establish whether the applicant had committed the crimes of which he had been accused, testimony from Turkish witnesses was of paramount importance. Accordingly, the Court of Appeal had to make several enquiries by way of letters rogatory in Turkey. 20. On 4 August 2009 the Federal Court of Justice (Bundesgerichtshof) rejected the applicant’s complaint. The Federal Court of Justice confirmed that the applicant remained under strong suspicion of having ordered several explosions causing injuries and death. The court further confirmed that the danger of the applicant’s absconding, and of collusion, remained. The continuation of his detention was not disproportionate in view of the importance of the subject matter and of the considerable punishment to be expected in case of a criminal conviction. Furthermore, the length of the proceedings was due to their complexity, as had been set out in detail by the Court of Appeal. 21. On 6 October 2009 the Federal Constitutional Court (Bundesverfassungsgericht, no. 2 BvR 2133/09) refused to consider the applicant’s complaint against the decisions of 9 June and 4 August 2009, without giving further reasons. 22. On 17 February 2010 witness S.G. and one further witness were heard in Istanbul. 23. On 17 May 2010 the Düsseldorf Court of Appeal extended the arrest warrant on the grounds that there was again a strong suspicion that the applicant had ordered the attack during which two policemen were killed in Istanbul in April 1993. This assessment was, in particular, based on testimony given by witness S.G., who had stated that G.G. had informed him in 1993 that the applicant had given him the order to carry out the attack against the policemen. The Court of Appeal considered that this statement was consistent and credible. Furthermore, there was corroborative evidence from witnesses who had confirmed that the applicant held a leading position in the terrorist organisation at the relevant time. 24. The Court of Appeal further found that there remained a strong suspicion that the applicant had committed the other crimes of which he was accused. Referring to its previous decisions, the Court of Appeal considered that the danger of the applicant’s absconding persisted. This danger had further been aggravated by the fact that another Chamber of the Court of Appeal had, in the meantime, allowed the applicant’s extradition to Turkey. According to an intelligence report dating from 2009, a leader of the terrorist organisation had ordered that the applicant be taken out of the country immediately if released from detention. It was furthermore known that the terrorist organisation had the necessary means to put this plan into action. 25. The Court of Appeal finally considered that the prolongation of the pre-trial detention was not disproportionate, having regard to the importance of the subject matter and to the seriousness of the penalty to be expected in case of a criminal conviction. 26. On 23 September 2010 witness S.G. was once again heard in Istanbul. 27. On 10 February 2011, on the sixty-eighth day of the hearing, the Court of Appeal closed the hearing of evidence and heard the prosecutor’s pleadings. Upon defence counsel’s request, the hearing of evidence was reopened and the Court of Appeal limited the charge to two counts of murder committed in April 1993, while discontinuing the proceedings concerning the other charges originally brought against the applicant. 28. On 27 September 2011 the Düsseldorf Court of Appeal convicted the applicant of two counts of murder and sentenced him to life imprisonment. On the basis of the evidence presented during the hearing, the Court of Appeal found it established that the applicant had ordered the assassination of the policemen by telephone from Germany at the end of March 1993. The court primarily based the applicant’s conviction on testimony from witness S.G. The Court of Appeal further considered that this finding was in line with the command structure inside the terrorist organisation and was not called into question by G.G.’s allegations that he did not know the applicant. During his hearing before the Turkish court, G.G. had refused to make any more specific statements. Under these circumstances, the vague statement that the applicant did not have anything to do with the attack was not sufficient to call S.G.’s testimony into question. 29. The Court of Appeal finally considered that the length of detention and of the main hearing did not violate the applicant’s rights under Article 6 of the Convention. The specific circumstances of the instant case did not allow for an earlier termination of the proceedings. This was due to the extent and the complexity of the criminal charges. Apart from two counts of murder, of which he had been convicted, the applicant had been accused of holding a leading role in a foreign terrorist organisation and of having participated in causing a considerable number of explosions in Turkey. The case-files consisted of approximately 130 large volumes. As the applicant had been arrested by chance, the examination of the relevant facts could begin only after his arrest. The Turkish authorities had submitted a large number of documents such as expert opinions, sketches and records of witness testimony, which had to be translated and examined before the issue of the indictment on 24 June 2008. Due to the volume of the case-file and to the complexity of the subject matter, the main proceedings could not be opened before 21 November 2008. During the hearing, the progress of the taking of evidence had been determined by several requests by letters rogatory to the Turkish authorities. Members of the court and representatives of the parties travelled to Turkey four times in order to attend the hearing of witnesses before Turkish courts. Each taking of evidence by letters rogatory took considerably more than half a year. Following this, the taking of evidence was closed on 10 February 2011, but re-opened altogether three times at the request of the defence. The reading out of the applicant’s last word alone took four days. 30. On 29 November 2012 the Federal Court of Justice quashed the judgment of the Düsseldorf Court of Appeal and remitted the case to another Chamber of that court. The Federal Court of Justice considered that the assessment of the evidence by the Court of Appeal had been erroneous as that court had wrongly assumed that the testimony given by S.G. on the circumstances of his alleged conversation with G.G. was consistent and without contradictions. 31. The Federal Court of Justice further considered that it could not be ruled out that this error had been decisive for the Court of Appeal in reaching its verdict. There were further reasons to review critically S.G.’s testimony. Firstly, S.G. had not directly witnessed the applicant ordering the attack, but was merely a hearsay witness. Furthermore, the witness was not heard by the trial court, but by a Turkish court at the trial court’s request. Finally, S.G., who had been arrested in Turkey in 2002, had collaborated with the Turkish police and had thus benefited from a milder sentence and early release from prison. 32. On 17 January 2013 the Düsseldorf Court of Appeal (no. III6 STS 3/12) ordered the applicant’s continued detention. The further detention was justified because the applicant was under strong suspicion of having committed a serious crime and because there was the risk that he might abscond. That court considered that the applicant remained under strong suspicion of having ordered the attacks carried out on the policemen on 1 April 1993. This was not called into question by the Federal Court of Justice’s decision to quash the judgment. The potential contradictions in the statements made by witness S.G. had to be examined in the new main proceedings. The Court of Appeal further considered that there were no milder means available to secure the applicant’s appearance before the court and that the length of his detention was not yet disproportionate. The fact that the Federal Court of Justice had quashed the judgment of the Düsseldorf Court of Appeal did not lead to a violation of the obligation to expedite the proceedings, as there was no obvious procedural error. Furthermore, the Court of Appeal had respected the obligation to expedite the proceedings by preparing the requests for letters rogatory in order to begin the main hearing by the end of April or the beginning of May 2013. 33. On 19 March 2013 the Federal Court of Justice rejected the applicant’s complaint. That court confirmed that the applicant remained under strong suspicion of having ordered the attack in Istanbul. This suspicion was primarily based on testimony given by witness S.G. during the main hearing on 17 February and 23 September 2010 and statements made by witness G.G. during his interrogation by Turkish police on 2 May 1993. This was not called into question by the fact that the judgment of the Düsseldorf Court of Appeal had been quashed on the applicant’s appeal on points of law. The contradiction in S.G.’s testimony did not concern the core content of his statement, which remained unchanged. 34. The Federal Court of Justice further observed that witness G.G. had stated, during interrogations by the Turkish authorities on 2 May 1993, that the applicant had given him the order to carry out the attack on 1 April 1993. The court considered that it was not prevented from taking into account this statement by G.G.’s repeated claims that he had made this statement under torture, as his vague and general allegations were not confirmed. 35. The Federal Court of Justice finally considered that the length of detention (almost six years) was not disproportionate. The court gave a full account of the proceedings and concluded that the length of the proceedings was primarily determined by the complexity of the subject matter and by the very strong international dimension of the case. Conversely, there had not been any considerable delays imputable to the trial court. 36. On 15 May 2013 the Federal Constitutional Court (no. 2 BvR 790/13), relying on its Rules of Procedure, refused to accept the applicant’s constitutional complaint for adjudication. 37. On 6 May 2013 the fresh hearing of the applicant’s case started before the Düsseldorf Court of Appeal. 38. On 4 October 2013 the Court of Appeal ordered the applicant’s continued detention on the basis of the arrest warrant of 27 May 2008. 39. On 4 February 2014, following a new request lodged by the applicant on 20 January 2014, the Düsseldorf Court of Appeal quashed the arrest warrant and ordered the applicant’s release from detention. The applicant was released on that same day. 40. The Court of Appeal considered that the further execution of detention would be disproportionate. According to that court the applicant remained firmly suspected of having ordered the attack of 1 April 1993, in which two policemen were killed. This assessment was based on the testimony given by S.G. in the first set of proceedings as well as on further corroborative evidence. The Court of Appeal considered that to prolong the detention would be disproportionate. In cases involving pre-trial detention, the criminal courts were under a constitutional obligation to expedite the proceedings (Beschleunigungsgebot). This principle had to be applied even more strictly given the long duration of the applicant’s detention. The Court of Appeal considered that it could not foresee when it would hear witness testimony from S.G., who was the primary witness for the prosecution. In spite of several reminders, the requests for letters rogatory lodged with the Turkish authorities in April and September 2013 had not so far been disposed of. As it was unclear when the witness could be heard, the Court of Appeal considered that it was unable duly to expedite the proceedings as would have been necessary in view of the fact that detention had already lasted almost seven years. The Court of Appeal noted that the statements made by witness G.G. to the Turkish Authorities in 1993 could not be used because it could not be ruled out that they had been obtained by torture. 41. In August 2014, the criminal proceedings were still pending before the Düsseldorf Court of Appeal.
| 0 |
test
|
001-179432
|
ENG
|
HUN
|
COMMITTEE
| 2,017 |
CASE OF BALOGH v. HUNGARY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
|
3. The applicant was born in 1939 and lives in Remeteszőlős. 4. Between 31 August 2002 and 16 April 2013 – that is, for ten years and eight months – his action for division of matrimonial property and related issues was pending before the Budapest XX/XXI/XXIII District Court, the Budapest High Court and the Kúria. 5. He complained of the excessive length of the proceedings.
| 1 |
test
|
001-155092
|
ENG
|
UKR
|
CHAMBER
| 2,015 |
CASE OF LUTSENKO v. UKRAINE (No. 2)
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - 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;Inhuman treatment) (Substantive aspect)
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
|
5. The applicant, Mr Yuriy Vitaliyovych Lutsenko, is a Ukrainian national who was born in 1964. 6. The applicant was the Minister of the Interior. He occupied this post from 2005 to 2006 and from 18 December 2007 to 11 March 2010. Since 27 August 2014 he has been the leader of the Bloc of Petro Poroshenko party. 7. On 2 November 2010 the General Prosecutor’s Office (hereinafter “the GPO”) instituted criminal proceedings against the applicant and another individual, Mr P., on suspicion of abuse of office under Article 191 § 3 of the Criminal Code. On 5 November 2010 the applicant was formally charged. On the same day he gave a written obligation not to abscond. 8. On 11 December 2010 the GPO instituted another criminal case against the applicant for exceeding his official powers under Article 365 § 3 of the Criminal Code, on the ground that he had arranged for the allocation of a one-room apartment to his driver, Mr P. 9. The two criminal cases were joined together. 10. On 13 December 2010 the GPO completed the investigation in the case and formally charged the applicant with both offences, having reclassified his actions specified in the first charge under Article 191 § 5 of the Criminal Code (misappropriation, embezzlement, and conversion of property by malfeasance). 11. On 26 December 2010 the applicant was arrested and detained in the Security Service Detention Centre (Слідчий Ізолятор Служби Безпеки України). 12. On 27 December 2010 the Pechersk District Court (Печерський районний суд) (hereinafter “the Pechersk Court”) ordered that the preventive measure in respect of the applicant be changed from a written obligation not to abscond to remand in custody. 13. On 28 December 2010 the applicant was transferred to Kyiv Pre-Trial Detention Centre no. 13 (Київський Слідчий Ізолятор №13) (hereinafter “the SIZO”). 14. On 17 May 2011 the GPO submitted the applicant’s criminal case to the Pechersk Court which, on 27 February 2012, rendered a judgment sentencing the applicant to four years’ imprisonment. The case received extensive attention in both national and international media which were present at court hearings. Photographs depicting the applicant behind metal bars were published soon after the court hearings. 15. On 7 March 2012 the applicant appealed, seeking the quashing of the first-instance judgment on the ground of lack of guilt. 16. On 16 May 2012 the Kyiv Court of Appeal (Апеляційний суд міста Києва) upheld the judgment of the Pechersk Court. 17. On 31 August 2012 the applicant was transferred to Mena colony in Chernihiv Region to serve his prison sentence. 18. In a judgment of 3 April 2013 the Higher Specialised Court of Ukraine for civil and criminal cases (Вищий спеціалізований суд України з розгляду цивільних і кримінальних справ) upheld the applicant’s prison sentence slightly reducing the amount of compensation that he had to pay. 19. On 7 April 2013 the former President of Ukraine issued a decree of pardon in respect of a number of individuals, including the applicant, who was released the same day. 20. Prior to his arrest the applicant was diagnosed with diabetes mellitus type 2 and chronic gastritis and pancreatitis. 21. Upon his admission to the SIZO on 28 December 2010, the applicant was examined by the head of the medical unit and a duty doctor. He underwent clinical, laboratory and X-ray examinations. On the basis of those examinations and the applicant’s anamnesis, he was diagnosed with symptomatic hypertension and it was recommended that his arterial pressure be constantly monitored. According to the applicant, the prison doctors did not pay attention to his chronic diseases which were mentioned in the medical report submitted to the Pechersk District Court and indicated orally by him on a number of occasions. 22. According to the Government, during the period from December 2010 to April 2011 the applicant was under constant supervision by doctors of the SIZO medical unit who visited him on 29, 30 and 31 December 2010, 1-9, 17 and 24 January, 10, 18 and 25 February, 1, 10 and 20 March and on 1 April 2011. During this period, no complaints were received from him and his state of health remained satisfactory. Doctors regularly measured his blood pressure and pulse rate and carried out his general examination. The applicant denied that he had not complained about problems connected with his state of health. According to him, during the three first months of his detention, he lost more than 20 kilograms, his low-grade fever and spastic stomach pain was constant. 23. Following the applicant’s complaints about the deterioration of his health, on 24 February 2011, a private medical laboratory took blood samples from him for analysis. Inflammation was diagnosed as a result. The doctor who arrived at that conclusion presumed that it was probably a mixed viral and bacterial infection. A provisional diagnosis of rheumatoid arthritis was also made. For more specific diagnoses, further specialist examinations were required. 24. On 9 March 2011 the applicant was diagnosed with arthritis by SIZO doctors. 25. On 15 March 2011 a new blood analysis showed some negative changes in the applicant’s immune system. His requests for examination by the cardiologist/rheumatologist who issued the above conclusion were without success. 26. According to the Government, on 6 and 13 April 2011 the applicant was examined by the head of the SIZO medical unit. He complained of pain in the joints. He was diagnosed with symptomatic hypertension and generalised osteoarthritis, and blood pressure monitoring was recommended. 27. On 21 April 2011 the applicant went on hunger strike in protest at his continued pre-trial detention. 28. According to the Government, between 22 April and 10 May 2011 the applicant was under daily supervision by doctors of the SIZO medical unit. From time to time he complained of dizziness and general weakness. His state of health remained satisfactory during this period. 29. On 29 April 2011 the SIZO administration placed him in a solitary-confinement cell and demonstrated forced-feeding facilities (such as handcuffs, a mouth widener and a rubber tube). Those were apparently never applied to him. 30. According to the Government, on the same day, the applicant was examined by the head of the SIZO medical unit. He complained of heart pain, which he said was worse when he made turning movements. The applicant was diagnosed with symptomatic hypertension, generalised osteoarthritis, and myositis of the left major pectoral muscle. At the same time, he informed the doctor that he had eaten no food for several days and had only had tea without sugar and coffee with sugar. An analysis of the applicant’s urine was carried out. There was a one-plus reaction for acetone. General monitoring of the applicant’s state of health, of the acetone level in his urine, and of his blood pressure was recommended. On 1 May 2011 the applicant was examined by a panel of doctors from the State Prison Service of Ukraine (Державна пенітенціарна служба України) (hereinafter “the SPS”). He was prescribed an “anti-starvation food mixture” (semolina or oatmeal, butter, sugar, milk, eggs, boiled meat, salt, and ascorbic acid, with a total caloric content of 1,638.5 kcal) and the following medication: NaCL solution, vitamins Bl and B6, and Riboxin solution. On the same date a general blood analysis, a blood sugar-level test and a urine acetone test were carried out for the applicant - (a “three-plus” reaction was obtained). On the same date the applicant consumed 500 ml of “anti-starvation food mixture”. On 2 May 2011 the SPS medical panel found his general state of health stable and held that positive progress was being made in overcoming dizziness and general weakness. A urine test for acetone was carried out for the applicant (a “three-plus” reaction was obtained). On 3 May 2011, upon another examination by the SPS medical panel, a urine acetone test was carried out for the applicant. A “three-plus” reaction was obtained. On the same date the applicant consumed 400 ml of “anti-starvation food mixture”. It was recommended that he undergo further biochemical and general blood tests, a general urine analysis, a blood-sugar-level test and a urine acetone test, and also ultrasonic examinations of his abdominal cavity and kidneys. Injections of Reosorbilact solution and of glucose in solution were given to the applicant. On 4 May 2011 the SPS medical panel saw the applicant again. He was found to have moderate diffuse changes in the liver, chronic cholecystitis and chronic pancreatitis. On the same date the applicant consumed 500 ml of “anti-starvation food mixture”. Injections of Reosorbilact solution and of glucose in solution were given to the applicant. 31. On 5 May 2011 the applicant’s wife asked the SIZO administration to carry out medical examinations of her husband in her presence. By that time, the applicant had lost about fourteen kilograms in weight. On the same day, according to the Government, the applicant was examined by the SPS medical panel. A general blood test, a blood-sugar-level test and a test of the urine for acetone were carried out at the Dila Laboratory. The test results were low-grade positive. The applicant was diagnosed with chronic cholecystitis and chronic pancreatitis. It was also found that the applicant’s state of health reflected his starvation. On the same date, the applicant refused to eat food or to undergo fluid-maintenance therapy to restore the balance of water, protein, and electrolytes in the body. 32. On 6 May 2011 the applicant was transferred to the SIZO medical unit. According to the Government, he was examined by a panel of doctors from civilian medical institutions. He was diagnosed with hypertension of the 1st degree, cardiac insufficiency, type 2 diabetes mellitus in a mild form at the compensation stage, chronic cholecystitis in unstable remission, chronic pancreatitis in unstable remission, osteoarthritis without exacerbation, disseminated osteochondrosis of the spine, and thoracic kyphosis. It was recommended that the applicant: (1) undergo an exercise electrocardiography (ECG) test and ultrasonic examination of the heart in order to exclude ischaemic heart disease; (2) take antihypertensive medication (Prestarium Combi) when the blood pressure was higher than 140/90 mm Hg; take Metoprolol in order to stop the tachycardia which occurred when the pulse rate was higher than 100 beats per minute. The applicant received this medical treatment in full. 33. According to the Government, on 7 May 2011 he was once again examined by the SPS medical panel. A check test of the urine for acetone was carried out (a “two-plus” reaction was obtained) and a general urine test was also done for the applicant. The panel confirmed the previous diagnosis. The applicant refused to consume any of the “anti-starvation food mixture” or to undergo fluid maintenance therapy. On 8 May 2011 he was examined by a panel of doctors from Kyiv-based medical institutions of the Ministry of Health. The previous diagnosis was confirmed and it was additionally found that the applicant had chronic gastritis in unstable remission. The panel noted that the applicant’s hunger strike was significantly affecting his general state of health. Electrocardiography and echocardiography tests were carried out for the applicant. The urinary reaction for acetone was one-plus. The applicant was refusing to consume the “anti-starvation food mixture”. He was subjected to fluid-maintenance therapy with Aminoven. It was also recommended that the applicant broaden the variety of foods he ate, limiting the consumption of easily digestible carbohydrates (sugar, honey, and sweets); consistently take graduated physical activity; take Duphalac or Guttalax (to normalise bowel function) and probiotics (Lacium or Symbiter). On 9 and 10 May 2011 the applicant was examined by the SPS medical panel. The urinary reaction for acetone was low-grade positive. He refused to consume “anti-starvation food mixture”. He was subjected to fluid-maintenance therapy with a physiological solution, vitamins Bl, B6, C, Riboxin, and Reosorbilact. 34. According to the applicant, before 10 May 2011 his medical monitoring had been limited to measuring his blood pressure and weighing him, along with a superficial examination by the SIZO doctor. 35. On 10 May 2011 he was taken to the Kyiv Clinical Emergency Hospital (Міська клінічна лікарня швидкої медичної допомоги) (hereinafter “the Emergency Hospital”). On the following day, the management of the hospital informed the investigator that the applicant was suffering from chronic pancreatitis in the aggravated stage, chronic gastroduodenitis, cardial-type neurocirculatory dystonia, and type 2 diabetes. His condition was evaluated as moderately serious. 36. On 18 May 2011 the deputy medical director of the Emergency Hospital gave additional details to the applicant’s wife as regards his health. In addition to the aforementioned diagnoses, he noted the following illnesses: chronic cholecystitis, gall bladder polyposis, autoimmune thyroiditis, euthyroidism, seborrheic dermatitis, myopia, osteochondrosis, chronic sinusitis, right-ear deafness, duodenal ulcer, gastric erosion and duodenogastric reflux. 37. On 23 May 2011 the applicant ended his hunger strike. 38. According to the Government, on 24 May 2011 he was examined by doctors of the SIZO medical unit. On the same date he ate gruel. He was also subjected to fluid-maintenance treatment with Aminoven and Pariet. Generally, although he continued to complain of general weakness, his condition improved considerably once he had ended the hunger strike. The SIZO doctors saw the applicant also on the next day. They concluded that the applicant was suffering from the following illnesses: exacerbated chronic pancreatitis, chronic cholecystitis, gall-bladder polyposis, chronic duodenal ulcer, autoimmune thyroiditis, euthyroidism, type 2 diabetes mellitus, cardial-type neurocirculatory dystonia of medium severity, seborrheic dermatitis, cervical osteochondrosis, toxic-dyscirculatory encephalopathy of endogenic origin (degree I-II), duodenal ulcer, papillomatous gastropathy, and gastric erosions. On the same date the applicant ate gruel and drank water and carrot juice. The applicant underwent fluid-maintenance treatment and anti-ulcer treatment. On 26 and 27 May 2011 the doctors of the SIZO medical unit confirmed the previous diagnosis. The applicant received fluid-maintenance and anti-ulcer treatment and underwent a urine test (which indicated no acetone), a blood test for sugar, and biochemical analysis of the blood. A consultation with a gastroenterologist was also scheduled for the applicant. On 28 May 2011 the applicant was examined by a panel of doctors from civilian medical institutions. As a result of the examination, the panel found the applicant’s general state of health to be satisfactory. The applicant was diagnosed with the following conditions: peptic duodenal ulcer, post gastrointestinal haemorrhage condition, erosive gastritis, and mild post haemorrhagic anemia. It was recommended that he receive anti-ulcer treatment as an in-patient basis at a gastroenterology clinic. If it was impossible to arrange in-patient treatment for him, he would have to continue to take Pariet; again undergo a fibrogastroscopy with biopsy, a general blood test, electrolytes (potassium, phosphorus, fecal occult blood test) and eat five small meals a day, sticking to a diet with a high protein content. 39. According to the applicant, on 28 May 2011 he was examined in the SIZO and diagnosed with a duodenal ulcer in the progressing phase, gastrointestinal bleeding, erosive gastritis, and toxic-metabolic encephalopathy. Moreover, all his previously diagnosed diseases were confirmed. 40. According to the Government, on 29 May 2011 he was examined by SIZO doctors, who confirmed the previous diagnoses. He continued to receive the anti-ulcer treatment and multiple small-portion meals. 41. On 30 May 2011 the applicant underwent a urine acetone test, which revealed no acetone, a blood test for sugar, and a general blood test. The examination results confirmed the previous diagnoses. 42. On 31 May and 1 June 2011 he was examined by SIZO doctors who confirmed the previous diagnoses. Analyses of his blood and urine were carried out. He continued to receive the anti-ulcer treatment and appropriate diet. 43. On 8 June 2011 the governor of the SIZO informed the President of the Pecherskyy Court of some further diagnoses regarding the applicant’s health, established during his examination of 28 May 2011, and sought leave for him to be examined in the Emergency Hospital. According to the Government, the letter was sent to the court only on 9 June 2011. 44. In his reply of 14 June 2011 the judge of the Pechersk Court stated that the court did not object to the applicant’s being examined in a civilian hospital. A copy of this letter was sent to the Convoy Service of the Ministry of the Interior with a request for escorted transport for the applicant. 45. On 23 June 2011 the Convoy Service replied that the applicant’s medical care was the responsibility of the SIZO administration. 46. On 24 June 2011 the applicant’s wife and his legal representative made a new request to the court that he be hospitalised. They alleged that the applicant had constant stomach pain and had lost more weight, 24 kg in total. On 29 June 2011 the judge replied that the court had no objection. 47. According to the Government, from 2 June to 2 July 2011 the applicant was examined daily by SIZO doctors. In line with the instructions given following the previous examination by the medical panel, the applicant had regular clinical, biochemical, and general blood tests and urine analyses (these took place on 7, 8, 15, 18, 19, and 30 June 2011). The applicant was receiving anti-ulcer treatment, the recommended diet, and the prescribed outpatient treatment. During this period, the above-mentioned diagnoses remained valid. Furthermore, on 24 June 2011 the doctors found that his peptic duodenal ulcer had begun to cicatrise, which indicated a gradual improvement in his state of health. 48. According to the Government, the court gave its permission for the applicant’s examination at the Emergency Hospital on 14 July 2011. 49. On 15 July 2011 the applicant was examined at the Emergency Hospital. Fibrogastroscopy and ultrasonic scans were performed for the applicant. The examination revealed that he had esophageal varicose veins with 1st degree dilatation, moderate portal hypertensive gastropathy, chronic cholecystitis, gall-bladder polyposis, chronic pancreatitis, and urolithic diathesis. It was recommended that the applicant undergo a biochemical blood test, a general blood test, analyses for hepatitis B, C, and D antibody titers, abdominal ultrasonic scanning with Doppler sonography. According to the applicant, he did not receive any of the prescribed medicines. 50. On 21 July 2011, blood samples were taken from the applicant in the presence of his lawyer for complex liver function tests (hepatitis B, C, and D). At the applicant’s request, in order to ensure an objective analysis, the samples were sent to two laboratories: Eurolab and Synevo. 51. On 22 July 2011 the applicant underwent abdominal ultrasonic scanning with Doppler sonography at the Emergency Hospital. On the basis of the examination, the following diagnosis was made: signs of diffuse damage to the liver in a chronic hepatosis pattern, portal hypertension of the P’ degree, splenomegaly of the lst degree, and chronic cholecystitis. In pursuance of the recommendation, the applicant was tested for hepatitis B, C, and D markers, and liver function tests were done. 52. On 23 July 2011 the applicant was prescribed the following medication: Ursofalk, Essentiale Forte, Primer, Chophytol, and Duspatalin. 53. According to the Government, from 2 to 30 August 2011 the applicant was under daily supervision by SIZO doctors. His state of health remained unchanged. He continued complaining of discomfort in the upper abdomen. He received the medical treatment prescribed for him earlier. 54. On 30 August 2011 two senior civilian doctors examined the applicant in the SIZO. They diagnosed cirrhosis of the liver supposedly triggered by the earlier hunger strike. Furthermore, two internal haemorrhages were noted. It was recommended that the applicant undergo a more thorough examination in a specialist civilian hospital. In the meantime, he needed to get proper nutrition. 55. According to the Government, on 2 September 2011, following a court decision, the SIZO was visited by a panel of doctors (gastroenterologists, an endoscopist, and an ultra-sonographer). The applicant refused to be medically examined, to have blood samples taken, or to undergo ultrasonic examinations and fibrogastroduodenoscopy, which had been recommended by the medical panel. 56. On 6 September 2011 a commission of the Ministry of Health examined the applicant in the SIZO. It recommended that he undergo examination with special equipment so that specific diagnoses could be made. 57. On 7 and 8 September 2011 blood samples and faeces were taken from the applicant for laboratory tests. 58. On 13 September 2011 the applicant’s wife again requested the Pechersk Court to allow her husband to be hospitalised and given proper treatment. 59. On 15 September 2011 the applicant was hospitalised and examined in the Kyiv City Diagnostic Centre, which diagnosed the initial signs of portal hypertension, as well as signs of chronic cholecystitis, angiomyolipoma of the right kidney, and parenchymatous cyst of the left kidney. On the same date the applicant underwent an abdominal ultrasonic scan, which discovered signs of gall-bladder polyps and pancreatic diffuse changes, and confirmed the aforementioned kidney pathologies. 60. On 20 September 2011 the applicant underwent a colonoscopy which showed sigmoid colon diverticulitis. On the same day a newly appointed commission of the Ministry of Health examined him and diagnosed fatty liver disease. Dietetic therapy, mineral-vitamin complex, proton pump blockers and hepato-protectors were prescribed. 61. According to the Government, on 22 September 2011 the applicant consulted a haematologist. In view of a decreased number of white blood cells (leukocytes) and thrombocytes in his blood, it was recommended that he again undergo a general blood test at two independent laboratories, to be identified by the Ministry of Health. Once the results of those examinations were known it was recommended that the applicant again consult a haematologist. 62. On 23 September 2011 the applicant’s blood samples were sent to the laboratory for a general blood test. On 26 September 2011, following the haematologist’s recommendation, a blood sample was sent to the Sinevo laboratory for a coagulation profile test. 63. On 28 September 2011 the applicant again consulted the haematologist. The results of the previous examinations led the doctor to find that he had no blood system disorders. 64. On 24 October 2011 the applicant completed the course of medical treatment prescribed by the panel of doctors from civilian medical institutions on 20 September 2011. 65. On 29 September 2011 it was proposed that he undergo a liver biopsy, which he declined. According to him, the biopsy is a surgical intervention, after which the patient should stay in the medical institution under medical supervision for a period the doctor considers necessary to monitor any post-operative complications. However, the applicant was not provided with guarantees that the medical care would be adequate and that he would stay in the hospital after the biopsy. He considered that removing him immediately to the SIZO would hurt his state of health. Besides, the applicant feared that proper medical care would not be provided to him in the SIZO if there were complications after the biopsy. He referred in this connection to his previous experience. 66. On 4 October 2011 the applicant’s relatives brought him the proton pump blockers and hepato-protectors which had been prescribed by the Ministry of Health commission specialists as early as 20 September 2011. 67. According to the Government, on 2 November 2011 the applicant was examined by SIZO doctors. When examined, he complained of general weakness, dragging pain in the right hypochondrium, and discomfort in the upper abdomen and in the intestine area. He was diagnosed with fatty liver disease, signs of incipient portal hypertension, erosive haemorrhagic helicobacter-associated gastritis, and diverticular disease of the sigmoid colon. As the applicant had completed the prescribed course of outpatient treatment, it was proposed that he undergo laboratory and instrumental tests. The applicant submitted a written statement refusing to undergo fibrogastroduodenoscopy and rectosigmoidoscopy. 68. On 3 November 2011 blood samples were taken from the applicant for laboratory examination at the Kyiv diagnostic centre. In particular, he underwent clinical, general, and biochemical blood tests and a coagulation profile test. 69. On 5 November 2011, upon a court decision, the applicant was examined by a panel of doctors from civilian medical institutions. He was diagnosed with the following conditions: fatty liver disease, signs of incipient portal hypertension, chronic helicobacter associated gastritis, and diverticular disease of the sigmoid colon. It was recommended that the applicant undergo an abdominal ultrasound scan, a faecal occult blood test, and a faecal analysis for helminth eggs and protozoa, consult a urologist, receive diet-based treatment, take a mineral-vitamin complex, and continue to take proton-pump inhibitors. 70. On 8 November 2011 the applicant underwent abdominal ultrasonic scanning at the Kyiv City Diagnostic Centre. He was diagnosed with gall bladder polyp signs, moderate pancreatic changes, angiomyolipomas of the right kidney, and small cysts of the left renal sinus. However, he refused to consult a urologist. 71. On 9 November 2011 he received a parcel with the necessary medication. 72. According to the Government, during November 2011 the applicant’s state of health remained satisfactory. From time to time he complained of general weakness, discomfort in the large intestine area, and pain in the right hypochondrium. During that period, he was examined daily by doctors of the SIZO medical unit, and regularly provided with the prescribed medical treatment. The diagnosis remained unchanged. However, the applicant continued to complain of periodic discomfort in the large intestine area. He received the medical treatment prescribed by the panel of doctors from civilian medical institutions on 5 November 2011. 73. On 14 December 2011 the applicant was examined by a panel of doctors from civilian medical institutions. The results of the earlier examinations led the doctors to diagnose the applicant with the following conditions: fatty liver disease, signs of incipient portal hypertension, chronic helicobacter-associated gastritis, irritable bowel syndrome, and diverticular disease of sigmoid colon, but no signs of blood disorder were found. The doctors recommended that the applicant undergo some additional examinations: electrocardiography, irrigoscopy, and an analysis of faeces for dysbiosis, to determine pancreatic (faecal) elastase, and a faecal occult blood test. Also, the applicant was prescribed the following medical treatment: diet-based treatment; Spasmomen or Meteospasmyl; Posterisan suppositories; Kreon; Validolum, to stop pain in the stomach; Chophytol, to continue to take from 19 December 2011. However, on 19 December the applicant on his own initiative refused to start the medical treatment prescribed. 74. In early January 2012 the applicant complained to the SIZO administration of stomach and intestinal pains. 75. On 5 and 14 January 2012 he underwent various laboratory tests in respect of his chronic gastrointestinal diseases, and on 11 January 2012 an ultrasonic examination of his abdominal cavity was conducted. 76. On 19 January 2012, during a court hearing, the applicant complained that he did not feel well. An ambulance was therefore called. The doctor diagnosed exacerbation of chronic pancreatitis and administered some medication to the applicant. The applicant’s overall state of health was assessed as satisfactory. 77. On 20 January 2012 the applicant was examined by a panel of medical specialists delegated by the Ministry of Health which established the following diagnoses: fatty liver disease (steatosis), signs of incipient portal hypertension, chronic helicobacter-associated gastritis, irritable bowel syndrome, and diverticulosis of sigmoid colon. While the commission acknowledged a deterioration of the applicant’s health due to “nutrition-regime disturbance and psycho-emotional overload”, it found his health generally satisfactory and not warranting in-patient treatment in a specialist civilian hospital. The physicians recommended normalisation of the nutrition regime and reduction of the psycho-emotional pressure. They also prescribed some medication. 78. On 23 January 2012 the Ministry of Health delegated another panel, of three gastroenterologists, to examine the applicant in the SIZO. The doctors found him to be in a generally satisfactory state of health, and concluded that he did not require hospitalisation. They also specified the medication to be administered to the applicant, and repeated the earlier recommendation regarding his nutritional needs. 79. On 24 February 2012 the applicant was examined by a panel of doctors from civilian medical institutions. They noted that his state of health had improved. The applicant was diagnosed with fatty liver disease (steatosis), signs of incipient portal hypertension, chronic helicobacter-associated gastritis, irritable bowel syndrome, and diverticulosis of sigmoid colon. It was advised that he receive rational nutrition diet, continue to take Duspatalin and take Kreon, Valeriana extract, and suppositories with belladonna. The applicant received that medication in full. 80. On 6 April 2012 he was transferred from the SIZO to the Emergency Hospital for further examination. 81. According to the applicant, despite numerous check-ups, there was no proper medical treatment or medicine available to him in the SIZO. He received proper medical treatment in the Emergency Hospital on 10 May 2011 and 6 April 2012, but was discharged from the hospital on 23 May 2011 and 20 April 2012 respectively, upon an arbitrary decision by the Prison Service authorities, rather than upon a decision of the doctors treating him at the hospital. He was provided with medication which was incompatible with his general state of health, and although they treated his immediate health problem they contributed to the deterioration of his general state of health. 82. Upon his admission to the SIZO, the applicant was placed in cell no. 158, measuring 8.58 square metres. He shared the cell with one or two other inmates. According to him, the cell had poor ventilation and lacked personal hygiene facilities. Its walls had mould traces. Furthermore, there was no access to drinking water. Except for period from 28 April to 8 May 2011 (see paragraph 110 below), he shared this cell with two other detainees. 83. According to the Government, the cell had a proper ventilation system and natural lighting. The applicant had had daily exercise in the fresh air, except on days when lengthy court hearings were held. He was permitted to receive drinking water from relatives. He was allowed to take a shower once or twice a week. 84. From 8 to 10 May 2011, the applicant was held in cell no. 257 in the SIZO medical unit, which measured 23.21 square metres. 85. From 10 to 23 May 2011 he was a patient in the Emergency Hospital. 86. On 23 May 2011 the applicant was transferred to cell no. 260, measuring 22.32 square metres, in the SIZO medical unit, which he shared with another person. He remained there until 1 July 2011. 87. On 1 July 2011 he was transferred to cell no. 158, which he shared with another inmate. 88. On 27 March 2012 he was moved to cell no. 136. 89. On 6 April 2012 the applicant was transferred to the Emergency Hospital. He returned to cell no. 136 on 20 April 2012. 90. From the documents provided by the Government, in particular the minutes of the hearings held before the Pechersk Court (see annex), it appears that between 23 May 2011 and 16 February 2012 the court held seventy-nine hearings at which the applicant was present. At the hearing of 27 February 2012, it pronounced the judgment convicting the applicant. During thirty-five hearings, the court did not withdraw for deliberation on intermediate procedural issues but at least one break was announced, during twelve hearings the court both withdrew to deliberate and announced at least one break, and eleven hearings were interrupted by deliberations on intermediate procedural issue of the court but otherwise were carried out without a proper break. On 14 and 19 July, 22 August and 29 September 2011, 17, 27 and 31 January, 1, 2, 6, 7, 9, 14 and 15 February 2012 the court announced breaks for lunch. However, on 14 July 2011 the applicant had been removed from the courtroom for the rest of the hearing because of his improper behavior before the lunch break was announced. Moreover, eighteen hearings were carried out without any deliberation and the court did not announce any break. In particular, on 12 October 2011 the hearing lasted two hours and 51 minutes, on 18 October 2011 it took three hours and 36 minutes, and on 16 and 21 November 2011 the hearings lasted almost three hours. 91. The applicant continued his hunger strike up to 23 May 2011. He was informed beforehand that the preliminary hearing would be held on that day. According to him, he was woken up at 4.30 a.m. to be taken to the court building for a hearing which started at about 11 a.m. He had to wait in a small convoy room of about 1.5 square metres. Overall, for about twelve to fourteen hours, he was allegedly held without food and drinking water, in poorly ventilated premises. On the same day, he terminated the hunger strike, which had lasted for about a month. 92. According to the Government, this information was incorrect. The applicant left the hospital at 7 a.m., reaching the court-house at 7.20 a.m. At 10.30 a.m. he was transferred to the courtroom. 93. According to the applicant, he was brought to the court hearing with an open bleeding stomach ulcer, although this condition required immediate hospitalisation. After the eight-hour hearing he was driven to the SIZO. He was transferred to the medical unit of the SIZO only after he had lost consciousness. Despite this, no treatment was recommended for him. Late at night the applicant’s state of health suddenly worsened. 94. According to the Government, as long as the applicant was in hospital, his health was under constant supervision by medical specialists there. In the event that his state of health did not permit him to take part in a hearing, this would be notified by the medical staff and the applicant would not then have been convoyed to the court hearing. 95. According to the applicant, he suffered from the absence of drinking water and nutrition, as well as the lack of rest, during the later court hearings too, while being kept in a metal cage in the courtroom. 96. On 20 January 2012 the applicant, in his request under Rule 39 of the Rules of Court, which was subsequently not granted, maintained that on 17 and 18 January 2012 the Pechersk Court had held the hearings daily despite his complaints of deteriorating health and acute pain in his stomach. According to him, the hearings had lasted from 9 a.m. until 6:30 p.m. usually with one thirty-minute break. On 19 January 2012 the court hearing had lasted from 9 a.m. until 11:30 p.m. The applicant stated that after having left the SIZO, he had not been provided with any food or water until his return. Moreover, on 19 January 2012 the court called the ambulance for him four times. 97. According to the information submitted by the Government, on the days of the hearings detainees received food packs from the prison authorities: the applicant refused these in writing on 1 December 2011 and 11, 19 and 20 January 2012, noting that he had his own food supply. 98. The Government submitted tables of the schedule of the hearing days (see annex) containing the information about the time when the applicant was put in the car and reached the courtroom, when the hearings started and were closed and the time when the applicant was put in the car and arrived back in the SIZO. They also submitted the minutes of the court hearings held before the Pechersk Court.
| 1 |
test
|
001-177666
|
ENG
|
HUN
|
COMMITTEE
| 2,017 |
CASE OF Á.R. v. HUNGARY
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Carlo Ranzoni
|
4. The applicant was born in 1978 and lives in Forráskút. At the time of lodging the application, he was detained at Márianosztra Prison. 5. On 29 January 2014 the applicant was convicted of possession of narcotics and sentenced to five years’ imprisonment. On appeal, on 14 October 2014 the Budapest Court of Appeal upheld the judgment. 6. The applicant began serving his sentence at Szeged Prison on 15 January 2015 and was transferred to Márianosztra Prison on 26 January 2015. He was released on parole on 8 September 2015. 7. While the applicant was held at Szeged Prison, the per capita space available to him was about 3.2 sq. m; the gross ground surface of the cell was 16 sq. m for five occupants but included the in-cell sanitary facility. He was allowed to spend one hour per day in the open air and could take part in various sports and other activities, thus reducing the time spent in the cell. He was provided with basic standard meals and was able to take a shower twice a week. 8. At Márianosztra Prison, the per capita cell space available to the applicant was about 2.67 sq. m; the gross ground surface of the cell was 8 sq. m for three occupants but included the in-cell sanitary facility. Only between 26 and 29 January and 11 and 15 May 2015 he was held in a cell where a wall separated the toilet from the rest of the space. He could take a shower twice a week and pursue certain free-time activities. At his request, he was provided with vegetarian meals but very often consisting only of soya beans. 9. The applicant submitted that he suffered from epilepsy and a personality disorder. In his own submissions he stated that prior to his conviction he had cultivated and consumed cannabis partly because it alleviated his symptoms. 10. As regards the medical care in prison, the Government submitted that, during the first examination at Szeged Prison, the applicant had stated that he suffered from epilepsy without presenting any relevant documentation. The doctor referred him for a psychiatric examination, which took place on 22 January 2015; but the applicant refused the treatment prescribed by the specialist. 11. During his first medical examination at Márianosztra Prison, the doctor noted that the applicant’s aptitude for work could be assessed only after external medical records concerning his illness had been obtained. 12. The applicant suffered an epileptic seizure on 24 April 2015, whilst in his cell. Following medication, his condition improved but he refused the neurological examination recommended by the doctor and any further treatment. He suffered further fits on 4 May and 8 July 2015, following which a neurologist prescribed him anti-epileptic drugs, but he agreed to take them only after suffering yet another seizure.
| 1 |
test
|
001-179562
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF PLESHCHINSKIY v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
|
Dmitry Dedov;Luis López Guerra
|
4. The applicant, Mr Grigoriy Nikolayevich Pleshchinskiy, is a Russian national who was born in 1954 and lives in Solnechnogorsk, Moscow Region. 5 6. The applicant was kept in Solnechnogorsk Police’s temporary detention centre in overcrowded cells from 2 to 10 October 2003; 20 to 24 October 2003; 17 to 21 November 2003; 21 to 28 November 2003; 22 to 29 December 2003; 26 to 30 January 2004; 2 and 3 February 2004; 31 March to 2 April 2004 and then on several occasions between April and 22 July 2004. He had to relieve himself in a bucket in the presence of other detainees and it was very difficult to breathe in the cells. There was no tap or other access to water, no proper light, no table on which to eat food and no area for outdoor activities. In the winter the walls and ceiling were covered with ice or damp. He had no access to a shower. 7. The applicant made numerous journeys in 2003-2004 between Volokolamsk remand centre and the temporary detention centre in Solnechnogorsk, which took three to four hours in an overcrowded van, which was cold in the winter and stuffy in the summer. 8. On 11 July 2005 the applicant sued the State for compensation in respect of non-pecuniary damage caused by the allegedly appalling conditions of his detention in the temporary detention centre. 9. On 14 November 2005 the Solnechnogorsk Town Court rejected the applicant’s claims. It established that the material conditions of his detention could be explained by insufficient funding. 10. On 22 November and 6 December 2005 the applicant lodged appeals against the decision of 14 November 2005. 11. On 19 December 2005 the applicant was informed that the text of the judgment had been available since 5 December 2005. 12. On an unspecified date the court sent a summons to an appeal hearing which had been scheduled for 30 January 2006. However, the applicant did not receive the summons as it contained an error in the address, which was written as “2, Vishnevskaya Street” instead of “2, Vishnevaya Street”. 13. On 30 January 2006 the Moscow Regional Court upheld the decision of 14 November 2005 in the applicant’s absence. 14. In reply to an enquiry from the applicant about the date of the appeal hearing, he was informed on 1 February 2006 that it had been held on 30 January 2006. 15. In December 1992 the municipality allowed the applicant and his son, a minor at the time, to obtain ownership of the flat in Solnechnogorsk in which they were living by way of privatisation. The applicant obtained a title certificate, which, however, named him as the sole owner. 16. After reaching the age of majority, the son sued the father, asserting his right to the flat and seeking an annulment of the above-mentioned certificate. 17. In support of his claim the plaintiff submitted a copy of the housing register, and certificates from his school and kindergarten. All the documents showed that the plaintiff had been permanently residing in Solnechnogorsk. 18. The applicant sought to prove that at the material time the plaintiff had lived in a flat in another town, Taganrog, and tried to obtain certificates of his moving in and out of the privatised flat. However, the competent authority would not issue them unless they were requested by a judge. However, the judge considered that the evidence adduced by the plaintiff sufficed. 19. On 4 May 2005 the Solnechnogorsk Town Court of the Moscow Region granted the plaintiff’s claim. It held that the housing law provided that minors living with a tenant in a flat leased under a social lease agreement enjoyed the same rights as the tenant as of the privatisation date. Accordingly, where flats were privatised without payment, they could become owners of the flat together with the adults. Furthermore, under the privatisation law then in force, a privatisation agreement had to contain a reference to the minors who enjoyed the right to use the premises in question. 20. On 14 June 2005 the Moscow Regional Court upheld the decision of 4 May 2005 on appeal.
| 1 |
test
|
001-177085
|
ENG
|
TUR
|
COMMITTEE
| 2,017 |
CASE OF KHALDAROV v. TURKEY
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-2 - Information on reasons for arrest;Article 5-4 - Review by a court;Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström
|
4. On 25 April 2008 the applicant arrived in Turkey legally on a visa valid for one month. 5. On 24 April 2010 the applicant, who had been living in Turkey since April 2008, was taken into police custody while he was at Istanbul Atatürk Airport. He made a statement to the airport police on the same day. According to the document containing his statement, the applicant was informed that he was suspected of lacking a valid identity document and of illegal entry into Turkey. He was kept in detention at the airport police station for the following three days. 6. On 27 April 2010 the applicant was sent to Istanbul Kumkapı Removal Centre. According to the applicant’s account, the centre was severely overcrowded at the time of his detention, which resulted in hygiene problems. The building was infested with insects and the quality and quantity of the food was also fairly poor. Moreover, there was no provision for outdoor exercise. 7. On 2 June 2010 the applicant applied for release to the Istanbul Magistrates’ Court. The court decided on the same day that it did not have jurisdiction as the applicant had not been detained within the scope of a criminal investigation. The court therefore ruled that any request had to be brought before the administrative courts. 8. On an unspecified date the applicant made an asylum claim to the Ministry of the Interior and lodged an application for refugee status with the United Nations High Commissioner for Refugees (UNHCR). 9. On 25 June 2010 the applicant was granted a temporary residence permit in the province of Bilecik as an asylum-seeker and was released from Kumkapı Removal Centre on the same day. 10. According to information provided by his representative on 4 January 2017, a deportation order was issued in respect of the applicant on an unspecified date in 2016. He has been detained at İzmir Işıkkent Removal Centre since 20 September 2016 with a view to his expulsion. The domestic proceedings brought by the applicant against the deportation order and the applicant’s application to the UNHCR for refugee status are still ongoing.
| 1 |
test
|
001-177695
|
ENG
|
DEU
|
CHAMBER
| 2,017 |
CASE OF VERLAGSGRUPPE DROEMER KNAUR GMBH & CO. KG v. GERMANY
| 4 |
No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary
|
6. The applicant company is a prominent German book-publishing house with its registered office in Munich. In 2015 it was ranked among the ten publishing firms generating the highest turnover in the German publishing sector. 7. In September 2008 the applicant company published a book entitled “Mafia” written by Petra Reski, an author internationally renowned for her anti-Mafia publications. The book was reprinted in several editions and also published in Italy. It deals, in its 352 pages, with the Mafia’s ties to Germany, its inner structures and its various branches. The book also recounts an event which took place in 2007 in Duisburg where six people of Italian nationality were killed by fifty-six bullets in front of the Italian restaurant “Da Bruno”. The killings were supposed to be the culmination of a vendetta between two ‘Ndrangheta families which had started in 1991 in Italy. The incident received national and international media attention. 8. On pages 157 and 158 the book referred, by his full name, to a person called S.P., an Italian national residing in Germany. The relevant part reads as follows (translated, names abbreviated and emphasises added by the Court): “... The public prosecutor’s office of Stuttgart investigated the Calabrian [L] for drug dealing and money laundering – he is said to have contributed to financing the electoral campaign of [O] with his funds. This was not to remain the sole link existing between a presumed member of the ʽNdrangheta and a German politician: in the city of Erfurt, the Calabrian [S.P.], who had been mentioned already in 2000 in a report prepared by the Federal Office of Criminal Investigation, gained notoriety. [S.P.] runs the restaurant ‘[Pa]’ in Erfurt: a restaurant seating 400 guests, not a bad rise for someone like [S.P.], who, according to statements of the investigators, had started out as a pizza baker in the pizza restaurant ‘Da Bruno’. After all, having contacts can be very helpful, even if, following the massacre of Duisburg, the pizza restaurant ‘Da Bruno’ no longer serves as that great a reference. In any case, [S.P.] continued to maintain his network of relationships in Erfurt by generously sponsoring the local golf club. When the police performed a search of the restaurant ‘[Pa]’ because of [S.P.]’s alleged involvement in a murder, it ran into the then Prime Minister of Thuringia, [B.V.], and his Secretary of the Interior, [R.D.] – both of whom had been dining there purely as a matter of chance, as [S.P.] asserted. He, by the way, had excellent relations with the police: when a further search was performed, the police found an identity card in his premises, which had been issued to him in his purported capacity as interpreter for the Uzbek delegation at an Interpol conference in Rome. The identity card, it was stated, had been issued by the Secretary of the Interior of the Saarland. ...” 9. As regards S.P.’s presumed membership of the ‘Ndrangheta, the applicant company relied on, inter alia, reports by the German Federal Office of Criminal Investigation of 2000 and 2008. Neither report had been made public. 10. The relevant passage in the report of 2000 reads: “If one takes account of the enormous reputation that [S.P.] has and the esteem in which he is held by the Italian community, one forms the opinion that [S.P.] is a defacto fully-fledged member of the ‘Ndrangheta clan.” 11. The relevant parts of the report of 2008 read: “According to Italian colleagues from Calabria and Bianco, this connection could have contributed to [S.P.] becoming a member of the Romeo alias ‘Staccu’ clan. Owing to the prestigious reputation [S.P.] enjoys in the ‘Italian milieu’, he has to be a full member of the ‘Ndrangheta. ... Direct relatives of the clan live in Germany and run pizza restaurants. Their main bases are in the cities of Duisburg, Erfurt, and Leipzig. These bases are led by [A.M.], [D.G.] and [S.P.], with [D.G.] taking the role of the so-called ‘capo locale’. ... [D.G.] and [S.P.] could be in charge of investing the proceeds of drug trafficking. This theory is corroborated by the high number of good restaurants and statements from various sources that [S.P.] is said to have invested in several restaurants and acquired real estate in Dresden and the surrounding areas.” 12. In 1997 S.P. had already been mentioned by name in the context of organised crime. He had been interviewed in a television report regarding the ‘Ndrangheta in Thuringia and had denied any membership of or connection to the ‘Ndrangheta. 13. After publication of the book, S.P. applied to a court for an injunction against the dissemination of the passages highlighted in the above excerpt of the book (see paragraph 8 above). On 13 November 2008, the Munich Regional Court issued the injunction and confirmed it on 15 December 2008 after hearing both parties. It held that even though there was a public interest in reporting about organised crime, the author had acted in breach of her journalistic duties. The internal reports of the Federal Office of Criminal Investigation constituted an insufficient source for the allegations made in the book, since the reports were not intended for publication. The investigating authorities themselves had not come to the conclusion that there was sufficient evidence of an offence having been committed by the plaintiff. Moreover, the Regional Court stated, a report on a suspicion also had to include the circumstances exonerating the party affected. Accordingly, the book should have stated that the investigating authorities had not obtained any indications which would have served as a basis for filing an indictment, much less a sentence, and that in fact the investigations pursued against the plaintiff had not resulted in any such bringing of charges or in any sentencing. In addition, the court held, the publication had not made it clear that the pizza restaurant “Da Bruno”, in which the murders had been perpetrated, was not identical to the pizza restaurant of the same name in which the plaintiff had worked as a pizza baker many years prior to those deeds. Lastly, the court continued, the book had been published unlawfully because the plaintiff had not been given any opportunity to make a statement regarding the suspicion prior to publication. 14. On 7 April 2009 the Munich Court of Appeal dismissed the applicant company’s appeal against the Regional Court’s judgment of 15 December 2008. It held that the book expressed a serious allegation that the plaintiff was a member of a criminal organisation and therefore seriously interfered with his personality rights. The section of the book dealing with the plaintiff did not allow an average reader to infer that the plaintiff’s membership of the criminal organisation ‘Ndrangheta could only be assumed vaguely. Rather, the court continued, the interplay of the many individual statements in the book created the impression that there was a very strong suspicion that the plaintiff was a member of the ‘Ndrangheta. The evidentiary facts researched by the author and published by the applicant company did not constitute sufficient proof of the exceptionally grave suspicion raised in the book. The court established that even the internal report by the Federal Office of Criminal Investigation only mentioned a number of vague suspicious circumstances, for the most part without providing any details or naming any specific sources. For example, it said that because of the high respect in which the plaintiff was held in the “Italian milieu”, he must be a fully fledged member of the ‘Ndrangheta. The internal reports only showed that owing to certain information compiled in them, some of which had not been corroborated by evidence, assumptions had been made as to the existence of certain connections. This did not seem to be a sufficient basis for publicly branding the plaintiff as a presumed ʽNdranghetista. Moreover, the court continued, certain statements in the book were incorrect, such as the region in which the plaintiff had been born. Other statements were fragmentary, as the investigation during which the plaintiff’s restaurant was searched by the police had been discontinued. In that regard, the court held that the book had failed to report exonerating circumstances. Even though authors did not have to await the outcome of an investigation before reporting on a corresponding suspicion, if the reporting on a suspicion was reliant on investigations that had been carried out six or seven years previously, the author could not ignore the fact that the investigation proceedings had come to an end without any charges having been brought. 15. In the main proceedings, in addition to his request that the injunction be upheld, S.P. applied for damages in the amount of EUR 20,000. 16. On 22 June 2011, the Munich Regional Court upheld the injunction, but dismissed the plaintiff’s application for damages. The Regional Court reiterated the reasoning it had given in the judgment of 15 December 2008 and that given by the Court of Appeal in its judgment of 7 April 2009 (see paragraphs 13-14 above). The court further reiterated that the author had not sufficiently researched the basis for the allegation that S.P. was a member of the ʽNdrangheta, since all the sources only indicated vague suspicious circumstances pointing at S.P. Secondly, the author had not complied with the “absolute requirement” of presenting exonerating circumstances. Lastly, the court held that the publication was unlawful as the author had not given the plaintiff the possibility to comment on the allegation prior to publication. 17. The Regional Court dismissed the plaintiff’s application for damages as being ill-founded. It held that even though the applicant company had breached the permissible boundaries of reporting on suspicions as well as its journalistic diligence, it had not done so in a serious manner. Accordingly, it sufficed to stop the dissemination of the impugned statements but did not require a payment of damages. 18. During the proceedings before the Regional Court the applicant company offered to furnish certain evidence supporting the suspicion published in the book. In particular, it offered to provide the names of witnesses who could allegedly confirm the statements made in the internal report of the Federal Office of Criminal Investigation and the suspicion published in the book. The Regional Court refused to hear the witnesses as it found that they would be unable to give evidence regarding the alleged membership and that the applicant company had failed to identify the specific issues on which the witnesses could testify. 19. The applicant company did not appeal against the judgment of the Regional Court. The plaintiff, however, appealed against the dismissal of his claim for damages. Consequently, in so far as the judgment ordered the injunction, it became final. 20. On 29 November 2011, the Munich Court of Appeal, in addition to the injunction, sentenced the applicant company to pay damages in the amount of EUR 10,000 and dismissed the plaintiff’s further claim for damages. The court stated that the prerequisite for any entitlement to pecuniary compensation was a serious violation of personality rights which could not be compensated in any other way. It found that that prerequisite had been met in the plaintiff’s case. As far as the violation of the plaintiff’s personality right was concerned, the Court of Appeal endorsed the reasoning of the Regional Court. It expressly conceded to the applicant company that there was great public interest in obtaining information about criminal organisations and “that the motivation of the author and of the defendant [in the instant case: applicant company] for informing the public on the activities pursued by the ‘Ndrangheta in Germany was commendable and honest”. However, the Court of Appeal continued, the applicant company had acted culpably to a significant extent. It had been grossly negligent on the part of the applicant company to disseminate an allegation based on a suspicion which seriously interfered with the plaintiff’s personality right in spite of the fact that the plaintiff had obviously not been given an opportunity to be heard and that the allegation had been disseminated without including the necessary information that the murder investigation addressed by the book subsequently had been discontinued. This charge of gross negligence could not be put aside because the author had tackled a subject of strong public interest. The applicant company should have realised that the information compiled about the plaintiff was not corroborated by evidence and that there were insufficient evidentiary facts to support the allegation reported in the book. The applicant company could not argue that it had not acted culpably, as it had based its publication on information obtained from a governmental authority. That principle, the court held, had been developed by the courts in adjudicating for official press releases issued by German authorities. However, the author had relied solely on internal analyses prepared by the Federal Office of Criminal Investigation as well as evaluation reports and documents generated in the course of intra-agency communications between Italian government authorities. 21. The Court of Appeal further reasoned that the injunction was not sufficient redress for the plaintiff, as it was not an adequate means of reaching the readers of a book that had already been published. Consequently, it found that the payment of damages was required. The court held that compensation in the amount of EUR 10,000, instead of the EUR 20,000 claimed by the plaintiff, was both sufficient and adequate. 22. On 28 March 2012 the Munich Court of Appeal dismissed as illfounded a complaint lodged by the applicant company that it had been denied the right to be heard. 23. On 19 November 2013, the Federal Constitutional Court refused to admit a constitutional complaint (1 BvR 82/12) lodged by the applicant company, without providing reasons.
| 0 |
test
|
001-184670
|
ENG
|
MNE
|
CHAMBER
| 2,018 |
CASE OF PETROVIĆ AND OTHERS v. MONTENEGRO
| 4 |
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
|
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
|
5. The applicants were born in 1956, 1952, 1975, and 1980 respectively. The first applicant lives in Tivat and the second, third and fourth applicants live in Kotor. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 1 September 2009 the first and second applicants and the father of the third and fourth applicants instituted civil proceedings against the State, seeking that they be recognised as owners of two plots of land in the coastal zone (u zoni morskog dobra). They submitted, in particular, that the land at issue had been lawfully owned by their father, but that without any legal basis the State appeared as the registered owner thereof in the Real Estate Registry, and that they should be declared owners as their father’s legal successors (kao pravni sledbenici). 8. On 2 March 2010 the Real Estate Administration in Tivat (Uprava za nekretnine, područna jedinica Tivat), acting upon the first applicant’s request, issued a decision allowing the division into two of an adjacent plot of land, a forest in the coastal zone, the registered owner of which at the time was the Municipality. The Municipality remained registered as the owner of one part of it, whereas the other part was registered in the name of the applicants’ predecessor (the father of the first and second applicants, and the grandfather of the third and fourth applicants). 9. On 21 November 2011, after a remittal, the Court of First Instance (Osnovni sud) in Kotor ruled against the first and second applicants and the third and fourth applicants’ father. The court found that the land at issue had indeed been owned by their predecessors, notably their father, grandfather and grand-grandfather, but that they had not proved that they had inherited it when their last predecessor had died in 1997. Notably, the court considered that the land at issue was in the coastal zone and thus State property pursuant to section 4 of the Coastal Zone Act of 1992 and “section 13 and other sections” of the State Property Act (see paragraphs 21 and 24 below), and that the claimants could not claim the right to property in respect of such land. The court made no reference to section 30 of the Coastal Zone Act (see paragraph 22 below). As regards the State’s submission that the land had been nationalised, the court noted that the contents of the decisions relied on by the State could not be clarified. Notably, the State Archive (Državni arhiv) informed the court, on 4 October 2010 and 26 August 2011, that the case files and decisions Dn 428/90 and Dn 615/92, referred to by the State, had not been found in that institution. Finally, the court considered that the Real Estate Administration decision of 2 March 2010 (see paragraph 8 above) was “of no particular influence” (bez posebnog uticaja) given that it related to a different plot of land which was not the subject of these proceedings. 10. In their appeal the first and second applicants and the third and fourth applicants’ father confirmed that the said land had not been in their predecessor’s estate when he died, which was exactly the reason why they had initiated these proceedings. They also submitted that: (a) section 30 of the Coastal Zone Act had never been complied with even though it was indisputable that their predecessor had lawfully owned the land; and (b) the relevant legislation did not prohibit private ownership of land in the coastal zone, and referred to section 4 of the Coastal Zone Act and section 20 of the Property Act 2009 (see paragraphs 21 and 19 below). They reiterated that the adjacent plot of land, also a forest in the coastal zone, was privately owned, by them, and submitted the decision of the Real Estate Administration of 2 March 2010. They maintained that the first-instance court’s reasoning that the said decision was of no influence indicated legal uncertainty, given that the same legal issue was treated differently without any explanation in that regard. 11. On 6 April 2012 the High Court (Viši sud) upheld the first-instance judgment. It found that the land at issue was indisputably forest in the coastal zone, that it was State property pursuant to section 13 of the State Property Act and that the claimants therefore could not claim ownership. The court further held that even assuming that the claimants had had ownership of these plots of land, they had lost it “in accordance with the State Property Act and the Coastal Zone Act. In support of this was also section 30 of the Coastal Zone Act, relied upon by the claimants, which provided that the owners of land in the coastal zone, who had obtained it in a lawful manner before that Act entered into force and which was duly registered in the Real Estate Register as private property, were entitled to compensation in case of an expropriation”. The High Court made no reference to the decision of 2 March 2010 and the status of the adjacent plot of land, or as to whether the claimants could have inherited the land. 12. On 11 October 2012 the Supreme Court (Vrhovni sud) upheld the previous judgments. The court made no explicit reference to the adjacent plot of land and the decision of 2 March 2010. It held as follows: “As the real estate at issue is in the coastal zone regime – common resource (dobro od opšteg interesa), the lower courts correctly applied the substantive law when they ruled in the said way. Notably, pursuant to section 4 of the Coastal Zone Act, which had been in force until State Property Act entered into force (Official Gazette of Montenegro no. 21.09), coast is owned by the State and could not be object of the private property. The claimants were wrong to consider that the issue was to be resolved by means of section 30 of the Coastal Zone Act. That provision regulated the rights of the owners of land in the coastal zone who had obtained the property thereof before that Act entered into force by providing that they were entitled to compensation in case of an expropriation [...]. That means that the land did not remain in the private property regime, but became State property by the law itself. Likewise, section 20(2) of the Property Act 2009 is inapplicable to the present case as it cannot be retroactively applied to relations which had arisen before it came into force. Exceptionally, the right to property over a coastal zone can be acquired only after it entered into force.” 13. On 25 December 2012 the first and second applicants and the third and fourth applicants’ father lodged a constitutional appeal. They submitted, inter alia, that it was not true that land in the coastal zone could not be privately owned, as numerous plots of land in that zone were private property, including the plot of land adjacent to the one at issue, which was owned by them. They invoked the right to a fair trial and the right to property, and reiterated the importance of legal certainty. 14. On 23 July 2014 the Constitutional Court dismissed the constitutional appeal. It held that the lower courts’ assessment “was based on a correct application of substantive law and a constitutionally acceptable interpretation thereof, in accordance with Article 6 of the Convention”. As regards Article 1 of Protocol No. 1 the court held that a claim which had been dismissed because the claimants did not meet statutory conditions was not considered a possession that could constitute property rights, and thus there could be no violation of such a right either. This decision was served on 13 October 2014 at the earliest. 15. On 16 December 2014 the third and fourth applicants’ father died, leaving the third and fourth applicants as his heirs. 16. On 27 May 2015 the Supreme Court issued a general legal opinion (načelni pravni stav) relating to the use of land in the coastal zone. In reaching this opinion, the Supreme Court analysed the relevant domestic legislation, including the Constitution, the Coastal Zone Act 1992, the Property Act and the State Property Act. It found, inter alia, that section 20(2) of the Property Act provided that exceptionally coastal zone can be privately owned, while at the same time section 22(3) of the same Act provided that the coast cannot be privately owned. It also found that the conditions under which the coastal zone can be privately owned are not provided for by law (nisu zakonom određeni), “which leaves open numerous questions on practical implementation”. The court concluded that “by analysing [the relevant legislation] it can be concluded that acquiring private property rights in respect of the coastal zone is not possible save in exceptional cases which are not defined by legislation. It can also be concluded that the issue of lawfully acquired rights in respect of the coastal zone is not regulated in a precise and clear manner...”, but that it was a fact that there were lawfully acquired property rights over the coastal zone, as indicated by section 30 of the Coastal Zone Act.
| 0 |
test
|
001-144115
|
ENG
|
GBR
|
CHAMBER
| 2,014 |
CASE OF McDONALD v. THE UNITED KINGDOM
| 3 |
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award
|
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
4. The applicant was born in 1943 and lives in London. 5. The applicant suffered an incapacitating stroke in September 1999 which left her with severely limited mobility. In April 2006 she fell heavily, breaking her hip in several places. She then suffered two further falls, both of which resulted in further hospitalisation. 6. The applicant has a small and neurogenic bladder. As a result, she usually has to urinate some two to three times a night. On account of her mobility problems she is unable safely to access a toilet or commode unaided. 7. In March 2007, after the applicant’s third fall, she applied to the Independent Living Fund (“ILF”) for full day and night support. While the application was pending she was provided with a care package by the local authority (the Royal Borough of Kensington and Chelsea) which included seventy hours per week of night-time care. The application to the ILF was ultimately unsuccessful as the applicant ceased to be eligible for funding when she turned sixty-five in 2008. 8. A local authority care plan dated 27 April 2007 indicated that the applicant needed “assistance with toileting, when it’s required during the night”. Likewise, the FACE (Functional Analysis of Care Environments) Overview assessment which followed on 8 January 2008 noted that “Miss McDonald needs assistance to manage continence at night. Substantial need.” 9. However, the FACE Overview Assessment was subsequently amended to read “Miss McDonald needs assistance at night to use the commode. Moderate need.” 10. A further Needs Assessment was started on 19 February 2008 and signed off on 29 February 2008. It noted: “Ms McDonald wanted to emphasise that she requires assistance with all transfers and when she mobilises. Ms McDonald requested night care in order [for] someone to assist her using commode during the night. This is because Ms McDonald does not wish to use incontinence pads and sheets... Summary of Needs Assessment Ms McDonald needs assistance to use the commode at night. Substantial need.” 11. A further Needs Assessment signed off on 28 October 2008 concluded that “Miss McDonald needs assistance to use the commode at night. Substantial need.” This assessment was subsequently described by Lord Dyson as “a concession” granted on a “temporary basis” (see paragraph 53 of the opinion of the Supreme Court). 12. On 17 October 2008 a formal decision was taken to reduce the amount allocated for the applicant’s weekly care from GBP 703 to GBP 450. This figure appears to have been assessed on the basis that the applicant would be provided with incontinence pads in lieu of night-time care. This decision was taken at a meeting between the local authority and the applicant at the applicant’s home. She was formally notified of the decision by letter dated 21 November 2008. It noted that: “As stated at the meeting, the rationale behind the planned reduction is that we consider the current provision to be in excess of that required to meet your eligible needs under the council’s Fair Access to Care Services criteria. The council has a duty to provide care, but we must do so in a way that shows regard for use of public resources.” 13. On 22 December 2008 the applicant sought permission to apply for judicial review on the ground that the local authority was unreasonably and unlawfully failing to meet her assessed and eligible needs. She further submitted that the local authorities’ actions would cause her to suffer indignity which would amount to an interference with her right to respect for her private life in breach of Article 8 of the Convention. 14. Pending judicial consideration of the applicant’s complaints, a “holding compromise” was reached: from November 2008 to December 2008 she continued to receive night-time care five days a week and between December 2008 and September 2011 she received night-time care four nights a week. During this period the applicant’s partner stayed with her when night-time care wasn’t provided in order to assist her. In September 2011 all night-time care was withdrawn. 15. On 5 March 2009 the application was refused by a Deputy High Court Judge. Although the judge accepted that the local authority was obliged to meet the applicant’s assessed need, she found that the assessed need was not “assistance to use the commode at night” but rather ensuring the applicant’s safety. The judge considered there to be two ways to meet that need: the provision of a night-time carer or the provision of incontinence pads. The statutory scheme requiring that the applicant’s needs be met allowed the local authority some flexibility about how that was to be done and the local authority was therefore quite entitled to meet the need in the most economic manner. The judge further considered the applicant’s complaints under Article 8 of the Convention to be “parasitic” upon the first ground being established and did not, therefore, consider that they raised any issues which needed to be gone into. 16. Following that decision, the local authority carried out a Care Plan Review. The review, which was dated 4 November 2009, concluded that “It remains Social Service’s view that the use of incontinence pads is a practical and appropriate solution to Ms McDonald’s night-time toileting needs. There does not seem to be any reason why this planned reduction to provide care should not go ahead...” 17. After a visit to the applicant’s home on 15 April 2010, a further Care Plan Review was conducted. It was noted that “Ms McDonald did not want to discuss the option of using incontinence pads or Kylie sheets (absorbent sheets) as a way of meeting her toileting needs”. The Review concluded: “I remain of the opinion that Ms McDonald’s need to be kept safe from falling and injuring herself can be met by the provision of equipment (pads and/or absorbent sheets). She has however consistently refused this option. I am aware that she considers pads and/or sheets to be an affront to her dignity. Other service users have held similar views when such measures were initially suggested but once they have tried them, and been provided with support in using them, they have realised that the pads/sheets improve the quality of life by protecting them from harm and allowing a degree of privacy and independence in circumstances which, as the result of health problems, are less than ideal. The practicalities can be managed within the existing care package to accommodate Ms McDonald’s preferred bedtime and to allow her to be bathed in the morning and/or have sheets changed. If Ms McDonald were willing to try this option, she might similarly alter her views. ... ... ... In light of her entrenched position on this, and despite the council’s view that pads and/or sheets are the best way to ensure Ms McDonald’s safety, consideration has been given to Extra Care Sheltered Housing as a means by which Ms McDonald could continue to receive support throughout the day and night. This would be consistent with her wish to receive personal care and also remain living independently in the community. It is not the recommended option because being assisted to access the toilet at night carries a risk of falls, but has been explored because of the impasse as regards the use of pads. Such accommodation will make support available 24 hours a day and reduce any longer term need to provide residential care to Ms McDonald should her needs increase in future. Ms McDonald refused this option when it was discussed with her.” 18. The applicant applied to the Court of Appeal for permission to appeal against the refusal of permission to apply for judicial review on the grounds first, that the reduction in funding was inconsistent with the assessment of her night-time needs; secondly, that the reduction in funding violated her rights under Article 8 of the Convention; and thirdly, that in reducing her funding the local authority had failed to comply with its obligations under the Disability Discrimination Act 1995. In particular, she argued that if forced to use incontinence pads she would “lose all sense of dignity” and, as a consequence, she would suffer considerable distress. The local authority submitted that the provision of a night-time carer would cost GBP 22,270 per year, which would have to be paid out of the adult social care budget from which all other community care services for adults in the applicant’s borough were funded. The local authority also argued that the use of pads would ensure the applicant’s safety and provide her with greater privacy and independence in her own home. Finally, the local authority submitted that the weekly funding of GBP 450 could be used according to the applicant’s preferences. She could therefore pay for a bedtime visit for the purpose of fitting the pads, and even a subsequent visit if necessary. 19. Upon the applicant’s application for permission to appeal, a single Lord Justice granted permission and directed that the claim for judicial review should be heard by the Court of Appeal. In a decision dated 13 October 2010 the Court of Appeal departed from the judgment of the Administrative Court insofar as it did not consider that it was appropriate for the courts to re-categorise the applicant’s needs as assessed by the local authority. It therefore found that between 21 November 2008 (the date of the disputed decision letter) and 4 November 2009 (the date of its first care plan review) the applicant’s assessed need had been for assistance to use a commode. In failing to provide such assistance, the local authority had been in breach of its statutory duty. However, it had mitigated the breach by entering into an arrangement with the applicant’s partner. Moreover, the 21 November 2008 decision had not been put into operation and applicant’s need had been reassessed in the Care Plan Reviews of November 2009 and April 2010. As a consequence, the court found that the applicant had no substantive complaint under this head. 20. With regard to the complaint under Article 8 of the Convention, the Court of Appeal found that the conditions for finding a breach had not been established. Even though the local authority had failed in its duty at the time of its November 2008 decision, the error was not born of any lack of respect for the applicant’s dignity but of a concern to perform the difficult task of balancing its desire to assist the applicant with its responsibilities to all its clients within the limited resources available to it. 21. Finally, the court held that there had been no failure to comply with any obligations under the Disability Discrimination Act 1995. 22. The applicant was granted permission to appeal to the Supreme Court. She argued that: the Court of Appeal had been wrong to hold that the 2009 and 2010 Care Plan Reviews were to be read as including a reassessment of her needs; the decision to provide her with incontinence pads instead of a night-time carer had unjustifiably interfered with her rights under Article 8; and there had been a failure to comply with the Disability Discrimination Act 1995. 23. By a majority, the Supreme Court agreed with the Court of Appeal that the applicant’s needs had been reassessed on 4 November 2009, as the local authority had been entitled to do; that, from that date onwards, there had been no interference with the applicant’s rights under Article 8 of the Convention; and that there had been no failure to comply with the Disability Discrimination Act 1995. 24. With regard to the complaint under Article 8, Lord Brown observed that even if a direct link existed between the measures sought by the applicant and her private life, the clear and consistent jurisprudence of this Court established that States enjoyed a wide margin of appreciation in striking a fair balance between the competing interests of the individual and of the community as a whole. He went on to state that: “There is, of course, a positive obligation under Article 8 to respect a person’s private life. But it cannot possibly be argued that such respect was not afforded here. As already indicated, the respondents went to great lengths both to consult the appellant and [her partner] about the appellant’s needs and the possible ways of meeting them and to try to reach agreement with her upon them. In doing so they sought to respect as far as possible her personal feelings and desires, at the same time taking account of her safety, her independence and their own responsibilities towards all their other clients. They respected the appellant’s human dignity and autonomy, allowing her to choose the details of her care package within their overall assessment of her needs: for example, the particular hours of care attendance, whether to receive direct payments in order to employ her own care assistant, and the possibility of other options like extra care sheltered housing. These matters are all fully covered in paras 5, 42 and 66 of Rix LJ’s judgment below. Like him, I too have the greatest sympathy for the appellant’s misfortunes and a real understanding of her deepest antipathy towards using incontinence pads. But I also share Rix LJ’s view that the appellant cannot establish an interference here by the respondents with her Article 8 rights. I add only that, even if such an interference were established, it would be clearly justified under Article 8(2) – save, of course, for the period prior to the 2009 review when the respondent’s proposed care provision was not ‘in accordance with the law’ – on the grounds that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant’s needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving.” 25. In her dissenting opinion, Lady Hale considered that the need for help to get to the lavatory or commode was so different from the need for protection from uncontrollable bodily functions that it was irrational to confuse the two and to meet the need for one in a manner appropriate for the other. She would therefore have allowed the appeal.
| 1 |
test
|
001-178907
|
ENG
|
TUR
|
CHAMBER
| 2,017 |
CASE OF BOUDRAA v. TURKEY
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström
|
5. The applicant was born in 1974 and lives in Yalova. 6. The applicant lived in Turkey between 2001 and 2003, when he met his wife and got married. The applicant and his wife have four children. In 2003 the applicant was deported to Algeria by the Turkish authorities. Between 2003 and 2006 he was imprisoned in Algeria, where he alleges he was subjected to various forms of ill-treatment. 7. The applicant and several other individuals founded the Rachad Movement in Algeria, a political organisation which opposes that country’s government through non-violent means. After the protest movement known as the Arab Spring began in 2010, he was taken into police custody in Algeria and he alleges he was subjected to ill-treatment there. 8. On an unspecified date he fled from Algeria to Syria, where he worked as a teacher. Subsequently, in August 2013, he arrived in Yalova, Turkey, where his wife and children lived. 9. On 3 November 2013 he was taken into police custody as he did not have a passport. On the same day, the applicant was placed in a detention room at the Yalova police headquarters, where he was detained between 3 November 2013 and 7 January 2014. 10. The applicant submitted that the detention room in which he had been kept was in an ordinary police detention facility where arrestees were held for short periods (generally one day). During his detention, many people were detained in the room, at times as many as 10-12 people. The room was around 10 sq. m and there was no heating or ventilation, and no bed. Nor did it receive any natural light. He was confined in that room and was exceptionally allowed to use the other parts of the detention facility. He could use the hall in the centre of the facility only when his family members visited him. The applicant was provided with a mattress and a blanket and he slept on the floor. He was never taken out of the detention facility and did not have access to exercise in the open air. The facility had no shower and he therefore had to wash himself in the toilets. As he suffered from asthma, anaemia and back problems, he needed medical assistance. However, he was taken to hospital on only one occasion. 11. The applicant submitted a number of photographs in support of his submissions. In one of those photographs he is seen sitting on the bench in a small detention room behind bars. 12. In their submissions dated 18 January 2017, the Government submitted that the applicant had been detained in the “custody cell” of the public security branch of the Yalova police headquarters. The custody cell in question was used as a foreigners’ detention centre because there was no separate foreigners’ detention centre in Yalova at that time. The Government stated that the custody facility measured approximately 92 sq. m and consisted of two detention rooms of 12.8 sq. m and 17.6 sq. m, two toilets (3.5 and 5.7 sq. m respectively), a room for the taking of police statements of 13.5 sq. m, a room used for interviews between arrestees and their lawyers of 6 sq. m, and an identification parade room of 6 sq. m. There was also a hall in the centre of the facility, which measured 21 sq. m, onto which the detention rooms opened. The hall had an air conditioner and two windows measuring 70 x 93 cm and 150 x 205 cm which provided natural light for the detention rooms. 13. In their additional observations dated 23 May 2017, the Government submitted that foreign nationals and Turkish nationals detained in the context of criminal investigations were kept separately in two detention rooms in the facility in question. They stated that at the material time the Turkish nationals had been kept locked in one of the detention rooms and that the applicant and other foreign nationals had had access at all times to the hall in the centre of the facility − where there were chairs and a table – and to the toilets. When there were no Turkish national detainees, the foreign nationals also had access to both detention rooms. 14. In support of their submissions the Government submitted a sketch map of the detention facility and a total of thirty-nine photographs. Nine of these photographs were taken outside and show the police station building. Eleven photographs were taken in the toilets, which appeared clean. There is a shower head installed in each of the toilets. Nine other photographs show the room for the taking of police statements, the room used for interviews between arrestees and their lawyers, and the identification parade room. Lastly, nine further photographs show the detention rooms and the hall. It is apparent that the detention rooms are separated from the hall by bars. There are no beds in the detention rooms but along their three walls there are concrete benches topped with a cushion. On the benches there are blankets, apparently used both for covering and as pillows. The detention rooms do not have windows but appear to receive light from the hall. The photographs of the hall show that there are two windows, a table and chairs on which towels were put in that area. 15. The Government also submitted custody registers showing the occupation rates at the detention facility for the period between 4 November 2013 and 7 January 2014. According to those documents, the applicant was detained alone for thirty-one days and for thirty days he was detained together with between one and six foreign nationals. On 26 November 2013 there were seven foreign nationals, including the applicant, detained at the facility. On 27 and 28 November 2013 the applicant was detained together with eleven other foreign nationals. 16. For thirty days between 4 November 2013 and 7 January 2014, there had been no Turkish nationals detained at the facility. In particular, on 26, 27 and 28 November 2013 no Turkish national had been held in custody. During the remaining thirty-five days, a minimum of one and a maximum of five Turkish nationals had been in detention, except for 1 January 2014, when eleven Turkish nationals had been held in police custody. In particular, on 29 November 2013 one Turkish national had been detained at the facility in question. 17. On 27 December 2013 the applicant lodged an individual application with the Constitutional Court. The applicant alleged, inter alia, that the conditions of his detention at the Yalova police headquarters described above had amounted to illtreatment (see paragraph 10 above). 18. On 21 January 2015 the Constitutional Court delivered its decision on the admissibility and merits of the applicant’s case. As regards the applicant’s complaint that the conditions of his detention at the Yalova police headquarters had amounted to ill-treatment, the Constitutional Court noted that he had complained that his health had worsened as a result of the conditions in which he had been detained. Since the applicant had been provided with medical assistance when he had fallen ill in detention, the Constitutional Court found that the administrative authorities had taken the necessary measures to protect the applicant’s physical and psychological health. As a result, the court concluded that the treatment of the applicant had not attained the minimum level of severity required to be described as inhuman or degrading treatment. 19. On 24 June 2015 the Constitutional Court’s decision was served on the applicant’s representative.
| 1 |
test
|
001-163825
|
ENG
|
ROU
|
CHAMBER
| 2,016 |
CASE OF EZE v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1981 and is currently detained in Giurgiu Prison. 6. On 30 December 2010 the applicant was detained pending trial, on suspicion of drug-trafficking offences. Subsequently, he was sentenced to thirteen years’ imprisonment. 7. The applicant was detained in Rahova Prison from: 17 July 2012 to 23 July 2013; 25 July to 17 October 2013; 31 October 2013 to 12 May 2014; and 14 May to 28 July 2014. 8. The applicant was in Rahova Prison Hospital for medical tests and treatment from: 23 to 25 July 2013; 17 to 31 October 2013; and 12 to 14 May 2014. 9. On 28 July 2014 the applicant was transferred to Giurgiu Prison, where he remains to date. 10. In his letters to the Court the applicant stated that he had been detained in overcrowded cells in Rahova Prison. He had had to share a cell measuring twenty-four square metres with nine other detainees. The furniture and the ten beds in the cell had taken up part of the available living space. Consequently, each detainee had been limited to only half a square metre of living space. 11. The applicant stated that, even though he was a non-smoker and had been assigned to a non-smoking cell, the prison authorities had also detained inmates who smoked all the time in that cell. He had complained to the prison authorities about it, but they had ignored his complaints. According to him, this problem had lasted until 30 April 2013. 12. The applicant also stated that some of the detainees who had occasionally shared the cell with him had had contagious diseases, such as hepatitis and human immunodeficiency virus (HIV), or had been drug addicts. Also, some of them had suffered from psychological problems and the prison authorities had been aware of their medical conditions. These detainees had either represented a hazard for the other inmates in the cell, or had not allowed them to rest properly. 13. The applicant further stated that warm water in the shower had only been available two days a week for ninety minutes for all ten detainees in the cell. Also, during the summer, running water had only been available six hours a day and not at all during the night, even if the detainees had needed to use the toilet. 14. The National Prisons Agency informed the Government that the applicant had been detained in cells 2.31, 3.9, 3.10, 3.34, 3.44, 3.48, 5.36 and 6.9 during his incarceration in Rahova Prison. The cells measured between 18.8 and 24.6 square metres, excluding the bathroom and toilet areas. He had shared these cells with nine other detainees at most. The applicant had had his own bed and at no time during his detention had the number of detainees exceeded the number of beds available in the cells. 15. Each cell had a window measuring 1.44 square metres. The food storage area within the cells also had a window measuring 0.72 square metres. All the aforementioned windows were fitted with bars and metal nets, but allowed for sufficient natural light and ventilation in order to comply with the relevant international standards. 16. The cells had bathrooms with two sinks and a shower. The toilets had natural ventilation, namely windows measuring 0.72 square metres, and were separated from the rest of the bathroom by a door. 17. Detainees had permanent access to sanitary facilities. Running water was always available, while warm water was available twice a week for one and a half hours, between 12 p.m. and 1.30 p.m. and between 5 p.m. and 6.30 p.m. Also, detainees were provided with protection against sexually transmitted diseases. 18. The cells and the sanitary facilities also had artificial light and were fitted with radiators. Heating was available intermittently, depending on the outdoor temperature. During the cold season, the temperature in the cells would be 19˚C. 19. Cells had furniture, in particular, bunk beds, small tables, small benches and television stands. 20. The prison authorities issued inmates with cleaning materials, and detainees cleaned the cells themselves. Upon their incarceration, and thereafter on a monthly basis, inmates were issued with personal hygiene products and disinfectants. They were also allowed to buy these products from the prison shop if necessary. Detainees were allowed to wash their underwear and bedlinen in the prison laundry room weekly. 21. In accordance with domestic regulations, each year the applicant had received two toothbrushes, twelve tubes of toothpaste, twelve rolls of toilet paper, twelve bars of soap and twelve disposable razors. 22. Different products and methods were used to disinfect cells and remove pests, and such work was carried out by either the prison or specialist firms. Disinfection was carried out daily, according to the characteristics of each area of the prison. The operations carried out to disinfect and remove pests from the applicant’s cell were preventive, and neither he nor the other inmates sharing his cell had requested them. However, no rats or mice had ever been found in the detention cells in Rahova Prison. 23. Detainees’ diets were determined according to several criteria, including, inter alia, their health and religion. Ingredients had to meet the quality criteria set out by law and had to have quality certificates provided by suppliers. Food was cooked hygienically in the prison kitchen, and stainless steel cooking utensils and equipment were used. Food quality and quantity was also checked by a detainee representative before it was distributed. 24. The National Prisons Agency finally informed the Government that, during his detention, the applicant had not raised complaints in respect of the conditions of detention. 25. In his letters to the Court the applicant stated that, as a Muslim, the prison authorities had not offered him an appropriate diet, namely food which did not contain pork. Moreover, when his visitors had brought him food from home, the prison authorities had only allowed him to receive canned food, fruits and vegetables. Although he had complained to the prison authorities about the inappropriate diet, his complaints had been ignored. 26. The National Prisons Agency informed the Government that, during his detention in Rahova Prison, the applicant had been provided with a diet appropriate for Muslims, and any pork had been replaced with beef. 27. In Rahova Prison, a detainee of a particular faith could ask the prison administration to allow him to buy the food he wanted from the prison shop. 28. During his detention the applicant had been visited on several occasions, but had only received one parcel. 29. The applicant had been allowed to practise his religion in his cell, and had taken part in various religious activities organised by the prison’s orthodox chaplain. He had never asked to receive religious objects, even though he had a lawful right to ask for them.
| 1 |
test
|
001-157372
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF ABDURAKHMANOVA AND ABDULGAMIDOVA v. RUSSIA
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life)
|
András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque
|
5. The applicants were born in 1950 and 1987 respectively and live in Makhachkala. The applicants are the mother and the wife of Mr Abdurakhman Abdurakhmanov (in the documents submitted also written as Abdurashidov), who was born in 1985. 6. The second applicant and her husband Mr Abdurakhman Abdurakhmanov have lived in Moscow since 2008. In the middle of June 2010 the second applicant went to Makhachkala to visit her relatives. On 24 June 2010 her husband Mr Abdurakhman Abdurakhmanov arrived from Moscow, and on the same date they went to visit Mr Abdurakhman Abdurakhmanov’s sister Ms F.Sh. at 29 Sovetskaya Street in Kaspiysk, Dagestan. 7. The first applicant and her husband, a federal judge of the Leninskiy District Court in Makhachkala, lived at 11 Gadzhiyeva Street, Makhachkala. 8. At about 8 p.m. on 25 June 2010 a group of five officers from the Sovetskiy district department of the interior in Makhachkala (the Sovetskiy ROVD) arrived at the first applicant’s house. One of them, who identified himself as Shamil, showed the first applicant arrest warrant no. 6/3-3726 issued in the name of her son Mr Abdurakhman Abdurakhmanov and signed by Captain A. Plugin, the investigator of the Investigative Committee of the Federal Security Service (the FSB). According to the warrant, Mr Abdurakhman Abdurakhmanov was suspected, amongst other things, of involvement in terrorist activities. 9. Meanwhile, on 25 June 2010 the second applicant and her husband Mr Abdurakhman Abdurakhmanov were visiting their relative Ms F.Sh. in Kaspiysk. At about 9 p.m. on that date, a group of five to seven men, some of whom were in black masks, arrived at the house of Ms F.Sh. in a black VAZ-2107 (‘Приора’) car with the registration number containing the numbers 256 or 259 and the letters PH. One of them told the second applicant that they were from the police. The men abducted Mr Abdurakhman Abdurakhmanov next to the house, in the street. First they fired shots at his feet, then they knocked him down, dragged him into the car and drove off. The abduction took place in broad daylight and in the presence of a number of witnesses, including neighbours and the applicants’ relatives. 10. Shortly after the abductors’ departure, several police officers in uniform and plain clothes arrived at the scene of the shooting in two police cars; without giving any explanation they collected the cartridge cases left after the incident. 11. The Government did not dispute the applicants’ account of the circumstances of the abduction, stating that it “does not contradict the information collected by the authorities during the course of the investigation”. 12. At about 9 p.m. on 25 June 2010, immediately after the incident, the second applicant in Kaspiysk called the first applicant in Makhachkala and informed her about the abduction. 13. In the morning of 26 June 2010 the first applicant complained about the abduction to the Dagestan FSB and the Dagestan Prosecutor’s office. She stated that on the date of the abduction she had been visited by a group of five officers from the Sovetskiy ROVD who had showed her a warrant for her son’s arrest issued by the FSB Captain A. Plugin; that shortly after their visit the second applicant had called her from Kaspiysk and told her about the abduction of Mr Abdurakhman Abdurakhmanov by a group of armed men who had opened fire and that shortly after the incident a group of police officers had collected the cartridge cases left at the scene. 14. On 28 June 2010 the Dagestan FSB replied to the first applicant that they had forwarded her complaint to the Dagestan Prosecutor’s office. On 29 June 2010 the latter informed her that they had forwarded the complaint to the Kaspiysk prosecutor’s office. 15. On 28 June 2010 the first applicant complained about the abduction to the Dagestan Ministry of the Interior (the MVD), and provided a detailed description of the circumstances surrounding the abduction, including the police officers’ visit to her house and the collection of the cartridge cases after the abductors’ departure. On 5 August 2010 the Dagestan MVD informed her that they had forwarded her complaint to the Kaspiysk town department of the interior (the GOVD). 16. On 6 July 2010 the Kaspiysk prosecutor’s office informed the first applicant that they had forwarded her complaint to their investigations department for a preliminary inquiry. 17. Between 13 and 19 July 2010 the Kaspiysk prosecutor’s office forwarded eleven requests to various law-enforcement agencies, asking them to establish the whereabouts of Mr Abdurakhman Abdurakhmanov and inform them about his possible detention and the reason for it. They also asked for a copy of the arrest warrant used by the police officers from the Sovetskiy ROVD and for information on whether Mr Abdurakhman Abdurakhmanov had been involved in extremist or illegal activities. 18. On 15 July 2010 the first applicant complained about the abduction to the Kaspiysk prosecutor’s office and asked whether a criminal case had been opened to investigate the incident, and if so what was the progress of the proceedings. 19. On the same date, 15 July 2010 the first applicant again lodged a complaint about her son’s abduction with the investigations department of the Kaspiysk prosecutor’s office. The complaint stated, amongst other things, that the abduction had been perpetrated by police officers in broad daylight and in the presence of numerous witnesses. The applicant asked the authorities to take urgent steps to investigate and to protect her son. In particular, she requested the investigators to take the following measures: granting her victim status in the criminal case; questioning a number of eyewitnesses to the abduction, including the second applicant, Ms F.Sh., Ms D.A., Ms S.G., and Ms R.A.; establishing whether any criminal charges had been pending against Mr Abdurakhman Abdurakhmanov and whether he had been on the authorities’ wanted list; identification of the five police officers who had visited the applicant in Makhachkala on 25 June 2010 and seizure of the warrant signed by Captain A. Plugin; identification of the latter and of the abductors’ car. 20. On 16 July 2010 the first applicant requested the Kaspiysk prosecutor’s office to take additional investigative steps to establish her son’s whereabouts. In particular, she asked them to request information from various detention centres in Dagestan in case Mr Abdurakhman Abdurakhmanov had been detained there, and to initiate a criminal investigation into the abduction. 21. On 16 July 2010 the applicants’ lawyer complained to the FSB investigator Captain A. Plugin about the abduction and the warrant used by the police officers from the Sovetskiy ROVD. The complaint gave a detailed description of the incident and stated that the officers had showed the first applicant a warrant allegedly signed by him. On 23 August 2010 Captain A. Plugin replied stating “... no orders to detain Mr Abdurakhman Abdurakhmanov have been given to the Sovetskiy ROVD ...” and that the applicants should complain about the abduction to the prosecutor’s office. 22. On 17 July 2010 the first applicant again complained to the head of the Dagestan FSB and the Dagestan Prosecutor (see paragraph 13 above). She asserted that Mr Abdurakhman Abdurakhmanov had been abducted by police or FSB officers from Dagestan, and requested the law-enforcement agencies to assist her in establishing his whereabouts. 23. On 19 July 2010 the first applicant complained to the Russian Prosecutor General. She provided a detailed description of the circumstances surrounding the abduction and stressed that the warrant under outgoing no. 6/3-3726 allegedly signed by Captain A. Plugin could have been forged by the police officers. She also stated that the abductors had told the second applicant that they were from the police and that all her efforts to establish her son’s whereabouts by complaining to local lawenforcement agencies had not produced any tangible results. The applicant further stated that she had learned from an unidentified source that on 25 June 2010 a special operation had been conducted by the police or the FSB officers against her son, and requested the authorities to carry out an effective investigation of the incident. 24. On 21 July 2010 the first applicant again complained about the abduction to the Dagestan FSB. On 30 July 2010 they replied to her that her complaint had been forwarded to the Dagestan Prosecutor’s office. 25. On 5 August 2010 the first applicant complained to the head of the Russian FSB. She stated that her son had been abducted by members of law-enforcement agencies and that the responses received by her from the Dagestan FSB had not provided any meaningful information. The applicant asked whether any criminal proceedings were pending against her son, whether he was suspected of a crime, and whether Captain A. Plugin had issued the order for her son’s arrest. She also requested to be informed about her son’s whereabouts and the reasons for his detention. On an unspecified date in August 2010 the Russian FSB replied to the applicant stating that her son had not been charged with any offence and that they had not ordered the Sovetskiy ROVD to detain him. 26. On 11 August 2010 the first applicant complained to the Russian Prosecutor General, the head of the Russian FSB and the head of the Russian MVD about the unlawful detention of her son Mr Abdurakhman Abdurakhmanov by members of law-enforcement agencies. She also requested to be informed whether her son was a suspect in criminal case no. 17822, and if so what charges had been brought against him. 27. On 13 August 2010 the applicants’ lawyer requested information from the Dagestan Prosecutor’s office concerning the criminal charges against Mr Abdurakhman Abdurakhmanov and the place of his unlawful detention. 28. On 20 August 2010 the applicants again complained about the abduction to the Dagestan Prosecutor and the Dagestan MVD. They stated that local law-enforcement agencies had consistently denied any involvement in the abduction of Mr Abdurakhman Abdurakhmanov, but the head of the Sovetskiy ROVD had told them that their relative had been detained by ROVD officers and handed over to the Dagestan Centre for Terrorism Counteraction (the CTC) (“Центр по противодействию экстремизму и терроризму МВД РФ по РД”). However, according to the applicants, the latter agency had denied detaining Mr Abdurakhman Abdurakhmanov. 29. On an unspecified date in August 2010 the Dagestan Council of Judges complained on the applicants’ behalf to the head of the Russian FSB and the Russian Minister of the Interior. The complaint stated that the abduction of Mr Abdurakhman Abdurakhmanov had most probably been perpetrated by members of law-enforcement agencies, officers of the Sovetskiy ROVD in particular, and that the criminal investigation into the incident was ineffective. 30. On 24 August 2010 the Judicial Department of the Russian Supreme Court informed the Dagestan Council of Judges that they had forwarded the complaint about Mr Abdurakhman Abdurakhmanov’s abduction to the prosecutor’s office. 31. In reply to the Court’s request for a copy of the investigation file on the abduction of Mr Abdurakhman Abdurakhmanov the Government produced the relevant documents, which ran to seventy-eight pages. Their contents can be summarised as follows: 32. On 28 July 2010 the Kaspiysk prosecutor’s office initiated a criminal investigation into the abduction of Mr Abdurakhman Abdurakhmanov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 006210. 33. On 29 July 2010 the investigators examined the crime scene. No evidence was collected. 34. On the same date, 29 July 2010, the investigators granted the first applicant victim status in the criminal case and questioned her. She provided a detailed description of the circumstances surrounding the abduction, including the police officers’ visit to her house in Makhachkala, and stated that she had learned from unidentified sources that her son had been detained at a base of the Dagestan CTC. 35. On 30 July 2010 the investigators questioned the applicants’ relative Ms F.Sh., who stated that she had witnessed Mr Abdurakhman Abdurakhmanov’s abduction by a group of seven men in plain clothes, five of whom were masked. According to the witness, the abductors had opened fire and forced Mr Abdurakhman Abdurakhmanov into a black VAZ2107 (‘Приора’) car with the registration number either E256 or E259. The numerous neighbours who had also witnessed the abduction had later told her that the abductors had used two black VAZ-2107 cars. 36. On 30 July 2010 the investigators questioned Ms R.A. and the second applicant, whose statements about the events were similar to that of Mr F.Sh. The second applicant added that about 15-20 minutes after the abduction two police cars had arrived at the place of the skirmish. A group of police officers, both uniformed and plain clothes, had searched the ground with flash lights looking for the spent bullet cartridges. 37. On 2 August 2010 the head of the criminal search division of the Kaspiysk ROVD informed the investigators that they had been unable to identify any witnesses to the abduction. 38. From the documents submitted it follows that on 12 August 2010 the head of Police Station no. 1 in Makhachkala sent the investigators letter no. 2/4298, stating that on 25 July 2010 four of their police officers, M.D., D.M., M.Z. and M.A., following the order of the Russian FSB no.6/33726 of 16 June 2010 given as part of the investigation of criminal case no. 171822, had arrived at the house of the judge of the Leninskiy district of Makhachkala Mr Sh.A. to establish the whereabouts of his son Mr Abdurakhman Abdurakhmanov. The police officers had questioned the first applicant who had told them that her son and his wife were in Moscow. The police officers had not participated in Mr Abdurakhman Abdurakhmanov’s arrest. 39. On 2 September 2010 the head of the Supervision and Control Department of the Dagestan Investigations Committee examined the criminal case file opened into the abduction. He criticised the investigators for their failure to take a number of steps, and ordered that remedial measures be taken. In particular, the document stated the following: “... The case file examination demonstrated that the investigation is being conducted without purpose, that most important circumstances of the crime are not being established and clarified, and that the necessary steps to establish them are not being taken ... [The applicant] Ms Abdurakhmanova stated that at about 8 p.m. on 25 July 2010 five men had arrived at her house. They had introduced themselves as servicemen from the Sovetskiy ROVD in Makhachkala. One of them named Shamil had shown her an arrest warrant for her son Mr A. Abdurakhmanov signed by the FSB investigator A. Plugin ... Later on the same day she had learnt of her son’s abduction in Kaspiysk by unknown masked persons ... who fired weapons during the incident and absconded from the crime scene. Shortly afterwards policemen had arrived at the scene and, according to the neighbours, had collected the cartridge cases and left. To verify Ms Abdurakhmanova’s statements it is necessary to take the following steps: - identifying the policemen who had visited her house as well as the investigator from the Sovetskiy ROVD named Shamil ... - questioning all the policemen in Kaspiysk who were on duty on 25 June 2010 to find out whether they were called to a scene of shooting and abduction at 29 Sovetskaya Street ... - questioning all the witnesses, including the neighbours in Sovetskaya Street, about the events, and finding out the registration numbers of the cars used by the policemen who had arrived at the scene after the abduction ... ... in the letter from the Dagestan FSB of 4 August 2010 it is stated that the FSB had sent a letter to the Investigations Committee (no. 5/3170 of 3 July 2008) concerning Mr A. Abdurakhmanov, in which it was stated that the Dagestan Investigations Committee had been investigating case no. 6021567 concerning ... a bandit group which had planned murders of policemen in Makhachkala as well as terrorist attacks. One of that group’s members was Mr A. Abdurakhmanov ... who had maintained close contact with active members of the bandit subversive movement and had aided and abetted them. In particular, Mr A. Abdurakhmanov had sheltered in his flat armed members of the bandit subversive movement who were hiding from the authorities ... The investigation of criminal case no. 171822 opened by the Russia FSB obtained information concerning activities of an organised armed group in Dagestan and Moscow which was aiding and abetting the armed bandit subversive movement in Dagestan ... the investigation received information concerning Mr A. Abdurakhmanov’s involvement in the activities of that group ... In connection with the above, it is necessary that the investigators: - write to the FSB investigator A. Plugin concerning the operational search measures to be taken against Mr A. Abdurakhmanov ...” 40. On 20 September 2010 the FSB Investigations Department informed the investigators of the following: “... the FSB investigations department is investigating criminal case no. 171822 concerning ... members of the illegal armed group “Imarat Kavkaz”. Mr R.A. and Mr R.M. have been charged in the criminal case with membership of illegal armed groups ... Mr A. Abdurakhmanov is a witness to their criminal activity. In this connection, a request for operational search measures (outgoing no. 6/3-3726 of 17 June 2010) to establish his whereabouts and question him has been forwarded to the Dagestan FSB ...” 41. On 28 September 2010 the investigators requested the Internal Security Service of the Dagestan MVD to oblige police officers M.D., D.M., M.Z. and M.A. to provide statements for the investigation concerning the abduction. The letter stated, amongst other things, that the first applicant had insisted that her son’s abduction had been perpetrated by police officers from the Dagestan CTC. 42. On the same date, 28 September 2010, the investigation of the criminal case was suspended. The applicants were not informed thereof. 43. On an unspecified date in October 2010 the applicants complained to the Kaspiysk Prosecutor about the investigators’ failure to take basic steps to investigate the abduction. On 14 October 2010 the applicants were informed by the Kaspiysk Prosecutor that an investigation into the abduction was in progress. 44. On 15 November 2010 the applicants requested the investigators to take a number of actions, including questioning the heads of the Kaspiysk Town Department of the Interior (the GOVD) to find out whether any special operations had been carried out in the settlement on 25 June 2010 and the reason for the collection of the cartridge cases from the crime scene after the shooting; questioning the head of the Sovetskiy ROVD to establish the reason for the police officers’ visit to the first applicant’s house on 25 June 2010; and questioning the head of the Dagestan CTC to establish whether Mr Abdurakhman Abdurakhmanov had been taken to their premises and if so why this had been done. 45. On 22 November 2010 the head of the Kaspiysk Investigations Department criticised the investigators for an unlawful and premature suspension of the investigation, and ordered that the investigation be resumed and a number of steps be taken. 46. On 23 November 2010 the investigators questioned police officers M.D. and M.Z., both of whom stated that on 25 June 2010 they had visited the first applicant’s house to establish the whereabouts of Mr Abdurakhman Abdurakhmanov on suspicion of his membership of illegal armed groups. The first applicant had told them that her son was not at home. The witnesses had then left the house and had subsequently learnt of the abduction from a local newspaper. 47. On 24 November 2010 the applicants complained to the head of the Kaspiysk Investigations Department, the Dagestan Investigations Department, the Kaspiysk Prosecutor and the Dagestan Prosecutor about the investigators’ failure to take basic steps to investigate the abduction in spite of numerous pieces of evidence implicating law-enforcement officers in the crime. They requested that the investigators be ordered to expedite the investigation and identify the perpetrators. 48. On 30 December 2010 the deputy head of the Kaspiysk Investigations Department rejected the applicants’ complaint as groundless. 49. From the documents submitted it follows that the proceedings are still pending. 50. On 19 July 2010 the first applicant complained to the Sovetskiy District Court of Makhachkala (the district court). She provided a detailed description of the circumstances surrounding her son’s abduction and alleged that he had been abducted by members of law-enforcement agencies. The applicant requested the district court to order the prosecutor’s office to take a number of essential investigative steps and to provide her with information concerning the whereabouts of Mr Abdurakhman Abdurakhmanov. 51. On 29 July 2010 the court requested the Dagestan MVD to inform it whether the police officers had arrested the applicants’ relative. 52. On 12 August 2010 the Dagestan MVD replied to the court, stating the following: “... on 25 June 2010 ... a group of officers from the ROVD, including Major M.D., Senior Lieutenants D.M. and M.Z. and Lieutenant M.A., following the investigator’s order no. 6/3-3726 of 17 June 2010 issued as part of the criminal case no. 171822 opened under Articles 186 § 1 (money counterfeiting) and 205 § 1 (terrorist activity) of the Criminal Code, visited [the first applicant’s house in Makhachkala] in order to establish the whereabouts of Mr Abdurakhman Abdurakhmanov, who was suspected of committing the above crimes ...” The letter further stated that no further information about the visit was available. 53. On 24 August 2010 the district court rejected the applicant’s complaint of 19 July 2010. The decision stated, amongst other things, the following: “... from the letter of the head of the Dagestan FSB Mr A.G., outgoing no. 13465 dated 2 July 2010, it follows that order no. 6/3 dated 17 June 2010 was issued by the Investigations Department of the Dagestan FSB as part of criminal case no. 171822, to establish the whereabouts of Mr Abdurakhman Abdurakhmanov ... Following this order the officers of the Sovetskiy ROVD visited the home of [the first applicant] Ms A. Abdurakhmanova and took a statement from her concerning her son’s whereabouts. Their actions do not contravene Article 6 of the Federal Law “On Operational and Search Activity”....” 62. The applicants maintained that it was beyond reasonable doubt that the men who had abducted Mr Abdurakhman Abdurakhmanov were State agents. In support of their complaint, they referred to the following facts. Mr Abdurakhman Abdurakhmanov was suspected by the authorities of membership of illegal armed groups (see paragraphs 39, 40, 46 and 52 above); two hours prior to the abduction five officers from the Sovetskiy ROVD visited the first applicant’s house in Makhachkala and showed the FSB warrant (see paragraphs 8, 13, 23, 39 and 52 above). Then, in Kaspiysk, less than an hour later, one of the abductors identified himself as a police officer and shortly after the abduction the police arrived at the scene and removed the spent cartridges to cover the perpetrators’ tracks. The perpetrators were violent and opened fire without hesitation, in the presence of a number of witnesses. The applicants further stated that since Mr Abdurakhman Abdurakhmanov had been missing for about a year at the time of the submission of their observations to the Court, he could be presumed dead. That presumption was further supported by the circumstances in which he had been abducted, which should be recognised as life-threatening. 63. The Government submitted that the applicants’ relative had been abducted by unidentified men and that neither the perpetrators’ behaviour nor their vehicles provided for any firm evidence that they were State agents. The Government further contended that there was no evidence that Mr Abdurakhman Abdurakhmanov was dead. 64. The Court observes that in its extensive case-law it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights (for a most recent summary of these, see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012). 65. More specifically, the Court has adjudicated a series of cases concerning allegations of disappearances in the Russian North Caucasus. Applying the above-mentioned principles, it has concluded that it would be sufficient for the applicants to make a prima facie case of abduction of the missing persons by State agents, thus falling within the control of the authorities, and it would then be for the Government to discharge their burden of proof, either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, for example, concerning abductions in Dagestan, Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013, and Umarovy v. Russia, no. 2546/08, 12 June 2012). If the Government failed to rebut this presumption, that would entail a violation of Article 2 in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012). 66. In view of the parties’ submission concerning the circumstances of the abduction (see paragraphs 8-11 above), the Court concludes that the materials in its possession demonstrate the validity of the applicants’ allegation, for the following reasons. Firstly, the abductors, who arrived in a civilian vehicle, acted as an organised group and did not hesitate to open fire and perpetrate the abduction in the street, in daylight and in the presence of witnesses. One of them told the second applicant that they were from the police. Secondly, a group of local police officers arrived at the crime scene shortly after the incident and collected the cartridge cases left by the abductors. Thirdly, the police officers’ visit to the first applicant’s house in Makhachkala looking for Mr Abdurakhman Abdurakhmanov on suspicion of his involvement in terrorist activities, just an hour prior to his abduction in Kaspiysk, provides grounds to believe that these two events were interconnected. Further, the investigators took no meaningful steps to check whether the abduction could have been perpetrated for other reasons, such as a blood feud, ransom, drugs or hostility. No serious steps were taken to verify those hypotheses and no information was obtained that the abductors could have been other than State agents (see, by contrast, Zubayrayev v. Russia, no. 67797/01, § 81, 10 January 2008). Lastly, the procrastination of the authorities in the investigation into the matter, along with the applicants’ consistent allegations that law-enforcement officers were involved in the incident (see, for example, paragraph 47 above), provide the Court with the grounds to conclude that the applicants have made a prima facie case that their relative Mr Abdurakhman Abdurakhmanov was abducted by State agents. The Government’s statement that the investigators found no evidence that members of lawenforcement authorities were involved in Mr Abdurakhman Abdurakhmanov’s disappearance is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties and drawing inferences from the Government’s failure to provide another plausible explanation for the events in question, the Court finds that Mr Abdurakhman Abdurakhmanov was apprehended on 25 June 2010 by State agents (see, for a similar situation, Askhabova v. Russia, no. 54765/09, § 135, 18 April 2013). 67. There has been no reliable news of Mr Abdurakhman Abdurakhmanov since his arrest. The Government have not submitted any explanation as to what happened to him afterwards. 68. The Court finds that, in a situation where a person is detained by unidentified police officers without any subsequent acknowledgment of the detention and is then missing for several years, that situation can be regarded as life-threatening. The absence of Mr Abdurakhman Abdurakhmanov or of any news of him for over five years supports this assumption. 69. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Mr Abdurakhman Abdurakhmanov must be presumed dead following his unacknowledged detention by State agents.
| 1 |
test
|
001-168759
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF MARYASOVA AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
4. The applicants were all parties to unrelated sets of civil proceedings. 5. Some applicants attended the hearings before the first-instance courts; all of them were absent from the appeal hearings. Whenever the appeal courts addressed the issue of their absence, they did not check whether the applicants or their representatives received the summons, whether it was necessary to adjourn hearings or whether their presence was required due to the nature of the claims. 6. The dates of the final judgments are set out in Appendix I.
| 1 |
test
|
001-175484
|
ENG
|
HUN
|
CHAMBER
| 2,017 |
CASE OF KÖRTVÉLYESSY v. HUNGARY (No. 2)
| 4 |
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
|
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani
|
5. The applicant was born in 1965 and lives in Budapest. 6. At 4.07 p.m. on 7 October 2009 the applicant notified the police that he planned to organise a demonstration from 2 to 7 p.m. on 10 October 2009 in front of the Venyige Street prison in Budapest, to protest against the “political persecution of national radicalism”. Venyige Street is a broad cul-de-sac with a service lane. 7. A police officer from the police station that had received the notification repeatedly attempted to contact the applicant by phone, in line with the relevant decree issued by the Minister of the Interior on police tasks related to securing public order at major events, in order to arrange for a meeting. Despite making several attempts and leaving messages, however, he could not reach him. 8. On 9 October 2009 the head of the Budapest Police Department banned the demonstration on the grounds that traffic could not be diverted to alternative routes (section 8(1) of the Assembly Act). In the decision, he referred to Article 21 of the International Covenant on Civil and Political Rights, Article 11 of the Convention and Decision no. 55/2001.AB of the Constitutional Court. 9. The applicant sought a judicial review of the decision within the statutory three-day time-limit. 10. On 15 October 2009 the Budapest Regional Court dismissed the applicant’s case. It noted that in assessing whether or not traffic could be diverted to other routes, the authority had reckoned on the participation of some 200 demonstrators, as per the applicant’s notification, and that it had established that lawful parking and traffic circulation in the neighbourhood would become impossible should the event take place. The court agreed with the police’s decision in that although the right to assembly was a constitutional fundamental right, it was not absolute and must not give rise to a violation of the fundamental rights of others, and could therefore be restricted. The court was satisfied that the decision had been lawful as the police had adequately established the facts, complied with the procedural rules and applied clear assessment criteria, and the assessment of the evidence had been logical.
| 1 |
test
|
001-165032
|
ENG
|
LVA
|
GRANDCHAMBER
| 2,016 |
CASE OF JERONOVIČS v. LATVIA
| 1 |
Preliminary objections joined to merits and dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;André Potocki;Dean Spielmann;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Paulo Pinto De Albuquerque;Zdravka Kalaydjieva
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10. The applicant was born in 1962 and is detained in Daugavpils Prison. 11. On 25 April 1998 the applicant and another individual, A. Vovruško, were arrested by the police on suspicion of having committed, inter alia, aggravated assault against P.M. 12. Criminal proceedings were initiated in that connection, throughout which the applicant and his co-defendant pleaded their innocence. 13. On 27 September 2000 the applicant and his co-defendant were found guilty of the charges and were sentenced to nine and twelve years’ imprisonment respectively by the Riga Regional Court. 14. The applicant lodged an appeal on points of law and unsuccessfully sought leave to attend the hearing on his appeal before the Supreme Court. 15. Following his questioning at the police station after his arrest, the applicant complained to the public prosecutor’s office that he had been ill-treated by police officers who had tried to obtain a confession from him (for details concerning similar allegations of ill-treatment made by the applicant’s co-defendant, see Vovruško v. Latvia, no. 11065/02, 11 December 2012). 16. As a result, criminal proceedings (case no. 50207598) were initiated against the police officers for abuse of official power. On 19 March 2001 those criminal proceedings were discontinued by the Riga police station investigator (Rīgas rajona policijas pārvalde) on grounds of insufficient evidence. The investigator found, inter alia, that the applicant’s allegations were incoherent, and concluded that the “light” injuries he had sustained could have been caused during his arrest. 17. On 8 October 2001 the applicant lodged an application (no. 547/02) with the Court. He alleged a breach of Article 3 of the Convention, complaining of having been subjected to ill-treatment during the pre-trial investigation and of the lack of an effective investigation into those allegations. He also alleged breaches of Article 3 (conditions of detention following his conviction), Article 5 § 3 (duration of pre-trial detention), Article 5 § 5 (lack of compensation), Article 6 § 1 (refusal to grant him leave to attend the Supreme Court hearing and overall duration of the criminal proceedings), and Article 6 § 1 taken in conjunction with Articles 13 and 14 of the Convention (lack of legal assistance). He lodged a further complaint under Article 6 § 1 alleging that the criminal proceedings which had resulted in his conviction had been unfair as his confession had been obtained from him as a result of ill-treatment in breach of Article 3. 18. On 22 February 2007 the Government were given notice of the applicant’s complaints concerning, inter alia, his ill-treatment and the lack of an effective investigation into his allegations in that regard. 19. On 30 April 2008 the Government submitted the following unilateral declaration: “The Government of the Republic of Latvia (hereinafter – the Government) represented by [their] Agent Inga Reine admit that the physical treatment of Viktors Jeronovičs (hereinafter – the applicant) by the police officers, as well as the effectiveness of the investigation of the respective applicant’s complaints, the access to legal aid and effective remedies to apply for the compensation of damages, the length of criminal proceedings [against the applicant], as well as the lack of effective remedy did not meet the standards enshrined in Article 3, Article [5 § 5], Article [6 § 1], Article 13 and Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention). Being aware of that, the Government undertake to adopt all necessary measures in order to avoid similar infringements in future, as well as to provide an effective remedy. Taking into account that the parties have failed to reach a friendly settlement in this case, the Government declare that they offer to pay ex gratia to the applicant compensation in the amount of 4,500 EUR ([approximately] 3,163 LVL]), this amount being the global sum and covering any pecuniary and non-pecuniary damage together with any costs and expenses incurred, free of any taxes that may be applicable, with a view to terminat[ing] the proceedings pending before the European Court of Human Rights (hereinafter – the Court) in the case [of] Jeronovičs v. Latvia (application no. 547/02). ... This payment will constitute the final resolution of the case.” 20. On 10 February 2009 the Chamber of the Court’s Third Section to which the case had been allocated adopted a decision in which, inter alia, it took note of the terms of the Government’s declaration and, by virtue of Article 37 § 1 of the Convention, struck out the complaints mentioned in the unilateral declaration. The relevant paragraphs of the decision read as follows: “48. The Court observes at the outset that the parties have not reached agreement on the terms of a friendly settlement of the case. It reiterates however that a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly-settlement negotiations and, on the other, unilateral declarations – such as the one at issue – made by a respondent Government in public and adversarial proceedings before the Court. In accordance with Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, the Court will proceed on the basis of the Government’s unilateral declaration and the parties’ observations submitted outside the framework of the friendly-settlement negotiations, and will disregard the parties’ statements made in the context of exploring the possibilities for a friendly settlement of the case and the reasons why the parties were unable to agree on the terms of a friendly settlement (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, § 74, ECHR 2003VI). 49. The Court further refers to Article 37 § 1 of the Convention, the relevant parts of which provide: ‘1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.’ Tahsin Acar, cited above, § 75; see also, for example, Van Houten v. the Netherlands (striking out), no. 25149/03, § 33, ECHR 2005IX; Swedish Transport Workers’ Union v. Sweden (striking out), no. 53507/99, § 24, 18 July 2006; Kalanyos and Others v. Romania, no. 57884/00, § 25, 26 April 2007; Kladivík and Kašiar v. Slovakia (dec.) (striking out), no. 41484/04, 28 August 2007; Sulwińska v. Poland (dec.) (striking out), no. 28953/03, 18 September 2007; Stark and Others v. Finland (striking out), no. 39559/02, § 23, 9 October 2007; Feldhaus v. Germany (dec.) (striking out), no. 10583/02, 13 May 2008; and Kapitonovs v. Latvia (dec.) (striking out), no. 16999/02, 24 June 2008). ... 52. As to the ill-treatment to which the applicant was allegedly subjected in police custody and the effectiveness of the investigations carried out, although the Court has not to date found a violation of Article 3 by the Latvian police in that specific context, it nevertheless points to its clear and very extensive case-law in this regard (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, §§ 95-106, ECHR 1999V; Dikme v. Turkey, no. 20869/92, §§ 73-104, ECHR 2000VIII; and Karaduman and Others v. Turkey, no. 8810/03, §§ 64-82, 17 June 2008). The same is true as regards the principles governing the granting of legal aid as a component of the right of access to a court (see, for example, Aerts v. Belgium, 30 July 1998, §§ 59-60, Reports of Judgments and Decisions 1998V; P., C. and S. v. the United Kingdom, no. 56547/00, §§ 88-91, ECHR 2002VI; Bertuzzi v. France, no. 36378/97, §§ 23-32, ECHR 2003III; and Staroszczyk v. Poland, no. 59519/00, §§ 127-129, 22 March 2007). 53. In their declaration in the present case the Government have recognised that the treatment to which the applicant was subjected by the police officers while in police custody, the manner in which the investigations were carried out in that regard, the handling of the applicant’s claims for compensation and in particular the refusal of his applications for legal aid in order to gain access to the compensation procedure, as well as the length of the criminal proceedings against him, infringed Articles 3, 5 § 5, 6 § 1, 13 and 14 of the Convention. They have offered to pay the applicant EUR 4,500 in compensation and undertake to take all necessary measures to prevent similar violations in the future. 54. In view of the nature of the undertakings contained in the Government’s declaration, the Court considers that it is no longer justified to continue the examination of the complaints in question. That decision is without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress. The same applies to the complaint under Article 2 of Protocol No. 7, which is identical in substance to the complaint under Article 6 § 1 of the Convention concerning the length of the criminal proceedings in question (paragraph 38 in fine). The Court is further satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue its examination of this part of the application (Article 37 § 1 in fine). 55. Accordingly, the case should be struck out of the list in so far as it concerns the complaints referred to in paragraphs 28, 37 and 38 of this decision.” 21. In the same decision, the Court declared admissible the complaints concerning the applicant’s conditions of detention (Article 3) and the refusal to grant him leave to attend the Supreme Court hearing (Article 6), and dismissed all the other complaints, including the complaint that the criminal proceedings had been unfair owing to the admission of evidence obtained under duress (Article 6). On the latter point the Court found as follows: “39. Relying on Articles 6 §§ 1 and 2, 7 and 14 of the Convention, the applicant complained of the overall unfairness of his conviction for the armed robbery allegedly committed in April 1998. He maintained in that connection that a confession had been obtained from him under duress and that the courts had refused several requests made by him for a confrontation. Lastly, the applicant contended that he had been convicted solely on account of his ethnic and social origin and his previous convictions. ... 84. The Court, having regard to all the evidence in its possession and in so far as it has jurisdiction to examine the allegations made, finds no appearance of a violation of the rights and freedoms guaranteed by the provisions on which the applicant relies. In particular, it reiterates that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention, which is not the case here (see, among many other authorities, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000V). 85. It follows that these complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.” 22. On 1 December 2009 the Court adopted a judgment – Jeronovičs v. Latvia (no. 547/02) – finding a violation of Article 3 of the Convention (conditions of detention) and Article 6 § 1 (refusal to grant leave to attend the Supreme Court hearing) and awarding 5,000 euros [EUR] in compensation for the non-pecuniary damage suffered on account of the Article 3 violation. 23. On 11 October 2010 the applicant requested the public prosecutor’s office to reopen the criminal proceedings in which he had been convicted (see paragraph 13 above) as well as the proceedings concerning his alleged ill-treatment by police officers (see paragraph 16 above). He relied on the terms of the Government’s unilateral declaration of 30 April 2008 and on sections 655(3), 656(3) and 657 of the Criminal Procedure Law (see paragraphs 28 to 31 below). 24. On 17 November 2010 a prosecutor attached to the Riga Regional Court dismissed the applicant’s request, finding that none of the grounds for the reopening of criminal proceedings set out in section 655(2) of the Criminal Procedure Law applied. The prosecutor also found as follows: “...The case of Jeronovičs v. Latvia (no. 547/02) contains the Government’s unilateral declaration, the conclusions of which are applicable only to the circumstances and the events examined within the scope of that case. It cannot be concluded from the judgment of 1 December 2009 adopted by the European Court of Human Rights that the Court examined and assessed any activities carried out by the law-enforcement officers during the pre-trial investigation in the criminal proceedings ... Accordingly, the conclusions reached in [the Court’s] judgment of 1 December 2009 and the Government’s unilateral declaration of 30 April 2008 cannot be applied or connected to the criminal proceedings...” 25. In an appeal lodged on 9 December 2010 the applicant reiterated that there was a legal basis for reopening the criminal proceedings concerning his ill-treatment, on account of the fact that the Government’s unilateral declaration had expressly recognised the violation of Article 3 of the Convention, a circumstance which had led the Court to strike out that complaint. He further argued that at the time his criminal case was examined by the domestic courts, the judicial authorities had been unaware that the investigation into his allegations of ill-treatment was in breach of Article 3. 26. In a final decision of 20 December 2010 a higher-ranking prosecutor upheld the decision of 17 November 2010. The prosecutor noted that, under section 655(2) of the Criminal Procedure Law, only criminal proceedings that had ended with a valid court judgment or decision could be reopened, and only provided that the ground for requesting such reopening was among those listed in that provision. The prosecutor further found as follows: “Having examined the foregoing, I find that the conclusion of the prosecutor in her decision of 17 November 2010 is valid and well-founded, to the effect that your application dated 11 October 2010 requesting the reopening of the criminal proceedings in cases nos. 06725198 and 50207598 on the basis of new circumstances does not comply with any of the conditions prescribed by section 655(2) of the Criminal Procedure Law which could serve as grounds for reopening the above-mentioned criminal proceedings. The prosecutor did not establish the existence of any such conditions during the examination of your application, which is why I regard as reasonable her decision to refuse the reopening of the criminal proceedings in cases nos. 06725198 and 50207598 on the basis of newly disclosed circumstances. As already mentioned, the Criminal Procedure Law prescribes in detail all the circumstances which shall be recognised as newly disclosed and on the basis of which criminal proceedings ending in a valid court judgment or decision may be reopened. The Criminal Procedure Law does not make any provision for these circumstances to be expanded. In examining your complaint I did not find established any of the newly disclosed circumstances prescribed by section 655(2) of the Criminal Procedure Law. Likewise, I did not find any opinion by an international judicial authority relating to the decision of the Latvian court in case no. 50207598 and finding that the judgment of the Criminal Division of the Riga Regional Court which came into force on 27 September 2000 did not comply with international law and regulations binding on Latvia. The European Court of Human Rights did not express such an opinion in its judgment of 1 December 2009 or in the decision of 10 February 2009 in which that international court examined your application. I would also like to point out that, contrary to your allegations, the European Court of Human Rights in its decision of 10 February 2009 stated that in the adoption of its decision concerning inhuman treatment by police officers during the criminal investigation it did not find any violation of international laws or regulations. In your application you emphasised that the criminal proceedings in cases nos. 06725198 and 50207598 should be reopened in connection with the unilateral declaration of the Government of the Republic of Latvia mentioned by the Latvian Republic Government Agent on 30 April 2008, in which the Government of the Republic of Latvia recognised that the physical treatment of Viktors Jeronovičs by police officers, the effectiveness of the investigation into the applicant’s complaints, his access to legal aid and to effective remedies by which to apply for compensation for damage, the length of the criminal proceedings, and the lack of an effective remedy, did not meet the standards enshrined in Articles 3, 5 § 5, 6 § 1, 13 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. I would like to make clear that, according to section 655(2) of the Criminal Procedure Law, the above-mentioned unilateral declaration by the Government of the Republic of Latvia is not recognised as a newly disclosed circumstance and cannot therefore be regarded as a basis for reopening the criminal proceedings in cases nos. 06725198 and 50207598. In view of the above-mentioned considerations, there is no reason to quash the decision [...] dated 17 November 2010 concerning the refusal to reopen the criminal proceedings in the light of newly disclosed circumstances...”
| 1 |
test
|
001-164419
|
ENG
|
HRV
|
CHAMBER
| 2,016 |
CASE OF JAKELJIĆ v. CROATIA
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
|
5. The applicants were born in 1960 and 1970 respectively and live in Split. 6. The legislation of the former Yugoslavia, in particular section 29 of the 1980 Basic Property Act (see paragraph 25 below), prohibited the acquisition of ownership of socially owned property by adverse possession (dosjelost). 7. When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed the above-mentioned provision (see paragraph 26 below). 8. Subsequently, the new Property Act of 1996, which entered into force on 1 January 1997, provided that the period prior to 8 October 1991 was to be included in calculating the period for acquiring ownership by adverse possession of socially owned immovable property (see paragraph 28 below). 9. Following several petitions for an abstract constitutional review (prijedlog za ocjenu ustavnosti) submitted by former owners of properties that had been appropriated under the socialist regime, on 8 July 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) accepted the initiative and decided to institute proceedings to review the constitutionality of section 388(4) of the 1996 Property Act. 10. By a decision of 17 November 1999, the Constitutional Court invalidated section 388(4) of the 1996 Property Act. It held that the impugned provision had retroactive effect, resulting in adverse consequences for the rights of third parties (primarily those who, under the restitution legislation, were entitled to the restitution of property appropriated during the Communist regime) and was therefore unconstitutional (for the relevant part of the decision see Trgo v. Croatia, no. 35298/04, § 17, 11 June 2009). The decision came into effect on 14 December 1999 when it was published in the Official Gazette. 11. On 25 May 1993, 21 February 1996 and 20 July 1999 respectively, the applicants bought three plots of land from various individuals. However, the plots were recorded in the land register in the name of Stobreč Municipality as the legal predecessor of Split Township. 12. On 4 April 2002 the applicants brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against Split Township (Grad Split – hereinafter “the local authorities”), seeking a declaration of their ownership of the three plots of land and registration in their names in the land register. They submitted that the property at issue, even though it had been recorded in the land register in the name of Stobreč Municipality as the legal predecessor of Split Township, had been in the possession of their legal predecessors for more than 100 years. Given that the statutory period for acquiring ownership by adverse possession had elapsed in respect of their legal predecessors, the applicants claimed that by buying the land from them they had validly acquired ownership. 13. By a judgment of 1 June 2007, the Municipal Court ruled in favour of the applicants. It established, firstly, that the land in question had been in social ownership on 8 October 1991 and that under the relevant legislation it had not been possible to acquire ownership of socially owned property by adverse possession before that date unless the statutory requirements for doing so had been met by 6 April 1941 (see paragraphs 19, 25 and 31-32 below). It found, however, that the applicants had proved that their predecessors had had continuous possession of the three plots of land in good faith for more than forty years before 6 April 1941, and had continued to do so until they had sold them to the applicants (see paragraph 11 above). The applicants’ predecessors had therefore, under Article 1472 of the 1811 Civil Code (applicable in Croatia from 1852 until 1980, see paragraphs 18-20 and 22 below), acquired ownership of the land by adverse possession even before that date. 14. Following an appeal by the defendant authority, on 29 May 2008 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicants’ action. It stated that even though the Municipal Court had established the facts correctly, the applicants’ predecessors had only been in possession of the land in question (continuously and in good faith) since 1912. The forty-year time-limit for acquiring ownership by adverse possession set forth in Article 1472 of the 1811 Civil Code had not therefore expired by 6 April 1941 (see paragraph 22 below). In the subsequent period between 6 April 1941 and 8 October 1991 the relevant legislation had prohibited the acquisition of ownership of socially owned property by adverse possession (see paragraph 6 above and 25 below). This had interrupted the running of the statutory time-limits elapsed before that period. The time elapsed before 6 April 1941 had therefore not continued to run after 8 October 1991 – it had actually started to run again. 15. The applicants then lodged a constitutional complaint against the second-instance judgment, alleging violations of their constitutional rights to equality before the law, equality before the courts and fair procedure. 16. By a decision of 15 September 2011, the Constitutional Court dismissed their constitutional complaint and on 4 October 2011 it served its decision on their representative.
| 1 |
test
|
001-174613
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF MEDVEDEV v. RUSSIA
| 4 |
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
|
Alena Poláčková;Helen Keller;Pere Pastor Vilanova
|
4. The applicant was born in 1968 and is serving a prison sentence in Astrakhan. 5. In July 2004 the applicant was charged with murder of V. Counsel Sh. was appointed to represent him during investigation and trial. 6. On 10 December 2004 the Astrakhan Regional Court held a preliminary trial hearing. The applicant opted for a jury trial. In support of his request, Sh. stated as follows: “[The applicant] has committed a particularly serious offence which might entail a lengthy custodial sentence. ... I support the [applicant’s] request.” 7. On 18 February 2005 the court completed the examination of evidence. Both prosecution and defence made their closing arguments. In his statement, Sh. called the applicant “a robber and a drunkard”. The presiding judge instructed the jury to disregard the counsel’s statement as referring to the applicant’s character. 8. On 18 February 2005 the jury delivered a guilty verdict. 9. On 21 February 2005 the applicant asked the court to replace counsel Sh. alleging that the defence carried out by him had not been effective. The court dismissed the applicant’s request. 10. On the same date the Regional Court found the applicant guilty of murder and sentenced him to fifteen years’ imprisonment. 11. On 1 March 2005 the applicant asked the Regional Court to appoint legal counsel to represent him before the appeal court. On 8 March 2005 the court refused to appoint a lawyer referring to the relevant legal provisions that did not provide for a right to have a state-appointed lawyer before the appeal court. 12. On 21 July 2005 the Supreme Court of the Russian Federation upheld the judgment of 21 February 2005 on appeal. According to the official documents, the applicant was not provided with legal assistance. 13. On 6 June 2007 the Presidium of the Supreme Court quashed the appeal judgment of 21 July 2005 by way of supervisory review. The court noted that the applicant had not been provided with legal assistance in the appeal proceedings and remitted the matter for fresh consideration to the appeal court. The applicant did not attend the hearing. He was represented by counsel O. 14. On an unspecified date the applicant was transferred to Moscow. Counsel R. was appointed to represent him. From 1 to 3 August 2007 R. studied the case-file. On 7 and 14 August 2004 he met with the applicant at the remand prison. 15. On an unspecified date the applicant submitted a revised statement of appeal. 16. On 16 August 2007 the Supreme Court held a new appeal hearing. According to the applicant, he participated in the hearing by means of a video link. R. was present in the courtroom. He did not submit a statement of appeal and made oral submissions to the court. Having examined the applicant’s appeal, the court upheld, in substance, his conviction. The court also dismissed as unsubstantiated the applicant’s complaint about the alleged ineffectiveness of the legal assistance provided by counsel Sh. In this connection, the court noted that the applicant had consented to be represented by Sh. both during the investigation and trial. The court also concluded, on the basis of the trial record, that Sh. had taken an active part in the trial. In his closing argument, Sh. had supported the applicant’s non-guilty plea and argued that the applicant had not been proved guilty. Lastly, the court took into account that, prior to the jury verdict, the applicant had not complained about the quality of the defence provided by Sh. 17. On 18 August 2008 the Supreme Court dismissed the applicant’s supervisory review complaint against the judgment of 16 August 2007.
| 1 |
test
|
001-179862
|
ENG
|
UKR
|
COMMITTEE
| 2,018 |
CASE OF MIKHAYLOV 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 5-4 - Speediness of review);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
|
André Potocki;Mārtiņš Mits;Síofra O’Leary
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-153923
|
ENG
|
POL
|
COMMITTEE
| 2,015 |
CASE OF KUBIAK v. POLAND
| 4 |
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)
|
George Nicolaou;Ledi Bianku
|
5. The applicant was born in 1989 and is currently detained in Garbalin Prison. 6. On an unspecified date before 2010 the applicant was convicted of homicide and sentenced to imprisonment. The term of his imprisonment was to end in 2016. 7. At the relevant time he was detained in Włocławek Prison. 8. On 23 December 2010 the applicant’s grandmother died. 9. On 29 December 2010 in the morning the applicant received a telegram from his relatives informing him of the death of his grandmother and of the date of her funeral. The funeral was scheduled to take place on 30 December 2010 at 12 noon in Zgierz, a town located at a distance of approximately 100 kilometers from Włocławek. 10. On the same day the applicant made an application for leave from prison to attend his grandmother’s funeral. His application was transmitted by the penitentiary authorities to the Włocławek Regional Court via fax at 2.46 p.m. It read, in so far as relevant, as follows: “I kindly ask the Regional Court to grant me leave to attend the funeral of my grandmother. She was very close to me, she was the person who had raised me. Thank you very much for considering my request.” 11. By a decision of 30 December 2010 the Penitentiary Judge of the Włocławek Regional Court (sędzia penitencjarny), refused the applicant’s request. The reasons given for the decision were as follows: “... the convicted person’s application for compassionate leave under Article 141a § 1 of the Code of Execution of Criminal Sentences was refused due to the nature of the committed offence, negative opinion about the convicted (negatywna opinia środowiskowa) and the remote date foreseen for the completion of his sentence.” 12. The decision was notified in writing to the applicant on 31 December 2010. The applicant did not appeal against it as the funeral had already taken place and he considered that this would be purposeless.
| 0 |
test
|
001-142406
|
ENG
|
POL
|
CHAMBER
| 2,014 |
CASE OF KRASICKI v. POLAND
| 4 |
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä
|
5. The applicant was born in 1970 and lives in Warsaw. 6. The applicant recognised his paternity in respect of his two sons, A. and J., born out of his relationship with J.J. in January 1999 and December 2000. He never cohabited with the mother and the children. 7. On 14 January 2004 J.J. lodged an application with the WarsawMokotów District Court for the applicant to be divested of his parental authority (pozbawienie praw rodzicielskich). She argued that he had been failing to discharge his duties towards the children and to pay child support. 8. During a hearing on 18 February 2004 she withdrew her application. The court discontinued this part of the proceedings. In the same decision it held that both parents were to continue to have parental authority and that the children should reside with their mother. A court-appointed guardian (kurator sądowy) was assigned to supervise the applicant in the exercise of his parental authority. He was granted a right to contact, but no specific contact arrangements were set out at that time. 9. On 11 May 2005 the applicant requested the WarsawMokotów District Court to specify that contact arrangements away from the mother’s home, as difficulties had arisen for him to see the children. 10. On 23 December 2005 an expert opinion commissioned by the court for the purposes of the contact proceedings was issued by the Regional Family ConsultationCentre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny – “RODK”). It had been prepared by a psychologist and an education specialist who had met both the parents and children. It transpired that the children had emotional ties with both parents and a close and spontaneous relationship with the father. The father had emotional ties with the children, knew them well, accepted them, and wanted to maintain contact. He paid child support and had the qualities needed to be a competent father. He should therefore play a part in the boys’ lives. The experts stressed that the mother had a negative attitude towards the applicant and wished to exclude him from the children’s lives. They were of the view that her educational skills and practices were open to criticism. The experts noted signs of emotional distress in the boys but observed that they loved both parents. They concluded that the boys should have frequent contact with their father. 11. In a letter sent to the court during the proceedings, the applicant stated that he abstained from having contact with the children because the mother had been hostile and verbally aggressive towards him. 12. He had seen the boys on 1 October 2005. 13. By a decision of 8 February 2006 the WarsawMokotów District Court specified that the applicant had a right to see the boys on the first, second and fourth Saturday of every month, from 10 a.m. to 7 p.m., without the mother present. It further held that he was entitled to spend one week of the summer holidays with them. The mother was obliged to comply with that order. Her appeal was dismissed on 22 June 2006. 14. The mother failed to comply with the contact order. On numerous occasions the applicant complained in writing to the police and the court. The court-appointed guardians, in successive reports to the court, including in July and December 2006, January 2007, April 2008 and July 2009, confirmed that the mother had been obstructive, had failed to comply with the contact arrangements, and had repeatedly refused to open her door when they went to visit. They talked to the children’s teachers and the school’s education welfare officer with a view to gathering information about the children’s progress in school, the mother’s involvement in their education and the children’s contact with the applicant. 15. On 10 August 2006 the applicant requested that a fine be imposed on the mother for failing to let him see the boys. 16. On an unspecified date in November 2006 the boys’ mother allegedly told them that their father was dead. She sent him a funeral wreath with offers of condolences from his children. 17. On 17 April 2007 the WarsawMokotów District Court imposed a fine on the mother of PLN 1,000 for failing to comply with the contact order and ordered her to comply with its terms within thirty days. Two similar orders were issued on 21 September 2007 and 16 May 2008, upon applications by the applicant dated 26 July 2007 and 14 December 2007 respectively. Fines were imposed on her on both occasions (PLN 1,000 and PLN 1,200) and thirty-day time-limits fixed for her to allow the applicant to see the children. Any fine remaining unpaid within that time-limit would be converted into detention at a rate of PLN 100 per day. 18. In two reports submitted to the court in May and June 2007 the guardian observed that the applicant had only once taken the opportunity to see his sons on the school premises, despite an agreement being reached with the school authorities. In June and August 2007 she informed the court that she had not managed to establish contact with the parents. In her August report, she stressed the willingness of the teachers and the school authorities to assist the applicant in seeing his sons at school and informed the court that he had not availed himself of that opportunity. In reports submitted to the court in November and December 2007 and January and February 2008 the guardian summarised the applicant’s communications with the children’s teachers and authorities. She noted that there had been no signs of neglect on the part of the mother and that the boys caused no trouble and showed no signs of distress. Reference was made in the February report to the mother’s hostility towards the children’s father. 19. In April 2008 the applicant went to the mother’s apartment, accompanied by the guardian and the police. She said that she disagreed with the contact order, was ready to suffer the consequences and was not prepared to allow the applicant contact with the children. A child was heard crying in the apartment. The police chose not to intervene. The applicant was not allowed to see the boys. 20. The mother failed to pay the fines imposed on her. By an order of 17 December 2008 the court, having regard to that failure, held that she was to serve thirty-two days in detention in lieu of paying the unpaid fines and ordered the court bailiff to carry out enforcement. 21. On 31 July 2009 the guardian reported to the court that her attempts to establish contact with the mother had failed, as she would not open the door to her apartment. She stated that the applicant had not seen the children since he received a funeral wreath from the mother (see paragraph 16 above). He was of the view that the children thought he was dead. It was further stated in the report that the applicant had refused to look after the children if their mother was detained. He had a very small apartment with his wife and was not in a position to ensure that the living conditions were suitable for them. 22. By an order of 24 September 2009 the court fixed a threeweek timelimit for the mother to allow the applicant contact in accordance with the terms of the contact order on pain of enforcement measures being taken in respect of the detention order of 17 December 2008 (see paragraph 20 above). It appears that the mother declared on 31 July, 21 September and 8 December 2009 that she would comply, but the applicant was still not allowed to see the children. 23. On 2 October 2009 the guardian, in reply to a request by the court for further information, confirmed that the mother had consistently failed to allow the applicant to have contact with the children. Furthermore, she would not let the guardian enter her apartment. 24. In November 2009 the applicant tried to see the boys twice, but to no avail. The boys’ maternal grandmother told him that the children were not at home and that he would not be allowed to see them. The presence of a police officer did not have any effect. 25. On 2 December 2009 the court found that the mother had failed to comply with the contact arrangements and to pay the fine imposed on her. It held that she should therefore serve time in detention in lieu of paying the fine. 26. On 10 December 2009 the court decided to place the children with the grandmother for the time their mother was supposed to spend in detention. 27. On 27 July 2010 the court bailiff tried to arrest the mother, but there appeared to be no one home when he attended her address. The police refused to intervene. In August 2010 the mother submitted successive medical certificates to the bailiff stating that she could not start to serve her sentence until 30 September 2010. The bailiff informed the court on 27 September 2010. In October 2010 the grandmother paid the fines imposed by the court in the total amount of PLN 3,200. 28. On 26 October 2010 the applicant again requested that fines be imposed on the boys’ mother because she still refused to comply with the contact arrangements. During a hearing in relevant proceedings on 6 April 2011 the applicant submitted that on 21 March of that year he had given up pursuing his efforts to see the boys, as he had not wanted coercive measures to be used in the context of their contact with him (see paragraph 34 below). On the same day the court decided not to entertain his request to have a fine imposed on the mother. 29. On 8 November 2007 the WarsawMokotów District Court instituted ex officio proceedings to limit J.J.’s parental authority (ograniczenie praw rodzicielskich) acting upon, inter alia, the reports the court-appointed guardians had submitted to the court. They repeatedly averred that the mother had consistently avoided communicating with them, making it impossible for them to supervise her in the exercise of her parental duties and to establish the children’s situation, and their contact with their father. 30. On 31 March 2008 the court, having regard to the mother’s continued failure to comply with the contact arrangements and information gathered by the guardians as to her parenting skills, limited her parental authority. It appointed a guardian tasked with supervising her in the exercise of her parental rights. It noted that her attitude was to the children’s detriment. 31. On 31 August 2009 the mother lodged an application with the WarsawMokotów District Court for the applicant to be deprived of his parental authority (pozbawienie władzy rodzicielskiej) and his right to contact. She argued that his conduct was to the children’s detriment; that they had become hostile towards him and that this had been because he had tried to have her punished. During the proceedings, on 29 October 2009 a local assessment (wywiad środowiskowy) was conducted at the mother’s home by a court-appointed guardian with a view to establishing the children’s situation and the mother’s parenting skills. 32. On 2 December 2009 the court dismissed the application. In the written grounds for its decision it recounted the measures taken so far with a view to making the mother comply with the contact arrangements. It also acknowledged the applicant’s consistent efforts to have contact with his children. It noted that the mother’s attitude to any contact between the applicant and his children was negative and that she had been acting arbitrarily (arbitralnie) to make it impossible for him to play a part in the boys’ lives. The court was of the view that the mother was motivated entirely by her hostility towards the applicant and not the children’s best interests. It further noted that the children could develop a hostile attitude towards their father, based entirely on their mother’s attitude. The court concluded that the mother’s conduct was to the children’s detriment and that her behaviour needed to change. 33. In April, May, June, July and September 2010 the guardian submitted monthly reports to the court. It transpired that numerous efforts to establish contact with the mother had failed. She would not open the door to her apartment when the guardian went to visit her and the boys, even though the guardian could hear that someone was inside at the time. 34. On 26 October 2010 the applicant instituted proceedings to have the children removed from their mother’s care (przymusowe odebranie dziecka) on the grounds that she had hitherto failed to comply with the contact order. During a hearing on 22 December 2010 the applicant stated that he would continue to visit the boys on each scheduled date, if only to show his willingness to maintain contact with them, even if they continued to refuse to see him. He stated that he had not had any contact with them for five years. He had last seen them in November 2005. When he had gone to see them, they had talked to him on the steps and told him that they did not want to see him as he had never cared about them. 35. By an order of 22 December 2010 the court allowed his request and authorised the court-appointed guardian to assist him at each visit he was supposed to have with the boys in accordance with the terms of the contact order. 36. On the six visits that followed (8 and 22 January, 5 and 12 February and 5 and 12 March 2011) the applicant was assisted by the guardian. He saw his older son on 8 January 2011 for thirty minutes. On 5 February 2011 the children told their father that they did not want to see him. They refused to see him on 12 February 2011. On 5 and 14 March 2011 J. told his father that he did not wish to see him and that he would not change his mind. Detailed reports of these attempts at contact were submitted to the court by the guardian. On 15 March 2011 the guardian informed the court that the applicant, having regard to the children’s manifest hostility and their best interests, had waived his right to see them and guardian assistance. The guardian suggested that family counselling was necessary to improve the situation. 37. A meeting was held on 16 March 2011 attended by the applicant and two guardians. The applicant was of the view that coercive measures used for the purposes of enforcing the contact arrangements would only increase the children’s hostility towards him. He requested that another psychological assessment of the family situation be prepared urgently. By letters of 16 and 21 March 2011 the applicant informed the court that he had waived his right to guardian assistance and to see the children, referring to their negative attitude towards him and the fact that his efforts had hitherto been fruitless, on account of the mother’s continuous and unrelenting defiance. 38. In 2010 the guardians repeatedly tried to talk to the mother with a view to persuading her to comply with the contact arrangements, but she continued to refuse to open her door. In December 2010, January 2011 and twice in February 2012 the guardians tried to visit the mother, but to no avail. They informed the court accordingly. 39. In December 2011 the guardian spoke to the school about the children’s situation. It was established that they had not been attending school regularly. He also spoke to the children’s grandmother, who had avoided answering questions about her daughter’s and grandchildren’s situation. The guardian concluded that the mother appeared to have never left the apartment, had been living a life of total seclusion and had been unable to cope with the children’s educational difficulties. 40. On 2 March 2012 the WarsawMokotów District Court, acting upon reports received from the guardian and the school authorities, instituted ex officio proceedings with a view to varying the manner in which both parents had been limited in the exercise of their parental duties (see paragraphs 8 and 30 above). The guardian, in reports in November 2011 and February 2012, expressed the view that the children should be placed into emergency care (pogotowie opiekuńcze), on account of the total absence of contact from the mother and alarming information received about the children’s defiant and obviously disturbed and aggressive behaviour in school. 41. On 20 March 2012 the same court, acting upon information received from the police, instituted another set of ex officio proceedings concerning the same subject matter as those instituted on 2 March 2012. The proceedings were joined on the same day. 42. On 2 April 2012 a hearing took place. The court heard the applicant, three court-appointed guardians who had been involved in the case and the school’s education welfare officer. The applicant supported the guardian’s request for the children to be placed into care. He reiterated that he did not have any contact with the children. The guardians confirmed their submissions that the mother had consistently avoided communicating with them, and was living a life of seclusion. The education welfare officer stated that the children had been failing to attend school regularly and had become increasingly neglected, disturbed and aggressive towards other pupils and the teachers. The court ordered that the children be placed into emergency care. 43. The mother failed to take the children to the care home that was to accommodate them. On 21 August 2012 the court ordered the guardian to collect the children. The guardian attempted to do so four times, going to both their home and school on 28 August, 4 and 13 September and 16 November 2012 respectively. The guardian also sought the help of the police and the education welfare officer, but to no avail, as either there was no one in the apartment or no one opened the door. 44. On 14 November 2012 the mother lodged an application for the court order of 2 April 2012 to be revoked. She declared her readiness to cooperate with the court and the guardians. The enforcement proceedings were stayed for the duration of the proceedings. 45. On 15 November 2012 she allowed the police to enter her home. 46. On 15 January 2013 the court-appointed guardian was finally able to conduct an assessment (wywiad środowiskowy) at the mother’s apartment. He concluded that she was unable to properly discharge her duties towards the children and that she blamed the school’s education welfare officer and the court-appointed guardians for the existing situation, saying that she did not trust them. It was further suggested that a further examination by expert psychologists should be carried out at the RODK and that the mother be examined by a psychiatrist. 47. On 16 January 2013 a hearing took place. Both parents were in attendance. The court questioned the police and the boys’ maternal grandmother. It ordered that an expert opinion be prepared. The mother protested and submitted her own psychologist’s opinion stating that the children had not been neglected. The examination at the RODK was scheduled for 11 April 2013, but was eventually postponed to a later date to take place prior to the next hearing scheduled for 27 May 2013. 48. The proceedings are currently pending.
| 0 |
test
|
001-150778
|
ENG
|
GBR
|
CHAMBER
| 2,015 |
CASE OF HUTCHINSON v. THE UNITED KINGDOM
| 3 |
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect)
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
|
5. The applicant was born in 1941 and is detained in Her Majesty’s Prison Durham. 6. In October 1983, the applicant broke into a family home, stabbed to death a man, his wife and their adult son and repeatedly raped their 18 yearold daughter, having first dragged her past her father’s body. He was arrested several weeks later and charged with the offences. At trial he pleaded not guilty, denying the killings and claiming that the sex had been consensual. On 14 September 1984, at Sheffield Crown Court, he was convicted of aggravated burglary, rape and three counts of murder. 7. The trial judge sentenced the applicant to a term of life imprisonment and recommended a minimum tariff of 18 years to the Secretary of State for the Home Office. When asked to give his opinion again on 12 January 1988, the judge wrote that “for the requirements of retribution and general deterrence this is genuinely a life case”. On 15 January 1988 the Lord Chief Justice recommended that the period should be set at a whole life term stating that “I do not think that this man should ever be released, quite apart from the risk which would be involved”. On 16 December 1994, the Secretary of State informed the applicant that he had decided to impose a whole life term. 8. Following the entry into force of the Criminal Justice Act 2003, the applicant applied to the High Court for a review of his minimum term of imprisonment. On 16 May 2008, Tugendhat J handed down judgment in the applicant’s case ([2008] EWHC 860 (QB)), finding that there was no reason for deviating from the Secretary of State’s decision. The seriousness of the offences alone was such that the starting point was a whole life order. In addition, there were a number of very serious aggravating factors. Tugendhat J made express reference to an impact statement from the surviving victim, which described “sadistic as well as sexual conduct”. There were no mitigating factors. On 6 October 2008, the Court of Appeal dismissed the applicant’s appeal.
| 0 |
test
|
001-141170
|
ENG
|
ROU
|
CHAMBER
| 2,014 |
CASE OF KILYEN v. ROMANIA
| 3 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Non-pecuniary damage - award
|
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos
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5. The applicant, Mr Laszlo Kilyen, was born in 1972 and lives in Murgeşti. 6. On 10 May 2003 police officers T.M. and L.C.V. were carrying out an investigation into the theft of two cars in the village of Murgeşti. The applicant, who lived alone in a house with a yard, was away from home on a trip abroad. On the same day at around 4 p.m., the two officers entered the applicant’s yard by breaking the main gate which had a closing system made by the applicant from metal wires. The officers took note of the chassis series of two cars found in the applicant’s shed. They also looked in several boxes which contained spare parts for cars. 7. After a certain period of time, the applicant’s neighbour, K.M., entered the yard and questioned the two officers about the reason for their presence there. T.M. and L.C.V. disclosed their identities and informed K.M. that they were carrying out an investigation into the theft of two cars. Before leaving the yard, the officers informed K.M. that the two cars found in the applicant’s shed were not the ones reported stolen and left him a summons ordering the applicant to report to the police station as soon as possible. 8. On 15 May 2003, upon his return home, the applicant lodged a complaint with the Prosecutor’s Office of the Mureş County Court against the two police officers for the crime of trespassing under Article 192 of the Criminal Code. He alleged that the officers had entered his yard in his absence and without his consent. He also sought civil damages from the two alleged perpetrators. 9. In his statement given before the prosecutor on 1 July 2003, the applicant mentioned that he was a car mechanic and that he often travelled to Hungary to buy spare parts. He alleged that he felt harassed by local police officers working in the Car Theft Department who, on several occasions, had entered his yard in his absence in order to check whether he was hiding stolen cars. The applicant also alleged that, although the police never found stolen cars in his possession, the frequent police checks gave him a reputation in the village of being a car thief. 10. The two officers declared before the prosecutor that they had found K.M. in the applicant’s yard and had entered believing that he was the owner and assuming that they had his permission. 11. On 8 July 2003 the Prosecutor’s Office of the Târgu Mureş Court of Appeal decided to discontinue the proceedings against T.M. and L.C.V. The prosecutor investigating the case noted that the two officers had entered the applicant’s yard in his absence and without his permission. However, when K.M. had arrived at the scene, they had immediately disclosed their identities. Moreover, they had been on duty and had only noted the chassis series of the applicant’s cars. The prosecutor therefore concluded that the officers had had no intention of committing a crime. On 29 October 2003 a complaint by the applicant against this decision was rejected by the superior Prosecutor from the Prosecutor’s Office of the Târgu Mureş Court of Appeal. 12. On 27 January 2004 the applicant appealed against the prosecutors’ decisions before the Târgu Mureş Court of Appeal. He alleged that the two officers had illegally entered his home in his absence, without his consent and without a search warrant. He also complained that his rights as guaranteed by Article 8 of the Convention had been breached by the unlawful search carried out by the two police officers. 13. The Court of Appeal rejected the applicant’s appeal on 27 February 2004 holding that T.M. and L.C.V. had acted in accordance with their duties as provided for by articles 41, 42 and 43 of Law no. 360/2002 on the Status of Police Officers. The court underlined that the officers had disclosed their identities and the purpose of their presence on the premises as soon as the applicant’s neighbour enquired. It was further held that they had been on duty and carrying out an investigation, and therefore it could not be held that they had intended to commit a crime. 14. The appeal by the applicant on points of law (recurs) against this decision was dismissed on 28 May 2004 by a final judgment of the High Court of Cassation and Justice which held that the officers had acted in accordance with the provisions of the Law no. 218/2002 on the Organisation of the Romanian Police. The court held that the officers had been in the presence of a witness and that they had disclosed their identities, and therefore had no intention of illegally entering the applicant’s home.
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