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dev | 001-92935 | ENG | RUS | ADMISSIBILITY | 2,009 | PAVEL ZAYTSEV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicant, Mr Pavel Vasilyevich Zaytsev, is a Russian national who was born in 1970 and lives in Moscow. He was represented before the Court by Mr A. Gofshteyn, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin. The facts of the case, as submitted by the parties, may be summarised as follows. Since 1999 the applicant has been working as a special investigator for important cases at the Investigation Board of the Ministry of the Interior. On 7 September 2000 the Chief Department of the Interior of the Moscow Region started an investigation into a case concerning customs and financial fraud involving a group of companies which were allegedly affiliated with various high-ranking State officials. On 9 October 2000 the fraud case was assigned to the applicant, and from 22 October 2000 he was in charge of the investigation team working on this case. The investigation involved surveillance and telephone interception; the applicant claims that he also received instructions from his superior to conduct searches, if necessary without prior authorisation, under the extraordinary powers provided for in urgent cases. On 10 and 15 November 2000 the applicant, acting under his own authority, ordered a series of urgent searches. The searches were carried out on 12, 16 and 19 November 2000. Two suspects were arrested but both were released three days later. On 22 November 2000 the office of the Prosecutor General notified the Investigation Board of the Ministry of the Interior that “some unlawful searches and arrests had taken place in connection with the [fraud] case” and withdrew the case file from the Ministry of the Interior. The Investigation Board of the Ministry of the Interior carried out an internal enquiry and concluded that there had been no abuse of authority on the part of the applicant. The applicant alleged that certain documents disappeared from the case file as soon as the Prosecutor General’s Office took over the case. On 20 December 2000 the Prosecutor General instituted criminal proceedings against the applicant on charges of abuse of official powers and ordering unlawful arrest (Article 286 § 1 and Article 301 § 1 of the Criminal Code), on account of the above searches and arrests. Between 8 February 2001 and 18 February 2001 the applicant was under an obligation not to leave the city. The recognisance not to leave the city was renewed on 6 June 2001 and remained in force until the date of his conviction, 3 November 2003. On 17 February 2001 the Minister of the Interior sent a letter to the Prosecutor General in which he contested the charges against the applicant. He alleged that the searches were necessary and that the applicant’s decision to proceed without prior authorisation was made in accordance with the law and was justified by the special circumstances. He also contended that a persecution of the investigators had been orchestrated by the suspects in the fraud case, through certain contacts within the Prosecutor General’s Office, and that the same persons had attempted to have the fraud case file closed. The Minister of the Interior requested the Prosecutor General to end the proceedings against the applicant. On 7 May 2001 the Prosecutor General discontinued criminal proceedings in the fraud case. On 6 June 2001 the applicant was indicted on charges of exceeding official powers and ordering unlawful arrest. On 8 June 2001 a newly appointed Minister of the Interior wrote to the Prosecutor General restating, in substance, his predecessor’s letter of 17 February 2001. On 28 June 2001 the Deputy Prosecutor General replied to the Minister of the Interior that the criminal proceedings against the applicant had been instituted lawfully and reasonably. On 29 October 2001 the criminal case against the applicant was submitted to the Moscow City Court. At first the Moscow City Court President assigned the case to judge N.G., but owing to the latter’s heavy workload it was transferred to judge M.K. On 14 February 2002 the President of the Security Committee of the State Duma made an official inquiry about the state of proceedings against the applicant, in reply to which the Prosecutor General allegedly stated “I will lock him up”. On 13 March 2002 the State Duma issued a Resolution entitled “Parliamentary Question to the Prosecutor General, V.V. Ustinov, about the Circumstances surrounding the Investigation into the case concerning the Smuggling of Furniture into the Russian Federation”. The Resolution read as follows: “On 7 September 2000 the Chief Department of the Interior of the Moscow Region opened criminal proceedings concerning the fraudulent import of furniture into the Russian Federation through a shell [company], following a finding by the State Customs Committee that there had been a breach of customs rules. ... the Investigation Board of the Ministry of the Interior started its investigation. The Ministry of the Interior and the State Customs Committee set up a joint investigation group which made important progress in investigating the facts of furniture smuggling ... Subsequently the case file was reclaimed by the Prosecutor General’s Office and the case was transferred to the special investigator for important cases at the Prosecutor General’s office, who decided to terminate the proceedings for a lack of corpus delicti. The Prosecutor General’s Office also instituted criminal proceedings against P. V. Zaytsev, the investigator of the Investigation Board of the Ministry of Interior who investigated the [case of fraud], and charged him with having ordered searches and arrests in breach of the procedure prescribed by law, ... ... To ensure a fair and objective assessment of this situation, and further to a proposal by the Prosecutor General, a joint expert group was set up, in which the Prosecutor General’s Office, the State Customs Committee of the Russian Federation and the Investigation Board of the Ministry of the Interior took part. ... On 14 February 2002 the Security Committee of the State Duma heard the report of the joint expert group. The President of the State Customs Committee, the acting Chief of the Investigation Board of the Ministry of the Interior and the experts representing these agencies, who were all present at the meeting, expressed their disagreement with the termination of the [fraud investigation], having noted that the special investigator for important cases at the Prosecutor General’s Office had failed to examine a number of substantive issues ... Having regard to the above, the [State Duma] requests that [the Prosecutor General] resumes criminal proceedings in the case concerning the smuggling of furniture into the Russian Federation ...” The Prosecutor General did not resume the criminal proceedings requested by the State Duma. These proceedings were resumed only in 2006. In the meantime the criminal case against the applicant had continued. On 5 September 2002 the Moscow City Court, composed of judge M.K. and two lay assessors, examined the case and acquitted the applicant of all charges. On 25 February 2003 the Supreme Court of the Russian Federation granted an appeal by the public prosecutor and reversed the acquittal, on the grounds that the court’s conclusion had been self-contradictory. It remitted the case for fresh examination by the first-instance court in a different composition. On 23 April 2003 that court, composed of Ms Kudeshkina as judge, and two lay assessors, Ms G. and Ms V.K., began to examine the case. Ms G. and Ms V.K. were subsequently replaced for unknown reasons. On 24 April 2003 the hearing was adjourned on the grounds of the applicant’s illness. On 24 June 2003 the court, composed of judge Kudeshkina and two newly appointed lay assessors, Ms I. and Ms D., resumed the hearing. During the hearing on 26 June 2003 judge Kudeshkina invited the public prosecutor to present evidence for the prosecution. The prosecutor replied that the court had failed to ensure the attendance of the prosecution witnesses and objected to the manner in which the proceedings were being conducted. On the following day, Friday 27 June 2003, he challenged Ms Kudeshkina on the grounds of bias which she had allegedly shown when questioning one of the victims. Other parties to the proceedings, including the victim in question, objected to the challenge. On the same day the lay assessors dismissed the challenge, following which the public prosecutor challenged both lay assessors. The parties to the proceedings objected to the challenge and it was dismissed. On the same day the public prosecutor filed another challenge to the lay assessors on the grounds of bias, which was also dismissed by Ms Kudeshkina on the same day. On Monday 30 June 2003 both lay assessors filed a motion to withdraw from the proceedings. On 1 July 2003 the public prosecutor declared that the minutes of the proceedings were being kept incorrectly and requested access to the records. The court refused this motion, on the grounds that the minutes could be accessed after their completion. On 3 July 2003 Ms Kudeshkina allowed the withdrawal of both lay assessors, stating as follows: “At the hearing the lay assessors I and D declared their withdrawal from the proceedings, on the grounds that they were unable to participate in the examination of the case because of the [public prosecutor’s] biased and discourteous behaviour towards them and due to the perverse environment at the hearing, for which he is responsible and which made them ill.” The Moscow City Court President, Ms Yegorova, then during the proceedings called Ms Kudeshkina to her office and asked her about the details of the proceedings, putting certain questions regarding the conduct of the trial and the decisions on the above motions. The parties disagree on the circumstances of Ms Kudeshkina’s withdrawal from the case. According to the applicant, Ms Yegorova removed Ms Kudeshkina from sitting in the case on 4 July 2003, the day after the lay assessors’ withdrawal. According to the Government, the case remained with Ms Kudeshkina until 23 July 2003, when it was withdrawn from her on the grounds that she had delayed forming a new court composition and that there was a risk of further delay in view of her request for annual leave from 11 August to 11 September 2003, which she filed on 22 July 2003. On 23 July 2003 the Moscow City Court President assigned the case to judge M. On 25 August 2003 the Moscow City Court, composed of judge M. and lay assessors Mr B. and Mr S., began to examine the case. On 3 November 2003 the court found the applicant guilty of having exceeded his official powers. The other charge had been dropped by the prosecutor. The applicant was sentenced to two years’ imprisonment, suspended, with one-year probation. The court also decided that an injunction against holding office in the bodies of the Ministry of the Interior was not necessary. The applicant appealed against the judgment to the Supreme Court of the Russian Federation, pleading not guilty and claiming that his conviction was based on the wrong assessment of evidence and misinterpretation of the Criminal Code. While the applicant’s appeal was pending, on 2 December 2003 Ms Kudeshkina lodged a complaint with the High Judiciary Qualification Panel, in which she referred to certain alleged procedural irregularities in the criminal case against the applicant. Her complaint read as follows: “I request that the President of the Moscow City Court, Olga Aleksandrovna Yegorova, be charged with a disciplinary offence for exerting unlawful pressure on me in June 2003, when I was presiding in the criminal proceedings against P.V. Zaytsev. She demanded that I give an account on the merits of this case while its examination was underway, and that I inform her about the decisions the court was about to take; she even called me out of the deliberations room for that purpose. [She] insisted on removing certain documents from the case file, forced me to forge the minutes of the hearing, and also recommended that I ask the lay assessors not to turn up for the hearing. Following my refusal to bow to this unlawful pressure [she] removed me from the proceedings and transferred the case to another judge. As to the particular circumstances, they were as follows. I was appointed to examine the case against Zaytsev and the court, acting in a bench with two lay assessors, I. and D., started its examination. Having started the trial, the court questioned a number of victims. The public prosecutor who was representing the Prosecutor General’s Office clearly decided that this questioning was not favourable to the prosecution and therefore did everything possible to disrupt the hearing. For no reason he challenged me as a judge, the lay assessors and the whole composition of the court. His motions were made in a manner that was humiliating, offensive and insulting to the court, and were clearly untrue. Soon after his challenge was rejected by the court, the Moscow City Court President Yegorova called me to her office. In violation of Article 120 of the Constitution and section 10 of the Law “On the Status of a Judge in the Russian Federation”, the Moscow City Court President demanded an explanation from me as to why the lay assessors and I were putting one or other question to the victims in the trial and why one or another motion by the parties was refused or accepted. In my presence the Moscow City Court President had a telephone conversation with the [First Deputy Prosecutor General], who had issued the indictment against Zaytsev. Yegorova informed [the First Deputy Prosecutor General] that the judge was being called to account with regard to what was going on in the proceedings. Back in my office I told the lay assessors what had happened. By then they were already reduced to despair by the repeated groundless objections and insulting challenges against them on the part of the public prosecutor, and they therefore considered it impossible to continue to take part in the proceedings. One of the assessors, Ms I., was seeking medical assistance due to a health problem. For these reasons they decided to withdraw from the proceedings and to state frankly in their request that the reason for their withdrawal was the pressure put on them by the agent of the Prosecutor General’s Office. At the court’s following meeting the lay assessors announced their withdrawal on the above grounds. Their written requests were given to me to be enclosed in the file, and the court adjourned for deliberations. I was again called from the deliberations room by the Moscow City Court President, Yegorova. This time she demanded that I explain what we were doing in the deliberations room and what decisions we were going to take. Her main point was that there should have been no mention in the assessors’ written requests that the reason for their withdrawal was pressure being exerted on the court. The Moscow City Court President also insisted on excluding from the hearing minutes any mention of the behaviour by the public prosecutor which the assessors had regarded as pressure. In essence, Yegorova was pushing me to forge the case file. Moreover, she proposed that I ensure that the assessors did not turn up for the hearing, literally ‘ask them not to come to the court any more’. The aim was obvious – if the assessors [did] not appear the proceedings themselves [would] fall apart. It seemed that for some reason [she] did not want the case to continue to be examined in this composition. The unlawfulness of the Moscow City Court President’s actions was obvious. I followed none of her instructions. The lay assessors’ requests were included in the file, the court allowed their withdrawal and stated that the reason for it was the pressure being applied by the Prosecutor General’s Office. The hearing minutes reflected everything that happened in the proceedings. Once I signed [the minutes] Yegorova withdrew the case from me and transferred it to another judge without stating reasons. I consider that such acts on the part of the Moscow City Court President, Olga Alexandrovna Yegorova, are incompatible with the status of a judge and undermine judicial authority, and are thus destructive for justice, for which she must be held liable. This is what I hereby request from the High Judiciary Qualification Panel of the Russian Federation.” The applicant was not notified of this complaint. In December 2003 Ms Kudeshkina, furthermore, gave one radio interview and two newspaper interviews reiterating the above allegations and criticism. Following this, on 15 December 2003 Ms D., one of the lay assessors who had, on 3 July 2003, withdrawn from the criminal case against the applicant sent a letter to the High Judiciary Qualification Panel which read as follows: “Further to the publication of an interview with judge Kudeshkina ... I decided to write you because I participated in Zaytsev’s case as a lay assessor. I entirely support everything judge Kudeshkina said in her interview. During the trial the [public prosecutor] did everything to prevent the court from hearing the case. He was rude and aggressive to the court; in his interventions and requests he deliberately misrepresented what was going on in the proceedings, and he repeatedly filed objections to the court’s composition. These motions were made in a humiliating, even obnoxious manner. By doing so he was exerting pressure on the court, to force it to give a judgment that was convenient to him, or, alternatively, to set the court hearing at naught. I was appalled by that, but what was my surprise when I learned about the pressure also being exerted on judge Kudeshkina by the court President! We, the assessors, were there when, during the interval, judge Kudeshkina received a phone call from the court President to come and see her. After some time judge Kudeshkina returned, she was upset and depressed. To our question she replied that [the court President] had accused her that the court was reluctant to examine the case; that the lay assessors were asking the victims the wrong questions; and that she had suggested that judge Kudeshkina arrange for the lay assessors not to appear at the court proceedings. ... On the following morning ... both Ms I. and I decided to withdraw from the proceedings. At the start of the hearing on that day the public prosecutor, before he was called by the court, began with a motion in which he, in essence, again degraded and insulted me by repeating [a] comment made by [the victim] outside the courtroom about me ... he did not react to the reproof by the judge. After that ... I declared that I was withdrawing from sitting in the proceedings on the grounds of the public prosecutor’s rude and offensive behaviour, which could not be defined as anything but pressure on the court. After that Ms I. also withdrew. Before the trial I had never met anybody [involved in the proceedings]: not the judge, not [the applicant], not the public prosecutor, not the defence counsel; I had no personal interest in the case. The public prosecutor’s behaviour was therefore inexplicable and came as a shock to me. At about 6 p.m. judge Kudeshkina was called out from the deliberations room, where the court was taking a decision. It was the court President who called her. ... On the following day ... judge Kudeshkina told us that the court President had shouted at her, demanding that she refrain from enclosing [the assessors’] withdrawal requests in the file and not refer in the court’s decision to the reason for the withdrawal. Ms I. and I were shocked by what was going on. First it was the public prosecutor who put pressure on us at the hearing, and then it turned out that the [court President] joined in. What a surprise it was when the [court’s Deputy President] came into the deliberations room and started trying to persuade me and Ms I. not to comment on the public prosecutor’s behaviour in the court decision, but to state in our requests and in the court decision that we withdrew on medical grounds. She said that they would invite me and Ms I. to take part in other proceedings. Ms I. and I refused to change our requests, and after the Deputy President had left the court issued the decision [to allow withdrawal] which reflected what had happened. I have been a lay assessor before, I have taken part in several other proceedings, but this was the first time that I came across such pressure being exerted on the court. I request you to look into the above events and to take action against the [court’s President and her Deputy].” On 16 December 2003 the other lay assessor who had withdrawn, Ms I., sent a similar letter to the High Judiciary Qualification Panel. Following Ms Kudeshkina’s complaint of 2 December 2003, the High Judiciary Qualification Panel appointed Mr S., a judge of the Moscow City Commercial Court, to examine the allegations against Ms Yegorova, the Moscow City Court President. The Government submitted a copy of an internal report prepared by Mr S. and submitted to the High Judiciary Qualification Panel, which contained the following conclusions: – during the hearing of the criminal case against the applicant judge Kudeshkina herself consulted Ms Yegorova, seeking advice on the conduct of the proceedings in view of the public prosecutor’s behaviour; – further communications between judge Kudeshkina and Ms Yegorova and, on another occasion, the deputy court president, took place in private and their content could not be established; – there was insufficient evidence that Ms Yegorova exerted pressure on judge Kudeshkina, since both Ms Yegorova and the deputy court president denied the allegations; – Ms Yegorova transferred the criminal case file against the applicant to another judge on the grounds that Ms Kudeshkina “was unable to conduct the court hearing, her procedural acts were inconsistent, [she acted] in breach of the principle of adversarial proceedings and equality of arms, she stated her legal opinion on the pending criminal case and she attempted to seek the court president’s advice on that case, and in view of the existence of confidential reports by relevant agencies to the Moscow City Court President with regard to judge Kudeshkina, in connection with the examination of Zaytsev’s case and other criminal cases”. On 11 May 2004 the High Judiciary Qualification Panel reported to the President of the Supreme Court their findings concerning the complaint against Ms Yegorova. The President decided, without elaborating on the reasons, that there were no grounds for charging Ms Yegorova with a disciplinary offence. On 17 May 2004 the High Judiciary Qualification Panel decided to dispense with disciplinary proceedings against Ms Yegorova. No copy of this decision was provided to the Court. The applicant was not informed about the enquiry conducted by the High Judiciary Qualification Panel, or about its findings. On the same day Ms Kudeshkina was informed by letter that her complaint against the court president had been examined and that no further action was considered necessary. On the same day the High Judiciary Qualification Panel wrote a letter to both lay assessors stating that no grounds had been found to bring disciplinary proceedings against the President of the Moscow City Court. On 19 May 2004, following disciplinary proceedings against Ms Kudeshkina, the High Judiciary Qualification Panel decided that her office as a judge should be terminated on account of her statements in the interviews given in December 2003. On 10 August 2004 the Supreme Court of the Russian Federation examined the applicant’s appeal against his conviction. The court, composed of three judges, upheld the judgment of 3 November 2003 by a majority, having found that the applicant’s conviction was lawful and wellfounded. Judge G. expressed a dissenting opinion stating that the applicant’s actions had no constituent elements of a crime as provided for by Article 286 § 1 of the Criminal Code. On 30 November 2004 the Office of the Prosecutor General sent an official enquiry to the Deputy Minister of the Interior about the applicant’s continued employment in the Ministry of the Interior, in spite of his conviction for abuse of powers. The Ministry of the Interior reviewed the applicant’s file and considered that it was not necessary to dismiss the applicant, in view of the court’s decision to dispense with an injunction against holding office in the bodies of the Ministry of the Interior. On 24 February 2005 the First Deputy Prosecutor General sent an official letter of warning to the Minister of the Interior. The letter referred to the generally unsatisfactory performance by the Ministry of the Interior in investigating criminal cases and pointed out certain instances of breach of procedure. Among the latter the prosecutor’s office indicated the “appalling example” of the applicant’s continued employment in the Ministry of the Interior after his conviction for abuse of power. On 31 March 2005 the acting First Deputy Minister of the Interior replied to the prosecutor’s warning. In so far as it concerned the applicant, he relied on the decision by the first-instance court, upheld by the Supreme Court, to dispense with an injunction against the applicant holding office in the Ministry of the Interior’s entities and informed the prosecutor’s office that the applicant had not been dismissed. Article 168 § 3 of the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic, in force at the material time, provided that in urgent cases an investigating officer could exceptionally order and carry out a search without prior authorisation by the prosecutor. The prosecutor was to be notified within 24 hours of a search carried out under this provision. The Criminal Code of the Russian Federation provides: “Acts by an official which clearly go beyond his or her authority, if they incur a substantial breach of individual rights and the legitimate interests of a person or organisation, or of state or public interests protected by law – are punishable by a fine of up to eighty thousand roubles or of up to six times the monthly salary or other income of the convicted, or by a prohibition to hold certain official posts or to perform certain official functions for up to five years, or by arrest for four to six months, or by imprisonment of up to four years.” The Code of Criminal Procedure of the Russian Federation provides: “1. The case must be examined by one and the same judge or by a court bench in one and the same composition. 2. If one of the judges is no longer able to take part in the hearing he or she must be replaced by another judge, and the court hearing must restart from the beginning.” Law no. 3132-I of 26 June 1992 “On the Status of Judges in the Russian Federation” provides: “1. The Court President, at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by Federal Constitutional Laws and Federal Laws, carries out the following functions: (1) organises the court’s work; ... (3) distributes duties between the President’s deputies and, in accordance with the procedure provided for by Federal Law, between the judges; ...” The instruction on courts’ internal document management in force at the material time provided that the court President was responsible for the court’s clerical and office management. As a matter of common practice, a court President distributes cases lodged with a court between the judges of that court. The Code of Criminal Procedure of the Russian Federation provides: “... 3. ... the city courts of [Moscow and St Petersburg], ... have jurisdiction in criminal proceedings concerning: (1) criminal offences provided for by Articles ..., 294-302, ... of the Criminal Code of the Russian Federation; (2) criminal cases remitted to these courts in accordance with Articles 34 and 35 of this Code; ... 4. The Supreme Court of the Russian Federation has jurisdiction in the criminal cases indicated in Article 452 of this Code and other criminal cases that fall under its jurisdiction in accordance with the Constitutional Laws and the Federal Laws.” “A criminal case against a member of the Federal Council, a deputy of the State Duma or a judge of a federal court is to be examined by the Supreme Court of the Russian Federation at their request, to be submitted before the beginning of the court examination in their case.” “A criminal case must be examined by a court in the place where the crime has been committed, except for the cases provided for by Article 35 of this Code.” “1. When the judge who decides on the scheduling of a hearing establishes that the case ... falls outside the jurisdiction of that court, he or she shall issue an order to remit the case according to jurisdiction. ...” “1. Territorial jurisdiction in a criminal case may be changed: (1) at a party’s request – if it has successfully challenged, in accordance with Article 65 of this Code, the entire court composition of the relevant court. ... 2. Territorial jurisdiction of a criminal case may only be changed before the beginning of the court examination.” “3. A challenge brought against several judges or the whole court composition must be decided upon by the same court in its entire composition, by a majority vote. ... 5. If the challenge to a judge, several judges or the whole court composition is granted the criminal case, the request or the complaint must be transferred to another judge or court composition in accordance with the procedure provided for by this Code.” “... 2. The grounds for quashing of a judicial decision [by the cassation instance] are, in any event, as follows: ... (2) judgment held by an unlawful court composition ...” “The court examining the case as a cassation instance may quash the [first instance] conviction and terminate the proceedings if there exist grounds provided for by this Code.” “1. Criminal case is remitted for a fresh examination: ... (2) to the same court that held the [first instance] judgment but in a different composition ...” | 0 |
dev | 001-83456 | ENG | SVK | CHAMBER | 2,007 | CASE OF URBARSKA OBEC TRENCIANSKE BISKUPICE v. SLOVAKIA | 2 | Preliminary objections dismissed (non-exhaustion of domestic remedies, six-month period);Violation of P1-1 (transfer of ownership of the land and compulsory letting of the land);Just satisfaction reserved | Nicolas Bratza | 6. The applicant is a registered association of landowners (pozemkové spoločenstvo). It is a legal person with its registered office in Trenčín. It was entered in the official register with effect from 30 December 1996. Mr K. Rehák, its president, lodged the application on the applicant's behalf. 7. Under the communist regime in Czechoslovakia owners of land were in most cases obliged to put their land at the disposal of State-owned or cooperative farms. They formally remained owners of the land but in practice had no possibility of availing themselves of the property. 8. Some of the land in question was, for various reasons, not cultivated by the farms. It was the State policy to promote the use of such land for gardening. For that purpose allotment gardens (záhradkové osady) were established, mainly in the vicinity of urban agglomerations. Individual plots of land were put at the disposal of persons belonging to the Slovakian Union of Allotment and Leisure Gardeners (Slovenský zväz záhradkárov), who were allowed to cultivate the land as a pastime activity for their individual needs. 9. In the context of Czechoslovakia's transition to a market-oriented economy following the fall of the communist regime, Parliament adopted the Land Ownership Act 1991 (for further details concerning the relevant law and practice see point II below), the purpose of which was to mitigate certain wrongs and to improve the care of agricultural and forest land. 10. Under the Land Ownership Act 1991 the plots of land on which allotment gardens had been established were not to be restored in natura to the original owner where ownership of the land had passed from the original owners to the State or a legal person. In such cases the original owners were entitled to compensation in kind or in pecuniary form. In this category of cases the legislator gave precedence to legal certainty for the existing users of the property, as the use of land for gardening was considered to be of greater public interest than restoring the land in natura to its original owners. 11. In the second category of cases, where the original owners maintained their ownership rights, albeit in name only (nuda proprietas), the Land Ownership Act 1991 established conditions enabling the owners to enjoy their property rights to a greater extent. In particular, it provided for the land to be let to the existing users, with a notice period expiring on the date when the temporary right to use the land came to an end. The tenants were, however, entitled to have the lease extended by ten years unless an agreement to the contrary was reached between the parties. The landowners were also entitled to request, within three years of the coming into effect of the 1991 Act, the exchange of their property for a different plot of land owned by the State. 12. The above approach, permitting the owners to recover full possession of their land after the expiry of the ten years for which the tenants had the right to have the lease extended, was modified with the adoption of Act 64/1997. As a result, owners have only a limited possibility of terminating the lease, mainly on the grounds of the tenants' failure to comply with their obligations. The position of the tenants has been strengthened in that they are entitled to acquire ownership of the land they use for gardening. As to the owners, Act 64/1997 gives them the right to obtain either a different plot of land or pecuniary compensation. 13. In introducing Act 64/1997 the legislator abandoned the philosophy of giving general priority to the rights of the owners of plots of land on allotment sites and took the position that it was in the general interest that the rights of persons who had been using the land for gardening should prevail. 14. The land owned by the predecessors of the members of the applicant association was put at the disposal of the agricultural cooperative in Trenčín-Soblahov. The owners' formal title to the land remained unaffected, but they had no possibility of using it in practice. 15. On 24 November 1980 the cooperative farm let the land, free of charge, to the Trenčín branch of the Slovakian Fruit and Gardening Association (Slovenský ovocinársky a záhradkársky zväz), as the Union of Gardeners was known at the time. The contract was to expire on 31 December 2000 unless the parties reached an agreement on its extension. The tenant was to return the land to the lessor in its original state on termination of the lease. 16. On 31 March 1982 the authorities approved the establishment of the “Váh” allotment gardens on the land in question, located in an industrial area on the outskirts of the town of Trenčín. The project envisaged the apportionment of 74 individual plots with a surface area of approximately 300 square metres on which garden huts with a surface area of 12 square metres would be built. Re-cultivation of the land and communal facilities such as a road and a parking area, water supply and a fence at the allotment site's boundaries were also planned. 17. The local branch of the gardening association subsequently concluded separate contracts with its members. Individual plots of land were thereby put at the latter's disposal until 31 December 1999. The gardeners obtained a permit to build huts. Unless the lease contract was extended before 30 June 1999, the huts were to be entirely removed by the gardeners. 18. In 1995 the present members of the applicant association inherited the title to the land where the Váh allotment gardens had been established. 19. On 12 May 1997 the applicant association submitted a draft rent contract to a representative of the gardening association. On 21 May 1997 the president of the Váh allotments rejected the proposal as being unacceptable. Reference was made to negotiations about a one-year contract under Act 64/1997 pending a decision on the ownership of the land. 20. Between 1998 and 2002 the Trenčín municipality charged the applicant 11,260.92 Slovakian korunas (SKK) a year in real property tax in respect of the land used by the gardeners. The tax was based on municipal regulations fixing the tax on gardens at SKK 0.44 per square metre. 21. The applicant submitted copies of bank statements indicating that the Slovakian Union of Allotment and Leisure Gardeners had paid to it, following the entry into force of Act 64/1997, SKK 8,762.40 as a yearly rent for the use of 29,208 square metres of land. That amount corresponds to SKK 0.3 per square metre. 22. The applicant association unsuccessfully attempted to recover possession of the land. For that purpose it offered to compensate the gardeners for their existing property attached to the land. 23. On 22 July 1998 the allotment gardeners initiated proceedings under Act 64/1997 with a view to having the ownership of the land transferred to them. 24. On 24 September 1999 the Trenčín District Office granted the request to start proceedings under Act 64/1997. The Trenčín Regional Office upheld this decision on 24 November 1999. 25. On 6 September 2000 the Trenčín Regional Court dismissed an action which the vice-president of the applicant association and several other persons had lodged against the above decision of the Regional Office. The Regional Court found that the statutory requirements for bringing proceedings under sections 7 et seq. of Act 64/1997 had been met. 26. On 30 November 2001 the District Office in Trenčín made public the consolidation project pursuant to section 13 of Act 64/1997. The president of the applicant association as well as all the other landowners whose address was known were notified of the project and informed that the data contained therein could be challenged within fifteen days. 27. The letter stated, in particular, that one part of the applicant's land (1.5665 hectares) had been valued at SKK 6.1 per square metre and the other part (1.0046 hectares) at SKK 6.9 per square metre. The major part of the land to be provided to the applicant in compensation was valued at SKK 9 per square metre. The valuation had been carried out in accordance with the relevant administrative regulation. It was based on the classification of the land and its quality at the time when the tenants had acquired the right to use the land. 28. Some of the allotment gardeners submitted their comments on the project. The authorities approved the project on 11 February 2002. 29. On 4 June 2002 a decision was issued to carry out the consolidation project. On 6 August 2002 the Regional Office in Trenčín dismissed the appeal lodged by the landowners. 30. The gardeners subsequently paid the purchase price for the 2.5711 hectares of the applicant's land to the Slovakian Land Fund. On 1 October 2002 the applicant association received 1.4097 hectares of different land in compensation. On 2 December 2002 the District Office in Trenčín approved the manner in which the consolidation project had been implemented. Its decision became final on 14 February 2003. On that day the ownership of the relevant plots of land passed formally to the persons involved. 31. The zoning plan in respect of the area in which the Váh allotments are situated was approved in 1999. It indicates that the whole area forms part of a “production and services zone”. The zoning plan does not foresee that the land on the allotment site will be used for its current purpose in the future. At present an industrial park is in the process of being established in the vicinity of the allotments. The land within the allotment site has not been included in the project at this stage. 32. According to information in the land register, at least eight gardeners from the Váh allotments sold their plots to other persons between 2004 and 2006. 33. On 17 May 2005 the District Land Office in Trenčín, at the Government's request, explained that the Váh allotment gardens in Zlatovce were situated on land which, at the time of their establishment, had been derelict and had served as a municipal dump. The surface area of the applicant's land which fell under Act 64/1997 was 2.5711 hectares. The surface area of the land which the applicant had received in compensation was smaller as it was arable land of higher quality and value. The document further indicated that the value of the applicant's land taken into account in the consolidation proceedings had been the value on the date when the allotments were established. The same regulation relating to the value of real property for administrative purposes had been applied in valuing the substitute land. 34. In 2005 one of the representatives of the applicant association sold to a company a plot of land in the vicinity of the Váh allotments for SKK 380 per square metre. Prior to the sale, an expert had valued the land at SKK 288. On 10 January 2007, the same company offered to buy different plots belonging to the applicant association in the area for SKK 380 per square metre. 35. In August 2005, at the Government's request, an expert established the value on 1 October 2002 of both the land on the allotment site and the land which the applicant association had received in compensation. The expert calculated the value for general purposes of the land on the allotment site at SKK 1,166.40 per square metre. The location of the land in an industrial zone increased its value considerably according to the opinion. 36. The same expert assessed the general value of the other plot of land at SKK 110.16 per square metre. The opinion stated that the substitute plot of land was situated between a motorway and a slip road and that a highvoltage line was erected above it. As a result, multiple restrictions applied to the use of the plot. No construction activity was envisaged in the area. 37. On 15 December 2006 a different expert, at the Government's request, established the value in 1982 of the applicant's land at SKK 257,100, or approximately SKK 10 per square metre. The expert calculated the value of the land on 14 February 2003 at SKK 7.71 million, that is, approximately SKK 300 per square metre. The gardeners' investments (huts, fence, wells, permanent vegetation, etc.) were tentatively valued at SKK 241 per square metre of land in 2003. The general value of the land including the gardeners' investments was thus SKK 541 per square metre. Finally, the expert assessed the general value in 2003 of the arable land which the applicant association had obtained in compensation at SKK 95 per square metre. 38. On 21 December 2006, at the applicant's request, a private company assessed the value on 23 May 2002 of the applicant's land on the allotment site at SKK 7.6 million. That sum corresponds to approximately SKK 295 per square metre. In a document dated 16 January 2007, at the applicant's request, the company in question submitted comments on the above opinion of 15 December 2006. The view was expressed that the expert's conclusion was probably not in line with local market prices. Plots of land similar to those used by the gardeners, including gardeners' investments, were most frequently sold for between SKK 250 and 300 per square metre, whereas free plots of land outside allotments were being sold at SKK 350-380 per square metre in that area. The use of the land by gardeners had rather a negative impact on its general value. Land in the area in question could be let out for at least SKK 20 per square metre yearly, its value for general purposes being between SKK 280 and 300 per square metre. 39. In a letter addressed to the Government's Agent on 14 March 2007, the Institute of Forensic Engineering in Žilina, having examined the comments submitted by the above private company, expressed the view that the expert who had submitted the opinion on 15 December 2006 had proceeded in accordance with the relevant law. 40. The Land Ownership Act 1991 (Zákon o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku) entered into force on 24 June 1991. 41. Section 19(1) provides that the purpose of land consolidation within specific areas is to establish integral economic units, in accordance with the needs of individual landowners and with their consent, in line with public needs as regards creation of the landscape, the environment and investment activities. 42. Paragraph 2 of section 22 provides that, as of the entry into force of the Act and unless a different agreement is reached with the owner, the user of the land shall acquire tenancy rights in respect of it. 43. Under section 22(3), as in force until 25 March 1997, in cases where the land was used by individual gardeners on an allotment site the tenancy could not be terminated before expiry of the period for which the land had been originally put at the disposal of the users. Unless the parties otherwise agreed, the tenants had the right to have the tenancy extended by another ten years. The rent and the purchase price in respect of such land were to be determined on the basis of the classification and quality of the land at the time when the gardeners' right to use it had been established. The tenants had the right of pre-emption should the owner decide to sell the land. 44. Section 22(4) entitled the owners of land used by allotment gardeners to request, within three years of the entry into force of the Act, exchange of the land for a different plot of land owned by the State. The land to be proposed in exchange had to correspond, as regards both size and quality, to the original land and it was to be situated, where possible, in the same area. 45. The Land Consolidation Act 1991 (Zákon o pozemkových úpravách, usporiadaní pozemkového vlastníctva, pozemkových úradoch, pozemkovom fonde a o pozemkových spoločenstvách) entered into force on 19 August 1991. 46. Section 1 provides that land consolidation consists of the rational arrangement of land ownership in a specific area in accordance with the requirements of the protection of the environment and the creation of ecologically stable territorial systems, the functions of agricultural land and economic and production criteria applicable to modern agriculture and forestry. 47. Under section 2(a), land consolidation pursues the aim, inter alia, of resolving issues and eliminating obstacles related to ownership and possession/occupancy of land which arose as a result of historical developments prior to the entry into force of the Act. 48. Section 29(1) provides for the possibility of transferring the ownership of land on allotment sites to the tenants, subject to compensation of the landowners. 49. Act 64/1997 on the use of plots of land in allotment gardens and arrangements as regards their ownership (Zákon o užívaní pozemkov v zriadených záhradkových osadách a vyporiadaní vlastníctva k nim) governs the use of land within allotment gardens and the transfer of ownership rights in respect of such land. It entered into force on 11 March 1997 and took effect on 26 March 1997. It repealed section 22(3) of the Land Ownership Act 1991. 50. The government explanatory report of 10 December 1996 which was submitted to Parliament together with the draft Act indicates that some 5,700 hectares of land (approximately 0.22 per cent of all agricultural land in Slovakia) were used by 100,000 individual gardeners on 987 allotment sites at that time. Gardening served as relaxation and provided a partial supply of fruit and vegetables to at least 700,000 town dwellers in Slovakia. 51. According to the report, there was a public interest in land consolidation in Slovakia. In that context, it was in the general interest to transfer the ownership of land in allotment gardens to the existing tenants as it would provide greater legal certainty for both the gardeners and the owners. 52. The tenants would obtain ownership of the land which they used and would not risk losing the surplus value which they had added to the land through their work and investments. As to the owners, they were likely to continue to have their rights to avail themselves of the property restricted for a considerable period of time; the allocation of appropriate alternative plots of land to them would resolve that problem. According to the explanatory report, compensation based on the surface area and quality of the land at the time when the owner had lost the possibility of using the land was appropriate. Pecuniary compensation was to be paid in exceptional cases only where the owner either asked for it or refused compensation in natura. 53. Under section 1(1), the aims of the Act are (i) regulation of the use of allotment land and (ii) definition of the procedure to be followed with a view to land consolidation on allotment sites under a special law (reference is made to section 29(1) of the Land Consolidation Act 1991). 54. Section 3(1) of Act 64/1997 provides that, unless the owner of the land and the gardeners concluded a tenancy agreement earlier under a special regulation, a tenancy comes into being between them as of the moment when the Act takes effect. 55. Paragraph 2 of section 3 enumerates the conditions under which the owner of the land is entitled to terminate the tenancy. Such entitlement is limited to cases where the tenant (i) is not using the land with due care, (ii) has constructed a building on the plot without a permit, (iii) has sub-let the land to a third person without the owner's consent or (iv) has failed to pay the rent, despite a prior warning, by 30 August following the year for which the rent is due. An owner who puts an end to a lease is obliged to compensate the tenant for buildings and permanent vegetation as well as for the tenant's share in the equipment jointly used by the gardeners within the allotments (section 3(3)). 56. Pursuant to section 4(1), the yearly rent for the use of plots of land in allotment gardens is ten per cent of their value as established under section 15(5-7) of Regulation 465/91 of the Ministry of Finance, the minimum sum being SKK 0.3 per square metre. This provision does not affect the amount of rent which owners and tenants may have agreed under a special law at an earlier date. 57. The main purpose of Act 64/1997 is to permit the transfer of ownership of the land to tenants of allotments where the majority of tenants so request and where the owners have refused to sell the land at a price not below the level of compensation provided for under section 11. In such cases proceedings are brought, in the course of which a preliminary inventory of the land is prepared. The inventory can be challenged within thirty days of its publication. Once the proceedings have started, the competent district office invites the Slovakian Land Fund to select Stateowned plots of lands to be offered as compensation to the owners of the land situated on the allotment sites (sections 7 and 8). 58. Section 10(1) provides that, prior to approval of such a land consolidation project, the district office involved has to ask the owners to inform it, within 60 days, whether they wish to be allocated a different plot of land of corresponding surface and quality in the same area or to receive financial compensation for their land. Where the allotments are situated in a built-up area of a municipality, the owner can claim a different plot of land in a comparable area. Where the owners do not indicate their preference within 60 days, they are to receive financial compensation (section 10(3)). 59. Section 11 governs financial compensation for plots of land situated in allotments. It is to be determined on the basis of the quality and nature of the land at the time when the gardeners' right to use it was established. Section 11 further provides for an increase or decrease in compensation according to the location of the land and possible restrictions on its use. 60. A consolidation project comprises, inter alia, a recapitulation of the proceedings, a list of tenants with indication of the land they use and its value, a list of owners who have requested financial compensation and its amount and a proposal as regards the situation of the substitute land to be provided to the owners (section 12). 61. Under section 13, the district office must publish the consolidation project under the Act and notify the persons concerned thereof. If no objections are filed, the district office must approve the project. If the district office dismisses objections to the data included in the project, a regional administrative authority must re-examine them. Decisions on approval of land consolidation projects can be reviewed by an administrative court. 62. Sections 15-17 govern the implementation of land consolidation projects which have been approved. Under section 17(2), the entry in the land register must indicate that the new owner of the land on the allotment site is obliged to use it for the same purpose as previously until a different use has been approved. 63. Section 17(3) provided that, where the tenants did not pay the compensation due, the ownership of the land was transferred to the Slovakian Land Fund. The latter could not use the land but could let it to the person who used it. This provision ceased to have effect after the Constitutional Court declared it contrary to the Constitution. 64. Regulation 465/1991 of the Ministry of Finance of 25 October 1991, as amended, governed determination of the price of buildings and plots of land and compensation for the use of land. It concerned the value of property for administrative purposes. It was repealed on 1 January 2004 and replaced by regulations on the determination of the general value of real property. 65. Section 15(5-7) provides that the price of plots of land registered as arable land, orchards, vineyards, meadows or pastures is to be fixed in accordance with Annex 8 to the Regulation. In the case of meadows and pastures the price is 0.75 per cent of the price indicated in Annex 8. The annex provides for prices per square metre ranging from SKK 12.1 to SKK 0.5 according to the quality and classification of the land. 66. Pursuant to section 2(1), real property tax is payable by the owner as entered in the land register. Where the owner has let another person use the land, the tenant is obliged to pay the tax where the lease has lasted or is to last five years at least, and subject to the registration of the tenant in the land register. 67. Thirty-five members of Parliament and the Prosecutor General brought proceedings before the Constitutional Court claiming that several provisions of Act 64/1997 were contrary to the Constitution and Article 1 of Protocol No. 1. In particular, the members of Parliament relied on the Court's case-law (James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 54, and Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, §§ 69 and 73), arguing that there existed no genuine public interest in the interference with the landowners' rights and that the compensation which the landowners were to receive under the relevant provisions of Act 64/1997 was not appropriate. 68. Both petitions were examined jointly at a plenary meeting of the Constitutional Court. 69. On 30 May 2001 the Constitutional Court concluded that section 17(3) of Act 64/1997 was contrary to, inter alia, the constitutional protection of ownership rights. It dismissed the remainder of the submissions. 70. The Constitutional Court noted that the regulation of relations in respect of land used for gardening in allotments mainly concerned, as in the case of restitution laws, the undoing or mitigation of the wrongs which had occurred in the past when the principle of the rule of law had not been respected. The legislator had a certain margin of appreciation when deciding on the relevant issues, provided the constitutional guarantees were upheld. 71. With regard to the compulsory letting of the land to the gardeners under section 3 of Act 64/1997, it was merely a temporary measure pending the transfer of its ownership to the gardeners in accordance with the provision of that Act. It pursued the aim of providing the users with legal certainty and of ensuring optimal use of the land in question with due regard to the requirements of the landscape and the environment. It was as such in the public interest. The measure was limited in duration and it was not disproportionate as it filled the gap which arose following the quashing of section 22(3) of the Land Ownership Act 1991. Parliament, by obliging the owners to let the land to the gardeners, had not overstepped its margin of appreciation and had struck a fair balance between the general interest and the protection of individuals' rights. Section 3 was therefore not contrary to Article 1 of Protocol No. 1 to the Convention or its constitutional equivalent. 72. As to the argument that the rent payable under section 4 of Act 64/1997 was disproportionately low, the Constitutional Court held that Article 1 of Protocol No. 1 imposed on the Contracting Parties to the Convention no specific obligations as regards compensation for the use of property in the general interest. There was no appearance that the relevant provision was unconstitutional. 73. The plaintiffs also argued that the transfer of ownership of the land to the gardeners under sections 7 et seq. of Act 64/1997 was not in the general interest as it restricted the rights of the owners to the benefit of a different group of individuals without any relevant justification. 74. In the Constitutional Court's view, that transfer of ownership was to be seen in the broader context of land consolidation, the purpose of which was set out in section 19 of the Land Ownership Act 1991 and in section 2(a) of the Land Consolidation Act 1991. Consolidation pursued the aim of setting up integrated land entities in accordance with the needs of individual owners, with their consent, and with due regard to general requirements as regards the creation of the landscape, the environment and investment development. Land consolidation was also justified with a view to adjusting the existing relations between owners and users and eliminating any obstacles which had arisen as a result of past developments. Sections 7 et seq. of Act 64/1997 in no way affected the above general interest in land consolidation. 75. The plaintiffs further alleged that the compensation for land under section 11 of Act 64/1997 was inappropriate as it was substantially lower than the market value of the land. 76. The Constitutional Court noted that the owners had the choice between alternative plots of land and financial compensation. The gardeners could not be held liable and they should not be penalised for the fact that the owners had been deprived of the possibility of enjoying their property under a regime which had disregarded democratic principles. Furthermore, the users, by cultivating the land, had substantially increased its value. The Constitutional Court therefore accepted as just the relevant provisions under which compensation to the owners should be based on the value of the property at the time when the gardeners had started using it. The compensation under Act 64/1997 was therefore appropriate and compatible with the requirements of Article 1 of Protocol No. 1. 77. Finally, the Constitutional Court found that section 17(3) of Act 64/1997 was unconstitutional as there was no justifiable public interest in transferring ownership of land to the State in cases where the user had failed to pay the amount due. 78. In a separate opinion three judges stated that the compulsory letting under section 3 of Act 64/1997 was unconstitutional and that the compensation payable under section 11 was not appropriate as it was based on the value of the property at the time when the gardeners had acquired the right to use the land. 79. The dissenting judges expressed the view that the parties to proceedings under Act 64/1997 were in an unequal position. In particular, the applicable law did not permit the administrative authorities or courts called upon to review their decisions to balance the interests of the persons involved, assess whether the transfer of ownership was justified or examine the question whether the compensation provided to the owner was appropriate. 80. In accordance with its established practice, the Constitutional Court lacks jurisdiction to examine a complaint lodged by natural or legal persons when the determination of the point in issue involves the preliminary question of conflict of legal rules (see, for example, I. ÚS 96/93, decision of 16 November 1993; II. ÚS 806/00, decision of 16 November 2000; II. ÚS 19/2001, decision of 22 March 2001; or IV. ÚS 11/04, decision of 22 January 2004). Such proceedings can be brought only by the persons enumerated in Article 130 § 1 of the Constitution including, inter alia, onefifth of the members of Parliament and the Prosecutor General. | 0 |
dev | 001-57443 | ENG | AUT | CHAMBER | 1,985 | CASE OF BÖNISCH v. AUSTRIA | 2 | Violation of Art. 6-1;Not necessary to examine Art. 6-2;Just satisfaction reserved | null | 7. The applicant, who is a citizen of the Federal Republic of Germany born in 1936, lives in Vienna. He runs a firm that specialises in meat smoking. He bought the production plant from the firm Krizmanich GmbH, which was thereafter called Bönisch GmbH, following the death of Mr. Krizmanich in 1975. 8. Mr. Krizmanich had been reported under the then applicable legislation to the prosecuting authorities by the Federal Food Control Institute (Bundesanstalt für Lebensmitteluntersuchung - "the Institute") for suspected offences resulting from the technique he used for smoking meat. In 1973, during the course of these proceedings, the Medical Faculty of the University of Vienna had been asked to draw up an expert report (Fakultätsgutachten). In this report, the maximum quantity permissible in smoked meats of a carcinogenic substance called benzopyrene 3.4 was stated to be one part per (American) billion ("ppb"). 9. After Mr. Bönisch had bought the firm, similar complaints were lodged with the prosecuting authorities. These led to the prosecution of the applicant before the District Criminal Court of Vienna (22 May 1975 and 27 January 1977) and before the Regional Court of Vienna (28 October 1976). Basing themselves mainly on the expert opinions of the Director of the Institute (see paragraph 20 below), these courts came to the conclusion that the products prepared with the impugned smoking technique were dangerous to health because they contained an excessive quantity - more than one ppb - of benzopyrene 3.4 and that their distribution consequently constituted an infringement of section 56(2) of the Food Act 1975 ("the 1975 Act"). It was further found that the products were adulterated (verfälscht) by reason of an excessive water content not apparent to the consumer, whereby they also contravened section 63 (1), no. 1, of the 1975 Act. Mr. Bönisch was accordingly convicted. His appeals against these decisions, which are not in issue in the present case, were unsuccessful. 10. In October 1976, the Market Office of the City of Vienna drew two samples of smoked meat from the production of the Bönisch company, leaving two counter-samples from the same pieces to the applicant (see paragraph 20 below). The Institute was entrusted with carrying out the analysis of these samples. In its analysis, which was carried out on 19 October 1976, the Institute found a benzopyrene concentration of 2.7 and 3.0 ppb respectively and an excessive water content. The samples were therefore described as being dangerous to health and adulterated. This opinion by the Institute, which had been drafted on 28 November 1976 by the Director of the Institute, amounted to the lodging of a complaint (Anzeigegutachten); it was transmitted by the Market Office to the prosecuting authorities with a view to the institution of criminal proceedings. 11. The case came before the same judge of the Regional Court who in 1976 had dealt with an earlier case against the applicant (see paragraph 9 above). Pursuant to section 48 of the 1975 Act, he again appointed the Director of the Institute as expert in order to hear him in connection with the opinion submitted. On 17 April 1978, Mr. Bönisch challenged both the judge and the expert; in his contention, the conduct of the proceedings had shown that both were biased against him and resolved to disregard his rights of defence, in particular the right - guaranteed by Article 6 (art. 6) of the Convention - to the attendance and examination of witnesses and experts for the defence under the same conditions as those for the prosecution. In addition, the applicant asked for the hearing of several experts. On 26 April 1978, the President of the Regional Court rejected the challenge concerning the investigating judge on the ground that it was unfounded. However, he did not formally examine the challenge concerning the expert, who in fact took part in the proceedings. 12. On 29 June 1978, at the request of Mr. Bönisch, the Regional Court heard as witness Mr. Prändl, the Director of the Institute for Meat Hygiene and Technology of the Veterinary University of Vienna. According to written evidence submitted by this Institute after analysis of the two counter-samples, the concentration of benzopyrene was only 0.75 ppb and 0.12 ppb respectively, and there was accordingly no reason for any objections. In reply to questioning by both the judge and the expert, the witness explained in detail the method of analysis applied by his Institute, which was very similar to that used by the German Federal Institute for Meat Research. The expert thereafter developed his personal opinion. As regards the benzopyrene concentration, he pointed out that the method employed by the Federal Food Control Institute was subject to criteria which were especially stringent and rigorously controlled; its degree of accuracy was maximised and the margin of error did not exceed 20 per cent. On the other hand, he criticised the method used by the witness; in his view, the margin of error had to be considerable as the results obtained from each of the two counter-samples differed greatly, whereas the Institute’s analysis showed analogous results in both instances. He emphasised that the products made by Mr. Bönisch’s firm showed a water content of 3.6 per cent, whereas, according to the Food Code (Codex Alimentarius Austriacus), it should not have exceeded 1.8 per cent. On his side, Mr. Bönisch, who was not represented by a lawyer, stated that a water content below 1.8 per cent was technically unattainable and requested the hearing of a meat and sausage expert on this point. The Regional Court however refused this, on the ground that black smoking was forbidden if the water content could not be limited to the required level. 13. In a judgment delivered the same day (29 June 1978), the Regional Court found the applicant guilty of offences under section 56(1), nos. 1 and 2, and section 63(1), no. 2, of the 1975 Act and accordingly sentenced him to two months’ imprisonment. It particularly stressed that, at the time of the takeover of the firm, the Institute had informed Mr. Bönisch of the requirements of the Food Code, that the applicant was aware of the criminal proceedings instituted against his predecessor and that, moreover, he too had been the subject of criminal proceedings for the same reasons but had nonetheless continued his production without changing method. The Regional Court considered that the expert opinion of the Director of the Institute was conclusive and that there were no doubts as to the reliability of his findings. It shared his view that the different results at which the Institute for Meat Hygiene and Technology of the Veterinary University had arrived were erroneous. Even allowing for a margin of error of 20 per cent in the Institute’s findings, it held that the concentration of benzopyrene in the applicant’s products was by far in excess of the permissible level (1 ppb). The carcinogenic effects of this substance were found to have been established by the Medical Faculty (see paragraph 8 above); the evidence to the contrary adduced by the applicant - in particular letters from two German experts and a publication written by three other experts - did not seem convincing to it. 14. Mr. Bönisch appealed. In essence, he took issue with the Director of the Institute for not having adhered to the opinion of his colleagues, which - in Mr. Bönisch’s view - nevertheless reflected the prevailing view, and submitted that the Director was biased. He also raised objections of principle against the appointment as court expert of the very person who had reported the case to the prosecuting authorities, and complained that this person had been heard as a court expert whereas Mr. Prändl had appeared as a mere defence witness; this seemed to him contrary to the requirements of Article 6 (art. 6) of the Convention. In addition, he requested the hearing of several experts. The Vienna Court of Appeal rejected the appeal on 19 December 1978. As to the carcinogenic effects of benzopyrene, it noted that the Regional Court had based its decision on the opinion of the Medical Faculty, which, according to settled case-law, could not be contested. Apart from that, the Regional Court had extensively dealt with all relevant aspects of the case before holding that the products made by the applicant were adulterated and dangerous to health. The findings of the Regional Court were not open to doubt as they were based on the detailed explanations of the expert. As the latter had already refuted Mr. Bönisch’s arguments, it was not necessary to take any additional evidence on the adulterated and dangerous character of the said products. In particular, the Court of Appeal ruled out the hearing of a counter-expert since the expert opinion obtained in the first-instance proceedings was not tainted with any defects (Articles 125 and 126 of the Code of Criminal Procedure). Finally, it rejected the challenge of the Director of the Institute as expert (Article 120 of the same Code). 15. Following analysis of samples taken in October 1977 and May 1978 from products made by the applicant’s firm, the Institute once more found an excessive concentration of benzopyrene (6.1 ppb) and an undeclared high water-content. Criminal proceedings were accordingly instituted against the applicant before the Vienna Regional Court. The case came before the same judge as before, who again appointed the Director of the Institute as expert pursuant to section 48 of the 1975 Act. 16. Hearings were held on 20 September 1979. Invoking Article 6 (art. 6) of the Convention, Mr. Bönisch unsuccessfully challenged the expert. The Regional Court pointed out that the 1975 Act required the appointment of an expert from the staff of the Institute; it added that even though the Director had previously given opinions unfavourable to applicant, this did not substantiate the challenge. The expert then presented his report. When the Regional Court examined him on recent research said to support the views of the applicant, he acknowledged that this research had arrived at less emphatic results on the carcinogenic effects of benzopyrene; but, according to him, this did not cause the opinion of the Medical Faculty to lose any of its validity in the particular circumstances. In reply to defence counsel’s questions, he explained the method for analysing foodstuffs used by the Institute, which made it possible to detect 80 per cent of benzopyrene; he conceded that this method differed from the one used by the German Institute, but declared himself not to be bound by the findings of a foreign authority. The defence asked for the hearing of witnesses on the subject; the Regional Court did not accede to this request, considering itself sufficiently informed through the opinions of the Medical Faculty and the expert from the Institute. 17. On the same day (20 September 1979), the Regional Court found the applicant guilty of offences against sections 56 and 63 of the 1975 Act. For reasons almost identical to those stated in the judgment of 29 June 1978 (see paragraph 13 above), it sentenced him to one month’s imprisonment. 18. Mr. Bönisch appealed from this decision on grounds similar to those pleaded in the first proceedings (see paragraph 14 above). The Vienna Court of Appeal dismissed the appeal on 20 May 1980. In its view, the appointment of a particular person as expert was not prohibited unless the person lacked competence to give evidence as a witness (Article 152(1), no. 1, of the Code of Criminal Procedure); apart from this, the applicant had failed to adduce any reasons casting doubt on the impartiality and professional qualifications of the Director of the Institute. Whilst the Director had admittedly already formulated opinions unfavourable to the applicant on several occasions, this did not warrant his being challenged, as the Regional Court had rightly noted. As regards the alleged violation of Article 6 para. 1 (art. 6-1) of the Convention, the Court of Appeal emphasised that section 48 of the 1975 Act required that the official of the Institute who had analysed the samples taken or drawn up the report should be appointed as expert. Rejecting the request for counter-expertise made by Mr. Bönisch, the Court of Appeal reiterated, as far as the remaining issues were concerned, the reasoning contained in its judgment of 19 December 1978 (see paragraph 14 above). 19. On 28 February 1984, the Federal President, exercising his power to grant a pardon, commuted the two prison sentences imposed on the applicant to fines of 30,000 and 15,000 Schillings (see paragraphs 13 and 17 above). 20. Under the terms of the 1975 Act, the Market Office of a city shall periodically draw samples of foodstuffs and send them for analysis to the Institute (section 43), making available a sealed counter-sample to be used by any private expert that the firm subjected to control might wish to consult. This expert must possess special professional qualifications and have a special authorisation from the Federal Ministry of Health (sections 47 and 50). Several members of the Institute’s staff are involved in the examination of the samples, for which purpose standard scientific techniques are employed. The various results are submitted to the Director of the Institute, who draws up a report. If the Institute has cause to suspect the commission of an offence, it must state so in its report and notify the responsible authorities (section 44). In practice, the report (Anzeigegutachten) is sent to the Market Office, which in such cases transmits it to the public prosecutor’s department. The prosecuting authorities have to decide whether or not criminal proceedings should be brought, but they usually adhere to the Institute’s opinion. 21. Whilst the provisions of the Code of Criminal Procedure are applicable in such cases, section 48 of the 1975 Act involves a derogation from them in so far as expert evidence is concerned: "If the court has doubts concerning the findings or the opinion of a Federal Food Control Institute or if it considers that such findings or opinion need to be amplified or if justifiable objections have been raised in respect thereof, it shall hear as expert the official of the said Institute who carried out the analysis or drew up the report for the purpose of explaining and supplementing the findings or the report ... In all other respects, expert evidence shall be governed by the provisions of the Code of Criminal Procedure ..." Under Article 120 of the said Code, the prosecuting authorities and the accused are to be informed of the names of the experts appointed by the court; should they raise valid objections, other experts are to be consulted. Thus, the court is bound to appoint one of the Institute’s officials who carried out the analysis or formulated the opinion. This official may be the person who drew up the report which served as the complaint prompting the criminal proceedings; such a circumstance is not capable of giving cause for a challenge. Should there be other grounds, such as a personal bias against the accused, the expert may be replaced by another official of the Institute who took part in the analysis and in the drafting of the opinion. If any doubts persist or if the findings of these experts "are unclear, vague, contradictory", etc. (Articles 125 and 126 of the Code of Criminal Procedure), the court may call another expert. Under the terms of Article 149 of the same Code, only the prosecutor and the defence counsel or the accused are entitled to put questions to witnesses and experts. Nevertheless, the court may authorise experts to examine witnesses and the accused. Witnesses, on the contrary, do not have this possibility. 22. The provisions of the 1975 Act, as well as certain practices followed by the courts and the Institutes, have been the subject of controversy in academic writings and on the occasion of an enquiry organised in 1977 by the Federal Ministry of Justice. The matter was debated in Parliament prior to the passing of the Act and subsequently in 1978 when a proposed amendment to section 48 was examined (see paragraph 21 above). This amendment, which was not in fact adopted, provided that both the Institute’s expert and any private expert called by the accused were to be heard only as witnesses and that, in case of doubt, an independent expert should be appointed. The receipt by Institute officials of certain bonus payments also gave rise to some discussion which subsequently provoked their discontinuance (see paragraphs 64-66, 74, 81-83 and 122-125 of the Commission’s report, paragraph 7 of the applicant’s memorial and point C of the Government’s memorial). | 1 |
dev | 001-99907 | ENG | TUR | CHAMBER | 2,010 | CASE OF D.B. v. TURKEY | 3 | Remainder inadmissible;Violation of Art. 5-1 and 5-4;Violation of Art. 34;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 12. The applicant was born in 1984 and, at the time of lodging his application, he was being held in the Edirne Foreigners' Admission and Accommodation Centre in Turkey. 13. The applicant was an active member of the Worker-Communist Party of Iran and the Freedom and Equality Seeking Students Movement in Iran. He was also on the board of editors of a well-known student journal. 14. According to the applicant's submissions, on Students' Day in Iran in 2007, which was held annually by university students across the country, more than fifty students were arrested and placed in solitary confinement in Evin Prison, in Tehran. Other members of the board of editors of the student journal that the applicant worked for were among those who were arrested. Subsequently, more students were arrested and imprisoned during the crackdown on students. 15. On an unspecified date in early 2008, the applicant arrived illegally in Turkey. 16. On 5 April 2008 the applicant was arrested by Turkish security forces while trying to leave Turkey illegally. He was subsequently placed in the Edirne Foreigners' Admission and Accommodation Centre. 17. On 22 April 2008 the applicant lodged an application for temporary asylum with the Ministry of the Interior (the “Ministry”). 18. On 24 July 2008 the applicant's request was rejected. According to a letter addressed to the Edirne governor's office by the Deputy Under- Secretary of the Ministry, the applicant had stated that he had been involved in the same activities as a certain P.P., an Iranian national who had been deported to Iraq on 22 August 2007 since his presence in Turkey constituted a risk for national security. The Deputy Under-Secretary maintained that the applicant's request had been rejected for the same reason and that this type of person should be not granted temporary asylum in general. He also requested that the Office of the United Nations High Commissioner for Refugees (UNHCR) should not be informed of these facts and that their access to this information should be restricted on national security considerations. The Deputy Under-Secretary finally requested the Edirne governor's office to notify the applicant of the decision taken in his case and to inform him that he could lodge an objection within two days against this decision. 19. On the same day the applicant was served with the decision rejecting his temporary asylum request and was informed that, unless he lodged an objection within two days, he would be deported to his home country. 20. On 25 July 2008 the applicant lodged, with the Edirne governor's office, a petition written in Farsi containing his objection against the decision rejecting his temporary asylum request. 21. On the same day the applicant made statements to two police officers in the presence of an interpreter. He maintained that he was an active member of the Worker-Communist Party of Iran and the Freedom and Equality Seeking Students Movement. He noted that he had participated in a number of demonstrations held by these organisations and that he had digital photographs of these demonstrations in his possession. He stated that he had left Iran subsequent to the arrest and imprisonment of his friends, who had been involved in the same activities on behalf of those organisations. He asked the Turkish authorities to contact the office of the UNHCR, his lawyer and a national non-governmental organisation, the Helsinki Citizens' Assembly, in order to receive documents and detailed information regarding his activities in Iran. 22. On 9 September 2008 his objection was rejected by the Ministry. According to the official documents, the Ministry considered that, in the light of the applicant's militant background, there was a real risk that he would be taken to the United States of America where he would have military training and that he would be part of military operations targeting Iran. 23. On 4 November 2008 the applicant was interviewed by officers from the UNHCR's Ankara office while he was being held by the Turkish authorities. On 20 March 2009 the applicant was granted refugee status under the UNHCR's mandate. 24. Following his placement in the Edirne Foreigners' Admission and Accommodation Centre, between 9 and 21 July 2008, the applicant went on a hunger strike in protest against his detention and the refusal of the authorities to allow him to have access to the temporary asylum system. He further alleged that he had been kept in solitary confinement in this Centre and that he had attempted to commit suicide there. 25. On 25 July 2008 the applicant was transferred to the Kırklareli Foreigners' Admission and Accommodation Centre. He alleged that his solitary confinement had continued in this Centre. 26. On 21 October 2008 following his visit to the Kırklareli Centre and his meeting with the applicant, Mr Barış Yıldız reported that the applicant had alleged that he was being detained alone in a cell. The lawyer had then asked a police officer about the conditions in the cell where the applicant was held. The police officer responded that the cell had a toilet and shower in it. The applicant had also told the lawyer that he had not been subjected to ill-treatment and that he did not need to see a psychologist or a psychiatrist. 27. On 3 September 2008 the Organisation for Human Rights and Solidarity for Oppressed People (Mazlum-Der), a human rights organisation based in Turkey, made a visit in order to observe the living conditions in the Centre. According to this organisation's report, they were not allowed by the Centre's administration to visit the inside of the Centre where foreign nationals were held or to hold a meeting with the applicant. The officers orally informed them that the Ministry had sent them written instructions to restrict access to the applicant. However, they did not wish to show Mazlum-Der the document in question. Mazlum-Der reported that other persons held in the Centre maintained that they did not know that the applicant had been held in the Centre for a very long time. Subsequently, they learned that the applicant was kept separately from them. According to the report, the Centre's administration did not allow the applicant, who was suffering psychologically, to talk with any other detainee. Nor was he authorised to hold a meeting with the representatives of the UNHCR. 28. The Government submitted that the applicant was held in the Kırklareli Foreigners' Admission and Accommodation Centre, which was not a prison or detention centre. Therefore, there were no prison cells or sections where the applicant could be kept in solitary confinement; neither was there any instruction to that effect. 29. On 23 April 2009 the applicant's representative lodged petitions with the Kırklareli police headquarters and the department responsible for foreigners, borders and asylum attached to the General Police Headquarters. The applicant's representative noted, in his petition, that the Government of Sweden had accepted the applicant within the refugee quota for Sweden and that an aeroplane ticket to Sweden was booked for the applicant for 27 May 2009. He requested the administrative authorities to secure the applicant's release with a view to facilitating the applicant's departure from Turkey. 30. On an unspecified date the applicant's representative further lodged an application with the Ankara Administrative Court for the applicant's release. 31. On 6 May 2009 the Administrative Court dismissed the case, holding that the applicant's representative had failed to attach the documents relevant to his petition, such as those demonstrating that he had already applied to the administrative authorities and that the latter had rejected his requests. The court asked the applicant's representative to renew his request in the light of the content of its decision within 30 days. 32. On 24 June 2009 the Ankara Regional Administrative Court upheld the decision of 6 May 2009. 33. On 26 June 2009 the applicant's representative renewed his request before the Ankara Administrative Court. 34. On 21 August 2009 the Ankara Administrative Court decided to request the office of the UNHCR to submit information regarding the applicant. In particular, the documents showing the Government of Sweden's decision to grant the applicant refugee status, the documents relating to the interim measure indicated by the Court and a copy of the case file were requested from the office of the UNHCR. 35. On 19 November 2009 the Ankara Administrative Court ordered the applicant's release from the Kırklareli Centre. In its judgment, the Ankara Administrative Court took into account the applicant's status as a refugee under the UNHCR mandate and the fact that the Government of Sweden had accepted the applicant within the refugee quota. It therefore decided to release the applicant with a view to his transfer to Sweden. 36. By a letter dated 23 December 2009, the Government informed the Court that on 24 November 2009 the applicant had escaped. They explained that the applicant had fled from the Kırklareli police headquarters where he had been taken in order for him to receive a wire transfer. The Government maintained that the applicant was not apprehended despite the arrest warrant issued by the Kırklareli police following his escape. 37. By a letter dated 12 January 2010, the applicant's representative informed the Court that, upon his and the UNHCR's request, on that date the applicant had surrendered to the police in order to be released from the Kırklareli Foreigners' Admission and Accommodation Centre in accordance with the Ankara Administrative Court's decision of 19 November 2009. 38. On 3 February 2010 the Government and the applicant's representative informed the Court that the applicant had been released from the Foreigners' Admission and Accommodation Centre on 26 January 2010. The Government further noted that the applicant had been granted a residence permit for five months pending his departure to Sweden. The applicant's representative noted that an aeroplane ticket to Sweden was booked for the applicant for 4 March 2010. 39. On 9 and 15 March 2010 the applicant's representative and the Government informed the Court respectively that the applicant had left Turkey on 4 March 2010 and arrived in Sweden where he was granted refugee status. 40. A description of the relevant domestic law and practice can be found in Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-45, 22 September 2009). | 1 |
dev | 001-98316 | ENG | DEU | ADMISSIBILITY | 2,010 | HINDERBERGER v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Andreas Hinderberger, is a German national who was born in 1977 and lives in Berlin. He was represented before the Court by A. Feller, a lawyer practising in Hannover. The applicant was serving a prison sentence in Amberg Prison. On 3 July 2002 he was transferred to another prison in Bielefeld for the purpose of arranging a visit (Besuchszusammenführung). From 10 to 12 July 2002 he was detained as a transit detainee (Durchgangsgefangener) in Hannover Prison for a period of 23 hours. During this transit detention he shared a prison cell measuring 16 square metres with four other prisoners. The cell was equipped with five beds, five chairs, two tables and two wardrobes. An in-cell sink and toilet were screened from view but not otherwise separated. The prisoners were allowed to leave the cell for one hour per day for exercise (Hofgang). The cell was locked during the night. At a request lodged by the applicant on 11 July 2002 the Hannover Regional Court (Landgericht) found in a decision of 16 September 2002 that the conditions of the applicant’s transit detention in Hannover Prison had been unlawful since five prisoners sharing a cell of 16 square metres that was locked at night and equipped with a toilet only visually separated was in breach of the requirement for the humane accommodation of prisoners. The applicant subsequently instituted official liability proceedings against the Land of Lower Saxony (Land Niedersachsen) before the Hannover Regional Court and requested adequate financial compensation for non-pecuniary damage of at least 200 euros. By a judgment of 15 July 2003 the Hannover Regional Court confirmed that the applicant’s conditions of detention had been in breach of the requirement for the humane treatment of prisoners. It held that a prison cell designed for accommodating several prisoners had to be equipped with a separate plumbing unit with its own ventilation system, failing which prisoners had to have access to washing facilities or toilets outside the cell, day and night. Sanitary facilities in a prison cell that were only visually separated infringed the prisoners’ right to humane treatment. The Regional Court further found that in the instant case the relevant authorities were responsible for a breach of their official duties under Articles 839 and 847 of the Civil Code (Bürgerliches Gesetzbuch), as well as Article 34 of the Basic Law in conjunction with the pertaining provisions of the Penal Code (Strafvollzugsgesetz). They should have recognised that the conditions of detention did not comply with the requirements for humane accommodation. While noting the difficulties the Land was facing at that time in respect of the large number of detainees and the limited space for their accommodation, the court found that these did not justify the restriction of the prisoners’ rights as had previously been established by the case-law of the Federal Constitutional Court (Bundesverfassungsgericht). The Regional Court further held that the violation of the applicant’s right to human dignity in itself constituted a serious interference with his personal rights (Persönlichkeitsrecht) that could not be remedied other than by financial compensation for non-pecuniary damage and awarded the applicant the compensation he had requested. Following an appeal lodged by the Land of Lower Saxony, the Celle Court of Appeal quashed, by a judgment of 2 December 2003, the judgment of the Hannover Regional Court and dismissed the applicant’s claim for financial compensation for non-pecuniary damage. The Court of Appeal confirmed that the applicant’’ case-law on Article 847 of the Civil Code in the version applicable at the time and which also applied to the case at hand, it stated that financial compensation for non-pecuniary damage could be refused in the event of minor bodily harm that was not significantly detrimental and did not cause permanent damage to the victim. In view of the short duration of the applicant’s transit detention and the fact that there was nothing to establish that he had endured significant or long-term physical or mental suffering, the interference with the applicant’s rights had not reached a severity that required the award of financial compensation for the purpose of preventing similar violations or granting just satisfaction. Since the Regional Court had found a violation of the applicant’s right under Article 1 § 1 of the Basic Law, there was no danger of similar infringements of his rights occurring in the future. Furthermore, it had to be taken into account that the prison’s transit detention division had been chronically overcrowded during the respective period and a short-term improvement of the situation had not been envisaged owing to financial restrictions. In order to respect the applicant’s rights under the specific circumstances, the prison authorities would have had to interfere with the rights of other prisoners or would have had to reject his transfer to another prison. This had been organised in his own interest, namely for the purpose of arranging a visit. While these considerations could not justify the breach of the applicant’s rights, they nevertheless indicated that the degree of the authorities’ fault and the motives for their actions could not be considered to have been of a serious nature. On 4 November 2004 the Federal Court of Justice dismissed the applicant’s appeal. It upheld the Court of Appeal’s finding that under the particular circumstances of the instant case, pecuniary compensation had not been necessary for granting the applicant adequate legal redress. It pointed out that there was no automatic link between the finding of a violation of Article 1 § 1 of the Basic Law and the granting of financial compensation. In accordance with the established case-law of the Federal Constitutional Court a prisoner had the right to have the lawfulness of his detention conditions reviewed by the courts irrespective of their duration. The finding of a violation by the domestic courts did not, however, require financial compensation in each case. Depending on the severity and scope of the violation of the right to human dignity in the individual case as well as on the motives and the degree of fault of the acting authorities, sufficient redress could be provided by other means than financial compensation for non-pecuniary damage. Referring to the Court’s case-law, the Federal Court of Justice pointed out that within the scope of the Convention it was also recognised that for inhuman or degrading treatment to trigger a right to financial compensation under Articles 3 and 41 of the Convention, it had to reach a minimum level of severity. The assessment of this minimum level was dependent on the circumstances of the individual case such as the duration of the treatment, its physical or psychological effects or the sex, age or state of health of the victim. Furthermore, it had also been established in the Court’s case-law that a judgment finding a violation might in itself constitute sufficient just satisfaction for non-pecuniary damage suffered by a victim. By written submissions dated 24 December 2004 the applicant lodged a constitutional complaint against the decisions of the Court of Appeal and the Federal Court of Justice arguing, in particular, that without appropriate financial compensation he was being deprived of sufficient redress and satisfaction for the violation of his rights guaranteed by Article 1 § 1 of the Basic Law and Articles 3 and 5 of the Convention. The protection of human dignity was absolute and could not be subject to a weighting of other interests or legal values. The mere finding of a violation did not have a deterrent effect on the Land and was not an incentive to change the detention conditions in its prisons or prevent a recurrence of similar violations. An infringement of the right to human dignity constituted a serious violation irrespective of the gravity of the interference and thus always required financial compensation. By a decision of 27 December 2005 (file No. 1 BvR 1359/05) the Federal Constitutional Court declined to consider the applicant’s constitutional complaint and dismissed his request for legal aid. The Federal Constitutional Court found that even departing from the Court of Appeal’s finding that the conditions of the applicant’s detention had violated his right to human dignity, the Federal Court of Justice’s finding that there was no automatic link between the finding of a violation of Article 1 § 1 of the Basic Law and the granting of financial compensation under Article 839 of the Civil Code taken in conjunction with Article 34 of the Basic Law did not give rise to any concerns under constitutional law. Article 34 did not require the granting of a particular kind of compensation but only regulated the relevant authorities’’s conclusion – as upheld by the Federal Court of Justice – that the applicant had been granted sufficient redress by the Regional Court’s finding that the conditions of his detention had constituted a violation of Article 1 § 1 of the Basic Law did thus not raise any concern from a constitutional law perspective. While it was true that, under Article 1 § 1 of the Basic Law, a violation of human dignity could not be justified by weighing it against other constitutional concerns, this did not concern the possibility of taking into account the severity of the violation in the determination of the kind and amount of compensation to be awarded to the victim. Article 1 § 1 of the Basic Law stipulates that human dignity shall be inviolable and that to respect and protect it shall be the duty of all state authorities. Under Article 34 of the Basic Law, taken in conjunction with Article 839 of the Civil Code, an individual has the right to be compensated by the State for any damage arising from a breach of official duty committed by a public servant. Under Section 847 § 1 of the Civil Code (in its version in force until 31 July 2002 and applicable to damage caused before that date) adequate financial compensation for non-pecuniary damage can only be claimed in the case of injury to the body or health, or in the case of deprivation of liberty. | 0 |
dev | 001-95081 | ENG | UKR | CHAMBER | 2,009 | CASE OF DUBOVIK v. UKRAINE | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger | 5. The applicant was born in 1978 and lives in Kyiv. 6. In February 2005 the applicant left Belarus for Ukraine. From that time on she has been residing in Ukraine with her family. 7. On 10 March 2006 the Deputy Prosecutor General of Belarus issued an arrest warrant in respect of the applicant on suspicion of aggravated trafficking in human beings and organised crime. 8. On 26 July 2007 the applicant was apprehended in Kyiv under an international arrest warrant with a view to her extradition issued on 21 June 2007 and a Belarus Interpol Bureau letter of 15 July 2007 to the Ukrainian authorities informing them that the applicant was on the territory of Ukraine and requesting them to find and arrest her with a view to extradition. She was thus separated from her newly-born child, who was exactly one month old when the applicant was apprehended. 9. On 27 July 2007 the Golosiyivskyy District Court of Kyiv (“the District Court”) ordered the applicant's detention for forty days pending an official request for her extradition to Belarus. On 6 August 2007 the Kyiv City Court of Appeal upheld that decision. 10. On 29 July 2007 the applicant applied for refugee status in Ukraine. 11. On 27 August 2007 the General Prosecutor's Office of Ukraine (“the GPO”) received an official request from the Deputy Prosecutor General of Belarus for the applicant's extradition to Belarus with the aim of prosecuting her for aggravated trafficking in human beings and organised crime. The request contained detailed information about criminal acts of which the applicant was suspected by the Belarusian authorities, as well as assurances that the applicant would be prosecuted only for these crimes, that she would be free to leave Belarus after her trial and serving a sentence, and that she would not be deported or expelled to any third country without Ukraine's consent. No decision was taken with regard to the above request. 12. On 3 September 2007 the District Court ordered the applicant's continued detention without a fixed time-limit and until the GPO had decided on her extradition to Belarus. The Kyiv City Court of Appeal upheld this decision on 13 September 2007. 13. On 12 September 2007 the President of the Chamber decided to apply Rule 39, indicating to the Government that the applicant should not be extradited to the Republic of Belarus. 14. By letter of 21 September 2007, the Belarusian General Prosecutor's Office sent to the First Deputy Prosecutor General of Ukraine assurances that, if extradited to Belarus, the applicant would not be subjected to any kind of treatment prohibited by Article 3 of the Convention, that she would receive a fair trial, and that the death penalty would not be applied in her case. 15. On 5 March 2008 the State Migration Committee (“the Committee”) granted the applicant refugee status. 16. On 6 March 2008 the applicant received a refugee certificate. 17. On 7, 14 and 21 March 2008 the applicant's lawyer lodged applications for her release with the District Court on the ground that the applicant had refugee status and therefore could not be extradited. 18. By letters of 12 and 31 March 2008, the District Court refused to consider the applications for release on the ground that there was a final and binding court decision ordering the applicant's detention pending extradition and that it was the prosecution service that was competent to decide whether there were grounds or not for the applicant's detention. 19. On 18 April 2008 the GPO lodged an objection with the Committee against its decision of 5 March 2008. The objection had the effect of suspending the Committee's decision. 20. On 5 May 2008 the Committee rejected the GPO's objection and confirmed its decision of 5 March 2008. 21. On 20 May 2008 the GPO made an objection to the decision of the Committee on the applicant's refugee status to the Regional Administrative Court of Kyiv (“the Kyiv Court”) and requested the suspension of the Committee's decision. 22. On 26 June 2008 the applicant's lawyer lodged an application for the applicant's release with the Kyiv Court under the Code of Administrative Justice. No decision was taken on this application. 23. On 9 July 2008 the Kyiv Court rejected the request for suspension of the Committee's decision pending the administrative proceedings. 24. On 21 July 2008 the Kyiv Court rejected the GPO's objection and confirmed the lawfulness of the Committee's decision of 5 March 2008. 25. On 23 December 2008 the Kyiv Administrative Court of Appeal (the Court of Appeal) overruled the decision of 21 July 2008 and cancelled the Committee's decision of 5 March 2008. 26. On 28 January 2009 the Highest Administrative Court decided to initiate the examination of the administrative case in cassation and suspended execution of the decision of 23 December 2008. 27. On 23 February 2009 the General Prosecutor's Office of Belarus informed their Ukrainian counterpart that the maximum eighteen-month time-limit for the applicant's pre-trial detention had expired and therefore her detention was replaced by an obligation not to abscond. On this ground the Belarus authorities asked the GPO to leave the extradition request without consideration and to release the applicant. 28. On 25 February 2009 the Deputy Prosecutor General ordered the applicant's release on the basis of the above request of the Belarus General Prosecutor's Office. On the same day the applicant was released. 29. On 1 April 2009 the Highest Administrative Court upheld the decision of the Court of Appeal. 30. Article 248¹ of the Code (Chapter 31-A) provided in so far as relevant: “Every citizen has the right to apply to court ... with an application, should he consider that a decision, action or inactivity of a public authority, legal person or official during the exercise of their administrative functions has violated his rights or freedoms” 31. The relevant provisions of the Code read as follows: Section 2 Task of the administrative justice system “1. The task of the administrative justice system is the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public law relations from violations by public authorities ... 2. Any decisions, actions or inactivity of public authorities can be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...” Section 17 Competence of the administrative courts in deciding administrative cases “1. The competence of the administrative courts shall cover: ... 3) disputes between public authorities ... 4) disputes following an application by a public authority in the situations set forth by the law... 2. The competence of the administrative courts shall not cover public law cases: ... 2. that shall be decided under the criminal justice procedure ...” Section 117 Securing an administrative claim “1. The court, upon the request of the claimant or of its own motion, can render a ruling on taking measures for securing an administrative claim ... 3. The lodging of the administrative claim or the initiation of administrative proceedings in the case does not suspend the challenged decision of the public authority, but the court may, in order to secure the claim,, suspend the decision by a ruling to that effect ... 6. A ruling on securing an administrative claim can be appealed against. An appeal against the ruling does not stop its enforcement, and does not prevent further examination of the case.” Final and transitional provisions “...7. After the entry into force of this Code applications and complaints that derive from administrative law relations ... (Chapters 29-32 of the Code of Civil Procedure, 1963) ... shall be considered under the procedure established by this Code ...” 32. The relevant provisions of the Prosecution Service Act provided: Section 19 “Supervision over the compliance and application of laws “Supervision over the compliance and application of laws covers: 1) compliance of acts issued by all bodies, enterprises, institutions, organisations and public officials with the requirements of the Constitution of Ukraine and laws in force ...” Section 20 Competences of the prosecutor “...Having established a violation of the law the prosecutor or his deputy shall be competent: 1) to make objections to acts of ... ministries and other central bodies of the executive power ...” Section 21 Objection by the Prosecutor “An objection to an act which contradicts the law may be submitted by the prosecutor or his or her deputy to the body that issued the act in question or to a higher body ... An objection by the prosecutor shall have the effect of suspending the act objected to, and shall be subject to compulsory consideration by the relevant body ... within ten days of its receipt. The prosecutor shall be informed of the results of the examination of his/her objection within the same time-limit. Should the objection be rejected ... the prosecutor may apply to a court to have the act declared unlawful. An application to a court may be lodged within fifteen days of receipt of the notification of rejection of the objection ... The lodging of such an application shall suspend the legal act in question.” 33. Section 3 of the Act read: Section 3 Prohibition of expulsion or forced return of a refugee to the country from which he came and where his life or freedom is endangered “No refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion. No refugee may be expelled or forcibly returned to a country where he or she may suffer torture and other severe, inhuman or degrading treatment or punishment, or to a country from where the refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion. This Article shall not apply to refugees convicted of a serious crime in Ukraine.” 34. The relevant provisions of the Act provide: Section 1 “Under the provisions of this Law a citizen is entitled to compensation for damage caused by: (1) unlawful conviction, unlawful indictment, unlawful arrest and detention, unlawful conduct of a search, seizure of property during the investigation and trial, unlawful removal from work (office) and other procedural actions that interfere with citizens' rights; (2) unlawful imposition of administrative arrest or correctional labour, unlawful confiscation of property, unlawful imposition of a fine; (3) the unlawful conduct of search and seizure activities foreseen by the Laws of Ukraine “on Search and Seizure Activities”, “on Organisational Legal Basis for Combating Organised Crime” and other legal acts. In the cases indicated in part 1 of this Section, the damage sustained shall be compensated in full irrespective of the guilt of the officials of the bodies of inquiry, the pre-trial investigative authorities, prosecutors and courts.” Section 2 “The right to compensation for damage in the amount of and in accordance with the procedure established by this Law shall arise in cases of: (1) acquittal by a court; (1-1) the finding in a judgment by a court or other decision by a court (except a ruling or decision of a court on remittal of the case for further investigation or for retrial) of the fact of unlawful indictment, unlawful arrest and detention, unlawful conduct of search, seizure of property during the investigation and trial, unlawful removal from work (office) and other procedural actions that interfere with citizens' rights, unlawful conduct of search and seizure activities; (2) the termination of a criminal case on the grounds of the absence of proof of the commission of a crime, the absence of corpus delicti, or a lack of evidence of the accused's participation in the commission of the crime; (3) the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in paragraph 2 of part 1 of this section; (4) the termination of proceedings for an administrative offence. The right to compensation for damage caused by the search and seizure activities indicated in section 1 of this Law, conducted prior to the institution of criminal proceedings, arises in the cases set out in paragraph 1(1) of part 1 of section 1, or in cases in which no decision was taken on instituting criminal proceedings within six months of the conduct of such activities, as a result of which such activities ... were cancelled.” Section 3 “In the cases referred to in section 1 of this Law the applicant shall be compensated for ... (5) non-pecuniary damage.” Section 4 “... Compensation for non-pecuniary damage shall be awarded in cases in which unlawful actions by bodies of inquiry, pre-trial investigative authorities, prosecutors and courts have caused non-pecuniary losses to a citizen, led to disruption of his or her usual relations and required additional efforts for the organisation of his or her life. Non-pecuniary damage shall be defined as the suffering caused to a citizen due to physical or psychological influence which resulted in a deterioration or deprivation of his or her ability to act in accordance with his or her usual habits and wishes, a deterioration of relations with the people around him or her, and other adverse effects of a non-pecuniary nature.” 35. Other relevant domestic law and practice is summarised in the judgments Soldatenko v. Ukraine (2440/07, §§ 21-29 and 31, 23 October 2008) and Svetlorusov v. Ukraine (2929/05, § 32-34, 12 March 2009). | 1 |
dev | 001-101983 | ENG | RUS | ADMISSIBILITY | 2,010 | GOCHAYEVA v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | The applicant, Ms Ayshat Azretovna Gochayeva, is a Russian national who was born in 1936 and lives in the town of Tyrnyauz in the Kabardino-Balkaruya Republic. She is represented before the Court by Mr I. Kuchukov, a lawyer practising in Nalchik. The respondent Government were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was the owner of a flat in a block of flats in Elbrusskiy Avenue in the town of Tyrnyauz in the Kabardino-Balkaruya Republic. She lived in the flat with her family. In July 2000 some of the residential quarters of Tyrnyauz were flooded as a result of a powerful mudslide. Many buildings were destroyed or damaged and many people were killed or injured. The mudslide also destroyed a bridge in the vicinity of the applicant’s block of flats. On 28 August 2003 the Tyrnyauz Town Council decided to build a new bridge. The municipal land on which the applicant’s block of flats was situated was allocated for that purpose. The Town Council sued the residents for eviction. On 12 September 2003 the Elbrusskiy District Court of the Kabardino-Balkariya Republic ordered that the applicant’s family be evicted from their flat and that the Tyrnyauz Town Council provide them with other comfortable housing of an equal value. Eviction of other 31 families from the same block of flats or from the neighbouring blocks of flats was ordered by the same judgment. On the same day the court issued a writ of execution. The applicant appealed. On 2 October 2003 the bailiffs’ service opened enforcement proceedings. On 10 October 2003 the bailiffs forcibly evicted the applicant’s family from the flat. No substitute housing was provided. On 11 November 2003 the applicant’s block of flats was demolished. On 3 December 2003 the Supreme Court of the Kabardino-Balkariya Republic quashed the judgment of 12 September 2003. It held that the District Court had unlawfully joined the proceedings concerning 32 families and had ordered their eviction without taking into account particular circumstances of each family, that it had not informed some of the defendants about the date of the hearing, that the defendants had not been offered a choice between monetary compensation and substitute housing. It further held that the District Court should have identified a specific flat for the applicant’s family and that the eviction should have been made conditional on making that flat available or on payment of monetary compensation. The case was remitted before the District Court for a new examination. On 20 May 2004 the applicant lodged a counterclaim for damages. She submitted that the eviction of her family and the demolition of her flat had been unlawful for the following reasons. Firstly, at the time of the eviction the eviction order had not yet been enforceable because an appeal had been pending against the judgment of 12 September 2003. Secondly, no substitute housing had been provided. She argued that she had been unlawfully deprived of her home and property and claimed 420,230 Russian roubles (RUB) in respect of pecuniary damage representing the cost of a flat of an equal value. She also claimed RUB 500,000 in respect of non-pecuniary damage against the Elbrusskiy District Court and the bailiffs’ service. On 9 December 2004 the Nalchik Town Court of the Kabardino-Balkariya Republic allowed the applicant’s claims in part. The court found that the expropriation of the applicant’s flat and the eviction of her family had been necessary for the purpose of bridge construction. However, the eviction had been carried out unlawfully as the applicant had not received any prior compensation or been offered substitute housing. It ordered that the construction company that had demolished the applicant’s block of flats pay her RUB 420,230 in respect of pecuniary damage. It further rejected the applicant’s claim in respect of non-pecuniary damage, finding that there had been no evidence of unlawfulness in the acts of the Elbrusskiy District Court and the bailiffs’ service. The fault belonged to the Tyrnyauz Town Council against which no claim for non-pecuniary damage had been lodged. The applicant did not appeal against that judgment and it became final and enforceable ten days later. The construction company lodged an application for supervisory review of the judgment which was examined on 23 June 2005 by the Presidium of the Supreme Court of the Kabardino-Balkariya Republic. The Presidium amended the operative part of the judgment of 9 December 2004, ordering that the award in respect of pecuniary damage should be payable by the Tyrnyauz Town Council. The applicant received the award on 14 November 2006. No one shall be deprived of his property except on the basis of a court order. Expropriation of property in the public interest shall be conditional on prior and full compensation (Article 35 § 3 of the Constitution). A judgment of the first-instance court becomes final and enforceable after the expiry of the time-limit for lodging an appeal or after it has been upheld by the appeal court (Articles 209 § 1 and 210 of the Russian Code of Civil Procedure of 14 November 2002). In exceptional cases, where a delay in enforcement can cause considerable damage or impossibility of enforcement, a court may order, at the plaintiff’s request, immediate enforcement of the judgment. Such an order shall be made in the operative part of the judgment or in a separate decision which is amenable to appeal. The decision shall be taken after a hearing and the parties shall be appraised of its date (Articles 204 and 212). A writ of execution is issued by a court after the judgment has become final or an order for immediate enforcement has been made (Article 428). | 0 |
dev | 001-57937 | ENG | ITA | CHAMBER | 1,995 | CASE OF SPADEA AND SCALABRINO v. ITALY | 2 | Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of P1-1;No violation of Art. 14+P1-1 | C. Russo | 8. Mr Spadea, a lawyer, and Mrs Scalabrino, a university teacher, live in Milan. 9. In April 1982 they bought two adjacent flats with the aim of making their home there. The former owner of the flats had let them to a Mrs B. and a Mrs Z., who paid a rent subject to public-authority control. 10. In a writ served on 13 October 1982 the applicants gave the tenants of the flats notice to quit when the leases expired, on 31 December 1983, and summoned them to appear before the Milan magistrate (pretore). 11. On 22 December 1982 and 13 January 1983 the magistrate formally confirmed the notices to quit, and fixed the date of eviction at 31 December 1984. The orders were made enforceable on 22 December 1982 and 19 January 1983. 12. Pursuant to Legislative Decree no. 12 of 7 February 1985, which became Law no. 118 of 5 April 1985 ("Law no. 118"), the magistrate suspended enforcement of the evictions until 30 January 1986. 13. On 14 March 1986, Mr Spadea and Mrs Scalabrino began proceedings to enforce the orders for possession, as the tenants had still not complied with them. However, on each of three occasions when the bailiff responsible for enforcement went to the flats - 9 June, 9 September and 10 October 1986 - Mrs B. and Mrs Z. refused to leave. They were elderly ladies of modest means and had asked Milan City Council to allocate them low-rent flats. 14. Legislative Decree no. 708 of 29 October 1986, which became Law no. 899 of 23 December 1986, suspended the enforcement of evictions until 31 March 1987. From that date until 31 March 1988, only the Prefect (prefetto) was empowered, in certain cases, to grant police assistance to enforce evictions. 15. On 14 May, 15 June, 22 September, 9 November, 10 December 1987 and 14 January 1988 the bailiff made unsuccessful attempts to enforce the orders for possession. 16. From 8 February 1988 enforcement of evictions was again suspended, initially until 31 December 1988, by Legislative Decree no. 26 of 8 February 1988, which became Law no. 108 of 8 April 1988, and then until 30 April 1989, by Legislative Decree no. 551 of 30 December 1988, which became Law no. 61 of 21 February 1989. 17. In August 1988 Mrs Z. died and the applicants regained possession of one of the flats. Mrs B. left the other in February 1989. In the meantime, on 22 February 1988, Mr Spadea and Mrs Scalabrino had been obliged to buy another flat. 18. On the basis of the Commission's report, Italian legislation on residential property leases may be summarised as follows. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of evictions. The last statutory extension of all current leases, with the exception of certain cases specifically prescribed by the Law, was introduced by Law no. 392 of 27 July 1978 and remained in force until 31 December 1982, 30 June 1983 or 31 December 1983, depending on the dates on which the leases were signed. It should, however, be noted that, as regards buildings used for purposes other than housing, the statutory extension of current leases prescribed by section 1 (9 bis) of Law no. 118 of 5 April 1985 was declared unconstitutional in a decision (no. 108) handed down by the Constitutional Court on 23 April 1986. In its decision the court held that the statutory restrictions imposed on property rights under Article 42 of the Constitution, with a view to ensuring social justice, made it possible to regard controls imposing restrictions as legitimate, provided that such controls were of an exceptional and temporary nature, but that perpetuating such restrictions was incompatible with the protection of property rights embodied in Article 42 of the Constitution. In its decision the Constitutional Court also pointed out that the statutory six-month extension of leases prescribed by Law no. 118 should not be considered in isolation but within the context of tenancy provisions as a whole. The court drew particular attention to the fact that this extension succeeded other statutory extensions and could mark the beginning of new restrictions on freedom of contract in this field. Moreover, the statutory extension of leases had the effect of prolonging contracts in which the rent, notwithstanding the increases allowed in accordance with rises in the cost of living, were not even approximately in line with current socio-economic conditions. Further, the Law concerned did not give the lessor the possibility of regaining possession of the property except in cases of absolute necessity. The Constitutional Court also held that Law no. 118, inasmuch as it provided for a blanket extension of current leases without taking into consideration the particular economic circumstances of lessors and lessees - as would have been necessary to ensure social justice -, infringed the principle of the equality of citizens before the law embodied in Article 3 of the Constitution. Numerous provisions have established rules for the postponement, suspension or staggering of the enforcement of judicial decisions ordering tenants to vacate the premises they occupy (ordinanze di sfratto). A first suspension was introduced by Legislative Decree no. 795 of 1 December 1984. The provisions set forth therein were incorporated in Legislative Decree no. 12 of 7 February 1985, which became Law no. 118 of 5 April 1985. It covered the period from 1 December 1984 to 30 June 1985. This legislation also provided for the staggered resumption of forcible evictions on 1 July 1985, 30 September 1985, 30 November 1985 or 31 January 1986, depending on the date on which the judgment recording the end of the lease had become enforceable. Section 1 (3) of Law no. 118 stipulated that such suspensions were not applicable if repossession of the premises had been ordered because arrears of rent were owed. Similarly, no suspension could be ordered in the following cases: (a) where, after conclusion of the contract, the lessor required the property for his own use or for that of his spouse or his children or grandchildren, for residential, commercial or professional purposes, or where a lessor who intended to use the premises for one of the above-mentioned purposes (a) offered the tenant similar accommodation at a rent which he could afford and which was not more than 20% higher than the previous rent and (b) undertook to pay the costs of the tenant's removal (Article 59, first subsection, paragraphs 1, 2, 7 and 8, of Law no. 392 of 27 July 1978 ("Law no. 392")); and (b) where, inter alia, a lessor urgently needed to regain possession of his flat as accommodation for himself, his children or his ascendants (Article 3, first paragraph, sub-paragraphs 1, 2, 4 and 5, of Legislative Decree no. 629 of 15 December 1979, which became Law no. 25 of 15 February 1980 ("Law no. 25")). A second suspension was introduced by Legislative Decree no. 708 of 29 October 1986, which became Law no. 899 of 23 December 1986. It covered the period from 29 October 1986 to 31 March 1987 and in sections 2 and 3 provided for the same exceptions as the provisions in the preceding legislation. Law no. 899 of 23 December 1986 also established that the Prefect was competent to determine the criteria for authorising police assistance in evicting recalcitrant tenants, after consulting a committee including representatives of both tenants and landlords. Section 3 (5 bis) of Law no. 899 of 23 December 1986 also provided for the automatic suspension until 31 December 1987 of forcible evictions of tenants entitled to subsidised housing. A third suspension was introduced by Legislative Decree no. 26 of 8 February 1988, which became Law no. 108 of 8 April 1988. It first covered the period from 8 February 1988 to 30 September 1988 and was subsequently extended from the latter date to 31 December 1988. A fourth suspension was introduced by Legislative Decree no. 551 of 30 December 1988, which became Law no. 61 of 21 February 1989, and covered the period up to 30 April 1989. In regions suffering from natural disasters the suspension remained in force until 31 December 1989. With the exception of urgent cases, this Law also provided that police assistance in enforcing evictions would only be authorised in gradual stages over a period of forty-eight months from 1 January 1990 and set up a prefectoral committee responsible for deciding which cases required police intervention most urgently. All the aforementioned laws and decrees also contained provisions relating to the financing of subsidised housing and to housing benefits. | 0 |
dev | 001-76766 | ENG | GBR | CHAMBER | 2,006 | CASE OF WALKER v. THE UNITED KINGDOM | 3 | No violation of Art. 14+P1-1 | Josep Casadevall;Nicolas Bratza | 8. The applicant was born in 1942 and lives in Shipston Stour, Warwickshire. 9. Under current United Kingdom law, the state pension age is 65 for men and 60 for women. Until these ages, men and women who work are required to pay national insurance contributions (“NICs”) if their earnings are above a threshold amount, currently 385 pounds sterling (GBP) per month. 10. The applicant is over 60 years old and works as an administrator. Since he has not reached the state pension age for men of 65, he is required to pay NICs on his earnings. At the time of introduction of the application, his monthly salary was GBP 2,970 and he paid 10% of his earnings (between the primary threshold of GBP 385 and the upper earnings limit of GBP 2,535) in NICs (Class 1), amounting to GBP 215 per month and GBP 2,580 per annum. From April 2003, NICs increased to 11% of the amount up to the upper earnings limit, plus an additional 1% on all earnings above the limit. The applicant’s NICs increased to GBP 241.34 per month. 11. The applicant will be required to pay national insurance contributions from his earnings until he reaches the age of 65. 12. A woman of 60 years or more who continued to work would not be required to pay any NICs on her earnings. 13. The applicant wrote to his Member of Parliament and the Paymaster General complaining about the difference in treatment for men and women. Both replied stating that since liability to pay national insurance contributions is linked to the state pension age, the treatment of men and women would equalise in 2020 when the state pension age will equalise. 14. The National Insurance Act 1946, which first established the basis for the national social security scheme in the United Kingdom, set out a system of funding under which all employers and the majority of the working population, whether employed or self-employed, are liable to pay compulsory NICs contributions. This legislation has since been replaced, most recently, by the consolidating provisions of the Social Security Contributions and Benefits Act 1992 (“SSCBA 1992”) and the Social Security Administration Act 1992. 15. Section 1(2) of the SSCBA 1992 sets out the various classes of NIC. Of these, the largest category is Class 1 contributions which consist of earnings-related contributions paid by employers and employees. Such contributions are levied as a percentage of earnings which varies according to the employee’s earnings band. The NIC scheme is financed on a “pay as you go” basis, that is, current NICs fund current benefits: thus an individual’s contributions fund not his or her own benefits but those of others (R. (Carson) v. Secretary of State for Work and Pensions [2002] 3 All ER paragraphs 25-26). 16. A substantial contribution has been made to the National Health Service from NICs for many years. Following the National Insurance Act 2002, which imposed an additional deduction of 1% of earnings above the upper earnings limits, the element of calculation of the NHS allocation was also increased from 1.05% of earnings paid in the tax year to 2.05%. 17. Section 6(2) of the Act provides that only those under the state pension age are liable to pay NICs from their earnings. The state pension ages are currently set as 65 for men and 60 for women according to section 122. 18. Section 126 of the Pensions Act 1995 provides for the equalisation of state pension ages for men and women to the age of 65. The state pension age for women will increase gradually from 2010 and the equalisation will be complete in 2020. At the same time, the age until which women are liable to pay NICs will gradually increase in line with the increase in the state pension age. 19. Council Directive 79/7/EEC of 19 December 1978 provides for the progressive implementation of the principle of equal treatment for men and women in matters of social security. However, in Article 7(1)(a) the Directive provides for derogation in the matter of “the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences therefore for other benefits”. 20. In the Case C-9/91 The Queen v. Secretary of State for Social Security, ex parte Equal Opportunities Commission [1992] ECR1-4297 (“the EOC case” concerning reference for a preliminary ruling from the High Court), the European Court of Justice found that: Article 7(1)a had to be interpreted as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old-age and retirement pensions and also forms of discrimination which are necessarily linked to that difference; Inequality between men and women with respect to the length of contribution periods required to obtain a pension constitutes such discrimination where, having regard to the financial equilibrium of the national pension system in the context in which it appears, it cannot be dissociated from a difference in pensionable age; In view of the advantages allowed to women by national pension systems, in particular as regards statutory pensionable age and length of contribution periods, and the disruption that would necessarily be caused to the equilibrium of those systems if the principle of equality between the sexes were to be applied from one day to the next in respect of those periods, the Community legislature intended to authorise the progressive implementation of that principle by the member States and that progressive nature could not be ensured if the scope of the derogation authorised by Article 7(1)a were to be interpreted restrictively. (Summary of judgment) | 0 |
dev | 001-83131 | ENG | EST | CHAMBER | 2,007 | CASE OF SAAREKALLAS OU v. ESTONIA | 3 | Preliminary objection dismissed (lack of authority);Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 4. The applicant company is a private limited company (osaühing), registered in Estonia. 5. On 19 October 1998, T., the lawyer of K., lodged a request with the Saare County Court (maakohus) for securing a claim by K. against A. and P. According to K., she had been in the possession of six shares (corresponding to 50 per cent of the share capital) of Kallas AS, a public limited company, which had been unlawfully transformed into the applicant company, Saarekallas OÜ. The defendants had been entered in the commercial register as members of the management board of the company. K. submitted that P. intended to sell the company's buildings at 26 and 26a Pikk Street in Kuressaare. She requested the court to enter a notation in the Buildings Register prohibiting the disposal of the buildings concerned. 6. On the same date the County Court granted the request. 7. On 26 October 1998 the applicant company appealed against the interlocutory measure. 8. On 23 November 1998 the County Court annulled the interlocutory measure, as the plaintiff had not lodged the claim with the County Court within a one-month period. This decision became final on 4 December 1998. 9. On 14 December 1998 the Tallinn Court of Appeal (ringkonnakohus) took a decision concerning the appeal against the interlocutory measure. It noted that, although the appeal was well-founded, there was no need to quash the challenged decision as it had already been annulled. 10. On 11 December 1998, K.'s lawyer lodged a claim against the applicant company with the County Court. The plaintiff alleged that she had been a shareholder of Kallas AS, which had been transformed into the applicant company. However, she had not been entered on the list of shareholders of the applicant company after the transformation. She alleged that the P. was about to sell the buildings belonging to the applicant company and that this would be in breach of her rights. She requested that the management board of the applicant company be obliged to transfer to her a share in the value of 5,000 Estonian kroons (EEK) and that a notation prohibiting the disposal of the buildings at 26 and 26a Pikk Street be entered in the Buildings Register. 11. On 14 December 1998 the County Court again ordered that a notation prohibiting the disposal of the buildings at 26 and 26a Pikk Street be entered in the Buildings Register in order to secure K.'s claim. 12. The County Court scheduled ten preliminary hearings from 30 March 1999 to 9 May 2000. They were adjourned for various reasons: because of the negotiations between the parties to settle the case, the plaintiff's requests to require documents from the applicant company, the parties' or their representatives' absence, the plaintiff's applications to amend the object of the action and to bring additional claims. 13. On 9 May 2000 the judge hearing the case made a ruling concerning her withdrawal. The County Court had received copies of several petitions whereby the applicant company's statutory representatives had requested that criminal proceedings be initiated against the judge concerned and the chairperson of the Saare County Court, since they had, allegedly, continuously committed serious crimes against the petitioners, involving denial of human existence, violence and crimes against human rights. 14. On 3 July 2000 another judge of the County Court made a ruling concerning her withdrawal, since the representatives of the applicant company had made several petitions for initiating criminal proceedings also against her. On 5 September 2000 two further judges ruled on their withdrawal. 15. By a letter of 6 September 2000 the chairperson of the Saare County Court requested the chairperson of the Tallinn Court of Appeal to change the jurisdiction over the matter, since all of the judges of the County Court had withdrawn from hearing the case. The chairperson of the Court of Appeal considered the withdrawals unjustified and returned the case to the Saare County Court. 16. A preliminary hearing of the case was scheduled for 21 February 2001. However, on 20 February 2001 the plaintiff's lawyer informed the County Court that K., the plaintiff, had died on 4 February 2001. He requested that the proceedings be suspended. On 21 February 2001 the County Court decided to suspend the proceedings until ascertaining the identity of the plaintiff's successor. 17. On 3 April 2002 the County Court resumed the proceedings and invited R., K.'s heir, to act as the plaintiff. 18. On 30 April 2002 the County Court held a preliminary hearing. R. submitted to the court a request to amend the object of the action. N., member of the management board of the applicant company, asserted that he had not been authorised to represent the company. 19. On 5 June 2002 the court held a preliminary hearing. N., a member of the management board of the applicant company, again asserted that he had not been authorised to represent the company. The court agreed and decided that he could not take part in the proceedings. It heard the plaintiff's lawyer and scheduled a new hearing for 13 August 2002. 20. On 13 August 2002 the court again held a preliminary hearing. There appeared the plaintiff's lawyer; the applicant company's representatives lacked due authorisation to act on its behalf. The court concluded the preliminary hearing and scheduled the trial hearing for 23 September 2002. 21. On 23 September 2002 the County Court held a trial hearing in the presence of R. and his lawyer. N. was also present but had no authority to represent the applicant company. 22. The County Court delivered its judgment on 14 October 2002. R.'s claim was granted in part. The court obliged the management board of the applicant company to enter R. on the list of its shareholders with a share of a nominal value of EEK 5,000. 23. Both the applicant company and R. appealed against the judgment of the County Court. On 21 April 2003 the Tallinn Court of Appeal quashed the County Court's judgment and remitted the case back to it for fresh examination, since Tradeco Enterprises Inc, a shareholder of the applicant company, had not been involved in the proceedings. 24. On 10 September 2003 the Supreme Court (Riigikohus) refused the applicant company leave to appeal. 25. On 15 January 2004 the Saare County Court decided to resume the proceedings and to invite Tradeco Enterprises Inc to participate therein as a third party. It requested the plaintiff's lawyer to provide evidence concerning the status of Tradeco Enterprises Inc, including on whether this company had been dissolved and, if so, whether there was a successor. 26. In the spring of 2004 T., the plaintiff's lawyer, and the representatives of the applicant company were unsuccessfully seeking an opportunity to sell the buildings on Pikk Street. 27. The County Court held a preliminary hearing on 14 December 2004 in the presence of the plaintiff's representative and N. who had no authority to represent the applicant company. Tradeco Enterprises Inc, registered in Delaware, had refused the summonses sent by the court. The hearing was adjourned at the request of the plaintiff's lawyer in order to find out whether Tradeco Enterprises Inc was an existing legal entity. 28. On 3 February 2005 the plaintiff's lawyer informed the court that the parties had started negotiations to settle the case. By June 2005 it became evident that no agreement could be reached. 29. On 3 July 2005 and 25 January 2006 the County Court made requests to the authorities of the State of Delaware to receive information on Tradeco Enterprises Inc. 30. On 14 February 2006 the County Court received an agreement concluded between the plaintiff and the defendant company whereby they settled the case. On the same date, the County Court approved the settlement and annulled its interlocutory measure applied on 14 December 1998 to secure the action. The plaintiff and the applicant company declared that they abandon their right to appeal against the County Court's decision whereby the settlement was confirmed. 31. The relevant provisions of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) read as follows: “Everyone has the right to the protection of the state and of the law. ... The law shall protect everyone from the arbitrary exercise of state authority.” “The guarantee of rights and freedoms is the duty of the legislative, executive and judicial powers, and of local governments.” “Everyone whose rights and freedoms are violated has the right of recourse to the courts. Everyone has the right, while his or her case is before the court, to petition for any relevant law, other legislation or procedure to be declared unconstitutional. The courts shall observe the Constitution and shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution.” “Everyone has the right to compensation for moral and material damage caused by the unlawful action of any person.” 32. The pertinent provisions of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik), applicable until 31 December 2005, read as follows: “The purpose of civil procedure is to hear and adjudicate civil matters justly and expeditiously.” “(1) A court shall decide on the acceptance of a statement of claim within twenty days after the filing thereof. ...” “(1) If a court holds a preliminary hearing, it shall be held within two months after the filing of the statement of claim. A court shall summon the participants in a proceeding to a preliminary hearing. ...” “... (3) If possible, a court session shall be held by the court within three months after the filing of a statement of claim. ...” “... (3) A court shall justify the adjournment of the hearing of a matter. The reason shall be recorded in the minutes of the court session. A new court session shall be held within a reasonable period of time. A court shall determine the time and place of a new court session, taking into consideration the opinions of the participants in the proceeding. (4) If a court adjourns the hearing of a matter for more than three months, it shall make a written ruling. (5) A participant in the proceeding may file an appeal against such ruling if the participant in the proceeding finds that the hearing of the matter is adjourned for an unreasonably long period of time. A ruling of a court of appeal concerning an appeal against such ruling is not subject to appeal.” “An appeal may be filed against a ruling on the suspension of a proceeding. A ruling of a court of appeal concerning an appeal against such ruling is not subject to appeal.” “... (3) The parties and other participants in a proceeding may file an appeal against a ruling of the court of first instance if the right to file an appeal against a ruling is prescribed in this Code, or if the court ruling hinders the further conduct of the proceeding. ...” 33. In a decision of 13 June 1997, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-18-97) held that if no specific deadline had been provided for, the public authorities – the Privatisation Agency in the case at hand – had to perform actions within reasonable time. Otherwise, Article 13 § 2 of the Constitution would be violated. It found that administrative courts were authorised to examine such complaints under Article 3 of the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik). 34. In a judgment of 22 December 2000, the plenary Supreme Court (case no. 3-3-1-38-00) noted that a right to effective proceedings for one's protection was guaranteed under Articles 13, 14 and 15 of the Constitution and Article 13 of the Convention. It would be contrary to Article 15 § 1 of the Constitution to exclude some basic rights from effective judicial protection. The Supreme Court concluded that administrative courts were authorised, under Article 3 of the Code of Administrative Court Procedure, to examine whether certain procedural measures in criminal proceedings – in that case search and seizure – infringed the fundamental rights and freedoms of an individual. 35. In a judgment of 17 April 2001, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-10-01) held that even in cases where a person accused of a criminal offence had been removed from his or her office in accordance with the law but he or she was subsequently acquitted or the criminal proceedings against him or her were discontinued, he or she had to have a possibility of obtaining just compensation from the State. The court noted that although the matter was not regulated by law, this omission could not exclude the State's responsibility before the individual. It held that in such cases compensation could be claimed on the basis of general principles of law even when no specific legal provisions existed. 36. In a judgment of 6 June 2002, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-27-02) found, relying on Articles 13 § 2 and 25 of the Constitution, that unlawful act or measure – including inaction or delay – in performing public functions served as grounds for compensation for damage. Article 25 of the Constitution was considered directly applicable. This case concerned a delay by municipal authorities in privatisation proceedings. | 1 |
dev | 001-23104 | ENG | HRV | ADMISSIBILITY | 2,003 | IBRULJ v. CROATIA | 4 | Inadmissible | Christos Rozakis | The applicants, Ms Slavica Ibrulj and Ms Irma Ibrulj, are Croatian citizens who were born in 1941 and 1966, respectively, and live in Zagreb. They are represented before the Court by Mr Ranko Radović, a lawyer practising in Zagreb. The respondent Government are represented by their Agent, Ms Lidija Lukina-Karajković. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant is the mother of the second applicant. On 15 December 1972 their husband and father, H.I. died in a hospital in Zagreb. On 8 November 1976 the applicants instituted civil proceedings in the Zagreb Municipal Court (Općinski sud u Zagrebu) against the hospital, alleging that their husband and father had died due to the hospital personnel’s negligence and sought non-pecuniary damages. Before the Convention entered into force in respect of Croatia (i.e. before 5 November 1997) the case was several times decided at different levels. After the Supreme Court (Vrhovni sud Republike Hrvatske) quashed the first and second instance judgments on 16 November 1989, the case was remitted to the Zagreb Municipal Court as the court of first instance, which before to 5 November 1997 held three hearings. On 5 November 1997 the court invited the applicants to pay an advance for the costs of an additional medical expertise. On 25 May 1998 the Faculty of Medicine in Zagreb (Medicinski fakultet u Zagrebu) submitted its expertise to the court. On 13 July and 18 September 1998 the parties submitted their comments on the medical expertise. On 9 October 1998 the defendant filed additional submissions. At the hearing on 13 April 1999 the applicants’ counsel asked the court to adopt a partial judgment. At the hearing on 21 February 2002 the court ordered that yet another additional medical expertise be carried out. At the next hearing on 4 June 2002 the court heard two medical experts and adopted partial judgment awarding the applicants’ claim in part and rejecting it in part. On 5 July 2002 the defendant appealed against the judgment. It appears that the proceedings are presently pending before the appellate court. The relevant parts of Section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows: (1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment. | 0 |
dev | 001-93199 | ENG | UKR | ADMISSIBILITY | 2,009 | VLASENKO v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva | The applicant, Mr Vadim Viktorovich Vlasenko, is a Ukrainian national who was born in 1962 and lives in Kryvy Rig, Dnipropetrovsk Region, Ukraine. The Ukrainian Government (“the Government”) were represented by Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked at a joint stock company, “K”. In 1995 he retired. In July 1995 a medical expert commission recognised the applicant as having a number of work-related illnesses. As a result K paid him a lump sum in compensation and started to pay him a monthly pension. On 1 July 1998 the applicant instituted civil proceedings in the Tsentralno-Miskyy District Court of Kryvy Rig (“the District Court”) against K, seeking a recalculation of the above-mentioned payments. On 16 February 1999 the defendant requested the court to order an accountant’s report on the calculation of the payments in question. The court allowed this request. On 1 March 1999 the expert opinion was read out at a court hearing. On 18 March 1999 the District Court found for the applicant. On 25 October 1999, upon an appeal by the defendant, the Dnipropetrovsk Regional Court (since June 2001 the Dnipropetrovsk Regional Court of Appeal) quashed that judgment on the ground that the first-instance court had wrongly calculated the amounts awarded, and ordered a retrial. The District Court’s hearing scheduled for 8 February 2000 was adjourned at the applicant’s request because he was preparing an additional claim. This claim, apparently for additional payments, was lodged on 22 February 2000. Further additional claims were lodged by the applicant on 11 July 2001 and 4 March 2002. On 15 March 2000 the District Court ordered, at the defendant’s request, a forensic examination by an accountant. The defendant subsequently refused to bear the costs of the forensic examination in view of lack of funds and the expert terminated the examination. The file was transferred back to the District Court and the next hearing took place on 9 April 2001. On 17 July 2001 the District Court joined, at the defendant’s request, the local department of the State Social Security Fund (Виконавча дирекція Фонду соціального страхування від нещасних випадків на виробництві і професійних захворювань в м. Кривому Розі) to the proceedings as a co-defendant. On 20 July 2001 the District Court found for the applicant. On 10 January 2002, following an appeal by K, the Dnipropetrovsk Regional Court of Appeal quashed the judgment of 20 July 2001 on the ground that the lower court had wrongly calculated the amounts awarded and ordered a retrial. On 11 June 2002 the District Court found for the applicant. From 10 July to 31 October 2002 the domestic courts examined the matter of admissibility of the appeal by K against the last-mentioned judgment. Eventually, K lodged an appeal in compliance with the procedural requirements prescribed by law and the proceedings on the merits resumed. On 27 January 2003 the Dnipropetrovsk Regional Court of Appeal upheld the judgment of 11 June 2002. On 15 December 2003 the Supreme Court of Ukraine rejected an appeal in cassation by K. | 0 |
dev | 001-102957 | ENG | DNK | CHAMBER | 2,011 | CASE OF N.S. v. DENMARK | 3 | Remainder inadmissible;No violation of Art. 3 (in case of expulsion to Sri Lanka) | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born on 21 November 1967 in Sri Lanka. He is of Tamil ethnicity. 6. Having been granted family reunification on 3 December 1997, by virtue of the former section 9, subsection 1(2), of the Aliens Act (Udlændingeloven), on 13 December 1997, with a valid passport and visa, the applicant joined his Sri Lankan wife in Denmark. It appears that she had left Sri Lanka in 1992 and stayed in India before, at some unknown time, she was granted asylum in Denmark, apparently due to her connections with the LTTE. 7. Three children were born to the couple in 2000, 2002 and 2005. 8. By a judgment of 4 July 2006 by the City Court in Tønder (Retten i Tønder), upheld on appeal on 19 September 2006 by the High Court of Western Denmark (Vestre Landsret), the applicant was convicted of the sexual abuse of a girl who was less than twelve years old. He was sentenced to three years and three months' imprisonment and expelled with a prohibition on returning. 9. The applicant did not request leave to appeal against the judgment to the Supreme Court (Højesteret). 10. The applicant finished serving his prison sentence on 20 March 2009. 11. In the meantime, on 14 June 2007 the applicant requested asylum under section 7 of the Aliens Act and maintained in support thereof, inter alia, that his three siblings, two of whom were dead, had been members of the Tamil Tigers (LTTE). He had not been a member of any organisation in Sri Lanka. 12. According to an interview report of 11 December 2007 prepared by the Immigration Service, the applicant added that until he turned 30 years of age, he had been a fisherman. Then he had married and been reunited with his family in Denmark in 1997. When the applicant went to school, persons from the LTTE had come up and asked him if he could dig holes, move things and carry out various jobs. The applicant took no part in action, exercises or military training. He assisted the LTTE on a full-time basis for three years. During this period he stayed with the LTTE all the time. Thereafter he moved back to his family without telling the LTTE. Confronted with the fact that he had previously stated that he had no involvement with the LTTE, he maintained that his statement had been translated incorrectly. He had assisted the LTTE from 1990 to 1995 but had not been a member. He did not recall whether he had been wanted by the Sri Lankan authorities but he had been arrested by them ten to fifteen times. When asked why he had not previously mentioned the arrests, he stated that most of the arrests had been of only a few hours' duration but that the last one had lasted some months. It was in 1991 when he was arrested in connection with the mass arrest. He remembered being released after six months as a result of a peace agreement but his memory was not very good. Whenever he had been arrested the authorities asked him whether he was working for the LTTE. He had denied this, although this was the period during which he had worked for the organisation. Confronted with the fact that he had previously stated that he would not risk any harm upon return to Sri Lanka as he was neither wanted nor persecuted, the applicant submitted that this must have been a misunderstanding. 13. On 21 December 2007 the applicant's application for asylum was refused by the Immigration Service (Udlændingeservice), finding that he lacked credibility and that there was no substantiated risk that he would be subjected to treatment contrary to Article 3 of the Convention upon return. 14. The applicant appealed to the Refugee Appeals Board (Flygtningenævnet) before which, during an oral hearing held on 20 May 2008, he explained for example that the LTTE had approached him numerous times between 1985 and 1997 to ask him to work for them, which he did, but he had not been a member of the LTTE. The last time he assisted them was in January 1997. The applicant left in December 1997. 15. By decision of 13 June 2008 the Refugee Appeals Board refused to grant the applicant asylum. It noted that the applicant had expanded his motive for requesting asylum and had submitted various divergent explanations. Moreover, even disregarding the fact that the applicant had made various unclear statements about the dates, number and duration of his detention by the authorities, it could be considered a fact that he was last detained in 1991, which was five or six years before his departure, in connection with a mass arrest; that he was released in connection with a peace agreement; that he was never charged or sentenced; and that he had been able to leave Sri Lanka in 1997 on a valid passport without any problems. The Refugee Appeals Board did not find that the applicant had substantiated being at risk of persecution by the Sri Lankan authorities or the LTTE upon return. Finally, it observed that the general situation in Sri Lanka for Tamils coming from the north and east of the country could not alone justify the granting of asylum, and that the applicant's case had been assessed on its concrete and particular circumstances. 16. On 11 December 2008, upon the applicant's request, the Court of Human Rights decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Sri Lanka pending the Court's decision. 17. On 2 March 2009 the Refugee Appeals Board refused the applicant's request to reopen the case. 18. On 16 June 2009 the Refugee Appeals Board decided to suspend the examination of asylum cases concerning Tamils from northern Sri Lanka, including the applicant's case. 19. On 16 December 2009, on the basis of the most recent background information concerning Sri Lanka including, inter alia, a Memorandum of 26 October 2009 prepared by the Ministry of Foreign Affairs, the Refugee Appeals Board decided to review the suspended cases, including the applicant's case. 20. On 16 March 2010 the Refugee Appeals Board refused to reopen the applicant's case as it found that the most recent general background information would not lead to a revised assessment of the case. More specifically in its letter to the applicant's representative it stated as follows: ... In its decision of 13 June 2008, the Refugee Appeals Board found ... The Refugee Appeals Board still finds that your client's fear of being forcibly recruited by the LTTE or of being subjected to outrages by the LTTE as a result of having fled from the LTTE does not warrant a residence permit under section 7 of the Aliens Act. In this connection, the Refugee Appeals Board emphasises that your client's statements about his alleged connection with the LTTE were extended during the asylum proceedings and were diverging in essential areas. In this connection, the Refugee Appeals Board also refers to the fact that the Sri Lankan military forces defeated the LTTE in May 2009. Moreover, the Refugee Appeals Board refers to the background information available to the Board from which it appears that it is hardly likely that former low-ranking members of the LTTE or persons who have previously supported the LTTE will risk reprisals from the LTTE, see United Kingdom: Home Office, Operational Guidance Note, Sri Lanka, August 2009. Regardless of whether your client's information about his previous activities for the LTTE is considered a fact, the Refugee Appeals Board stills find that your client would not risk persecution or being subjected to outrages as covered by section 7 of the Aliens Act by the Sri Lankan authorities if returned to Sri Lanka, including in connection with his arrival at Colombo airport. The Refugee Appeals Board emphasizes that from his detention in 1991, where his photo was taken, and until his departure in 1997 your client has not been detained or had his picture or fingerprint taken or in any other way been the object of interest from the Sri Lankan authorities. The authorities have thus not carried out any acts aimed at your client that indicated that he was suspected of being a member of the LTTE. In this connection, the Board also refers to the fact that your client departed lawfully from Sri Lanka with his own Sri Lankan national passport for the purpose of family reunification with his spouse. Similarly, the Refugee Appeals Board refers to the background material available to the Board, according to which persons who have previously supported the LTTE on a lower level are generally not of interest to the authorities, see United Kingdom: Home Office, Operational Guidance Note, Sri Lanka, August 2009, and see United Kingdom: Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23-29 August 2009. Against that background the Refugee Appeals Board also finds that the fact that one or more of your client's siblings have been members of or active for the LTTE cannot warrant a residence permit under section 7 of the Aliens Act, according to the background information now available. The fact that as an ethnic Tamil from northern Sri Lanka your client may risk being questioned and investigated by the authorities on entry into the country cannot lead to a revised assessment of the case under asylum law. In this assessment, consideration has been given to the background information available to the Board, according to which the individuals at particular risk of being detained and investigated upon entry in Colombo are young Tamils, men in particular, from northern and eastern Sri Lanka, those without identification or residence in Colombo, and those recently returned from the West, see United Kingdom: Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 2329 August 2009. In this connection the Board refers to its finding that it has not been rendered probable that your client would be an object of particular interest to the Sri Lankan authorities. As in its decision of 13 June 2008, the Refugee Appeals Board still finds that the general situation in Sri Lanka is not of such nature as to warrant in itself the grant of a residence permit under section 7 of the Aliens Act. The Board observes in that connection that it is a condition for a residence permit under section 7 of the Aliens Act that, upon a specific, individual assessment, an alien is deemed at risk of persecution or outrages. The authority of the Refugee Appeals Board is restricted to deciding asylum-relevant issues, and it is thus outside the Board's authority to determine whether an alien who does not meet the conditions of section 7 of the Aliens Act may be issued with a residence permit for other reasons of a more humanitarian nature. Against that background and in accordance with the Board's decision of 13 June 2008, the Refugee Appeals Board still finds that it has not been rendered probable that, in case of return to Sri Lanka, your client would be at concrete and individual risk of persecution as covered by section 7(1) of the Aliens Act, or that your client would be at a real risk of outrages as covered by section 7(2) of the Aliens Act. It should be noted that your client's time-limit for departure is still suspended until further notice on the basis of the request of 11 December 2008 from the European Court of Human Rights. If the basis for your client's lawful stay in Denmark lapses, your client must leave the country immediately, see section 33 of the Aliens Act. As appears from the decision of the Refugee Appeals Board of 13 June 2008, your client may be forcibly returned to Sri Lanka if he does not leave voluntarily, see section 32a, cf. section 31, of the Aliens Act. 21. On 18 March 2010, the applicant's representative brought proceedings against the Refugee Appeals Board before the City Court (Retten i Sønderborg) claiming that the Board's decision of 16 March 2010 should be annulled. It appears that the proceedings are still pending. 22. By virtue of section 7 of the Aliens Act (Udlændingeloven), asylum is granted to aliens who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the former Aliens Authorities (now called the Immigration Service) and in the second instance by the Refugee Appeal Board. 23. Pursuant to section 56, subsection 8, of the Aliens Act, decisions by the Refugee Board are final, which means that there is no avenue for appeal against the Board's decisions. Aliens may, however, by virtue of Article 63 of the Danish Constitution (Grundloven) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority. 24's country of origin or first country of asylum. For this purpose, the Refugee Appeals Board has a comprehensive collection of general background material on the situation in the countries from which Denmark receives asylumseekers. The material is updated and supplemented on a continuous basis. The background material of the Refugee Appeals Board is obtained from various authorities, in particular the Danish Ministry of Foreign Affairs and the Danish Immigration Service. In addition, background material is procured from various organisations, including the Danish Refugee Council, Amnesty International and other international human rights organisations and the UNHCR. Also included are the annual reports of the US State Department (Country Reports on Human Rights Practices) on the human rights situation in a large number of countries, reports from the British Home Office, reports from the documentation centre of the Canadian Refugee Appeals Board, reports from the Swedish Ministry for Foreign Affairs, reports from EURASIL (European Union Network for Asylum Practitioners), reports from the authorities of other countries and to some extent articles from identifiable (international) journals. Moreover, the Board may request the Danish Ministry of Foreign Affairs to issue an opinion on whether it can confirm information from a background memorandum drafted in general terms. The Refugee Appeals Board also retrieves some of its background material from the Internet. Internet access also enables the Board to obtain more specific information in relation to special problems in individual cases. 25. Usually, the Refugee Appeals Board assigns counsel to the applicant. Board hearings are oral and the applicant is allowed to make a statement and answer questions. The Board decision will normally be served on the applicant immediately after the Board hearing, and at the same time the Chairman will briefly explain the reason for the decision made. 26. Extensive information about Sri Lanka can be found in NA. v. the United Kingdom, no. 25904/07, §§ 53-83. The information set out below concerns events occurring after the delivery of the said judgment on 17 July 2008 and, in particular, after the cessation of hostilities in May 2009. 27. Fighting between the Sri Lankan army and the LTTE intensified in early 2009, with the army taking a number of rebel strongholds in the north and east of the country. On 19 May 2009, in an address to the country's parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. It was also reported that most, if not all, of the LTTE's leadership had been killed. 28. The previous day, the United Nations Office for the Coordination of Humanitarian Affairs had estimated that around 220,000 people had already reached internally displaced persons' camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya. 29. In July 2009, the South Asia Terrorism Portal reported that the number of killings in Sri Lanka in the previous three years (including deaths of civilians, security forces and members of the LTTE) was: 4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1 January 2009 and 15 June 2009. An estimated 75-80,000 people were reported to have been killed in total over the course of the 26 year conflict. “Notwithstanding the cessation of the hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging. In the North, nearly the entire population from the territory formerly held by the LTTE in the North (285,000 Tamils) has been confined to heavily militarized camps in the Northern region. Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps, it is clear that this may take a considerable amount of time. The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps, access employment, attend regular schools, and ultimately choose their place of residence.” 31. A Human Rights Watch [HRW] press release, dated 28 July 2009, reported that: “The government has effectively sealed off the detention camps from outside scrutiny. Human rights organizations, journalists, and other independent observers are not allowed inside, and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission. On several occasions, the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions, or did not renew their visas.” 32. A further Human Rights Watch press release dated 26 August 2009 set out concerns that more than 260,000 Tamil civilians remained in detention camps without the freedom to leave. 33. In August 2009, the first post-war local elections were held in Northern Sri Lanka. The British Broadcasting Corporation reported that voter turn-out was low due to the number of people who were still displaced. The governing party, the United People's Freedom Alliance, took the majority of seats in the biggest city in the region, Jaffna. However, the Tamil National Alliance, a party sympathetic to the defeated LTTE, took the majority of seats in Vavuniya, the other town where polling took place. 34. On 7 September 2009, James Elder, the official spokesman for the United Nations Children's Fund in Sri Lanka was ordered to leave Sri Lanka because of adverse remarks that he had made to the media about the plight of Tamils in the government-run camps. 35. On 10 September 2009 the Sri Lankan Official Government News Portal announced that the motion to extend the State of Emergency (under which the authorities have extensive anti-terrorism powers and heightened levels of security including checkpoints and road blocks) by a further month had been passed by Parliament with a majority of 87 votes. 36. In a report dated 22 October 2009, the United States of America State Department published a report entitled “Report to Congress on Incidents During the Recent Conflict in Sri Lanka”, which compiled incidents from January 2009, when the fighting intensified, until the end of May 2009. Without reaching any conclusions as to whether they had occurred or would constitute violations of international law, it set out extensive reports of enforced child soldiers, the killing of captives or combatants trying to surrender, enforced disappearances and severe humanitarian conditions during the hostilities. 37. On 21 November 2009, the Sri Lankan Government announced its decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from 1 December 2009. 38. In its Global Appeal 2010-2011, the UNHCR reported that: “The Government-led military operations in northern Sri Lanka which ended in May 2009 displaced some 280,000 people, most of whom fled their homes in the last few months of the fighting. The majority of these internally displaced persons (IDPs) now live in closed camps in Vavuniya district, as well as in camps in Mannar, Jaffna and Trincomalee. An additional 300,000 IDPs, some of whom have been displaced since 1990, are also in need of durable solutions. The IDPs originate mainly from the Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka, as well as from some areas in the east of the country. Though the end of hostilities has paved the way for the voluntary return of displaced people, some key obstacles to return remain. For instance, many of the areas of return are riddled with mines and unexploded ordnance. Not all are considered to be of high risk, particularly those away from former frontlines, but mine-risk surveys and the demarcation of no-go areas are urgently needed. Other key obstacles to return include the need to re-establish administrative structures in areas formerly held by the Liberation Tigers of Tamil Eelam; the destruction or damaged condition of public infrastructure and private homes; and the breakdown of the economy - including agriculture and fisheries. The Government of Sri Lanka is planning the return framework, and it has called on UNHCR for support with return transport, non-food items, return shelter, livelihoods support and assistance in building the capacity of local authorities. With some progress having been recently achieved, it is hoped that a substantial number of IDPs will be able to return to their places of origin in the latter half of 2009, but a large portion of new IDPs are also likely to remain in the camps and with host families until well into 2010.” 39. In a Human Rights Report 2009, dated 11 March 2010, the United States of America State Department stated that the Sri-Lankan Government accepted assistance from NGOs and international actors for the IDP camps but management of the camps and control of assistance were under the military rather than civilian authorities. Food, water, and medical care were all insufficient in the first few weeks after the end of the war, but by July the situation had stabilised and observers reported that basic needs were being met. In June the military withdrew from inside the camps but continued to provide security around the barbed wire-enclosed perimeter. The IDPs in the largest camp, Manik Farm, were not given freedom of movement until December, when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin. Some observers said that this exit system still did not qualify as freedom of movement. 40. Human Rights Watch, in their report, World Report 2010, estimated that six months after the main fighting ended, the Government continued to hold more than 129,000 people (more than half of them women and girls) in the camps. Over 80,000 of these were children. The camps were severely overcrowded, many of them holding twice the number recommended by the UN. As a result, access to basic requirements such as food, water, shelter, toilets and bathing, had been inadequate. These conditions imposed particular hardships on the elderly, children and pregnant women. The camps were under military administration, and effective monitoring by humanitarian agencies was lacking. The authorities failed to provide camp residents with sufficient information about the reason for their continued detention, the whereabouts of relatives, or the criteria and procedure for their return home. 41. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 (“the November 2010 COI Report”) stated as follows: 4.23 The International Crisis Group (ICG) report Sri Lanka: A Bitter Peace, 11 January 2010, also referred to “extra-legal detention centres” maintained by the military and observed: “These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, 'the grounds on which the ex-combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary'. Given the well-established practice of torture, enforced disappearance and extra-judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex-combatants currently detained, only 200 will be put on the trial; most will detained for a further period of 'rehabilitation' and then released.” ... 4.25 Referring to the “at least 11,000 people” detained “in so-called 'rehabilitation centers” because of their alleged association with the LTTE, the HRW [document Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, released on 29 January 2010, observed: “The government has routinely violated the detainees' fundamental human rights, including the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority, and the right of access to legal counsel and family members. The authorities' consistent failure to inform families of the basis for the detainees' arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill-treatment, which are more likely to take place where due process of law is lacking and which have long been serious problems in Sri Lanka. Given the lack of information about some detainees, there is also a risk that some may have been 'disappeared'.” 4.31 The UNHCR 'Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka', 5 July 2010 reported that “In the wake of the conflict, almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps” adding that “According to a Government survey, as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres. Among the detainees were 8,791 males and 1,990 females.” and noted that “Some of the adult detainees have...been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities.” 42. The November 2010 COI Report also set out: 4.09 The EIU [The Economist Intelligence Unit], Country Report, Sri Lanka, July 2010 reported: “The EU has warned that Sri Lanka faces losing trade advantages under the Generalised System of Preferences-Plus (GSP-Plus) scheme from August 15th, unless the Government commits itself in writing to improving its human rights record. The EU has put forward 15 conditions that it says the Government needs to promise to meet within the next six months. These include: ensuring that the 17th amendment to the constitution, which requires that appointments to public positions be impartial and reflect the country's ethnic and religious mix, is enforced; repealing parts of the Prevention of Terrorism Act that are incompatible with Sri Lanka's covenants on political and human rights; reforming the criminal code to allow suspects immediate access to a lawyer on arrest; and allowing journalists to carry out their professional duties without harassment. However, the Government has rebuffed the EU, stressing that the issues that it has raised are internal political matters that should not be linked to trade. “The EU is not the only international body currently putting pressure on the government. Sri Lanka has also rejected the UN's appointment of a three-member panel to examine possible human rights violations during the island's civil war. The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.” ... 4.11 The EIU, Country Report, Sri Lanka, August 2010 noted that: “The decision by the UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel to examine accountability issues stemming from the final stages of the island's civil war, which ended in May 2009, has prompted a strong reaction in Sri Lanka ... 4.12 On 17 September 2010 the UN News Service reported that “Secretary-General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages last year of the conflict in Sri Lanka.” The source also noted that the role of the experts was to examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.” 43. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) sets out a series of letters from the British High Commission – hereafter “BHC”, Colombo, on arrival procedures at Colombo airport. In its letter of 28 August 2008, the BHC observed: “[T]he correct procedure for [Department of Immigration and Emigration [DIE]] officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer's office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to the Criminal Investigations Department [CID], or allowed to proceed. The office of the State Intelligence Service [SIS] is in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each incoming flight. Invariably, if they notice a person being apprehended they approach IED [Immigration and Emigration Department] and take details in order to ascertain in [sic] the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person in a logbook held in their office...often persons shown in the DIE logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action has been taken against them.” 44. The same letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers. It continued as follows: “Were a Sri Lankan national to arrive at Colombo Airport having been removed or deported from the United Kingdom, they would be in possession of either a valid national Sri Lankan passport, or an emergency travel document/temporary passport, issued by the Sri Lankan High Commission in London. The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him/her. A national passport contains the national ID card number on the laminated details page. I have made enquiries with the DIE at Colombo Airport, and with the International Organisation for Migration who meet certain returnees at the airport, and both have confirmed that a person travelling on an emergency travel document is dealt with similarly. They too have the document endorsed by the immigration officer on arrival and returned to them. Before issuing an emergency travel document, the Sri Lankan High Commission in London will have details of an applicant confirmed against records held in Colombo and will thus satisfactorily confirm the holder's nationality and identity. If a returnee subsequently wishes to obtain a national identity card, they have to follow the normal procedures.” 45. In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the United Kingdom, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official's opinion, the fact that certain returnees had been issued with emergency travel documents by the Sri Lankan High Commission in London did not seem to make any difference to their treatment upon arrival. 46. The Report of Information Gathering Visit to Colombo on 23 to 29 August 2009, conducted jointly by the Foreign and Commonwealth Office Migration Directorate and United Kingdom Border Agency Country of Origin Information Service (“the Report of Information Gathering Visit, August 2009”), concluded that all enforced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the SIS and/or the Terrorist Investigation Department for questioning. Anyone who was wanted for an offence would be arrested. 47. The report set out that those with a criminal record or LTTE connections would face additional questioning and might be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention: - Outstanding arrest warrant - Criminal record - Connection with the LTTE - Bail jumping/escape from custody - Illegal departure from Sri Lanka - Scarring - Involvement with media or NGOs - Lack of an ID card or other documentation 48. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 set out the following: 33.20 The BHC letter of 30 August 2010 went on to observe that: “At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. All returnees are still interviewed, photographed and wet fingerprinted. The main objective of these interviews is to establish if the returnee has a criminal record, or if they are wanted or suspected of committing any criminal offences by the police. The photographs are stored on a standalone computer in the CID office at the airport. The fingerprints remain amongst paper records also in the CID office at the airport. Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety. This surety must provide evidence of who they are, and must sign for the returnee. They are not required to lodge any money with CID. “The main CID offices at Colombo Airport, which are housed on the ground floor adjacent to the DIE embarkation control, are currently undergoing a complete refurbishment funded by the Australian government. The one completed office suite has three purpose built interview rooms, and facilities where returnees can relax and eat meals.” ... 33.22 A British High Commission letter of 14 September 2010 reported: “There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.” 49. On 19 October 2009, Tamilnet reported that twenty-nine Tamil youths were taken into custody by the State Intelligence Unit of the Sri Lanka Police at the International Airport in two separate incidents whilst trying to leave Sri Lanka. It was also reported that since July 2009, special teams of the State Intelligence Unit and police had been deployed in the airport to monitor the movement of Tamils who try to go abroad. 50. The Report of Information Gathering Visit, August 2009, stated that the frequency of cordon and search operations had not reduced significantly in recent months, though there were fewer large-scale operations than in previous years. In general, young male Tamils originating from the north and east of the country were most at risk of being detained following cordon and search operations, with the presence of the risk factors set out above increasing that risk. Those without employment or legitimate purpose for being in Colombo were also likely to be seen as suspect. The same report also noted that most sources agreed that there had been few, if any, abductions or disappearances since June 2009. There was not a great deal of available information about the profile of Tamils targeted for abduction, although it appeared that people linked to the media might be more vulnerable. Police did not generally carry out effective investigations. It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in Colombo, whose stated purpose remained to detect and prevent terrorist activity. In general those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were rare and none had been reported since June 2009. It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to Colombo city. Finally, it clarified that people who wished to live in Colombo but did not originate from there must register with the local police station with a national ID card or full passport, and details of planned length and purpose of stay. In theory, whilst anyone was entitled to register to stay in Colombo, some sources suggested that young Tamil men originally from the north or east of the country could encounter difficulties and face closer scrutiny. The presence of any of the risk factors set out above would also attract greater attention from the police. “The significant majority of reported cases of human rights violations in Sri Lanka involve persons of Tamil ethnicity who originate from the North and East...In Government-controlled areas, Tamils who originate from the North and the East, which are, or have been under LTTE control, are frequently suspected as being associated with the LTTE. For this reason, Tamils from the North and the East are at heightened risk of human rights violations related to the implementation of anti-terrorism and anti-insurgency measures. While this risk exists in all parts of Sri Lanka, it is greatest in areas in which the LTTE remains active, and where security measures are heaviest, in particular the North and parts of the East, and in and around Colombo.” “The country of origin information that UNHCR has considered indicates that Tamils from the North of Sri Lanka continue to face a significant risk of suffering serious human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion. Tamils in the North are still heavily targeted in the security and anti-terrorism measures described in the Guidelines. Wide scale detention and confinement of Tamils from the North remains a serious concern. Pro-Government paramilitary elements also continue to operate with impunity against Tamils in the North.” 54. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010, which superseded the April 2009 Guidelines contained information on the particular profiles for which international protection needs may arise in the current context. It was stated that: “given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex.” 55. In summary, the following were UNHCR's recommendations: All claims by asylum seekers from Sri Lanka (i) persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) journalists and other media professionals; (iii) civil society and human rights activists; (iv) women and children with certain profiles; and (v) lesbian, gay, bisexual and transgender (LGBT) individuals. It was also stated that in the light of Sri Lanka's 26 year internal armed conflict, and a record of serious human rights violations and transgressions of international humanitarian law, exclusion considerations under Article 1F of the 1951 Convention Relating to the Status of Refugees may arise in relation to individual asylum seeker claims by Sri Lankan asylum seekers. 56. The BBC reported in March 2010 that the Colombo Police force had opened four special units in Colombo suburbs able to take statements in Tamil, with plans for more. Previously, Tamil-speaking Sri Lankans had to rely on a friend to translate their complaints into Sinhala. | 0 |
dev | 001-23548 | ENG | POL | ADMISSIBILITY | 2,003 | T.C. v. POLAND | 4 | Inadmissible | Matti Pellonpää | The applicant, Mr T.C., is a Polish national, who was born in 1953. On 2 April 1996 E.N., with whom the applicant cohabited, gave birth to X. The boy’s birth certificate did not list the applicant as a father. Shortly afterwards E.N. was legally incapacitated because of her mental illness. On 9 May 1996 X was placed in an orphanage. Between 9 May and 31 December 1996 the applicant visited X in the orphanage on the following dates: 20 May, 16 June, 21 July, 1 September, 16 October and 15 December. On 29 October 1996 the Oświęcim District Court informed the applicant that legal advice on paternity could be obtained from an advocate or prosecution service. On 16 June 1997 the Oświęcim District Prosecutor informed the applicant that he would not bring on his behalf an action for the recognition of his paternity. The prosecutor advised the applicant that he could file himself an action seeking the confirmation of his paternity. On 11 August 1997 the X’s mother was deprived of her parental responsibility for the boy. On an unspecified date in 1997 the Bielsko-Biała District Court appointed a guardian (opiekun prawny) for X. Between January and June 1998 X stayed in the Jaworz Hospital. During this period the applicant visited X on the following dates: 18 January, 1, 15 and 22 February, 8, 15, 22 and 29 March, 12, 19 and 26 April, 3, 10, 24 and 31 May. On 22 May 1998 the Bielsko-Biała Adoption Centre submitted to the Bielsko-Biała District Court an application of M.N. and S.N. for the adoption of X. It appears that at that time X suffered from numerous health problems, including attachment disorder. On 25 May 1998 the Bielsko-Biała District Court made an interim residence order requiring X to reside with M.N. and S.N. On 2 June 1998 X was placed with M.N. and S.N. On 3 June 1998 the curator (kurator sądowy) of X lodged with the Oświęcim District Court an action for determination of the applicant’s paternity. On 8 June 1998 the applicant informed the Bielsko-Biała District Court about the beginning of the paternity proceedings before the Oświęcim District Court. On 21 July 1998 the Director of the Bielsko-Biała Adoption Centre replied to the applicant’s complaint about placing X with M.N. and S.N. The reply read as follows: “In reply to your letter I should inform you that the Adoption Centre acts as an intermediary in the adoption when a child referred to us has a settled legal situation i.e. when biological parents are deprived of parental rights. Our institution does not participate in this procedure and therefore we do not have any influence on the final court judgment. I would like to assure you that in accordance with the law the child was placed with the prospective adopters, who had been earlier subjected to psychological and pedagogical examinations which qualified them for adopters. I can also assure you that that the child at last feels happy and secure in a loving and responsible family. He paid a high price with his health during two years in a Child Centre, where there is no love without which a secure and proper development of a child is impossible. During the whole two years, the child was waiting for parents, for his family, for his safe place. His development was impaired and occasional meetings with you disturbed his peace and sense of security. You have to understand that a child cannot wait for so long for its place in a family. It always has negative bearing on its development. There was a long time for fighting for him. Now it is too late. The child feels happy in a new loving family. At last, he has a sense of security and stability. I ask you to consider these arguments and think whether you are not disturbing his happiness, for which he has been waiting for so long. On the other hand, I would like to express my sincere compassion and understanding for your pain and sense of injustice. I cannot help you with this anymore.” On 23 July 1998 the applicant was interviewed by the judge in charge of the adoption case. On 23 July 1998 the Bielsko-Biała District Court stayed the adoption proceedings pending the outcome of the paternity proceedings. On 3 September 1998 E.K., a director of the orphanage, submitted to the Oświęcim District Court the request not to grant the applicant the parental rights in respect of X when the court determines his paternity. The request included the following statement: “[X], who was born on 2 April 1996, lived in the orphanage since he was one month old until May 1998. Since the beginning of the child’s presence in the centre I was telling the presumed father of the boy how important it was to settle his legal situation for the good of the child. On numerous occasions I encouraged Mr T (...) C (...) and his mother to take the boy as a foster family (until the settlement of the father’s legal situation) since it would be a better environment for the boy’s psychophysical development. Finally, Mr T (...) C (...) stated that he would take the boy when he grew up. During two years the legal situation of the presumed father was not clarified and he did not show interest in taking the child as a foster parent. (...) The presumed father and the grandparents during two years did not show any significant involvement in the boy’s affairs. It seems that the child’s presence in an orphanage was convenient for the presumed father. He did not react to my suggestions that the boy be taken in a foster family until the paternity was determined. On the basis of an analysis of the nature of the contacts of Mr T (...) C (...) with the child and his attitude to life, one can assume that the presumed father will not cope with all the pedagogical and health problems which may appear in the future development of the boy.” The applicant submitted that the above statement was not true. On 11 September 1998 the Oświęcim District Court ruled that the applicant was the boy’s father. It also granted the applicant parental responsibility for X but limited his rights by appointing a curator to supervise X’s upbringing. The court considered that the applicant had tried to obtain the recognition of his paternity since the birth of X. Initially the applicant had intended to acknowledge his paternity in a statement made before the Registrar of Births (Urząd Stanu Cywilnego) but it had proved impossible in view of the attitude of X’s mother. Subsequently he had approached the prosecution service which had refused to bring on his behalf an action for the recognition of his paternity. In addition, the prosecutor had erroneously advised the applicant that he could file himself an action seeking the confirmation of his paternity. Furthermore, the court considered that the applicant’s visits in the orphanage were “in fact not very frequent but regular”. It concluded that granting the applicant’s parental responsibility “would be in the interest of the child and society”. On 16 September 1998 the Oświęcim District Court rejected a request filed by E.K., acting as a guardian of X, to serve her with a reasoned judgment since it considered that she had no standing in the case. However, this decision was subsequently quashed by the Bielsko-Biała Regional Court and E.K. was served with a reasoned judgment and therefore could appeal it. On 6 October 1998 M.N. and S.N. applied to the Bielsko-Biała District Court for an order designating them as a foster family of X. They pointed out that they had applied for the adoption of X and had obtained an interim residence order allowing the child to live with them. The boy settled in happily with a new family. However, the ruling on the applicant’s paternity created legal problems and prompted them to lodge an application in order to protect X’s security. On 30 November 1998 the President of the Bielsko-Biała District Court replied to the letter of 25 October 1998 in which the applicant’s representative raised complaints about the adoption proceedings. He explained that the applicant was not a party to the adoption proceedings. Furthermore, the President pointed out that the judge in charge of the case had met with the applicant and had asked him whether he had been willing to take care of X if the interim residence order had been quashed. However, the applicant had not shown willingness to take X. The applicant submitted that this statement was not true. On 4 December 1998 the Bielsko-Biała District Court stayed the proceedings concerning the foster family application pending the outcome of the adoption proceedings. On 10 December 1998 the applicant asked the Katowice Court of Appeal to initiate disciplinary proceedings against the judges of the BielskoBiała District Court. On 11 December 1998 E.K., acting as a guardian of X, lodged with the Bielsko-Biała Regional Court an appeal against the judgment of 11 September 1998. She agreed with the determination of the applicant’s paternity but challenged the court’s decision to grant him parental responsibility for X. The applicant should not have been granted parental responsibility because he had applied for it only after the child had been placed with the prospective adopters. Moreover, while X was still in the orphanage the applicant had refused to take him as a foster parent either alone or together with his mother. X settled very well with M.N. and S.N. and considered them as his parents. The boy’s health improved since his placement in the new family. The applicant averred that the submissions made by E.K. in her appeal were not true and included “nasty insinuations and manipulation”. On 28 December 1998 the applicant wrote a letter to the President of the Bielsko-Biała District Court. The letter began with the following statement: “I do not agree with propositions in your letter of 30 November 1998 (...) sent to my representative (...). It is an expression of great hypocrisy to formulate nonsense like this: “that I did not show willingness to take immediate steps to take care of [X] in case the interim residence order is quashed”. This is clearly absurd because neither on 23 July 1993 nor now can I undertake such care unless the judge has in mind some extraordinary circumstances and orders which existed in this case. I expressed the wish (on 23 July 1998) that [X] returned to the orphanage (which in view of [X]’s illnesses presented by the prospective adopters could have been the best solution for him, especially as these illnesses (among others hernia) were probably caused by taking [X] to another unknown environment). I would like to underline that I expressed on numerous occasions (...) a wish to take care of [X] (...).” On 29 January 1999 the Bielsko-Biała Regional Court quashed the part of the Oświęcim District Court’s judgment of 11 September 1998 concerning parental responsibility for X. The case was remitted to the District Court. On 29 January 1999 the Bielsko-Biała Regional Prosecutor rejected the applicant’s request to prosecute E.K. and the judges of the BielskoBiała District Court on charges of perjury and corruption. On 23 September 1999 the Oświęcim District Court, acting as a court of first instance in the paternity proceedings, gave judgment in which it granted the applicant parental responsibility for X but limited his rights by appointing a curator to supervise X’s upbringing. The court considered that the applicant had shown interest in taking care of X since his birth. However, his lack of confidence made him take only “hesitant steps” to obtain the custody of the boy. The court also pointed out that the applicant had denied that he had intended to take X only after he had become older. Moreover, it relied on expert evidence according to which the applicant understood the needs of the boy and accepted him. E.K. appealed this decision in her capacity of the guardian of X. On 24 November 1999 the Bielsko-Biała Regional Court dismissed the request of M.N. and S.N. that they be served with a copy of a reasoned judgment of 23 September 1999. At the same time, the court rejected their appeal against the Oświęcim District Court’s decision denying them standing in the paternity proceedings. On 20 January 2000 the Bielsko-Biała Regional Court dismissed the E.K.’s appeal against the District Court’s judgment of 23 September 1999. E.K. filed a cassation appeal with the Supreme Court. On 7 February 2000 the applicant was granted standing in the adoption proceedings. On 8 June 2000 the Supreme Court dismissed a cassation appeal against the judgment of 20 January 2000 lodged by E.K. On an unspecified date in 2000 the Bielsko-Biała District Court resumed the adoption proceedings. In the meantime, on 14 December 2000 the Bielsko-Biała District Court gave judgment in which it dismissed an application for adoption lodged by M.N. and S.N. It also repealed an interim residence order of 25 May 1998. The court stated, inter alia, that: “During the paternity and adoption proceedings T(...) C(...) was refusing to agree to the adoption of his son. In the court’s view, (...) one cannot find in the behaviour of T(...) C(...) an abuse of his rights even though the child has presently good conditions for his development. The motives of his behaviour did not contradict the well being of the child. The court considers that in refusing his agreement to the adoption T(...) C(...) was guided by his feelings for his son. T(...) C(...), whose paternity was determined by a court, has strong feelings for his son (...) and finds separation from him hard to bear. It should also be noted that since the birth of his son T(...) C(...) has been trying to [obtain the custody] of his son. However, due to the circumstances – for the most of which he cannot be held responsible – and his personality, he has been unsuccessful[. As a result,] an interim order was issued placing [X] with the prospective adopters.” On 12 March 2001 the case concerning the first foster family application lodged on 6 October 1998 was joined to the case concerning the second foster family application pending before the Oświęcim District Court. On 18 April 2001 the Oświęcim District Court made an interim residence order requiring X to reside with M.N. and S.N. until the end of the proceedings concerning the foster family applications. It pointed out that they had been providing care to X for three years and that taking the boy by the applicant would be shocking for X. The applicant had never taken care of the boy and had not shown interest in his well being. Therefore, it was not certain whether the applicant would cope with the responsibilities of a parent and whether he fully understood the needs of his son. On 24 May 2001 the Bielsko-Biała Regional Court dismissed the applicant’s appeal against the order of 18 April 2001. On 3 August 2001 the Oświęcim District Court granted the applicant visiting rights. He was allowed to visit X twice a month. On 9 November 2001 the Oświęcim District Court asked for an expert opinion on the emotional relationships between X on one side and the applicant and M.N. and S.N. on the other side. The opinion was submitted to the court on 5 April 2002. On 12 June 2002 the Oświęcim District Court restricted the applicant’s parental responsibility for X by placing the boy in the foster family of M.N. and S.N. At the same time it dismissed their request that the applicant be deprived of his parental responsibility and repealed the order appointing a curator. The court noted that X had been living with M.N. and S.N for four years and during that time had made up for retardation in his development. However, the boy still required special care and the applicant was unable to provide it. The applicant’s misunderstanding of the reasons for which X was afraid of him and his mother showed that he knew very little about the behaviour of children. Moreover, the applicant had failed to notice obvious health problems of X while he had been living in an orphanage, such as attachment disorder and retardation in physical development. The court further agreed with the conclusions of an expert opinion that M.N. and S.N. qualified for providing care to X while the applicant did not show understanding of the needs of the boy and would be unable to provide him with normal family life. It also observed that the applicant’s commitment to taking X was in fact limited to writing numerous letters requesting the custody of the child. Since 3 August 2001, when the applicant had been granted visiting rights, he had visited X only once. The court was of the view that the removal of X from the custody of M.N. and S.N could cause irreversible damage to him. On 3 July 2002 the applicant filed with the Cracow Regional Court an appeal against the decision of 12 June 2002. On 19 November 2002 the Cracow Regional Court dismissed the applicant’s appeal. On 7 February 2003 the Bielsko-Biała Regional Court dismissed an appeal lodged by M.N. and S.N. against the judgment of 14 December 2000 rejecting their application for adoption. In a letter of 6 May 2003 the applicant informed the Court that in view of the fact that the decision of 12 June 2002 “was based on dishonest grounds” and “gave the [foster] family even bigger advantage” over the applicant, he decided to discontinue visiting his son as visits would “create even bigger danger” for X. The custody and adoption of children is regulated by the Family Code 1964 (Kodeks Rodzinny i Opiekuńczy). | 0 |
dev | 001-79769 | ENG | SRB | CHAMBER | 2,007 | CASE OF V.A.M. v. SERBIA | 3 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 5. In 1994 the applicant married D.M. and in 1995 their daughter S.M. was born. 6. In 1998 the applicant started having marital problems, apparently as a result of her contracting HIV. 7. On 3 July 1998 S.M. left Zemun, a part of Belgrade where she lived with her parents, to stay with her grandparents for a while. 8. In early August of 1998, D.M. brought S.M. back to Zemun. 9. Shortly afterwards, however, the applicant's marriage broke down and D.M. ceased living with the applicant. He also took S.M. to his parents' flat, denying the applicant any contact with her. 10. On 11 February 1999 the applicant filed a claim with the Fourth Municipal Court in Belgrade (“Četvrti opštinski sud u Beogradu”), seeking dissolution of the marriage, sole custody of S.M. and child maintenance. In addition, she requested interim relief, granting her temporary custody or, in the alternative, regular weekly contacts with S.M. until the conclusion of the civil proceedings. 11. On 23 July 1999 the Fourth Municipal Court in Belgrade (hereinafter “the Municipal Court”) ordered the Social Care Centre (“Centar za socijalni rad opštine Stari Grad”) to produce an expert opinion as to which party should be granted custody. 12. D.M. (hereinafter “the respondent”) appears to have been informed about the applicant's lawsuit during one of the meetings held at the Social Care Centre in 1999. 13. Following the institution of proceedings, the Municipal Court adjourned 15 separate hearings, including the hearings scheduled for 29 October 2003, 7 October 2004 and 19 October 2005, respectively. 14. Throughout this time, though mostly in response to the applicant's numerous proposals, the Municipal Court attempted to obtain information as regards the respondent's correct address from various State bodies, including the tax authorities, municipalities, the Ministry of Education and even the Commercial Court. 15. Summonses were sent to a number of addresses but each time the respondent could not be served, which led the Municipal Court to conclude, on 17 April 2003, that he was “clearly avoiding receipt” of all court documents. 16. On 3 November 2005 the respondent was duly served for the first time, the summons having been sent to Kotor, Montenegro, on which occasion he was both provided with the applicant's claim against him and informed about the next hearing scheduled for 23 December 2005. 17. On 21 December 2005 the applicant's lawyer informed the Municipal Court that she could not attend that hearing. 18. The applicant maintained that during the proceedings in question the presiding judge had stated publicly that she would either rule in favour of the respondent or dismiss the applicant's claim on procedural grounds. The Government contested this submission. 19. In early 2006, the presiding judge was replaced by another and the case itself taken under review by the Municipal Court's Special Committee for Family Relations. 20. On 31 March 2003, inter alia, the applicant complained to the President of the Municipal Court, requesting that the presiding judge in her case be removed. 21. She claimed that the judge in question had tried to serve the respondent via regular mail only but had failed to attempt to do so through the bailiffs, as envisaged by the Civil Procedure Act (see paragraph 60 below). 22. Further, despite the fact that it was up to the courts to establish the respondent's correct address, she pointed out that on 31 March 2003 the judge had ordered her specifically to provide the court with the address in question, in default of which her claim would be dismissed. 23. Finally, the applicant alleged that the judge herself had indicated that she did not know what to do with the case and that the best solution would have been for the applicant to withdraw her claim. The Government contested this submission. 24. On 11 April 2003 the applicant's motion was rejected by the President of the Municipal Court. 25. On 23 July 1999 the Municipal Court ordered the respondent to facilitate the applicant's access to S.M., twice a month, until the adoption of a final decision on the merits of the case. 26. On 19 October 1999 the applicant filed a submission with the Municipal Court, stating that the respondent had refused receipt of the said decision and requesting that he be served formally in accordance with the relevant provisions of the Civil Procedure Act (see paragraph 60 below). 27. On 8 November 1999 and 19 February 2001, respectively, the applicant sent two separate requests to the Municipal Court, seeking effective enforcement of the interim access order. 28. On 23 October 2001 the applicant's lawyer withdrew her request of 8 November 1999. 29. On 4 June 2002 the bailiffs attempted to enforce the said interim access order but, apparently, there was no one to be found at the respondent's address. This enforcement would appear to have been envisaged by means of a seizure of the respondent's movable assets and their subsequent sale, the proceeds of which would then have been used to cover the fine apparently imposed on the respondent for his failure to comply with the order in question (see paragraph 65 below). 30. On 5 September 2002 the applicant filed another complaint with the Municipal Court, seeking effective enforcement. 31. From 25 October 2002 until August 2005 the bailiffs tried again, on a number of occasions and at several different addresses, but to no avail. 32. On 26 August 2005 the applicant was ordered by the Municipal Court to provide the respondent's correct address. 33. On 10 February 1999 a medical clinic (“Klinički centar Srbije”) attested that the applicant was HIV positive but that she was being treated and was feeling well. The clinic added that there was no reason why she should not be allowed to see S.M. 34. On 16 March 1999, 18 March 1999 and 21 May 2001, respectively, medical opinions to the same effect were again issued by the said clinic, as well as two other medical institutions (“Specijalistička poliklinika za građanska lica” and “Institut za infektivne i tropske bolesti”). 35. The opinion of 21 May 2001 was addressed expressly to “the competent Social Care Centre”. 36. The applicant stated that she had frequently seen the respondent in the streets of Belgrade throughout the period in question and pointed out that he had also appeared in a television programme on several separate occasions. 37. The applicant further noted that she was informed by the Social Care Centre that the respondent had publicly stated that he did not want to be bothered by any legal proceedings and, in addition, that he had told S.M. that her mother, the applicant, had died. 38. It would appear that the Municipal Court held a hearing on 30 March 2006 and that it did so in the respondent's absence given that he had been duly served at one of his addresses in Belgrade. 39. On 8 May 2006 the Kotor Police Department informed the Municipal Court that the respondent could not be found at his address in Kotor but that his neighbours had said that he had moved back to Belgrade. 40. At the hearing held on 22 May 2006, the applicant informed the Municipal Court that the respondent had re-registered his former company and that its seat was now in Belgrade. She then went on to provide the court with this address, as well as the current address of the respondent's parents, and stated that S.M. was in fourth grade in one of the primary schools in Belgrade. 41. On 23 May 2006 the Municipal Court sent a letter to the Commercial Entities Registration Agency (“Agenciji za privredne registre”) and the tax authorities, seeking information about the respondent's income and his tax situation, as well as whether the respondent was the owner, founder, manager or deputy manager of the said company. 42. On 12 June 2006 the Municipal Court was informed that the respondent was indeed the manager of the company in question. 43. The next hearing was scheduled for 28 June 2006 and the court summonses in this respect were sent both to the respondent's address in Kotor and to his address in Belgrade, via the Kotor and Belgrade police departments, respectively. 44. On 30 March 2006, 23 May 2006 and 7 June 2006, the Municipal Court urged the competent Social Care Centre to “finalise” its report and submit a proposal as to who should get custody of S.M. 45. The Municipal Court thereafter obtained the medical reports concerning the applicant's health of 16 March 1999 and 21 May 2001, respectively (see paragraph 34 above), as well as a new report produced by the Infectious and Tropical Diseases Institute (“Institut za infektivne i tropske bolesti”) - Centre for HIV/AIDS of 12 April 2006, stating that there was no medical reason why the applicant should not be granted custody of S.M. 46. On 28 June 2006 the Municipal Court heard the applicant and ordered the Social Care Centre to produce its report as to who should be given custody of S.M. 47. On 22 September 2006 the Municipal Court heard both the applicant and the respondent, on which occasion the latter, inter alia, stated that the former had not been honest about her medical situation, or conscientious in terms of taking medication, which seriously endangered his own life as well as that of S.M. The respondent thus proposed that the applicant's health be reassessed and the Municipal Court, having so ordered, scheduled the next hearing for 22 December 2006. 48. On 22 December 2006 the Municipal Court adjourned the hearing, stating that the case file was still with the District Court which was about to rule in respect of the respondent's appeal filed against the interim custody order issued on 15 June 2006 (see paragraphs 50 and 52 below). 49. The Municipal Court scheduled the next hearing for 12 March 2007. 50. On 15 June 2006 the Municipal Court granted provisional custody of S.M. to the applicant and ordered the respondent to surrender the child, pending a final decision in the ongoing civil suit. In its reasoning, inter alia, it found that: i) the respondent had made it clear, from the outset, that he would “not allow” the applicant to have contact with S.M. because of his fear that she might also be “infected” with HIV; ii) the applicant was, despite the respondent's claims to the contrary, a responsible and motivated parent whose medical condition was stable, constantly under review, and who presented no danger to S.M.; and iii) the respondent had not only failed to comply with his obligation to inform the court of his correct address but had in addition, for many years, deliberately avoided receipt of court summonses which, in turn, had resulted in the applicant being denied all contact with S.M. and indicated a gross disregard for the interests of S.M. on his part. Finally, the execution of this order was not to be deferred pending any appeal filed against it. 51. On 20 July 2006 the applicant requested enforcement of the above order and again provided the Municipal Court with the respondent's various addresses. 52. On 5 October 2006 the respondent filed an appeal. 53. On 22 November 2006 the applicant complained to the President of the Municipal Court, seeking speedy enforcement. 54. On 13 November 2006 the District Court accepted the respondent's appeal, quashed the impugned order and instructed the Municipal Court to re-examine the issue of the applicant's interim custody. 55. In July 2006 the applicant filed a separate civil claim against the respondent, seeking the removal of his parental rights. These proceeding were also brought before the Municipal Court and were at the time of adoption of this judgment apparently still ongoing. 56. Articles 310b, 390 and 391 provided that all maintenance-related suits and child custody enforcement proceedings were to be dealt with by the courts urgently. 57. Under Article 204 all family-related disputes involving children must be resolved urgently. The first hearing must be scheduled within 15 days of the date when the claim is filed. First instance courts should conclude the proceedings following no more than two hearings, and second instance courts must decide on appeal within a period of 30 days. 58. Similarly, Article 280 defines all maintenance suits as “particularly urgent”. The first hearing must be scheduled within 8 days of the date when the claim is filed and second instance courts must decide on appeal within 15 days. 59. This Act entered into force on 1 July 2005 and thereby repealed the Marriage and Family Relations Act referred to above. 60. The relevant provisions of this Act provided as follows: “The court shall appoint a temporary representative to [act on behalf of] the respondent if it finds, in the course of the proceedings before the court of first instance, that the regular procedure for appointment of ... [such a representative] ... could last too long, resulting in harmful consequences for one or both parties. Under the conditions set forth in Paragraph 1 of this Article, the court shall appoint a temporary representative ... 4) when the place of residence of the respondent is unknown and the respondent has no counsel ...” “Written pleadings ... [including initial claims aimed at the institution of court proceedings] ... must state ... the name, occupation and the permanent or current address of the parties ...” “ ... [C]ourt documents shall primarily be delivered through regular post but may also be delivered by a designated court employee [“the bailiff”] ... or directly in court.” “If the person to whom a court document is to be delivered does not happen to be [at home], the delivery shall be accomplished by serving the court documents on an adult member of his [or her] household who must receive them. If such persons also happen not to be [at home], the ... [court documents shall be served on] ... the building manager or neighbour, if they agree. If the delivery is to be performed at the office of a person who does not happen to be there, it may be accomplished by serving the court documents on a person working in the same office, if that person so agrees.” “A complaint ... [as well as] ... a court decision against which a separate appeal may be filed shall be delivered to ... [the respondent] ... in person ... If a person who is to be served ... does not happen to be at the place where the delivery is to be performed, the bailiff shall find out when and where that person can be found and shall leave a written notice with one of the persons mentioned in Article 141, paragraphs 1 and 2 of this Act, requesting that he [or she] be present on a certain day and hour in his [or her] flat or office. If the bailiff does not find the person to be served even after this, he [or she] shall proceed in accordance with the provisions of Article 141 of this Act and the delivery shall thus be considered as having been carried out.” “If the person to be served, an adult member of the household, ... or an employee of a State body or a legal entity refuses to receive the court documents without legal reason, the bailiff shall leave the said documents in the flat or at the office of that person or post it on the door of the flat or the office in question. The bailiff shall make a note on the delivery slip concerning the day, hour and reason for refusal of reception, as well as the place where he or she left the court documents, and thus the service shall be considered accomplished.” “When a party ... changes its place of residence or moves to another flat ... [prior to the adoption of the final decision in the proceedings] ... [it] ... shall immediately inform the court thereof. If ... [it] ... fails to do so and the bailiff is unable to establish ... [its] ... new flat or place of residence, the court shall order that all further deliveries in respect of this party be posted on the court's own notice board. Eight days ... [thereafter] ... the delivery at issue shall be deemed duly accomplished.” “The court shall invite a party ... who ... [is] ... abroad and does not have a representative in ... [Serbia] ... to ... authorise ... [another person] ... to receive all ... [Serbian court-related correspondence] ... If the party ... fails to do so, the court shall appoint ... [such a person] ... on a temporary basis ... and at the party's own expense ...” “If a party is unable to establish the address of a person to whom the delivery is to be made, the court shall attempt to obtain relevant information from ... [other State bodies] ... or in some other way.” 61. The substance of Articles 79 § 2 (4), 100 § 2, 127, 135, 136, 138, 139 and 141 of this Act corresponds, in the relevant part, to that of the provisions of the Civil Procedure Act quoted above. 62. In addition, Article 140 provides that, should “normal” delivery during the course of the proceedings prove to be unsuccessful, all court documents shall be posted on the court's own notice board and that eight days thereafter the delivery at issue shall be deemed duly accomplished. 63. Finally, under Article 394 and 396, parties may file an appeal on points of law (“revizija”) with the Supreme Court. They may do so under certain very specific conditions only and against a final judgment rendered at second instance. 64. This Act entered into force on 23 February 2005, thereby repealing the Civil Procedure Act referred to above. 65. Article 209 of the Enforcement Procedure Act of 2000 (Zakon o izvršnom postupku; published in OG FRY nos. 28/00, 73/00 and 71/01), while placing special emphasis on the best interests of the child, states that there shall be an initial period of three days for voluntary compliance with a child custody order. Beyond that, however, fines shall be imposed and, ultimately, if necessary, the child taken forcibly, in co-operation with the Social Care Centre. Finally, under Article 7 of the same Act, only the enforcement order and the court's decision in respect of any complaints filed against this order shall be served in accordance with the relevant civil procedure rules. In all other instances the court's own notice board shall be made use of for this purpose. 66. The Enforcement Procedure Act of 2004 (Zakon o izvršnom postupku; published OG RS no. 125/04) entered into force on 23 February 2005, thereby repealing the Enforcement Procedure Act of 2000. In accordance with Article 304 of this Act, however, all enforcement proceedings instituted prior to 23 February 2005 are to be concluded pursuant to the Enforcement Procedure Act of 2000. 67. The relevant provisions of this Act read as follows: “A party or another participant in the court proceedings shall have the right to complain about the work of a court when they consider the proceedings delayed, improper, or that there has been an [untoward] influence on their course and outcome.” “The President of a higher instance court shall have the right to monitor the court administration of a lower instance court, and the President of a directly higher court shall have the authority to adopt an act from within the competence of the President of a lower instance court, if the latter omits to perform his duty. The President of a higher instance court may request from the lower instance court information regarding the implementation of existing legislation, information concerning any problems about trials and all information regarding the work of the court. The President of a higher instance court may order a direct inspection of the work of a lower instance court.” “When a party to a case or another person taking part in the proceedings files a complaint, the President of the court must, having considered it, inform the complainant about his views concerning its merits as well as any measures taken in this respect, within 15 days of receipt of the complaint. If a complaint was filed through the Ministry of Justice or through a higher instance court, the Minister and the President of a higher court shall be informed of the merits of the complaint and of any measures taken in this respect.” 68. Under Article 8, inter alia, the President of a court must ensure that the court's work is carried out in a timely manner. He or she shall also look into every complaint filed by a party to the proceedings in respect of delay and respond within 15 days, giving his or her decision and, if necessary, ordering that steps be taken to remedy the situation. 69. Article 4, inter alia, provides that the Ministry of Justice shall supervise the work of the courts in terms of their timeliness. Should certain problems be identified, the Ministry shall “propose” specific measures to be undertaken within a period of 15 days. 70. The relevant provisions of this Act read as follows: “The Supreme Court of Serbia shall set up a Supervisory Board [“Nadzorni odbor”] (“the Board”). This Board shall be composed of five Supreme Court judges elected for a period of four years by the plenary session of the Supreme Court of Serbia.” “In response to a complaint or ex officio, the Board is authorised to oversee judicial proceedings and look into the conduct of individual cases. Following the conclusion of this process, the Board may initiate, before the High Personnel Council, proceedings for the removal of a judge based on his unconscientious or unprofessional conduct, or propose the imposition of other disciplinary measures.” 71. Article 172 § 1 provides that a legal entity (“pravno lice”), which includes the State, is liable for any damage caused by one of “its bodies” (“njegov organ”) to a “third person”. 72. Under Articles 199 and 200 of the Obligations Act, inter alia, anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of “personal rights” (“prava ličnosti”) may, depending on their duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. 73. Article 134 § 1 provides, inter alia, that “whoever” by means of “deceit” removes or holds another with the intent to ... coerce” him or her, or another person, to “endure something” shall be sentenced to a prison term of one to ten years. 74. Under Article 191 anyone who, inter alia, obstructs the enforcement of a child custody decision shall be fined or sentenced to a prison term not exceeding two years. 75. Article 340 states that “an official or another 'person in charge' who refuses to enforce a final court decision, or does not enforce it within the period prescribed by law or a period set forth in the decision itself, shall be fined or sentenced to a prison term not exceeding two years”. 76. The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006). | 1 |
dev | 001-76596 | ENG | TUR | ADMISSIBILITY | 2,006 | CINTOSUN v. TURKEY | 4 | Inadmissible | null | The applicants, Mr Süphan Çintosun and Mr Şeyhmus Çintosun, are Turkish nationals who were born in 1960 and 1936 respectively and live in Diyarbakır. They are represented before the Court by Mr M. Vefa and Mr B. Deyar, lawyers practising in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. Until September 1993, the applicants lived in Kayabaşı hamlet of Dağcılar village in Silvan, Diyarbakır, where they own property. Following an armed clash between the security forces and the PKK militants in a nearby area, the security forces came to Kayabaşı and required the inhabitants to establish a village guards system – a security system designed to protect villages against possible terrorist attacks by the PKK. Upon their refusal, the security forces evacuated the hamlet. The applicants had to move to the city centre of Diyarbakır, where they currently live. On an unspecified date, the security forces set fire to the houses and the cultivated fields in the hamlet. Following the incidents, the applicants filed applications with the administrative and military authorities, asking for an authorisation to return to their hamlet, or in the alternative, to continue to cultivate their fields. They also requested to be remedied for the incidents. The applicants maintained that they were unable to provide copies of the complaints and requests they had filed but stated that the authorities had either disregarded or rejected them. The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not destroyed the applicants’ village or forced them to leave their homes. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI) | 0 |
dev | 001-77492 | ENG | POL | CHAMBER | 2,006 | CASE OF GASIOROWSKI v. POLAND | 4 | Violation of Art. 5-3;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 4. The applicant was born in 1960 and lives in Warsaw. 5. On 10 December 1999 the applicant was arrested by the police on suspicion of having committed armed robbery against a lorry driver. On 11 December 1999 the Żyrardów District Court (Sąd Rejonowy) ordered that the applicant be detained on remand for 3 months. It found that in the light of the evidence obtained, in particular from his accomplices, there was a strong likelihood that the applicant had committed that offence. The court further observed that the applicant had not confessed and found that there was a risk that he might obstruct the investigation. Having regard to the severity of the penalty that could be expected, the court held that keeping the applicant in custody was necessary in order to secure the proper conduct of the proceedings. That decision was upheld on appeal on 7 January 2000. 6. On 8 March 2000 the Skierniewice Regional Court (Sąd Okręgowy) prolonged the applicant’s detention until 10 June 2000, finding that, given that the applicant had been caught in flagrante delicto, there was a strong likelihood that he had committed the offence in question. The court stressed that the applicant had – like his 3 detained co-suspects – given contradictory evidence and had not confessed, which gave sufficient reasons to believe that, once released, he would obstruct the proper course of the proceedings. The applicant’s continued detention was also justified by the severity of the penalty that could be expected. Moreover, evidence from ballistics and fingerprint experts – which was crucial for the determination of the role played by each co-suspect – needed to be obtained. 7. On 6 June 2000 the Łódź Court of Appeal (Sąd Apelacyjny) ordered that the applicant be held in custody until 10 September 2000, reiterating the grounds previously given for his detention. It further held that the gravity of the charges and the severity of the likely penalty justified the prolongation of the most severe preventive measure. 8. On 25 August 2000 a bill of indictment was filed with the Skierniewice Regional Court against the applicant and his 3 accomplices. The applicant was charged with attempted armed robbery and unlawful possession of a firearm. The bill of indictment specified that the applicant had been previously sentenced for similar offences. The prosecution asked the court to hear evidence from 23 witnesses. 9. On 30 August 2000 the Skierniewice Regional Court prolonged the applicant’s detention until 31 March 2001, repeating the grounds that had been given in the previous decisions. It also held that the value of the goods that the accused had planned to steal and the previous criminal records of some of them made it likely that they would be given a heavy sentence. 10. Subsequently, apparently in November 2000, the Skierniewice Regional Court referred the case to the Płock Regional Court, finding that the latter court should deal with the matter. The ensuing jurisdictional dispute was determined on an unspecified later date by the Warsaw Court of Appeal. The latter court ordered that the case be referred to the Warsaw Regional Court since the Skierniewice Regional Court had in the meantime been closed down. On 18 June 2001 the bill of indictment was transmitted to the Warsaw Regional Court. 11. Meanwhile, on 22 March 2001, the Płock Regional Court had prolonged the applicant’s detention until 30 June 2001, finding that the reasons previously given for holding him in custody were still valid. 12. On 25 June 2001 the Warsaw Regional Court prolonged the applicant’s detention until 30 October 2001. On 25 October 2001 the Regional Court ordered the applicant’s continued detention until 10 December 2001. In both decisions the court relied primarily on the severity of the sentence that could be expected. 13. On 23 November 2001 the Court of Appeal dismissed the applicant’s appeal against the decision of 25 October 2001 prolonging his detention. It found that the applicant’s continued detention on the basis of Article 258 § 2 of the Code of Criminal Procedure remained valid. Having regard to the nature of the alleged offences, the circumstances in which they had been committed and the fact that the applicant had committed similar offences in the past, the Court of Appeal found that there was a very strong likelihood that he would be given a heavy sentence. It further held that Article 258 § 2 of the Code of Criminal Procedure established a kind of presumption to the effect that the likelihood of a severe penalty being imposed on an accused might induce him to obstruct the proceedings. 14. Since on 10 December 2001 the length of the applicant’s pre-trial detention reached the statutory 2-year time-limit laid down in Article 263 § 3 of the Code of Criminal Procedure, all further decisions prolonging his detention on remand were given by the Warsaw Court of Appeal. 15. The relevant decisions were taken on the following dates: on 7 December 2001 (extending his detention until 28 February 2002), 26 February 2002 (ordering his continued detention until 30 April 2002 and having regard to the particular complexity of the case) and on a later unspecified date in April 2002 (extending his detention for a further period). In its decision of 7 December 2001, the Court of Appeal found that prolongation of the applicant’s detention beyond the statutory 2-year time-limit was justified under Article 263 § 4 on account of major insurmountable difficulties, referring in this connection to the above-mentioned jurisdictional dispute. 16. The Regional Court listed the first hearing for 7 October 2001 but the trial could not be started since the case file was with another court. Two hearings listed for 7 and 16 November 2001 were adjourned due to the change of the applicant’s counsel and the need for the latter to prepare for the hearing. Two further hearings listed for 10 December 2001 and 11 January 2002 were also adjourned (at the defendants’ request and because of the absence of the applicant’s counsel respectively). As a result, the trial started on 15 January 2002. Further hearings were held on 31 January, 21 February, 12 and 24 April, 29 May and 10 June 2002. 17. On 13 June 2002 the Warsaw Regional Court convicted the applicant of attempted armed robbery and, having regard to his previous criminal record, sentenced him to seven years’ imprisonment. It acquitted the applicant of the charge of unlawful possession of a firearm. It also prolonged his detention until 30 September 2002. 18. The prosecutor and all the defendants appealed. 19. On 19 December 2002 the Warsaw Court of Appeal quashed the first-instance judgment and remitted the case. It ordered that the applicant be kept in detention pending the retrial until 30 March 2003 in view of the reasonable suspicion that he had committed the offence with which he had been charged and the severity of the likely sentence. 20. On 6 March 2003 the Warsaw Regional Court extended the applicant’s detention until 30 June 2003, holding that the grounds originally given for his detention were still valid. It further held that keeping him in detention was sufficiently justified by the severity of the likely sentence and the need to secure the proper conduct of the trial. Subsequent decisions prolonging the applicant’s detention were given by the Regional Court on the following dates: 26 June 2003 (ordering his continued detention until 30 September 2003), 1 September 2003 (extending his detention until 31 October 2003) and 23 October 2003 (ordering his continued detention until 31 January 2004). The court held that the grounds previously given for his continued detention were still valid. 21. On 13 January 2004 the Regional Court prolonged the applicant’s detention until 30 April 2004, relying on the severity of the likely sentence and the associated risk that the applicant might obstruct the proceedings. The applicant appealed. On 10 February 2004 the Court of Appeal ordered the applicant’s release and placed him under police supervision. It held that further prolongation of the applicant’s detention was unjustified, since the Regional Court had not put forward any arguments warranting the continued application of the most severe preventive measure. In particular, the Regional Court had not indicated any concrete grounds which would justify the risk that the applicant might obstruct the proceedings. The applicant was released on the same day. 22. Prior to 10 February 2004, the applicant made numerous, unsuccessful applications for release and appealed, likewise unsuccessfully, against refusals to release him and decisions extending his detention. 23. On 5 May 2004 the Warsaw Regional Court convicted the applicant of attempted armed robbery and sentenced him to seven years’ imprisonment. The applicant appealed. 24. On 28 September 2004 the Warsaw Court of Appeal upheld the first-instance judgment. The applicant’s legal aid lawyer declined to file a cassation appeal against the Court of Appeal’s judgment since he had not found any grounds on which an appeal could be based. 25. The applicant submits that during his detention his correspondence was censored by the authorities. 26. On 12 March 2002 the Registry sent the applicant a letter in reply to his first letter setting out his Convention complaints. That letter, with which an application form and accompanying documents were enclosed, was delivered to the applicant after having been controlled by the authorities. The Court’s envelope bears a stamp that reads “Censored. Judge” (“Ocenzurowano. Sędzia.”), followed by a date “12 [April 20]02” and an illegible signature. There are two other stamps that read: “Warsaw-Białołęka Detention Centre. Received 2002-04-05” (“Areszt Śledczy. Wpłynęło 2002-04-05) and “Warsaw-Białołęka Detention Centre. Received 2002-04-15” (Areszt Śledczy. Wpłynęło 2002-04-15). 27. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju). 28. Article 249 § 1 sets out the general grounds for imposition of preventive measures. That provision reads: “1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.” 29. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 30. The Code sets out the conditions governing the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” 31. The Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. When imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. 3. The whole period of detention on remand until the date of the first conviction at first instance may not exceed 2 years. 4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” 32. On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides: “A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.” 33. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) which entered into force on 1 September 1998. 34. The relevant part of Article 103 § 1 of the Code provides as follows: “Convicted persons (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.” 35. Article 214 § 1 reads as follows: “Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.” 36. Article 217 § 1 reads, in so far as relevant, as follows: “(...) detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.” Article 242 § 5 reads as follows: “The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.” 37. On 1 September 1998 the Rules of Detention on Remand (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu wykonywania tymczasowego aresztowania) entered into force. § 36 of the Rules provides: “The detainee’s correspondence, including the correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the organ at whose disposal he remains.” | 1 |
dev | 001-24040 | ENG | RUS | ADMISSIBILITY | 2,004 | PODOLSKAYA v. RUSSIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mrs Valentina Vsevolodovna Podolskaya, is a Russian national, who was born in 1932 and lives in Orenburg. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 June 2000 the applicant’s husband, Mr Podolskiy, was presented a book Doctors of the 20th Century (“Доктора ХХ века”) published by the Orenburg health protection department. On reading the book Mr Podolskiy found that his name had been omitted from a chronological list of directors of the Orenburg health protection department, although he had worked in that position from 1966 to 1981. Also, in another place there was a mistake in his initials. Finally, the book contained a photograph of Mr Podolskiy with an unknown woman; the caption of the photograph indicated that the persons on the photograph were “Mr Podolskiy with his spouse”. On 7 August 2000 Mr Podolskiy lodged a civil action against the authors and publishers of the book for the protection of his honour, dignity and professional reputation and compensation for non-pecuniary damage. He also sought an injunction to stop dissemination of the book, recall all printed copies and make necessary corrections. Mr Podolskiy submitted that the omissions in the publication damaged his professional reputation and also “upset the peace” of his family life. He explained that he had been married to his spouse for more than fifty years and they both adhered to “traditional moral values” that included disapproval of divorce and re-marriages. He also stated that because of the publication he had to seek medical assistance in June and July 2000. On 15 May 2001 the Leninskiy District Court of Orenburg gave its judgment. The court found that a mistake in Mr Podolskiy’s initials was a typographical error. It established that Mr Podolskiy’s name had been wrongly omitted from the chronological list and the caption of the picture was indeed incorrect. Nevertheless, the court concluded: “However, the court does not consider that [this information] is damaging, i.e. [that it] contains indications that the plaintiff has committed an offence under existing laws or has transgressed moral principles... Re-marriages are not prohibited by law, not condemned in society and can be entered into because of various reasons.” The court dismissed Mr Podolskiy’s action in full. On 24 May 2001 Mr Podolskiy’s lawyer appealed against the judgment. He argued, in particular, that the damage caused to the plaintiff’s goodwill had to be assessed with regard to the plaintiff’s individual subjective values, such as the conviction that remarriages were unacceptable. On 4 July 2001 Mr Podolskiy died of a heart attack. On the applicant’s request, she was recognised as Mr Podolskiy’s legal successor in the civil proceedings. The court agreed that the applicant also had her own interest in pursuing the claim. On 30 August 2001 the Orenburg Regional Court upheld the judgment of 15 May 2001. The court confirmed that the information in the book was incorrect; however, it did not consider that such information was damaging to Mr Podolskiy’s or the applicant’s dignity, honour or reputation. Article 151 of the Civil Code of the Russian Federation of 30 November 1994 provides that a court may award compensation for non-pecuniary damage to an individual who sustained such damage as a result of acts that violated his personal non-pecuniary rights. Article 152 of the Civil Code of the Russian Federation provides that an individual may seize a court with a request for retraction of information damaging his or her honour, dignity or professional reputation unless the person who distributed such information proves its accuracy. In addition to retraction, the individual may also claim compensation for losses and non-pecuniary damage sustained as a result of distribution of such information. | 0 |
dev | 001-23966 | ENG | SVN | ADMISSIBILITY | 2,004 | NADBISKUPIJA ZAGREBACKA v. SLOVENIA | 4 | Inadmissible | Georg Ress;Mark Villiger | The applicant, the Zagreb Archdiocese (Nadbiskupija Zagrebačka), is a juristic person whose seat is in Zagreb, Croatia. It is represented before the Court by Zvjezdana Znidarčić-Begović, a lawyer practising in Zagreb, Croatia. The facts of the case as submitted by the applicant may be summarised as follows. On 7 June 1993 the Zagreb Archdiocese, acting through its legal representative, lodged with the Ministry of Culture of the Republic of Slovenia a claim for restitution of castle Mokrice, its outbuildings and surrounding estate together with related movables and works of art. It based its claim on sections 14 and 54 of the Denationalisation Act 1991. The castle and its estate are located on the territory of present-day Slovenia and were purchased in 1937 by the Zagreb Archdiocese Seminary. They were nationalized after the Second World War by Yugoslav authorities. In 1988, the castle and part of the estate were classified as Slovenian cultural and natural monuments. On 25 July 1994 the Ministry of Culture dismissed the claim for restitution on the ground that section 14 of the Denationalisation Act 1991 gave the right to restitution of expropriated property to “churches and other religious communities, their institutions and orders, operating on the territory of Slovenia” on 7 December 1991, the date of the entry into force of the Act. It was generally known, however, that at that time the Zagreb Archdiocese exercised its activities in Croatia. The Zagreb Archdiocese was therefore not entitled to restitution. Further, the Ministry of Culture separated and transferred a part of the claim concerning a part of the surrounding land and certain movables to the Municipality of Brežice as the competent authority. On 25 August 1994 the applicant instituted administrative litigation with the Supreme Court, asserting that the claim for the restitution of the property emanated from the Zagreb Archdiocese as part of the Catholic Church and the catholic religious community. It was clear that, regardless of its internal organisation, the Catholic Church was entitled to restitution under the Denationalisation Act 1991. Moreover, the Razkrižje parish, located on Slovenian territory, belonged, in ecclesiastical administrative terms, to the Zagreb Archdiocese. This meant that the Zagreb Archdiocese was “operating on Slovenian territory” within the meaning of section 14 of the Denationalisation Act 1991 and was therefore entitled to restitution. By a judgment of 23 January 1997, the Supreme Court rejected the applicant's claim and upheld the decision of the Ministry of Culture, holding that section 14 of the Denationalisation Act 1991, with special reference to the concept of “churches and other religious communities, their institutions and orders, operating on Slovenian territory”, should be interpreted narrowly. It transpired from that provision that it was not the universal Catholic Church but its constituent juristic persons operating on the territory of Slovenia and registered as religious communities under the Legal Status of Religious Communities in the Republic of Slovenia Act 1967 that were entitled to restitution. The Catholic Church, as a much wider entity, did not therefore satisfy this criterion. The Supreme Court also rejected the Zagreb Archdiocese's argument that the presence on Slovenian territory of a single parish belonging to the applicant in accordance with the internal organisation of the Catholic Church justified its claim to be operating on Slovenian territory. It held that this was not sufficient for the applicant to qualify as a Slovenian juristic person, since the greater part of its activities took place in another State where its seat was located and to the jurisdiction of which it was subject. On 9 May 1997 the applicant lodged a constitutional appeal with the Constitutional Court, alleging that the Zagreb Archdiocese was a part of the Roman Catholic Church and that its internal organisation was regulated by the Code of canon law (Codex iuris canonici), promulgated on 25 January 1983. According to the provisions of this code, the supreme authority regulating the ownership of property was vested in the Pope. Since Article 7 of the Slovenian Constitution provided for the separation of Church and State and recognised their equality, this implied recognition of the internal organisation of the Catholic Church under the Code of canon law. There can consequently be no doubt that the Catholic Church was entitled to restitution. The decision of the Supreme Court, moreover, violated the right to own property, as protected by Article 67 of the Constitution. On 30 November 1999 the Constitutional Court declared the applicant's constitutional appeal inadmissible, on the ground that it had no jurisdiction to review application of the law by ordinary courts. It found that the applicant essentially contested the Supreme Court's refusal to take into account the Code of canon law in determining the applicant's right to restitution. The Supreme Court's interpretation of the law was reasoned and there was no indication that its conclusions were arbitrary or in breach of human rights and fundamental freedoms. The decision was served on the applicant's lawyer on 21 December 1999. 1. The Constitution (Ustava Republike Slovenije, Official Gazette no. 33/91) “The State and religious communities shall be separate. Religious communities shall enjoy equal rights; they shall pursue their activities freely. ” “The manner in which property is acquired and enjoyed shall be established by law so as to ensure its economic, social and environmental function. (...) ” 2. The Denationalisation Act 1991 (Zakon o denacionalizaciji, Official Journal no. 27/91, with amendments) At the time of the adoption of the Act, its sections 3, 4, 5, 10 and 13 limited the right to restitution of expropriated property to natural persons. The only exception were churches and religious communities, which were expressly recognised as beneficiaries under section 14 of the Act (see below). By the Constitutional Court's decision of 4 March 1993 (see below), the right to restitution was extended to all domestic juristic persons. “(...) The conditions and the mode of denationalisation are determined by this Act. ” “The right to recovery of property is hereby given to churches and other religious communities, their institutions and orders operating on the territory of the Republic of Slovenia at the time of the coming into effect of this Act. ” “ (...) 5. The Ministry of Culture shall decide on denationalisation of objects specified in (...) of this Act (...)” 3. The Constitutional Court's case-law On 4 March 1993 the Constitutional Court adopted a decision in a case brought by three legal persons (not party to the proceedings in this case) who challenged the constitutionality of several provisions of the Denationalisation Act 1991 (U-I-25/92). It declared that the restriction of the right to restitution to natural persons and only certain legal persons was unconstitutional. By altering the wording of sections 3, 4, 5, 10 and 13 of the Act, the Constitutional Court extended the right to restitution to all Slovenian legal persons. It held that section 14 thus acquired a new meaning. The Constitutional Court reasoned that: “...the provision of section 14 is no longer contrary to the Constitution, because it does no longer have the function of providing a legislative basis for denationalisation claims of churches and other religious communities, their institutions and orders. With the annulment (...) of the pertinent legislative provisions, this provision was given a different content. It only means that under this legislative provision the right to restitution of property is accorded only to those churches and other religious communities, their institutions and orders, that were operating on Slovenian territory at the time of the adoption of the Denationalisation Act 1991...” | 0 |
dev | 001-57423 | ENG | SWE | CHAMBER | 1,989 | CASE OF ALLAN JACOBSSON v. SWEDEN (No. 1) | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Criminal charge;Fair hearing);No 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) | Gaukur Jörundsson;N. Valticos | 7. In 1974 the applicant bought a property of 2,644 m², Salem 23:1, in the centre of Rönninge in the municipality of Salem, a suburb about 20 kilometres south west of Stockholm. On the property, which lies about 400 metres north west of Rönninge railway station, there is a one-family house in which the applicant lives. 8. When the applicant bought the property it was covered by a subdivision plan (avstyckningsplan - see paragraph 31 below), adopted in 1938, according to which no building could be constructed on a plot of less than 1,500 m² until sufficient water and sewage facilities had been provided for (a water and sewage system had been built at the end of the 1960’s). The property was also covered by an area plan (områdesplan - see paragraph 26 below), adopted in 1972, which described the property mainly as a public area containing green spaces, streets and car parking, and by a building prohibition pursuant to section 35 of the 1947 Building Act (byggnadslagen, "the 1947 Act" - see paragraph 35 below) issued on 26 August 1974 and lasting until 1 September 1976. The Government also claimed that the regulations for non-planned areas (utomplansbestämmelser) applied but the applicant contested this (see paragraph 33 below). 9. The first building prohibition under section 35 of the 1947 Act covering the applicant’s property was issued by the County Administrative Board (länsstyrelsen, "the Board") of the Stockholm County on 21 September 1965 and was valid for one year. This prohibition has subsequently been prolonged by the Board for one or two years each time, leaving the property unaffected for only a few brief intermediate periods. The last decision was taken on 11 July 1985 and was valid until 11 July 1987. On 1 July 1987, with the entry into force of the Plan and Building Act 1987 (Plan - och Bygglagen, "the 1987 Act"), the existing system for prohibitions on construction was abolished and replaced by a new one (see paragraphs 44-45 below). 10. On 1 January 1974 the municipality of Salem was merged with the municipality of Botkyrka, but on 1 January 1983 Salem again became a separate municipality. 11. On 28 January 1975 the Building Committee (byggnadsnämnden) of Botkyrka stated in a preliminary opinion, requested by the applicant, that it was not prepared to permit the division of his property into smaller plots. In its decision the Committee referred inter alia to the area plan adopted in 1972. 12. The applicant turned to the Board and requested that the municipality be ordered to adopt a town plan (stadsplan) for the central parts of Rönninge. In an opinion of 31 March 1976 the Board noted that only the Government were competent to make the order requested. It added that, in its opinion, the planning procedure was under way to such an extent that such an order was not necessary. 13. The applicant also complained to the Parliamentary Ombudsman (justitieombudsmannen, JO) who replied in a letter of 25 February 1976 that he was well aware of the problems which could arise as a result of lengthy building prohibitions. Referring to one of his earlier observations and to the preparatory works of the new building legislation, he concluded that there was no reason to take any other measures as a result of the applicant’s complaint. 14. On 28 June 1979 the Municipal Assembly (kommunfullmäktige) adopted a master plan (generalplan) relating to part of the municipality of Botkyrka, according to which the applicant’s property was supposed to be used for building blocks of flats of more than two storeys. 15. On 15 January 1980 the Building Committee stated, in reply to a request from the applicant, that it was not prepared to grant him an exemption from the building prohibition or a permit to build a one-family house and a garage on the property. The applicant appealed to the Board claiming that the building prohibition was not valid. The Board rejected the appeal on 25 April 1980. It interpreted the Building Committee’s decision as a refusal to grant an exemption from the prohibition and stated that in its opinion the proposed buildings could be contrary to the aim of the prevailing prohibition and hinder future town planning as indicated in the master plan of 1979 and that there were no special reasons to go against the Building Committee’s assessment. 16. In April 1983 the Building Committee requested the Board to revoke, pursuant to section 168 of the 1947 Act, the right to build according to the subdivision plan of 1938. The Board rejected the request on 23 March 1984, stating inter alia as follows: "The long duration of the [building] prohibition depends to a large extent on changes in the objectives of the planning procedure as a result inter alia of the changes of municipal organisation which have occurred twice during the time of prohibition .... The Board considers that the prevailing building prohibition gives the municipality sufficient freedom of action for the purpose of the impending town planning. Against the objections from owners of certain properties [among whom the applicant], the Board finds that a revocation [of the subdivision plan] is not justified." 17. On 6 June 1983 the Board decided to prolong the building prohibition for the area in question. In this decision the Board stated inter alia that the newly created municipality (see paragraph 10 above) should have some time to determine its position in respect of the planning of Rönninge and that an application for a further building prohibition would have to be founded on a time-schedule for the amendments of the plan or on some other proposal for the termination of the prohibition. Challenging, inter alia, the lawfulness of the Board’s decision, the applicant appealed to the Government which, however, rejected the appeal on 15 December 1983. 18. On 13 February 1984 the Municipal Council (kommunstyrelsen) adopted an area programme according to which the area in which the applicant’s property is situated should be used for the construction of multi-family houses in 1988. It also stated that the planning procedure should be given priority. On 23 February 1984 the Municipal Assembly adopted a building programme to the same effect. 19. On 11 July 1984 the Board decided to issue a further building prohibition for the area in question. In the decision it was noted that the Municipality planned to carry out certain work during 1984 for the purposes of establishing the necessary plans. The applicant appealed to the Government, which rejected the appeal on 8 November 1984, referring to the on-going planning work. 20. On 12 June 1984 the Building Committee stated in a new preliminary opinion requested by the applicant that it would not be prepared to grant any building permit in view of the existing building prohibition. The applicant appealed to the Board, arguing inter alia that the building prohibition covering his property had ceased to be effective on 6 June 1984. In a decision of 21 August 1984, the Building Committee conceded that a mistake had been made and quashed its decision of 12 June; however, it took a new decision of similar content since a new building prohibition was valid as from 11 July 1984. Subsequently the Board decided to quash the Building Committee’s decision of 21 August and to reject the appeal against the decision of 12 June: it referred to the fact that a building prohibition was in force when the Board examined the case. The applicant appealed against the Board’s decision to the Administrative Court of Appeal (kammarrätten) of Stockholm and to the Government. On 24 April 1986 the Government quashed the Board’s decision, holding that the Committee’s opinion was not a binding decision and that, accordingly, it could not as such be subject to an appeal. On 16 March 1987 the Administrative Court of Appeal dismissed the appeal, referring to the Government’s decision. The applicant’s request to the Supreme Court for leave to appeal was rejected on 1 November 1988. 21. On 20 March 1986 the Municipal Assembly adopted a new area plan covering inter alia the applicant’s property. This plan mentioned the possibility of using the area for single or multi-family house development. According to the Government, this is the last step of the preparatory work in the making of a town plan. The validity of the subdivision plan (see paragraph 8 above) remained unaffected. 22. On 10 July 1987 the applicant again filed a request for a preliminary opinion regarding a building permit for his property (cf paragraph 9 above). The Building Committee decided however, pursuant to the rules laid down in the new 1987 Act, to defer its decision on the request for a period of two years (see paragraph 45 below). 23. Until 1 July 1987 a property owner’s rights to erect buildings on his property were regulated by the Building Act 1947 and the Building Ordinance 1959 (byggnadsstadgan - "the 1959 Ordinance") which was issued by the Government in accordance with powers conferred on them by the 1947 Act. 24. Section 1 of the 1947 Act provided that constructions on a property required a building permit to the extent laid down by the Government. Section 54 of the 1959 Ordinance specified that a permit was required for all new constructions (see paragraphs 37-39 below) except for the construction of certain buildings for public use, and small additions to existing residences and farms. 25. Before a building could be erected on a property, section 5 of the 1947 Act called for an examination of whether the property was suitable from a general point of view for this purpose. Such an examination was to be effected by planning procedure, except for non-urban areas where it could be made when an application for a building permit was under consideration. 26. A master plan (generalplan) was drawn up by the municipality concerned in so far as this was required in order to establish a framework for more detailed plans. Complete master plans were seldom deemed necessary. Instead, municipalities tended to meet their planning needs by using simpler, less detailed plans, usually described as area plans (områdesplan). Such plans were not governed by law. 27. Town plans (stadsplan) were prepared for those urban areas in which this was deemed necessary (section 24). A town plan was more detailed than a master plan: it indicated the purposes for which the various areas could be utilised - housing, roads, squares, parks, etc. - and it also included specific provisions on their use (section 25). 28. Building plans (byggnadsplan) were established for areas which had become densely populated without, however, requiring the detailed regulations provided for in a town plan. 29. After adoption by the Municipal Assembly, town and building plans had to be approved by the County Administrative Board. In the course of this procedure, property owners had a number of opportunities to submit their views. 30. If a municipality failed to adopt a town or a building plan, the Government could order it to do so within a certain time-limit. 31. Subdivision plans (avstyckningsplan) were old plans which only set out the borders between land intended for building and land intended for public use. These plans did not regulate the details of building itself. When the 1947 Act was introduced it was considered inappropriate to abolish existing subdivision plans before they had been replaced by other plans. According to the transitional provisions (section 168 of the 1947 Act and section 83 of the 1959 Ordinance), such plans were to be regarded as building plans in so far as construction was concerned, unless the County Administrative Board decided otherwise. 32. The 1947 Act also gave the municipalities a power, which was never exercised in the present case, to acquire property required for certain public purposes in accordance with a confirmed master or town plan: for example, areas reserved for public places according to a town plan could be redeemed by the municipality (section 41). The acquisition value was decided by the Real Estate Court (fastighetsdomstolen) and was to be assessed according to the rules laid down in the Expropriation Act 1972 (expropriationslagen - "the 1972 Act"). 33. Regulations for non-planned areas (i.e. areas not covered by a town or a building plan) inter alia prohibited the construction of new buildings on properties which were not found to be suitable in the general interest for this purpose. The Government claimed that these regulations also applied in areas covered by subdivision plans whereas the applicant claimed that such areas were exempted therefrom. 34. Under section 56 of the 1959 Ordinance, the authorities could not grant permits for new constructions which would result in urban development (tätbebyggelse) within an area not covered by a town plan or a building plan. Areas governed by subdivision plans were exempted from this prohibition, although the Board could order, pursuant to section 168 of the 1947 Act, that they also be covered thereby. 35. If the question of adopting a town plan had been raised, the Board could, under section 35 of the 1947 Act, also issue a prohibition on all new constructions for the area concerned. Such a prohibition was valid for one year, but could be prolonged by two years at a time. Exemptions therefrom could be granted where the planning procedure would not be obstructed. 36. According to section 158 of the 1947 Act, provisions on new constructions extended "to such alterations to existing premises as could be classified as new constructions under rules laid down by the Government". Section 75 of the 1959 Ordinance specified: "The expression ‘new construction’ shall mean: (a) the erection of entirely new premises; (b) the horizontal or vertical extension of existing premises; (c) any rebuilding of the exterior or interior of premises or any alteration thereto which, on account of its scale, may be equated to rebuilding; (d) the complete or partial conversion of premises for a use substantially different from their previous one; (e) such alteration to premises as results in their no longer being in conformity with the adopted master plan, town plan or building plan or the regulations on building activities in zones situated outside the areas covered by town plans or building plans; and (f) any other alteration to premises which, in their present state, are not in conformity with the above-mentioned plans or regulations, except in the case of residential premises comprising not more than two dwellings or of outbuildings belonging to such premises. However, for the purposes of the present section, the expression ‘new construction’ shall not include the installation of central heating, water closets or other sanitary amenities in premises which, even if such installation has not been authorised, are expected to remain in their present state for a considerable length of time." 37. Applications for building permits were filed with the local building committee. If an application came under a building prohibitions, it was in practice considered as including also an application for exemption from the prohibition. The applicant could, however, choose to apply for an exemption only, in order to apply for a permit when the question of exemption had been resolved. 38. The examination of an application for a building permit involved ascertaining that the intended building would not run counter to any confirmed plan, to the regulations for non-planned areas, or to a building prohibition, and that it satisfied technical demands on construction. In the absence of such obstacles, a permit should have been granted. 39. It was the practice among property owners to request preliminary opinions regarding their possibilities to build. Such opinions were not legally binding. 40. Decisions by the Building Committee to refuse building permits or exemptions from building prohibitions could be appealed to the Board. 41. Appeals against the Board’s decisions lay to the Government as regards exemptions from building prohibitions and to the Administrative Court of Appeal as regards building permits. In the latter case a further appeal to the Supreme Administrative Court could be lodged if leave to appeal was granted. If the Board decided both questions, appeals were to be lodged with the Administrative Court of Appeal. If this Court found that the construction did not require any exemption from a building prohibition, it would proceed to examine the permit question. Otherwise, the Court would transfer the case to the Government, together with an opinion on the permit issue. 42. There were no limits to the number of times a property owner could apply for building permits or exemptions from a building prohibition. The authorities were obliged to examine the matter each time they were seized of such applications. 43. A decision by the Board to issue a building prohibition or to refuse at first instance an exemption from such a prohibition could be appealed to the Government. Moreover, questions concerning the approval of town and building plans by the Board could be appealed to the Government. However, the property owners concerned could not formally require the municipality or the Board, respectively, to adopt or approve a plan. 44. Since 1 July 1987, the 1947 Act has been replaced by the 1987 Plan and Building Act. 45. The 1987 Act has abolished the possibility to prescribe the kind of building prohibitions which are at issue in the present case, replacing it by a possibility for the Building Committee to defer its decision on an application for a building permit or a preliminary opinion for a maximum period of two years. After the expiry of this period, the permit or a favourable preliminary opinion shall be granted unless they are incompatible with a detailed plan and provided that certain purely technical requirements are met. 46. Divisions of property into units are made by the Property Formation Agencies (fastighetsbildningsmyndigheterna). New units are to be designed in such a way as to make all properties concerned permanently suitable for their purpose with regard to their location, size and other conditions. Within areas subject to town or subdivision plans, a division must be made in accordance with the plan. If other regulations apply, e.g. a building prohibition, divisions have to comply with these also. 47. Decisions by the Property Formation Agencies may be appealed to the ordinary courts. 48. Chapter 2, section 1 of the 1972 Act (see paragraph 32 above) gives the municipalities a right to expropriate for planning purposes. It provides: "Within a densely developed area an expropriation may only take place if it can reasonably be assumed that the property will, within a foreseeable future, be required for a building or construction activity which is of significant public interest or if it is of importance for the purposes of a planned development or for another similar reason that the municipality takes control of the property". Expropriations pursuant to this section are subject to the general provisions regarding compensation laid down in Chapter 4 of the 1972 Act. | 1 |
dev | 001-23749 | ENG | AZE | ADMISSIBILITY | 2,004 | MUTALIBOV v. AZERBAIJAN | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Ayaz Mutalibov, is an Azerbaijani national, who was born in 1938 and lives in Moscow. He was represented before the Court by Mr S. Abdullayev, a lawyer practising in Baku. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was the first president of the Republic of Azerbaijan since it gained independence in 1991. He was elected by popular vote on 8 September 1991 and remained in office until 15 May 1992. Thereafter, the applicant left Azerbaijan and settled in Moscow. At present, a criminal case is pending against the applicant before the Azerbaijani authorities. The government of Azerbaijan had asked the relevant Russian authorities to extradite the applicant to Azerbaijan, but this request was rejected. The applicant remains active in Azerbaijani politics and is a co-chairman of the Social Democratic Party of Azerbaijan. Before the presidential elections of 15 October 2003, a number of the applicant’s political supporters in Azerbaijan formed a “voters initiative group” that decided to nominate the applicant as a presidential candidate for the upcoming elections. To this effect, on 16 July 2003 they filed an application with the Central Election Commission (the “Commission”). On 21 July 2003 the Commission rejected this application for failure to comply with the election laws and refused to register the applicant as a presidential candidate. No further explanations were given in the Commission’s formal decision. Thereafter, the voters’ initiative group filed a suit in the Court of Appeal, requesting to quash the Commission’s decision as unlawful. On 24 July 2003 the Court of Appeal rejected this request. Upon an appeal in cassation, on 7 August 2003 the Supreme Court upheld the Court of Appeal’s decision. | 0 |
dev | 001-70034 | ENG | POL | ADMISSIBILITY | 2,005 | SKOTNICZNY v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Jerzy Skotniczny, is an Austrian national who lives in Crakow. He is represented before the Court by Mr A. Buczkowski, a lawyer practising in Crakow. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 February 1994 the applicant brought an action before the Cracow-Śródmieście District Court (Sąd Rejonowy) claiming that joint ownership of a property located in Cracow at Grodzka Street, co-owned by him and two other persons, be dissolved. The proceedings were terminated by the decision of the Supreme Court of 10 July 2002. On 17 March 1999, the date on which the application was lodged with the Court, they were pending before the Cracow-Śródmieście District Court. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied. | 0 |
dev | 001-71113 | ENG | RUS | CHAMBER | 2,005 | CASE OF KAZARTSEVA AND OTHERS v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings | Christos Rozakis | 4. The applicants were born in 1946, 1957 and 1970 respectively and live in Voronezh. 5. The applicants are in receipt of welfare payments for their children. In 1999 – 2000 they brought separate sets of civil proceedings against a local welfare authority, claiming arrears in those payments. 6. On 17 December 1999 the Levoberezhny District Court of Voronezh awarded the first applicant 3,245.28 Russian roubles (RUR) against the welfare authority. This judgment entered into force on 28 December 1999. 7. On 31 January 2000 the writ of execution was issued and sent to the bailiffs. 8. On 26 July 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgment of 17 December 1999 and returned the writ of execution to the first applicant, as the debtor had insufficient funds. 9. On 26 February 2002 the first applicant complained to the Department of Justice of the Voronezh Region about the bailiffs’ failure to execute the judgment in her favour. 10. By letter of 27 March 2002 the Department of Justice of the Voronezh informed the first applicant that the judgment in question had not been enforced, as the defendant had insufficient assets, and that it was open to her again to send the writ of execution to the bailiffs’ service. 11. On 29 April 2002 the first applicant lodged a court complaint against the bailiffs for their failure to enforce the judgment in her favour. 12. On 19 June 2002 the Leninskiy District Court of Voronezh allowed the first applicant’s complaint and ordered the bailiffs to recommence the enforcement proceedings. 13. On 2 June 2004 the first applicant was paid the amount due pursuant to the writ of execution. 14. On 29 March 2000 the Leninskiy District Court of Voronezh awarded the second applicant RUR 1,980.6 against the welfare authority. This judgment entered into force on 9 April 2000. 15. On 29 March 2000 the writ of execution was issued and sent to the bailiffs. 16. On 26 July 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgment of 29 March 2000 and returned the writ of execution to the second applicant, referring to the lack of the debtor’s funds. 17. On 27 April and 6 May 2002 the second applicant again sent the writ of execution to the bailiffs’ service. 18. On 30 September 2002 the bailiffs returned the writ of execution to the second applicant, having stated that they had been unable to enforce the judgment in her favour, as the defendant refused to pay. 19. On 2 June 2004 the judgment of 29 March 2000 was paid in full. 20. On 9 November 2000 the Tsentralny District Court of Voronezh awarded the third applicant RUR 4,304.7. This judgment entered into force on 20 November 2000. On the same date the writ of execution was issued and sent to the bailiffs. 21. On 26 July 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgment of 9 November 2000 and returned the writ of execution to the third applicant by reference to the lack of the debtor’s funds. 22. On 24 May 2002 the third applicant requested the bailiffs’ service and the Department of Justice of the Voronezh Region to ensure the enforcement of the judgment in her favour. It is unclear whether any response was ever sent to that request. 23. On 2 June 2004 the third applicant was paid the amount due pursuant to the writ of execution. 24. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit. 25. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff. | 1 |
dev | 001-75261 | ENG | SVN | CHAMBER | 2,006 | CASE OF STROPNIK v. SLOVENIA | 4 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson;John Hedigan | 5. The applicant was born in 1980 and lives in Šoštanj. 6. On 9 September 1994 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT. 7. On 16 December 1997 the applicant instituted civil proceedings against ZT in the Celje Local Court (Okrajno sodišče v Celju) seeking damages in the amount of 1,104,192 tolars (approximately 4,600 euros) for the injuries sustained. Between 23 March 1998 and 21 March 2001 the applicant filed seven preliminary written submissions and/or adduced evidence. From 6 September 1999 and 21 May 2001 he made six requests that a date be set for a hearing. Of the three hearings held between 6 April 2000 and 2 October 2001 none was adjourned at the request of the applicant. During the proceedings the court appointed two medical experts. The court also sought an additional opinion from one of the appointed experts. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim, was served on the applicant on 25 October 2001. 8. On 9 November 2001 ZT appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed. On 3 December 2002 the court dismissed the appeal. The judgment was served on the applicant on 27 December 2002. 9. On 15 January 2003 ZT lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 20 May 2004 the court dismissed the appeal. The judgment was served on the applicant on 21 June 2004. | 1 |
dev | 001-84574 | ENG | POL | CHAMBER | 2,008 | CASE OF TEODORSKI v. POLAND | 4 | No violation of Art. 5-3 | Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi | 4. The applicant was born in 1974 and lives in Warsaw. 5. In 2001 the police conducted an operation to disband several organised criminal gangs that were acting in and around Warsaw, stealing luxury cars with a view to selling them in the countries of the former Soviet Union. There were about five such groups, cooperating closely with each other and closely connected with Poland's most dangerous armed criminal groups: the Pruszków Mafia and the Wołomin Mafia. 6. The applicant was arrested on 20 March 2002 on suspicion of thefts, robberies, drunk driving and membership of an organised criminal group. He was remanded in custody by the decision of the Warsaw District Court of 21 March 2002. 7. At that time the Warsaw Regional Prosecutor was conducting an investigation in respect of more than fifty other members of the criminal gangs mentioned above. Forty-two of them were held in custody. The investigation was complex and time-consuming, given that the criminal gangs collaborated closely with many persons who were to be questioned by the prosecutors, for example, receivers of stolen goods, persons hiding stolen cars or persons tracking cars which were to be stolen, among others. 8. In addition, the prosecutor opened an investigation in respect of several police officers from Warsaw and surrounding towns on charges of corruption and helping the criminal groups' members to evade the law. 9. On 5 December 2002 a bill of indictment against the applicant and fifty-nine other co-accused (members of five cooperating criminal gangs) was lodged with the Warsaw District Court. The evidentiary material was presented in 99 case files. The applicant was charged with membership of a criminal gang, carrying out multiple robberies and thefts, committed with extreme brutality. The criminal gang, of which the applicant was a member, was known for its violence and ruthlessness and for illegal trafficking in firearms. 10. On 6 January 2003 the Warsaw District Court held the first hearing. The following hearings were held by the District Court on: 23, 30 May, 23, 24 June, 1,4,7,8 July, 13, 18, 22, 25 August, 5, 12, 15, 19 September, 10, 20, 21, 23, 24, 31 October, 17 November, 5, 22 and 23 December 2003; 5, 26 January, 16, 17, 19, 20 February, 8, 9 March, 1, 9 April, 14, 18, 21, 25 May, 3, 7, 14, 23 June, 5 July, 10, 25, 31 August, 3, 6 September, 7, 8, 15 October, 2, 9 November, 7, 8, 10, 13 and 18 December 2004. In total, sixty hearings were held by the District Court. 11. During the trial the District Court examined a wide range of evidentiary material, ordered medical expert opinions on the accuseds' mental health and expert opinions in the field of dactyloscopy, conducted inquiries in the accuseds' respective neighbourhoods, inspections of the crime scenes and garages where the stolen cars had been hidden and assessments of the accuseds' assets. The proceedings involved taking evidence from a considerable number of witnesses and victims and from one key witness. 12. The applicant's pre-trial detention was prolonged several times by the District Court. The decisions were issued, inter alia, on 17 June, 13 December 2002, 25 May, 17 November 2003, 20 February, 22 June, 28 September and 18 December 2004. In its decisions the court underlined that there was a strong likelihood that the applicant had committed the crimes, confirmed in particular by the testimonies of a key witness and a co-accused, and considered that there was a reasonable risk that the applicant would tamper with the evidence, given that he had had close connections with the other co-accused. There was a serious threat that the applicant would go into hiding after his release from custody, as he had been living in hiding before the investigation and was arrested following the arrest warrant issued by the police. The court also made reference to the activities previously carried out and gave a precise indication of the evidence that still had to be taken. Consequently, it decided that it was indispensable to separate the applicant from the other suspects, the witnesses and the evidence which had not yet been secured. The court also relied on the serious nature of the charges against the applicant and the severity of the penalty he faced. No special circumstances dictated the lifting of the detention. 13. The applicant unsuccessfully appealed against the above-mentioned decisions. 14. From 21 March to 29 July 2002 and from 27 January to 18 December 2004 the applicant served a prison sentence imposed on him in separate proceedings. 15. On 18 December 2004 the District Court imposed a sentence on fifty of the co-accused. The applicant was found guilty of the charges laid against him and sentenced to 7 years' imprisonment and a fine of 20 000 PLN. On the same date the court prolonged the applicant's detention until 17 March 2005. 16. On 16 March and 14 November 2005 the Warsaw District Court decided on the prolongation of the applicant's detention. The court found no grounds for quashing or changing the preventive measure and stressed that the further detention of the applicant was “essential”. 17. On 6 June 2006 the case file, comprising 149 volumes, was transferred to the second-instance court. 18. The applicant was kept in custody by virtue of decisions issued by the Warsaw District Court on 8 May, 2 August and 7 November 2006. 19. On 22 November 2006 the appellate court quashed the judgment and remitted the case for re-examination. 20. The proceedings are pending before the Warsaw District Court. 21. On 4 February 2004 the applicant was detained on remand by the Warsaw District Court on suspicion of robbery and theft. In its decision, upheld on 22 March 2004 by the Warsaw Regional Court, the court stated that the suspicion was reasonable and, in view of the fear of collusion, the applicant's detention was necessary to secure the proper conduct of the investigation. It also attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant. 22. On 3 March 2004 a bill of indictment against the applicant and other co-accused (members of five co-operating criminal gangs) was lodged with the Warsaw District Court. The applicant was accused of acting in an organised criminal gang and committing numerous robberies. 23. Hearings were held by the District Court on average every 2 weeks between 18 October 2004 and 23 March 2006. 24. The decisions on prolongation of the applicant's detention were given by the Warsaw District Court on 14 April, 12 July 2004, 24 January and 26 July 2005. The court found that in view of the progress in the proceedings and the fact that several members of the criminal gang had been arrested in the course of the proceedings, the applicant's release from custody would hinder their effectiveness. In view of the severity of the likely penalty and the fact that the applicant had been living in hiding before the investigation, there was also a serious threat that the applicant would abscond after his release. 25. On 20 January, 9 June and 7 November 2006 the Warsaw Court of Appeal prolonged the applicant's detention upon the District Court's motion. 26. The applicant lodged a considerable number of unsuccessful applications for release from detention or for commutation of the preventive measure to a less severe one, on the ground of his poor state of health or other reasons. 27. He also challenged, likewise unsuccessfully, the decisions of 20 January, 9 June and 7 November 2006 prolonging his detention. 28. On 31 January 2007 the Warsaw District Court found the applicant guilty of most of the charges and sentenced him to 5 years' imprisonment. The applicant appealed. 29. The proceedings are pending before the second-instance court and the applicant remains detained. | 0 |
dev | 001-91528 | ENG | DEU | ADMISSIBILITY | 2,009 | SCHAEDEL v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Bernd Schaedel, is a German national who was born in 1941 and lives in Berlin. He was represented before the Court by Ms M. Biedermann-Weist, a lawyer practising in Berlin. The applicant was a citizen of the former German Democratic Republic (GDR) who absconded to West Berlin in May 1988. His real property was subsequently placed under GDR State guardianship and sold to members of the GDR nomenclature (hereinafter the “occupiers”) in December 1988. The occupiers were registered as owners of the property on 2 January 1989 and lived in the house built on the property. On 13 August 1990 the applicant applied for the restitution of the property. On 25 July 1996 the Hellersdorf-Hohenschönhausen-Marzahn Office for the Regulation of Outstanding Property Issues (Amt zur Regelung offener Vermögensfragen) decided, inter alia, that the occupiers had not acquired the property in good faith and ordered that the property be returned. The occupiers appealed against that decision. On 7 March 2002 the Berlin Administrative Court ordered the return of the property to the applicant, and from that date the applicant was the owner of the property. The occupiers withdrew their application for leave to appeal on points of law on an unspecified date and subsequently vacated the property in September 2002. On 29 December 2003 the Berlin Regional Court refused to grant the applicant legal aid for a claim against the occupiers to obtain compensation for use of the property as regards the period from 1990 to September 2002 on the ground that his application had no prospect of success. As to the period from 1990 to 7 March 2002, and relying on a leading judgment of the Federal Court of Justice of 23 April 1999 (see “Relevant domestic law and practice” below), the court noted that section 7(7) of the Act on the Regulation of Outstanding Property Issues / Property Act (Gesetz zur Regelung offener Vermögensfragen/ Vermögensgesetz – hereinafter the “Property Act”, see “Relevant domestic law and practice” below) excluded compensation for the remaining period when the occupiers were registered as owners and had used the property solely as a dwelling. Any claim for compensation for use of property for the period between March 2002 and September 2002 could only be raised before a district court in view of the value of the claim. On 10 February 2004 the Berlin Court of Appeal upheld that decision. On 27 September 2004 the Berlin Constitutional Court refused to accept the applicant’s complaint for examination. On 12 January 2005 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for examination (no. 1 BvR 2852/04). Under section 7(7) of the Property Act, an owner is not entitled to claim compensation for use of property from the tenants unless otherwise agreed or in respect of rent obtained after 1 July 1994. On 23 April 1999 the Federal Court of Justice held in a leading judgment (published in that court’s official reports [BGHZ] volume 141, pp. 232 et seq.) that there were no lacunae in section 7(7) of the Property Act and hence no justification for its analogous application to claims for compensation for use of property other than those concerning rent obtained by the tenant after 1 July 1994. The court noted that the tenant was fully entitled to enjoy the property and its fruits prior to restitution. Citing the relevant legislative materials, the court further noted that the legislature had provided for the exception only to urge occupiers to use the rent to maintain the property prior to restitution. | 0 |
dev | 001-57451 | ENG | DEU | CHAMBER | 1,981 | CASE OF BUCHHOLZ v. GERMANY | 2 | No violation of Art. 6-1;No violation of Art. 3;No violation of Art. 8;No violation of Art. 12 | Gaukur Jörundsson | 12. Mr. Buchholz was born in 1918 and lives in Hamburg. From February 1949 onwards he worked for the dry-cleaning firm of J. H. Dependorf KG; he was mainly employed as a driver until the end of 1963 and thereafter as, in particular, controller of branch establishments. On 28 June 1974, he was given notice that he was dismissed with effect from 31 December of the same year as a result of rationalisation measures. He took proceedings before the appropriate courts contesting the lawfulness of this notice; in his submission, those courts did not determine his case within "a reasonable time" as required by Article 6 par. 1 (art. 6-1) of the Convention. 13. On 10 July 1974, the applicant commenced an action before the Hamburg Labour Court claiming that his dismissal was "socially unjustified" ("sozial ungerechtfertigt") within the meaning of section 1 of the Unfair Dismissal Act (Kündigungsschutzgesetz). The other party ("the defendants") served a defence on 25 July, one day before the expiry of the time-limit granted for this purpose by the Labour Court. 14. At the first hearing on 16 August, Mr. Buchholz’s lawyer submitted new written pleadings. The Labour Court thereupon allowed an application by the defendants for time to reply and adjourned the case until 4 October. 15. In their written reply of 22 August, the defendants, as requested by the Labour Court, gave a detailed account of the reasons for the contested dismissal; they also described the economic situation of the firm and explained the rationalisation measures taken. The applicant’s lawyer appended to his counter-reply of 19 September a note written to him by his client. This note contained the charge that the managers of the Dependorf firm had "negligently squandered the millions (business and private assets) properly earned by Robert Dependorf" but had "personally secured to themselves such a safe position that these people are no longer interested in whether or not the Dependorf firm gets even deeper into the red". These accusations prompted the defendants on 30 September to send the applicant two further notices of dismissal, an extraordinary notice (ausserordentliche Kündigung) effective forthwith and, as an alternative or precautionary (vorsorglich) measure, an ordinary notice (ordentliche Kündigung) with effect from 31 March 1975. The extraordinary notice was based on Article 626 of the Civil Code (Bürgerliches Gesetzbuch) which requires a "serious reason" for a dismissal of this kind and the giving of notice within two weeks from the moment when the employers had knowledge of the facts judged by them to constitute such a reason. On 2 October, Mr. Buchholz’s lawyer filed two further sets of written submissions dated 1 and 2 October respectively; appended to the former was a copy of the defendant’s letter of 30 September; the latter extended the plaintiff’s action to cover the two dismissal notices of 30 September. 16. At a hearing on 4 October 1974, the Labour Court adjourned the proceedings until 25 October as the defendants’ lawyer had only received the applicant’s latest written pleadings at that hearing. On 14 October, the applicant’s lawyer submitted another memorandum. At the adjourned sitting on 25 October, the Labour Court, acting in accordance with the applicable legislation, proposed a friendly settlement, but the proposal was not accepted. 17. The Labour Court delivered judgment on 8 January 1975 immediately after hearing the final submissions of the parties. It held that neither the notice of 28 June 1974 nor the extraordinary notice of 30 September 1974 had terminated the applicant’s contract, since the former was "socially unjustified" within the meaning of section 1 of the Unfair Dismissal Act and the latter was invalid for lack of a "serious reason" as required by Article 626 of the Civil Code. The Court also rejected an alternative request by the defendants for discharge (Auflösungsantrag) of the contract of employment in pursuance of section 7 of the Unfair Dismissal Act. It ordered the defendants to pay Mr. Buchholz DM 5,700 arrears of wages but dismissed the claim for future salary. The judgment was notified in writing to the parties on 25 February 1975. 18. The defendants appealed to the Hamburg Labour Court of Appeal on 13 March 1975. In their submission, the accusations made by Mr. Buchholz constituted a "serious reason" warranting the extraordinary notice of 30 September 1974; the two ordinary notices of 28 June and 30 September 1974 were likewise valid, the former being "socially justified" for pressing reasons connected with the running of the business. They called on the Court to overrule the judgment appealed from and to dismiss the plaintiff’s action or, in the alternative, to discharge the contract of employment existing between the two parties. The applicant in turn lodged a cross-appeal (Anschlussberufung) on 25 March, seeking payment of arrears of wages for the first three months of 1975. 19. The parties then filed written pleadings dated 2 April and 15 May 1975 (the defendants) and 22 April (Mr. Buchholz). The applicant maintained his accusations against the managers of the firm and asked the Court of Appeal to call for an expert’s opinion in order to corroborate the allegations made. 20. In the course of this written procedure both the applicant and the defendants had requested the Court of Appeal not to hold sittings during certain periods, namely from 25 May to 5 June for the applicant and from 11 April to 2 May and from 6 to 11 June for the defendants. 21. Taking due note of this, the Court of Appeal on 16 May 1975 set the case down for hearing on 22 July. On that date, the Court examined, amongst other matters, the exact circumstances surrounding the tendering in evidence of the applicant’s accusations which had been appended to his lawyer’s written pleading of 19 September 1974 (see paragraph 15 above). When questioned whether he had intended use to be made of these accusations in the lawsuit, he stated that he had relied on the judgment of his lawyer. The Court also raised the possibility of employing Mr. Buchholz in some other capacity; it directed the defendants to submit within one month a chart setting out the firm’s commercial staff structure, indicating for each post whether it was suitable for the applicant and, if not, the reason why. The applicant was given one month to reply. 22. The defendants filed the chart, with accompanying explanations, on 31 July; then, on 6 August, they replied to a written pleading from Mr. Buchholz which, though presented on 16 July, had been communicated to them after the hearing of 22 July. On 20 August 1975, the applicant put forward a proposal for a friendly settlement, but this was rejected by the defendants on 19 September. By letter of 3 October, Mr. Buchholz’s lawyer filed a memorandum, dated 28 September, containing comments by his client and asked the Court to set the case down for an early hearing, thereby renewing a request he had already made on 18 September, one day before the defendants had refused the offer of friendly settlement. He stated, amongst other things, that "the disproportionately long state of suspense [had] become physically and psychologically unbearable" for Mr. Buchholz. On 9 October, the Court of Appeal decided to hold a hearing on 19 March 1976 and transmitted to the defendants the above mentioned written pleadings of 3 October. 23. On 12 November 1975, the applicant’s lawyer addressed to the Parliament (Bürgerschaft) of the Free and Hanseatic City of Hamburg a petition seeking measures to expedite proceedings before the labour courts. Early in 1976, as an apparent sequel to this petition and following an increase in the number of judicial posts (see paragraph 39 below), the Court of Appeal was able to establish a Sixth Chamber. Almost 50 per cent of the cases pending before the Third Chamber were referred to the new Chamber, although the former continued to deal with the Buchholz action. The Parliament advised the applicant in reply on 5 May 1976 that the authorities had immediately taken the necessary steps to ease the workload of the labour courts. 24. The legal and factual questions to be decided were debated by the two parties at the hearing held on 19 March 1976. At the close of the sitting, the Court of Appeal made an order setting out the various points in issue and their possible implications as seen by the Court; it then proposed a settlement whereby the contract of employment would be considered as having terminated on 31 December 1974 and the defendants would pay the applicant a lump sum of DM 34,200. The Court called on the parties to state their views by 30 April. 25. By memorandum of 7 April, the defendants refused the settlement proposal; they referred to the "undisputed" fact that the two notices of 30 September 1974 had been served on the applicant on the same day. For his part, Mr. Buchholz’s lawyer, in a written statement of 8 April in which he paid tribute to the Court of Appeal for its "thorough and prudent examination of the case", declined to accept the suggested settlement; he specified that he could only agree to such a solution if the contract were regarded as terminated on 31 December 1975. In addition, on 28 April 1976 he filed a brief reply to the above-mentioned memorandum of 7 April. He contested the defendants’ affirmations "insofar as they deviate[d] from the explanations" given by his client, but he did not however specifically deal with the matter of the date of receipt of the two notices of 30 September 1974. He added that he would be absent from 30 May to 18 June and requested the Court of Appeal to fix a hearing in May. On 3 May, the Court of Appeal directed that the hearings should resume on 27 August and so advised the parties on 1 June. 26. At the hearing on 27 August 1976, Mr. Buchholz denied that he had actually received the two notices of 30 September on that day and asked the Court to question on his wife on this point, which was material for the purposes of Article 626 of the Civil Code (see paragraph 15 above). The Court acceded to this request. Mrs. Buchholz, who was present in the court-room, confirmed the statements of her husband; she asserted that the notices had been served between 5 and 7 October 1974. The defendants contested this testimony and asked for the counter-evidence of four witnesses to be heard. The applicant objected to such a move on the ground that it would tend to protract the proceedings. The Court nevertheless decided that Mr. Buchholz, as well as the chief executive of the Dependorf firm and the four witnesses nominated by the defendants, should be heard on 11 January 1977. At the same time it invited the applicant, who had applied for free legal aid in the appeal proceedings, to supply the necessary certificate for that purpose. 27. The certificate was submitted under cover of a letter of 28 August from Mr. Buchholz’s lawyer. Consequently, on 29 September the Court granted free legal aid for the applicant’s defence against the main appeal; it reserved its decision as regards his cross-appeal (see paragraph 31 below). 28. Earlier, on 21 September 1976, the applicant had challenged the above-mentioned decision of 27 August before the Federal Constitutional Court. Complaining of the duration of the litigation and relying on Articles 2, 3, 12 and 20 of the Basic Law as well as Article 6 (art. 6) of the Convention, he had sought from the Constitutional Court an order requiring the Court of Appeal to bring its consideration of the matter to an immediate close. The case-file was sent to the Federal Constitutional Court which, sitting as a panel of three judges (section 93 (a) of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz), gave judgment on 2 November. The Court refused leave for the constitutional application to proceed: even supposing the application to be admissible, it did not offer sufficient prospects of success since there was nothing in the evidence to show that the Court of Appeal had protracted the proceedings; having regard to the extreme complexity of the facts of the case, the length of the lawsuit had been caused primarily by the applicant who had continuously supplemented his submissions and called for the taking of further evidence. 29. The presiding judge of the Third Chamber of the Labour Court of Appeal, which was dealing with the applicant’s case, retired on 19 November. 30. On 11 January 1977, the Court of Appeal heard four witnesses in connection with the date of receipt of the dismissal notices. It reserved until 28 January its decision whether, despite the objections of Mr. Buchholz’s lawyer, it should hear evidence from an additional witness nominated by the defendants and from Mr. Lentfer, the chief executive of the Dependorf firm. 31. On 28 January, the Court of Appeal granted the applicant free legal aid for his cross-appeal (see paragraph 27 above) and directed that Mr. Lentfer be called to give evidence on 22 March. By letter of 31 January, the defendants’ lawyer, pleading a prior commitment, asked for adjournment of the hearing of Mr. Lentfer; he further specified that both he and Mr. Lentfer would be on leave from 15 April until 4 May. The Court of Appeal granted this request on 2 February and postponed the hearing until 6 May. The applicant wrote on 5 February to the Secretary to the Commission - his petition to the Commission having been lodged on 18 December 1976 - to complain of this decision, but according to the Government there is no trace in the record of the case of his having entered any such objection before the Court of Appeal. 32. On 6 May, the representatives of both parties declared that the two disputed dismissal notices had indeed been received by Mr. Buchholz on 30 September 1974. On 13 May, the Court of Appeal ordered that an expert opinion should be obtained on the question whether or not the applicant’s accusations against the managers of the Dependorf firm were justified (see paragraph 15 above). The Hamburg Chamber of Commerce, on being so requested, nominated an expert on 14 June; after hearing the parties, the Court appointed the expert on 30 June. The expert’s report was filed on 2 December 1977; the Court communicated it to the applicant and the defendants for comment by 5 January 1978. 33. The last hearing was held on 3 February. The parties made their final submissions, following which the Labour Court of Appeal delivered its judgment. It allowed the defendants’ appeal and dismissed the applicant’s cross-appeal, awarding the costs of the proceedings against him. The Court of Appeal held that the extraordinary notice of 30 September 1974 was valid for the following reasons. The charges made by the applicant constituted a serious reason for dismissal within the meaning of paragraph 1 of Article 626 of the Civil Code and the dismissal notice had been served within the period of two weeks laid down by paragraph 2 of that Article. The thorough and convincing explanations furnished by the expert made it clear that Mr. Buchholz’s accusations were without foundation (haltlos): apart from being extremely defamatory, they were inappropriate and quite unnecessary for his cause of action contesting the ordinary notice of 28 June 1974 (see paragraph 15 above). The judgment was notified in writing to the parties on 5 April. 34. With a view to bringing a petition for a review on a point of law (Revision), Mr. Buchholz applied on 13 April to the Federal Labour Court for free legal aid; his application was granted on 12 September. On 20 September, he asked the Federal Court for leave to petition notwithstanding expiry of the legal time-limit; the Court gave leave on 10 October. The petition which had been filed earlier on 22 September, was transmitted to the defendants who replied in writing on 29 December. 35. On 26 April 1979, the Federal Court, after hearing the parties, proposed a settlement whereby the contract of employment would be considered as having terminated on 31 December 1974 and the defendants would pay the applicant a lump sum of DM 24,000 in addition to the DM 5,700 already paid as arrears of wages in compliance with the Labour Court’s judgment. The proposal was rejected by the defendants; by judgment of the same day, the Federal Court dismissed the petition for review as unfounded. 36. On 10 May 1979, Mr. Buchholz challenged this decision before the Federal Constitutional Court alleging violation of several basic rights. He complained of the length of the proceedings before the various labour courts, citing this factor as the cause of the contested decision. He further criticised the Federal Labour Court for having terminated a lawsuit "which in normal circumstances should not have been terminated yet"; in view of his application to the Commission, so he contended, the Federal Labour Court had "clearly not wished to make the breach of the Convention more evident by continuing the proceedings". In addition, the applicant claimed that the judgment being challenged was unsustainable as far as its reasoning was concerned (sachlich unhaltbar) and constituted an unacceptable domestic sanction intended to punish him for having taken his case to the Commission. On 19 July, the Constitutional Court refused leave for the constitutional application to proceed on the ground that it was inadmissible. The applicant had not, it was stated, identified with sufficient clarity any possible violation of his basic rights. In particular, his complaint regarding the length of the proceedings did not warrant a finding that the outcome of the action was incompatible with any of his basic rights; this was likewise true of his submission that the reasoning of the judgment being challenged did not bear examination. As in 1976 (see paragraph 28 above), the Court had sat in judgment as a panel of three judges. 37. For a year after his dismissal, Mr. Buchholz was paid weekly unemployment benefits (Arbeitslosengeld) under the Promotion of Employment Act (Arbeitsförderungsgesetz), that is to say, DM 202.20 from 9 October to 31 December 1974, DM 228 from 1 January to 30 September 1975 and DM 250.80 until 7 October 1975. The Hamburg Employment Office (Arbeitsamt) refused, on 23 December 1975, to grant him unemployment welfare assistance (Arbeitslosenhilfe) thereafter on account of his wife’s earnings. Since 1 August 1978, the applicant has been in receipt of a social security retirement pension (Sozialversicherungsrente), the amount of which – originally DM 1,462 per month - has been periodically adjusted. 38. According to the Government, from October 1974 onwards the Hamburg Employment Office endeavoured in vain to find the applicant some other employment, even offering financial help to potential employers. 39. As the result of an economic recession in the Federal Republic of Germany, the labour courts of appeal experienced a significant increase in their workload between 1974 and 1976. According to the statistics supplied by the Government at the request of the Court, the incidence of appeals from labour court judgments rose, as compared with the previous year, by 23.1 per cent in 1974, by 20.8 per cent in 1975 and by 9.7 per cent in 1976. In order to cope with this state of affairs, the relevant authorities increased the number of judicial posts by 9.6 per cent in 1974, by 12.5 per cent in 1975 and by 11.1 per cent in 1976. There were 17.3 per cent more cases dealt with in 1974, 27.5 per cent in 1975 and 13.4 per cent in 1976. As regards the Hamburg Court of Appeal in particular, 689 appeals were entered in 1974, 758 in 1975, 786 in 1976 and 756 in 1977; 716 appeals were decided in 1974, 700 in 1975, 798 in 1976 and 788 in 1977. The average length of proceedings progressed from 2.88 months in 1974 to 3.20 months in 1975, but then fell to 2.98 months in 1976, 2.79 months in 1977 and 2.53 months in 1978. In this respect, the Hamburg Court of Appeal was more favoured than the labour courts of appeal of the other Länder where, nevertheless, a downward trend was also registered. Examination of the 255 cases decided in 1975 and 1976 by the Third Chamber, which dealt with the Buchholz appeal, showed, according to the Government, that 163 cases were disposed of after one hearing, 59 cases after two hearings, 23 cases after three hearings and 10 cases after four to six hearings. 40. Faced with the backlog of labour court business in the 1970’s, the Government tabled in the legislative assemblies in 1978 a Bill designed, amongst other things, to expedite proceedings before the labour courts. The resultant Act entered into force on 1 July 1979. | 0 |
dev | 001-5336 | ENG | NLD | ADMISSIBILITY | 2,000 | ZOON v. THE NETHERLANDS | 4 | Inadmissible | Gaukur Jörundsson;Luigi Ferrari Bravo | The applicant is a Dutch national, born in 1950, and living in Calpe, Spain. He is represented before the Court by Mr G.H.J. Dolk, a lawyer practising in Rotterdam, the Netherlands. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was working as a general practitioner in Dirksland, the Netherlands, when, on 1 February 1994, two Regional Public Health Inspectors (Geneeskundig Inspecteurs van de Gezondheidszorg) filed a complaint against him with the Board for the Adjudication in First Instance of Cases concerning the Medical Code of Practice of The Hague (College voor de beslissing in eerste aanleg in zaken van het Medisch Tuchtrecht - hereinafter referred to as ‘Medical Disciplinary Board’). In the complaint it was alleged that the applicant had reserved for his own use opiates he had prescribed to patients, had administered medication for other than the usual purposes and had carried out surgical operations not customarily performed by general practitioners. Following two hearings the Medical Disciplinary Board decided on 31 August 1994 that the complaints brought by the Inspectors were well-founded. The applicant was disqualified from practising medicine. The applicant filed an appeal with the Hague Court of Appeal (Gerechtshof) which was rejected on 6 April 1995 after which the applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad). The Supreme Court examined the appeal on 8 September 1995. On 5 December 1995 the Advocate General (Advocaat-Generaal) at the Supreme Court submitted his advisory opinion proposing that the appeal in cassation be rejected. This advisory opinion was sent to the applicant’s representative the next day. Counsel for the applicant did not submit comments in reply to the opinion of the Advocate General. The Supreme Court rejected the appeal in cassation on 19 January 1996. B. Relevant domestic law and practice The duties and position of the Procurator General’s department (openbaar ministerie) are defined in the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie). The Procurator General’s department consists of the Procurator General and advocates general at the Supreme Court, the procurators general and advocates general at the Courts of Appeal and the public prosecutors at the Regional and District Courts (Article 3 § 1 of the Judiciary (Organisation) Act). The advocates general at the Supreme Court act as deputies of the Procurator General at that court and are subordinate to him (Articles 3 § 2, 5a and 6 § 1). The Procurator General’s department must be heard by the courts in so far as the law so prescribes (Article 4). In the instant case and at the relevant time, Article 96 § 3 of the Regulations Governing the Medical Code of Practice And The Resolution of Disputes (Reglement medisch tuchtrecht en oplossing van geschillen) provided for the hearing of the Procurator General. The advisory opinion of the Procurator General or an advocate general at the Supreme Court takes the form of a learned treatise containing references to relevant case-law and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal. According to Article 328 § 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) neither the parties nor their representatives are allowed to address the court after the Procurator General’s department has presented its opinion (Article 328 § 1 in conjunction with Article 326 of the Code of Civil Procedure). However, pursuant to Article 328 § 2 simple notes (eenvoudige aantekeningen) contesting facts which they believe have been presented incorrectly by the Procurator General’s department may be submitted to the President of the court by the parties or their representatives. In the case law of the Supreme Court such “simple notes” have been defined as notes limited to the pointing out of obvious errors which should in all reasonableness be considered beyond discussion (see, for example, the Supreme Court decisions of 17 March 1989 and 4 October 1991, in Nederlandse Jurisprudentie (NJ) 1989, no. 475, and 1991, no. 820 respectively). The Court’s judgment in the case of Borgers v. Belgium (judgment of 30 October 1991, Series A no. 214-B), and in particular its consequences for national practice, received considerable attention in Netherlands legal literature. In an interview published in Nederlands Juristen Blad (NJB) of 19 December 1991 (no. 45/46, pp. 1819-1820) the then Procurator General at the Supreme Court, J. Remmelink, stated that in his opinion the Borgers judgment, which concerned criminal proceedings, did not necessitate any changes to the practice of the civil division of the Supreme Court. In a reaction to this interview, J. de Boer argued that the Court’s reasoning in the Borgers judgment should be equally valid in civil proceedings (NJB 12 March 1992, no. 11, pp. 358-359). Shortly after the Borgers judgment it became customary, in criminal proceedings, to give the accused the opportunity to respond to the advisory opinion issued by the Procurator General or advocates general at the Supreme Court. Following an amendment to the Code of Criminal Procedure (Wetboek van Strafvordering), this practice is now set out in Article 439 of the Code of Criminal Procedure. According to Article 439 § 4, an appellant in cassation in criminal proceedings may submit written comments in reply within two weeks after the transmission of the advisory opinion to him or her. In respect of civil proceedings, the Supreme Court held in a judgment of 22 September 1995 (Rechtspraak van de Week 1995, no. 182 and NJ 1997, no. 418) that a second written reply to the Advocate General’s advisory opinion had to be set aside as it was contrary to the principle of due process to react to such an opinion twice. In a case leading to a judgment of 28 March 1997 the Supreme Court considered that it was free to take cognisance of comments submitted in response to the opinion issued by the Procurator General’s department by one of the parties unless this ran counter to the requirements of due process, seen also in light of the interests of the other party (NJ 1997, no. 581). A similar reasoning was adopted by the Supreme Court in a judgment of 12 September 1997 (NJ 1998, no. 687), in which the Supreme Court, referring to the Court’s judgment in the case of Vermeulen v. Belgium (judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I), held that: <Translation> “… where Article 328 [of the Code of Civil Procedure] prevents parties from responding to the advisory opinion of the public prosecution department as they see fit, it should be deemed inapplicable as being incompatible with the provisions of Article 6 of the Convention, as interpreted in the case-law of the European Court of Human Rights (cf. European Court, 20 February 1996, European Court Reports 1996-I, p. 224 ff). No restrictions other than those arising from due process, for instance in connection with the interests of the other party, apply to this document [i.e. the reply to the advisory opinion of the public prosecution department].” In order to observe the principle of due process, the Supreme Court allows a period of two weeks for the response to the advisory opinion of the Procurator General’s department. | 0 |
dev | 001-75524 | ENG | DEU | ADMISSIBILITY | 2,006 | VRYONIS v. GERMANY | 4 | Inadmissible | Peer Lorenzen | The applicant, Mr Athanassios Vryonis, has Greek and German nationality. He was born in 1962 and lives in Duisburg in Germany. The applicant is the father of the child K., born on 7 September 1992. The parents separated in November 1995. Following police intervention, the applicant’s wife and son found shelter in a women’s refuge, were they stayed until April 1996. On 13 February 1996 the Ahaus District Court (Amtsgericht) temporarily transferred parental custody to the child’s mother. The applicant’s appeals remained unsuccessful. Since August 1996 the child attended kindergarten in Bocholt. Throughout the proceedings, the child remained with his mother; until the summer of 1997 the applicant had regular access to him. In April 1998, following a visit during the Easter holidays, the applicant returned the child two days later than agreed upon. On 9 June 1998, following a weekend visit, the applicant refused to return K. to his mother. He took the child out of Bocholt kindergarten and registered him at a kindergarten in Duisburg. On 10 June 1998, upon the mother’s request, the Bocholt District Court ordered that the child be returned to his mother. As difficulties arose when the applicant had to return the child following a visit on 17 July 1998, which necessitated intervention by a Youth-Office officer, the applicant, allegedly upon the Youth Office’s advice, temporarily suspended the visits. On 15 December 1998 the applicant attempted to visit his son. A conflict arose between the parents which culminated in police intervention. On 23 March 1997 the applicant, represented by counsel, filed a petition for divorce with the Bocholt District Court, acting in the capacity of a family court. At the same time, he requested that sole parental authority over K. should be transferred to him. On 20 June 1997 the applicant, in separate interim proceedings, requested the Bocholt District Court to grant him access rights. On 28 July 1997 the District Court, in the proceedings on the applicant’s access rights, ordered the psychological expert W. to prepare an expert opinion as to how parental authority and access rights should be distributed between the parents. On 19 January 1998 W. submitted his expert opinion. He found that both parents were in principle able and willing to raise K. The mother, however, had not been able to build up an unburdened relationship with her son. Her personality was characterised by introversion, emotional instability and inhibition, by a low capacity to build and stabilise human relationships and by low emphatic capacities (geringe emotionale Mitschwingfähigkeit). The applicant, on the other hand, had a more stable personality and was considerably better apt to treat K. with empathy and loving understanding. The expert further found that the applicant did not show any remarkable signs of aggressiveness. It followed that the applicant was better able to raise the child and to serve him as a role model. The expert concluded that both parents should be granted joint custody, that the child should live with the applicant and that the mother should be granted regular visiting rights. On 30 June 1998 the parents concluded a friendly settlement according to which the applicant was granted visiting rights every second weekend from Friday night until Saturday night. As difficulties arose when the applicant had to return the child following the next visit on 17 July 1998, the applicant, allegedly upon the Youth Office’s advice, temporarily suspended the visits. On 24 March 1999 the District Court, in the divorce proceedings, ordered the preparation of a fresh expert opinion as to the distribution of parental authority and access rights by the psychological expert M. K. On 21 August 2000 M. K. submitted her expert report. Having on several occasions heard and examined both parents and the child, the expert noted that the implementation of the applicant’s access rights had failed because the applicant insisted on exercising these rights according to his own discretion, without accepting any rules. In this respect, the expert noted that the applicant wanted to fetch the boy at different times than agreed upon, that he refused to return him after visits and that he took him out of kindergarten and registered him in another one at his home place, without having parental authority. He further tried to discredit his wife. According to the expert, the applicant had been unable to realise that his behaviour was damaging his good relationship with his son. There was no indication that the mother influenced the child against him; on the contrary, the fact that the child still expressed the wish to see his father indicated that such influence had not taken place. The expert further noted that the mother was perfectly able to raise the child and that she tried to keep him as much as possible out of his parents’ post-marital conflicts. She had demonstrated her ability to deal with everyday conflicts. The applicant’s reproaches against her, which had culminated in the filing of criminal information, were unfounded. According to psychological tests and the mother’s reports, K. did not show any psychological abnormalities. This too indicated that the mother was able to educate and encourage him in accordance with his age and his individual needs. In so far as the mother was suspicious as to whether the applicant would abide by the agreements on visiting rights, this was justified by her previous experiences. The expert further found that the applicant had shown a high degree of aggressiveness. In so far as the expert W. had concluded that the applicant did not show any aggressive behaviour, his assessment had been based on psychological tests which had not been suitable for the purpose at hand. Finally, the expert expressed her doubts as to whether the applicant would be able to adequately deal with daily problems in case the child’s needs were opposed to his own interests. The expert concluded that the child K. loved and needed both parents. However, having regard to the persisting conflicts between the parents and the fact that the applicant did not accept the mother as his equal, the granting of joint custody would be contrary to the child’s best interests. She recommended that sole parental authority should be transferred to the mother. With regard to access rights, the expert noted that it would be in the child’s interest to have regular contacts with his father. However, both K. and his mother would have to be assured that the applicant abided by the rules set up for such contacts. As long as the applicant insisted that the child should live with him, as long as he degraded the mother and as long as he did not change his behaviour with a view to a more constructive strategy aimed at solving conflicts, such visits would have to be supervised. On 19 September 2000 the Bocholt District Court, having heard both parents, the child and the experts W. and M. K., issued the divorce decree, transferred sole parental authority to the child’s mother and temporarily suspended the applicant’s access rights. The District Court noted, firstly, that neither of the parents was willing to accept joint parental authority. Having regard to the development of the parents’ conflicts, which had not diminished in spite of the long period of separation, it would be contrary to the child’s best interests to award joint custody. This had not been contrary to the finding of the first expert W., who had favoured joint custody. In this respect, the District Court noted that W.’s expert opinion had been more than 2.5 years old and that W. himself, in a supplementary statement dated 27 February 1999, had declared that joint custody had to be excluded with a view to the subsequent developments. Furthermore, the expert had expressly declared that his expert opinion was “outdated” and that changed circumstances warranted a fresh examination. The District Court found that it was in the child’s best interest to transfer parental authority to the mother. The applicant was not able to properly raise the child. Following the expert M. K.’s opinion, that court found that the applicant was not able to adequately deal with daily problems in case the child’s needs were opposed to the applicant’s own interests. Furthermore, the child’s well-being was jeopardised by the applicant’s aggressive impulses and by the fact that the applicant did not accept the child’s mother as his equal, but tried to debase her. The child’s mother, on the other hand, had proved that she was able to raise the child and that she had developed strategies to solve conflicts of daily life. As established by the expert, she had succeeded in keeping K. out of his parents’ conflicts and to preserve the positive image he had of his father. Insofar as K. appeared to be shy and aggrieved when heard by the court, this had to be explained by the fact that the child was torn into the conflict between his parents and that he had to take sides between two persons whom he both loved. There was no indication that the child had been negatively influenced against his father, otherwise he would not have declared that he wished to have contact with him. This finding was not contrary to the conclusions drawn by expert W., as the latter had conceded that his report had to be updated as the parents’ personal circumstances had changed in the meantime. The District Court could not follow the expert W.’s finding that the applicant did no show any signs of aggressive behaviour. In this respect, it pointed out that in 1996, the lease of the applicant’s flat had been terminated on the ground that the applicant had attacked the lessor’s wife. In separate proceedings, the director of the women’s refuge where K.’s mother temporarily found shelter had given testimony on the applicant’s aggressive behaviour. The Regional Court noted that these findings were in line with the finding of the expert M. K., who attested the applicant violent impulses. The District Court further decided to temporarily suspend the applicant’s access rights pursuant to section 1684 of the Civil Code (Bürgerliches Gesetzbuch, see relevant domestic law below). It acknowledged that the child had a strong relationship to his father and that it would be desirable to grant regular contacts. This, however, was not possible at the present time. In this respect the District Court noted, firstly, that the applicant’s contacts with his child led to serious conflicts which necessitated police intervention. Referring to the expert M. K.’s finding, the District Court found that access rights could only be granted if the child could be assured that the applicant abided by the rules. As long as the applicant insisted on taking K. with him to Duisburg and did not accept any differing decisions – including court orders – such visits would have to be supervised. Such supervision was presently not possible as the applicant was not willing to accept any person as a supervisor, who did not completely meet his own expectations and who did not act accordingly. The Bocholt Youth Office could not act as a supervisor in the present case due to serious tensions between the applicant and the Youth Office. The applicant had lodged petitions for administrative and criminal review against the Youth Office. Accordingly, the latter had refused to act as a supervisor in the applicant’s case. Another possible supervisor, Mr B., was only willing to supervise visiting contacts if both parents agreed to this. During the court hearing, the District Court had phoned Mr B. in order to render visits possible. These endeavours failed, firstly, because the applicant was not willing to bear the costs entailed by supervision. Furthermore, the mother only agreed to commission Mr B. in case the applicant accepted that the child remained with her until a final court decision. The applicant had not been willing to make such a declaration. That the mother’s fears were not unfounded was demonstrated by the fact that the applicant had refused to return the child in the summer of 1998. There were no other persons available who could supervise visiting contacts. In any event, the problem would persist as the applicant was not willing to bear the necessary expenses. On 27 June 2001 the Hamm Court of Appeal (Oberlandesgericht) rejected the applicant’s appeal against the District Court’s decisions on parental authority and on the temporary exclusion of access rights. The Court of Appeal followed the District Court’s reasoning, according to which the serious tensions persisting between the parents excluded the possibility of joint custody. With regard to the transfer of parental custody to one parent, the Court of Appeal left the question undecided whether the applicant was sufficiently able to raise the child on a daily basis, as the mother had proved to be. The transfer of custody to the mother was in accordance with the wishes the child had expressed when heard by the expert and by the court. The most decisive point was that the transfer of custody to the mother gave continuity to the child’s present life and educational circumstances. A change of the child’s present life circumstances which would be added to the psychological burden which had already been imposed on him by his parents’ separation could only be justified if such change was compensated by considerable advantages for the child. Such advantages could not be found in the present case. Following the expert M. K.’s opinion, that court found that the child was well taken care of by his mother. It was not necessary to determine whether the finding of the expert W. had been scientifically correct, as they dated back to 1998 and the decision had to be taken according to the current circumstances. The expert W. did not claim that his findings were still valid. He had, on the contrary, stated that M. K.’s recommendations may be correct for the time of her examination. The issue which parent was more ready to accept the child’s relationship with the other parent (Bindungstoleranz) clearly pointed in favour of the mother. This was established by the expert M. K.’s findings as well as by the applicant’s unfounded allegations during custody and access proceedings, who had reproached the mother of “brainwashing” and abusing the child. The fact that the child had looked forward to meet his father disproved the allegations that the mother had influenced the child against him. With respect to the decision on the temporary exclusion of access rights, the Court of Appeal confirmed the District Court’s finding that unattended visits could not be granted as long as the applicant did not respect the rules set up for such meetings. Supervised visits were currently not feasible as the applicant refused to cooperate. The Court of Appeal noted that the Youth Office could not supervise meetings, as the applicant did not accept the Youth Office’s staff and that the Youth Office had consequently refused to undertake that task. The Court of Appeal further noted that the District Court, in its hearing of 29 August 2000, had tried to arrange supervised visits. These endeavours had failed inter alia because the applicant had been unwilling to bear the necessary expenses, in spite of being legally obliged to do so. The applicant had not changed his attitude during second instance proceedings. On 1 March 2002 the Federal Constitutional Court (Bundesverfassungsgericht) refused to accept the applicant’s constitutional complaint and joint request for an interim order for adjudication. The relevant provisions of the Civil Code (Bürgerliches Gesetzbuch) read as follows: Section 1671 Living separately and joint parental authority “(1) If parents who share joint parental authority are separated more than temporarily, each parent can request the family court to be transferred either sole parental authority or part of the parental authority. (2) The request shall be granted if 1. the other parent consents, unless the child is at least fourteen years of age and is opposed to the transfer, or 2. if it is to be expected that the lifting of joint parental authority and its transfer to the applicant is best suited to serve the child’s welfare ...” Section 1684 Contacts between parent and child “(1) The child is entitled to have access to both parents; each parent is obliged to have contact with, and is entitled to have access to the child. (2) The parents must not do anything that would harm the child’s relationship with the other parent or interfere with the child’s upbringing... (3) The family courts can determine the scope of the right of access and can prescribe more specific rules for its exercise, also with regard to third parties. They may oblige the respective parties to fulfil their obligations under paragraph 2. (4) The family court can restrict or suspend access rights or the execution of previous decisions on access if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered. The family courts may order that the right of access be exercised under the supervision of a third party. Such a third party may be a Youth Office or a private association...” | 0 |
dev | 001-108189 | ENG | UKR | CHAMBER | 2,011 | CASE OF TESLENKO v. UKRAINE | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1974. His present place of residence is unknown. 6. On 4 August and 5 November 2003 Ms Z. and Ms G. were robbed in their flats. The first robbery took place in the building where the applicant’s acquaintance Ms M. lived, while the second victim was her distant relative. 7. On 5 November 2003 the police questioned Ms M., who was suspected by one of the victims. She stated that both robberies had been committed by the applicant and his friends. 8. On 8 November 2003 Ms M. was hospitalised with a head injury and concussion. On 10 November 2003 she complained to the Ministry of the Interior that she had been coerced by the police into testifying against the applicant. After this Ms M. went into hiding from the authorities. Her complaint was later examined as part of the applicant’s trial (see paragraph 14 below). 9. Late in the evening of 5 November or during the early hours of 6 November 2003 the applicant was apprehended by the police on suspicion of the robberies of Ms Z. and Ms G. His arrest was documented on 6 November 2003. 10. On 2 June 2004 the Solomyanskyy District Court of Kyiv (“the Solomyanskyy Court”) severed the charge concerning the robbery of Ms Z. and remitted the case in that part for additional investigation. Its outcome is unknown. 11. While it is not known when the applicant began to be legally represented, it transpires from the aforementioned ruling of 2 June 2004, as well as from the subsequent judicial decisions, that from that point onwards one or sometimes two lawyers represented him in the course of the trial. 12. Although the applicant consistently denied guilt, both during the pre-trial investigations and the trial, on 11 November 2004 the Solomyanskyy Court found him guilty of the violent robbery of Ms G. and sentenced him to seven years and six months’ imprisonment with confiscation of all his personal property. The court relied on the statements of the victim, who recognised the applicant as one of the perpetrators, as well as the statements of a witness who had seen him close to the crime scene around the time of the robbery. The court further relied on the statements given by Ms M. during the pre-trial investigation. It also heard statements from two defence witnesses, according to which the applicant had spent the whole day with them on 5 November 2003, but did not trust the statements, deeming them too general and contradictory. 13. On 24 May 2005 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the judgment and remitted the case for additional investigation, having pointed out a number of procedural shortcomings. 14. On 22 May 2007 the Solomyanskyy Court delivered a new judgment, the operative part of which was identical to the previous one. The court additionally heard a number of defence witnesses who stated that they had either spent the whole day on 5 November 2003 in the applicant’s company or had seen him at various times on that date. The court decided, however, that those statements were either untruthful, because the witnesses were the applicant’s friends and wanted to help him avoid criminal liability, or unrelated to the precise time when the robbery had been committed. Ms M. was questioned during the trial and retracted her earlier statements incriminating the applicant as given under duress. However, the court chose to rely on those earlier statements as more plausible and concordant with the other facts. It noted, in particular, that she had not requested a medical examination until two days after her questioning by the police and that there was no evidence that the injuries discovered had been inflicted on her in police custody. While Ms M. contended that she had been hiding in fear that the police might seek revenge, the court considered it more probable that she had in fact been afraid that the applicant’s accomplices who had not been detained might seek revenge. 15. On 5 February and 9 June 2008 the Court of Appeal and the Supreme Court respectively upheld the aforementioned judgment. 16. On 12 August 2009 the applicant was released on parole. 17. According to the applicant, the Chief and Deputy Chief of the Criminal Investigation Unit of the Solomyanskyy District Police Department (начальник та заступник начальника відділу кримінального розшуку Солом’янського РУ ГУ МВС України в м. Києві), officers T. and Z., tortured him in the police station at Povitroflotskyy Avenue during the night of 5-6 November 2003. They allegedly sought, but failed to obtain, a confession from him to several counts of robbery. 18. As submitted by the applicant, T. and Z. punched and kicked him, forced him to stand for a long time with his legs wide apart, attempted to insert a truncheon into his anus, and put a plastic bag over his head, stopping him from breathing. In the early hours of 6 November 2003 they allegedly took him to the police station garage, where they forced him to undress, handcuffed him to a radiator and poured cold water on him from a car-wash hose until he lost consciousness. After the applicant regained consciousness, he found himself inside the police station and was given a mug of hot water to drink and some drops. 19. On 6 November 2003 the applicant wrote an “explanatory note”, stating that he had accidentally fallen in the street the night before and had received some injuries as a result. He noted that he had no complaints against the police. 20. In the afternoon of 6 November 2003 the applicant was taken to another police station in Shutov Street, Solomyanskyy District, TUM-4 (Територіальне управління міліції № 4, ТУМ-4). 21. On 11 November 2003 the applicant’s mother complained to the Ombudsman that he had been ill-treated in police custody. 22. On 12 November 2003 representatives of the Ombudsman visited the applicant in TUM-4 and took photographs of his injuries. The applicant provided the Court with seven colour photographs, which, according to him, are those taken by the Ombudsman’s representatives. From these photographs, the following injuries can be seen on his body: a large bruise on the inner part of his left thigh, a considerable number of bruises on the upper parts of both buttocks, several sores and bruises on the front of both ankles, and sores on the bridge of his nose. The date printed on the photographs is 12 November 2003. 23. On the same date the applicant gave an account of the 5-6 November events to the Ombudsman’s representatives in writing. He submitted that on 6 November 2003 he had been forced to write that he had no complaints against the police. 24. On 13 November 2003 the Ombudsman wrote to the Ministry of the Interior that the applicant’s situation called for investigation. 25. On the same date a doctor examined the applicant and discovered sixteen bruises on his face, arms, buttocks and legs (with the largest one measuring 21 x 20 centimetres), as well as sores on his wrists and feet. He concluded that the injuries were not serious, and that they had been inflicted by blunt objects, possibly on 5 or 6 November 2003. 26. On 17 November 2003 an investigator of TUM-4 and the Chief Inspector of Staff of the Kyiv Police Department (начальник Інспекції по особовому складу РУ МВС України) questioned the applicant about his alleged ill-treatment. 27. On 21 November 2003 another investigator of TUM-4 ordered another forensic medical examination aimed at answering the following questions: whether the applicant had any injuries on his body and, if so, how they had been inflicted; whether those injuries could have been inflicted on 5 or 6 November 2003; and how serious they were. 28. On 25 December 2003 the Solomyanskyy District Prosecutor’s Office (“the SDPO”) instituted a criminal investigation, without naming any specific individuals, into the allegation that Solomyanskyy District police officers had exceeded their powers by engaging in violent and degrading treatment of the applicant. The investigation was entrusted to SDPO investigator N. 29. On 26 January 2004 a new forensic medical report confirmed the results of the applicant’s medical examination of 13 November 2003. 30. On 9 February 2004 the investigator ordered another medical examination to clarify: whether the applicant could have inflicted the injuries on himself; whether he could have sustained those injuries by falling; what his body position had been during the infliction of the injuries; and whether he could have sustained them in self-defence. 31. On 12 February 2004 an expert report answered those questions as follows: the injuries were to parts of the applicant’s body on which self-infliction would be possible; the possibility that they had been the result of a fall was excluded; and the remaining two questions could not be answered. 32. In the meantime, on 11 February 2004, the applicant was assigned victim status. 33. On 6 April 2004 the investigator questioned the forensic medical expert, who confirmed that the applicant could have sustained his injuries at the time and under the circumstances described by him. 34. On 20 April 2004 the SDPO opened a criminal case against police officers T. and Z. on suspicion of abuse of power associated with violence and degrading treatment (Article 365 § 2 of the Criminal Code), given that the applicant had recognised them as those who had allegedly tortured him. 35. On the same date those officers were suspended from duty. 36. On 30 April 2004 they were indicted, and the case was sent to the Golosiyivskyy District Court of Kyiv (“the Golosiyivskyy Court”). 37. On 9 August 2004 the Golosiyivskyy Court directed the SDPO to find out with whom the applicant had shared cells from 6 to 12 November 2003 and to question these persons. 38. On 20 October 2004 the court referred the case back to the SDPO for additional investigation, which was to clarify the origin of the applicant’s injuries given that, on the one hand, they were to parts of his body on which self-infliction would be possible and, on the other hand, his cell-mates at the time had not been identified or questioned. 39. On 22 January 2005 the forensic medical expert, repeatedly questioned by the investigator, confirmed again her earlier findings that the applicant’s injuries could have been inflicted as he had described. 40. On 8 February 2005 formal charges were brought against T. and Z. under Article 365 § 2 of the Criminal Code. 41. On 18 February 2005 the SDPO invited the Kyiv Chief of Police to consider suspending T., who had resumed his work as a police officer at some point in the meantime, from his duties. 42. On 25 March 2005 the SDPO approved a bill of indictment against T. and Z. and sent the case to the Golosiyivskyy Court for examination. 43. On 26 April 2005 the trial began. 44. On 16 May 2005 the applicant lodged a civil claim seeking compensation for non-pecuniary damage in the amount of 200,000 Ukrainian hryvnias (UAH). 45. On 16 August 2005 the Golosiyivskyy Court found T. and Z. guilty and sentenced them to four years’ imprisonment with a prohibition on working in law-enforcement bodies for two years. The prison sentence was suspended for two years on probation. The court also awarded the applicant UAH 20,000 in compensation for non-pecuniary damage, to be paid by the defendants. 46. While both defendants admitted that they had questioned the applicant on the night of 5-6 November 2003 in the police station at Povitroflotskyy Avenue, they denied any coercion. However, the court found that there was sufficient evidence to establish their guilt. It took into account statements by several witnesses, who had seen the applicant during the day before his arrest without any visible injuries. Furthermore, the court relied on the statements of the applicant’s cell-mates in TUM-4 at Shutov Street (where he had been placed in the afternoon of 6 November 2003), who, on the one hand, had seen numerous bruises and sores on his body, but, on the other, denied any ill-treatment in TUM-4. Also, the police officers who had escorted the applicant from the police station at Povitroflotskyy Avenue to TUM-4 on 6 November 2006 stated that at that time his face was already bruised and swollen. The court also examined the photographs of the applicant taken by the Ombudsman’s representatives on 12 November 2003 and relied on the findings of the medical reports of 26 January and 12 February 2004. It noted that the applicant’s description of the police station garage where he had allegedly been ill-treated, was very detailed and subsequently confirmed as accurate, which showed that he had indeed been there. 47. On 13 February 2006 the Court of Appeal quashed the judgment and remitted the case for additional investigation. It concluded that the investigation had been incomplete, mainly because it had failed to establish how exactly the injuries had been inflicted on the applicant. 48. On 22 March 2006 investigator S. of the SDPO took the case over. 49. On 21 April 2006 he ordered another forensic medical examination with a view to clarifying the number, nature, location, origin and date of each of the applicant’s injuries. 50. On 15 May 2006 an expert report was produced, which confirmed the findings of the earlier reports. It further specified that the abrasions on the applicant’s wrists could have been caused by handcuffs, while the bruises could have been caused by being punched, kicked or hit with a truncheon. 51. On 24 July 2006 the investigator instructed the Kyiv Chief of Police to find the truncheon with which the applicant could have been beaten. The reply given on 27 July 2006 stated that it could not be found. 52. On 25 July 2006 T. was again suspended from duty (it is not known when he resumed his duties following the earlier removal). 53. On 22 August 2006 investigator S. decided to withdraw from the case. He considered that the evidential basis was limited to the applicant’s allegations and not corroborated by any other valid evidence. The investigator grounded his withdrawal by that view and further referred to the principle of the impartiality of the investigation. 54. On the same date the SDPO reversed that withdrawal as lacking legal basis. 55. On 27 March 2007 the investigator applied to the Deputy General Prosecutor for an extension of the term of the pre-trial investigation to eight months (the six-month term was to expire on 7 April 2007) given that the accused had not yet studied the case file. In the application the investigator however indicated that T. and Z. had been protracting the investigation by taking an unjustifiably long time to familiarise themselves with the file and by unmeritorious requests for unnecessary investigation measures. 56. On 16 June 2007 the SDPO indicted T. and Z. again. 57. On 30 July 2007 the Golosiyivskyy Court started the examination of the case. 58. On 17 September 2007 the applicant brought a new civil claim against T. and Z. within the criminal proceedings. 59. During the period between September 2007 and March 2008 the court adjourned hearings eight times for a total of over three months because of the absence of a number of witnesses. 60. On 7 March 2008 the Golosiyivskyy Court again remitted the case for additional investigation on the following grounds: the defendants’ lawyer had been deprived of his licence at some point during the pre-trial investigation, but had nonetheless continued to represent them. As a result, the court considered that the defence rights of T. and Z. had been violated. 61. On 29 May 2008 the Court of Appeal quashed that decision and referred the case back to the first-instance court, allowing the public prosecutor’s appeal. 62. On 10 July 2009 the Golosiyivskyy Court issued a special ruling (окрему ухвалу) bringing to the attention of the Kyiv Chief of Police the latter’s failure to comply with the court orders of 14 April, 20 May and 19 June 2009, that the obligatory attendance of numerous witnesses should be ensured. The orders were that the police were to take appropriate measures and report to the court. 63. On 21 July 2009 the applicant wrote the following statement addressed to the President of the Golosiyivskyy Court: “I, Teslenko Anatoliy Grigoryevich, would like to make the following statement. The Golosiyivskyy District Court of Kyiv is currently examining a case against the Chief of the Criminal Investigation Department [T.] and [Z.], in which I am a victim. I retract the statements which I gave in the prosecutor’s office under pressure from the investigator and in court, namely that it was precisely [T. and Z.] who had beaten and humiliated me. The investigator [N.] demanded that I identify [T. and Z.]. In exchange, he promised I would be acquitted and that criminal department officials would be held liable. I remembered [T.] because he had been the Chief, and [Z.] because he had been wearing glasses. I could recognise only those two, as I could not, and do not now, remember any other officers. I was beaten up at Shutov Street, no. 3, as they really needed my confession to the robbery. But I did not remember any officers from Shutov [street], and I was advised to incriminate those I remembered. When the investigator [N.] came to see me, I was at a loss and did not know what to tell him. But he reassured me and told me that I did not have to worry and that I was to testify against those I remembered. As to what exactly I had to tell and to show, he told that he would help me. At the same time, he promised that if I followed his advice I would be at liberty shortly. It is very difficult for me now to testify before the court, for I have got confused in my statements because it was the investigator [N.] who gave them to me. I therefore request you not to disturb me any longer regarding the case of [T. and Z.] and not to bring me to the court”. 64. On 18 September 2009 the Golosiyivskyy Court directed the SDPO investigator to establish the actual places of residence of twenty-two witnesses whose obligatory presence had been ordered, but who had failed to attend and whom the police had failed to bring to the courtroom. Ten of the witnesses in question were police officers, nine were detained (at the time) in the police stations where the applicant had been placed on 6 November 2003, two were acquaintances of the applicant, and one was the forensic expert. 65. On 6 October 2009 the Golosiyivskyy Court also ordered obligatory attendance by the applicant, who had been released from prison in the meantime in July 2009 and had not been appearing for hearings. 66. On 19 October 2009 the police informed the court that the applicant’s actual place of residence could not be established. 67. On 24 March and 18 May 2010 the court ordered mandatory attendance by the applicant, to be ensured by the police. 68. On 24 June 2010 the Golosiyivskyy Court referred the case for additional investigation, given the need to question the applicant regarding his statement of 21 July 2009. 69. On 20 September 2010 the Kyiv Court of Appeal quashed the aforementioned decision and remitted the case to the first-instance court for examination. The parties did not provide the Court with a copy of this ruling. 70. According to the most recent information submitted by the Government in February 2011, the case remains pending before the Golosiyivskyy Court. 71. Article 365 § 2, as worded in November 2003, provided for three to eight years’ imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of up to three years as punishment for exceeding one’s power by engaging in the violent or degrading treatment of a victim. 72. The relevant extracts from Chapter 3.3 provide as follows: “... On 11 November 2003 the mother of detained A. Teslenko complained [to the Ombudsman] that her son had been tortured in the Solomyanskyy Police Department (у Солом’янському РУ ГУ МВС України в м. Києві). Staff members of the Ombudsman’s Secretariat verified this allegation on site and found numerous traces of beatings on the body of A. Teslenko (photos were taken). A. Teslenko gave the following explanations to the staff of the Ombudsman’s Secretariat: “I was tortured for thirteen hours in the district police station. Trying to extract a confession to a crime from me, they beat me, forced me to stand with my legs wide apart (садили на «шпагат»), prevented me from breathing by putting a plastic bag over my head, hanged me naked from handcuffs and poured cold water on me for forty minutes, threatening to make a General Karbyshev out of me. To conceal the torture, they forced me to write a statement that I had injured myself by an accidental fall on my way home the previous evening and that I had no complaints against the police.” By the way, this is a typical example: police officers often force the victims of torture to write a no-complaint statement under threats that the torture will continue or in exchange for release. Later on [such statement] is used by the police as a key proof of their innocence as regards any injuries sustained by the person. After its own investigation and the Ombudsman’s application to the General Prosecutor’s Office concerning the verification of A.Teslenko’s allegations, the Solomyanskyy District Prosecutor’s Office opened a criminal case concerning the police officers, which is now being examined by the Golosiyivskyy District Court of Kyiv. ...” | 1 |
dev | 001-114486 | ENG | FIN | CHAMBER | 2,012 | CASE OF H. v. FINLAND | 3 | Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life) | George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1963 and lives in Helsinki. 6. The applicant was born male. She always felt that she was a female in a male body but decided to cope with the situation. In 1996 she married a woman and in 2002 they had a child. 7. The applicant started feeling worse in 2004, and decided in 2005 to seek medical help. In April 2006 she was diagnosed as transgender. Since that time, she has lived as a woman. On 29 September 2009 she underwent gender re-assignment surgery. 8. On 7 June 2006 the applicant changed her first names and renewed her passport and driver’s licence but she could not have her identity number changed. The identity number still indicates that she is male, as does her passport. 9. On 12 June 2007 the applicant requested the local Register Office (maistraatti, magistraten) to confirm her as being female and to change her male identity number to a female one as it no longer corresponded to reality. 10. On 19 June 2007 the local Register Office refused the applicant’s request. It found that, according to sections 1 and 2 of the Act on Confirmation of the Gender of a Transsexual (laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet), the confirmation required that the person was not married or that the spouse gave his or her consent. As the applicant’s wife did not give her consent to the transformation of their marriage into a civil partnership (rekisteröity parisuhde, registrerat partnerskap), the applicant’s new gender could not be introduced in the population register. 11. On 6 July 2007 the applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) complaining, inter alia, that her wife’s decision not to give consent, to which she was perfectly entitled as they both preferred to remain married, meant that the applicant could not be registered as a female. A divorce would be against their religious convictions. A civil partnership did not provide the same security as a marriage and this would mean, among other things, that their child would be put into a different situation vis-à-vis children born within wedlock. 12. On 5 May 2008 the Helsinki Administrative Court rejected the applicant’s appeal on the same grounds as the local Register Office. Moreover it found, inter alia, that the impugned decision of 19 June 2007 was not contrary to Article 6 of the Constitution as same-sex partners had a possibility, by registering their relationship, to benefit from family law protection in a manner partially comparable to a marriage. Similarly, Sections 1 and 2 of the Act on Confirmation of the Gender of a Transsexual did not violate the constitutional rights of the applicant’s child. 13. On 8 May 2008 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen), reiterating the grounds presented before the local Register Office and the Administrative Court. She also asked the court to make a request for a preliminary ruling to the Court of Justice of the European Communities, in particular on the interpretation of Article 8 of the European Convention on Human Rights. Referring to Articles 8 and 14 of the Convention, the applicant claimed that the State should not tell her that a civil partnership was appropriate for her, especially when it required that her wife become a lesbian. Their sexual identity was a private matter which could not be a condition for the confirmation of gender. Transgenderism was a medical condition falling within the scope of private life. The State was violating her right to privacy every time the male identity number revealed her to be transgender. Moreover, she claimed that if her marriage were turned into a civil partnership, it would mean that she could no longer be a legal father to her child nor his mother, as a child could not have two mothers. 14. On 3 February 2009 the Supreme Administrative Court refused the applicant’s request for a preliminary ruling and rejected her appeal. It found that by adopting the Act on Confirmation of the Gender of a Transsexual the legislator did not mean to change the fact that only a man and a woman could marry and that same-sex partners could have their relationship judicially confirmed by registering it. The European Court had found under Article 12 of the Convention that there were no acceptable grounds to deny transgender persons their right to marry but that the margin of appreciation in this respect was large. It was not possible under Finnish law for persons of the same sex to marry but, in such a case, it was a question of a civil partnership. As to its juridical and economic consequences, a civil partnership was essentially comparable to a marriage. The question of transforming the marriage institution into a gender-neutral one was connected to significant ethical and religious values and it was to be solved by an act enacted by Parliament. The current state of law was within the margin of appreciation given to the State by the European Convention. 15. On 29 October 2009 the applicant lodged an extraordinary appeal with the Supreme Administrative Court, requesting it to annul its previous decision of 3 February 2009. She stated that she had undergone gender reassignment surgery on 29 September 2009 and that she could no longer prove that she had been male, as indicated by her identity number and passport. Even though, for marriage purposes, she would still be considered as male, the fact remained that she should not be discriminated against due to her gender. 16. On 18 August 2010 the Supreme Administrative Court refused the extraordinary appeal. 17. On 29 August 2007 the applicant applied for reimbursement of the costs of some hormonal medicine which was part of her treatment. 18. On 5 October 2007 the Social Insurance Institution (Kansaneläkelaitos, Folkpensionsanstalten) refused her application as she was deemed to be entitled to the reimbursement only once she had been given a new identity number. 19. By letter dated 11 October 2007 the applicant appealed to the Social Security Appeal Board (Sosiaaliturvan muutoksenhakulautakunta, Besvärsnämnden för social trygghet) claiming, inter alia, that she had been discriminated against. 20. On 21 January 2010 the Social Security Appeal Board accepted the applicant’s appeal and changed the decision of 5 October 2007 by the Social Insurance Institution, finding that the applicant was entitled to reimbursement. 21. As no appeal was made against this decision, it became final. 22. On an unspecified date the applicant also filed a complaint with the Ombudsman for Equality (Tasa-arvovaltuutettu, Jämställdhets-ombudsmannen), complaining about the wrong identity number as well as the reimbursement of medical costs. 23. On 30 September 2008 the Ombudsman for Equality stated that she could not take a stand on the identity number issue as the matter had already been dealt with by the Administrative Court and the Ombudsman was not competent to supervise the courts. Moreover, the matter was pending before the Supreme Administrative Court. As to the reimbursement of medical costs, the Ombudsman found that the fact that the reimbursement was conditional on the identity number and not on medical grounds placed transgender persons in a different position to other persons receiving the same treatment. She recommended that the Social Insurance Institution change its practice in this respect in order to prevent discrimination against transgender persons. 24. Article 6 of the Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides the following: “Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development. Equality of the sexes is promoted in societal activity and working life, especially in the determination of pay and the other terms of employment, as provided in more detail by an Act.” 25. Section 1 of the Act on Confirmation of the Gender of a Transsexual (laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet; Act no. 563/2002) provides that it shall be established that a person belongs to the opposite gender to the one noted in the population register if he or she: “1) provides medical clarifications that he or she permanently feels that he or she belongs to the opposite gender and lives in the corresponding gender role as well as that he or she has been sterilised or is for some other reason incapable of reproducing; 2) is above 18 years of age; 3) is not married or in a civil partnership; and 4) is a Finnish citizen or has residence in Finland.” 26. Section 2 of the same Act provides for exceptions from the marital status requirement. A marriage or a civil partnership does not prevent the confirmation of gender if the spouse or the partner personally gives his or her consent to it before a local Register Office. When belonging to the opposite gender is confirmed, a marriage is turned ex lege into a civil partnership and a civil partnership into a marriage. This modification shall be noted in the population register. | 0 |
dev | 001-68687 | ENG | MKD | ADMISSIBILITY | 2,005 | SKENDER v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 2 | Inadmissible | David Thór Björgvinsson | The applicant, Mr Fatmir Skender, Turkish by birth, is a national of the former Yugoslav Republic of Macedonia. He was born in 1966 and lives in the village of Mal Papradnik, Centar Župa. The facts of the case, as submitted by the parties, may be summarised as follows. According to the Primary Education Act, pupils have to attend State primary schools in their place of residence. However, in the school situated in the applicant's district Centar Župa no classes in Turkish were available. Between September and 18 December 1996 the applicant's older daughter attended the primary school in the village of Kođađik in a different district where education in Turkish was provided. However, according to the applicant, on 19 December 1996 classes were allegedly interrupted by the police and the school director announced that pupils from other villages were no longer allowed to attend classes in the Kođađik school. On 11 June 1997 the Ministry of Education and Sport (“the Ministry”) refused the applicant's request of April 1997 to provide education in Turkish in Centar Župa. It stated, inter alia, the following: “... we inform you that the Council of Ministers ... [on] 2 September 1996 decided the following: 1. The Ministry of Education and Sport is responsible for providing education in the primary schools in the Municipality of Debar - Centar Župa in accordance with the Constitution and the Primary Education Act. 2. ... [education in] Macedonian cannot be replaced by [education in] Turkish [in Centar Župa], as the children have not been speaking Turkish before they started attending the school. 3. The Ministry ... is instructed to inform the parents of the pupils who boycotted the classes ... and request the [pupils] to return to the school [in Centar Župa] where special courses will be given so that [they could] catch up with the rest ... The Ministry of Education and Sport urges that your children attend the courses in the [primary school]... in Centar Župa in accordance with the Primary Education Act.” On 31 August 1999 the Ministry decided to provide education in Turkish in the school in Centar Župa for the pupils whose mother tongue was Turkish in accordance with the Council of Ministers' decision of 10 August 1999 to that effect. On 17 May 2000 the political party 'Liga za Demokratija' and the associations of citizens “The World Macedonian Congress” and “the Association of the Macedonians with Muslim Religion in Macedonia” asked the Constitutional Court to examine the constitutionality of the Council of Minister's decision of 10 August 1999 and the respective Ministry's decision of 31 August 1999. On 5 July 2000 the Constitutional Court declared the decisions null and void on the following grounds: “... ... it, inter alia, appears that (1) the impugned acts determined that Turkish was the mother tongue of all the pupils [residing in] the municipality of Centar Župa ... 5. Under Article 48 § 4 of the Constitution the members of the national minorities have the right to education in their language in primary and secondary schools in accordance with the respective law. In the schools where the education is in the languages of the minorities, the Macedonian language shall be studied as well. It follows that the members of the minorities are educated in the primary and secondary schools in their language, and that is, according to the court, the language of their choice [which they use] in their everyday life. Therefore, the provision of the Constitution established objective criteria for the fulfilment of the right to education of the national minorities in their language [which] does not depend on the subjective will of the State bodies ... The impugned acts provide education in Turkish for the pupils in the municipality of Centar Župa who use the Macedonian language of their choice in their everyday communications and, thereby, express their national identity, and who do not use the Turkish language in their everyday communications and of their choice. Thus, [the acts] exceeded the boundaries of the Constitutional framework setting out the rights of the national minorities to education in their language (Article 48 § 4 of the Constitution) and inhibited the achievement of the purpose of education - to provide knowledge, and impinged upon the very content of the right to education, i.e. the [right to] education is being manipulated with the purpose of changing the national identity of a number of pupils in the municipality. Therefore, the court finds that the impugned acts are not in conformity with the aforementioned Constitutional provision. ...” On 22 February 1997 the applicant asked the Kođađik school to admit his older daughter. Since he received no reply, on 20 March 1997 he complained to the Second Instance Government Commission (“the Commission”). No reply was received by the applicant. On 4 June 1997 the applicant brought administrative proceedings before the Supreme Court, arguing that his daughter had the right to education in Turkish. On 16 June 1997 the Kođađik school refused to enrol the applicant's older daughter as the applicant's place of residence was in a different district. On 8 October 1997 the Supreme Court refused to examine the applicant's complaint on the merits in respect of the Kođađik school's refusal to enrol his older daughter. It, inter alia, stated: “... Under section 26 § 1 of the Administrative Disputes Act if the second instance administrative body does not pass a decision within sixty days, and on the person's repeated request to act does not reply within seven days, the person may institute administrative proceedings ... ... it cannot be established from the submitted documents that the [second instance] administrative body received [the applicant's] second request to act ... it follows that the complaint is premature. The applicant's request that the Ministry provides education in Turkish ... is inadmissible, as under section 6 of the Administrative Disputes Act a complaint may only be lodged concerning the administrative acts and the [applicant's] request is not an administrative act ...” On 28 May 1998 the applicant requested the Constitutional Court to quash the Supreme Court's decision of 8 October 1997. He, inter alia, complained that the court had assessed the evidence wrongly and that his daughter had been discriminated against as a result of the Supreme Court's decision since she was denied access to a Turkish-speaking school. On 17 June 1998 the applicant was informed that the Constitutional Court had not been competent to deal with his complaint. On 9 December 1998 the Constitutional Court refused to examine the applicant's complaint that the Supreme Court's decision of 8 October 1997 interfered with his daughter's right to education in Turkish. It, inter alia, held that: “... the Supreme Court did not decide on the enjoyment of the right to primary education in the language of the minorities, but on the procedural conditions ... to institute administrative proceedings, as such [the decision] cannot have any repercussions in favour or to the disadvantage of the applicant ... ... the [impugned] decision is procedural and [does not examine] the merits and does not concern the right to primary education in the minorities' languages, therefore, the court holds that there are procedural impediments to examine the applicant's complaint ... ...” On 18 May 1998, the applicant requested that his younger daughter D. be enrolled in the Turkish-speaking primary school in Kođađik. On 28 August 1998 the applicant's request was refused by the Principal of the school as he lived in another district. On 31 August 1998 the applicant applied to the Supreme Court to expand his existing claim concerning his older daughter with complaints concerning his younger daughter D. On 21 October 1998, the Supreme Court informed the applicant that it was not possible to expand his claim as the case concerning his older daughter had terminated on 8 July 1998 and that his application would be treated as concerning a new claim. He was requested to identify and provide a copy of the administrative act against which the claim was directed within fifteen days. On 6 November 1998, the applicant wrote to the local office of the Ministry lodging an objection with the refusal of the Kođađik school to enrol D. On 23 December 1998 the Supreme Court refused to examine the applicant's complaint about the school's refusal on the ground that he had not complied with the fifteen day time-limit for completing his appeal. On 1 February 1999 the applicant complained to the Commission that he had not received a reply to his objection. On 4 March 1999 the Ministry informed the applicant that he should enrol his daughter in the school in his place of residence. On 15 March 1999 the applicant applied again to the Commission, considering that this was neither a decision nor an administrative act and requiring that a decision be taken. On 28 April 1999, having not received an answer from the Commission, the applicant lodged an administrative complaint with the Supreme Court. From 1 September 1999, following the decision of the Ministry on 31 August 1999, children in the primary school in Centar Župa whose parents had requested them to be taught in Turkish, including the applicant's daughter D., commenced their regulation education classes which were conducted in Turkish. On 24 November 1999, the Supreme Court requested the applicant to specify the basis of his complaints. On 21 November 2000 the Supreme Court dismissed the applicant's administrative complaint on the ground that under the Primary Education Act pupils were assigned to schools in accordance with their place of residence and that he had been informed that his daughter had to attend the school in Centar Župa. The court further relied on the Constitutional Court's decision of 5 July 2000 annulling the Government's decisions to provide education in Turkish in Centar Župa. The Centar Župa primary school attended by D. continues to teach regular classes in Macedonian, Albanian and Turkish. Article 44 provides as follows: “Every person has the right to education. Education is accessible to all persons under equal conditions. Primary education is compulsory and free of charge.” Article 48 provides as follows: “The members of minorities have the right to express, nurture and promote their identity and national attributes. The Republic guarantees the protection of their ethnic, cultural, linguistic and religious identity. The members of minorities have the right to establish institutions for culture and art, as well as scientific and other associations to express, nurture and promote their identity. The members of minorities have the right to education in their language in the primary and secondary schools in accordance with the relevant law. In the schools where the education is provided in the minorities' languages, the Macedonian language shall also be taught.” Article 110 § 3 sets out the Constitutional Court's competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication, conscience, opinion and public expression, political association and activities, as well as prohibition of discrimination on the grounds of gender, race, religion or national, political or social affiliation. Article 112 provides that the Constitutional Court shall repeal or revoke a law if it determines that it does not conform to the Constitution and that it shall repeal or revoke any other regulation or enactment, collective agreement, statute or programme of a political party or association, if it determines that it does not conform to the Constitution or law. Section 51 provides that a person who claims to be a victim of a violation of one of the rights set out in Article 110 § 3 of the Constitution shall have the right to file an application with the Constitutional Court. Section 8 provides, inter alia, that the members of minorities shall have the right to education in their own language. They shall also study the Macedonian language. Section 45 provides that primary schools shall admit all the pupils living in their district. Sections 46 and 47 provide that the parents are responsible for the enrolment of their children and for their regular attendance at the classes. The primary school shall inform the Ministry of Education and Sport about the pupils of its area who have not enrolled, or have not attended the classes for more then thirty days without a justification. Section 48 provides, inter alia, that on the parents' or guardians' request the pupils may be transferred to another school. Section 230 provides that an appeal can be lodged against a decision of an administrative body with the second instance administrative body within fifteen days. Section 26 § 1 provides that a person may institute administrative proceedings before the Supreme Court provided that the second instance administrative body does not decide on the matter within sixty days from the day the appeal against the first instance administrative body is received, and does not react within seven days on the person's repeated request. | 0 |
dev | 001-23082 | ENG | FRA | ADMISSIBILITY | 2,001 | NIVETTE v. FRANCE | 1 | Inadmissible | null | The applicant, Mr James Dewayne Nivette, is an American national, born in 1942 and currently in custody in Strasbourg-Elsau Prison. He was represented before the Court by Mr D.S. Bergmann, of the Colmar Bar. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 November 1997 the Sacramento Municipal Court (California) issued an international warrant for the arrest of the applicant, who was suspected of having murdered his girlfriend on 16 November 1997. On 20 November 1997 the applicant was arrested at Munster (France) and taken into custody pending extradition proceedings. On 22 December 1997 the United States authorities filed an extradition request with the French Ministry of Foreign Affairs. On 29 January 1998 the Indictment Division of the Colmar Court of Appeal ruled in favour of extraditing the applicant provided that the United States authorities gave the French government an assurance that they would neither seek nor apply the death penalty. It referred expressly to the terms of a written declaration made by the Sacramento County District Attorney on 27 January 1998, which stated: “... under California law ..., I have the exclusive right to determine whether criminal charges will be filed against any particular defendant, and ... what the charges will be. ... ... In the case of James Dewayne Nivette, I have been advised by my deputies and agree that no ‘special circumstance’ is applicable ... This affidavit may be deemed a commitment by my office to not seek the death penalty against James Dewayne Nivette.” The Indictment Division of the Colmar Court of Appeal pointed out that, while the application of the death penalty to a person whose extradition had been granted by the French government would be contrary to French public policy under the Law of 9 October 1981 abolishing the death penalty and Protocol No. 6 to the European Convention on Human Rights, the same was not true of life imprisonment without the possibility of parole. The court also found that the question whether a limitation period applied to the crime (crime) committed did not arise because, even in France, the ten-year period had only just begun. Lastly, it found that, although the applicant had claimed to be a French national at the hearing, it could not be seriously disputed that he had American nationality only and so it declined to seek a preliminary ruling on that issue. On 12 May 1998 the Criminal Division of the Court of Cassation dismissed the applicant’s appeal on points of law against the Court of Appeal’s decision. It held that the ruling in favour of extradition, together with its proviso, was in accordance with domestic law. It declined, however, to rule on the grounds of appeal relating to nationality and the death-row phenomenon, taking the view that they amounted to criticisms of some of the reasons given in the Court of Appeal’s judgment and were therefore inadmissible. On 25 September 1998 the applicant applied to the Colmar District Court for a declaration of nationality. On 7 September 1999, at the French government’s request, further guarantees were provided by the Sacramento County District Attorney, who stated that: (a) as District Attorney, she was authorised by law to bind the State of California by her decisions and so the undertaking she had given was binding both on her successors and on the State of California; (b) her declaration amounted to a commitment and an assurance by the State of California that the death penalty would not be sought or applied against Mr Nivette at any stage in the prosecution or the criminal proceedings instituted against him; (c) under section 190.2 of the California Penal Code a death sentence for murder could be passed only if at least one of twenty-one special circumstances listed in the section applied; (d) the laws of the State of California made it legally impossible for the death penalty to be imposed unless a special circumstance was charged by the prosecuting authorities and upheld by the trial court; (e) the District Attorney alone was entitled to charge a special circumstance; no special circumstance would be charged in this case and therefore no court would be able to impose the death penalty on Mr Nivette; (f) even if the understanding of the facts in the case were to change in the future, her decision not to seek the death penalty was irrevocable. Even where a special circumstance existed, the District Attorney had a legal right not to charge it and she would not do so in this case even if a special circumstance became apparent at a later stage; it was consequently impossible for the death penalty to be imposed. That declaration was made “under penalty of perjury”. On 17 December 1998 the United States embassy in Paris forwarded to the French government assurances made by the federal government. On 21 October 1999 the French Prime Minister issued an extradition order; the applicant appealed to the Conseil d’Etat. On 6 November 2000 the Conseil d’Etat held as follows: “The death penalty was abolished in France by the Law of 9 October 1981. Under Article 1 of Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which was incorporated into the domestic legal order following its ratification ..., ‘The death penalty shall be abolished. No one shall be condemned to such penalty or executed’. Applying the death penalty to a person whose extradition has been granted by the French government would contravene French public policy. Consequently, if any of the crimes for which extradition is sought from the French authorities is punishable by death under the law of the requesting State, extradition in respect of that crime may legally be granted only on condition that the requesting State gives sufficient assurances that the death penalty will not be imposed or will not be executed. On the other hand, extradition of a person liable to serve a life sentence without any possibility of early release is not contrary to French public policy or Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The government of the United States’ request for the extradition of Mr Nivette is based on an act of murder. Under the criminal-law provisions that apply in California, which is the State whose courts have jurisdiction in the case, an accused found guilty of murder is liable to the death penalty. On 29 January 1998 the Indictment Division of the Colmar Court of Appeal ruled in favour of Mr Nivette’s extradition provided that the relevant United States authorities gave assurances to the French government that, even if the death penalty was imposed, it would not be sought or applied. Under the impugned order of 21 October 1999, the French government acceded to the American authorities’ request for the applicant’s extradition provided that the death penalty was not sought, imposed or executed. In a diplomatic note of 17 December 1998, the United States embassy made known to the French government the United States government’s assurance that, if Mr Nivette’s extradition was granted, the death penalty would not be imposed or carried out. The United States authorities also conveyed to the French authorities the undertaking made on behalf of the State of California by the District Attorney of Sacramento County – where Mr Nivette would stand trial – that the relevant prosecuting authority would not apply for the death penalty to be imposed on the applicant, even if new facts were uncovered that could amount to special circumstances. In an affidavit the Sacramento County District Attorney gave a formal assurance that the death penalty could not be imposed unless a special circumstance was charged by the prosecuting authorities. Under these circumstances, the applicant is not justified in maintaining that the impugned order is not attended by adequate safeguards and that his extradition would contravene French public policy. Contrary to the applicant’s allegations, the United States’ legal system respects individuals’ fundamental rights and freedoms as required by the general principles of extradition law. The impugned order is therefore not in breach of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Mr Nivette maintained that he was a French national but provided no evidence to support that assertion. In the absence of any serious dispute on this subject, there is no reason to seek a preliminary ruling from the court competent to determine nationality issues. It follows that Mr Nivette is not justified in seeking to have the impugned order quashed ...” | 0 |
dev | 001-59885 | ENG | GBR | GRANDCHAMBER | 2,001 | CASE OF AL-ADSANI v. THE UNITED KINGDOM | 1 | No violation of Art. 3;No violation of Art. 6-1 | Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 9. The applicant made the following allegations concerning the events underlying the dispute he submitted to the English courts. The Government stated that they were not in a position to comment on the accuracy of these claims. 10. The applicant, who is a trained pilot, went to Kuwait in 1991 to assist in its defence against Iraq. During the Gulf War he served as a member of the Kuwaiti Air Force and, after the Iraqi invasion, he remained behind as a member of the resistance movement. During that period he came into possession of sex videotapes involving Sheikh Jaber Al-Sabah Al-Saud Al-Sabah (“the Sheikh”), who is related to the Emir of Kuwait and is said to have an influential position in Kuwait. By some means these tapes entered general circulation, for which the applicant was held responsible by the Sheikh. 11. After the Iraqi armed forces were expelled from Kuwait, on or about 2 May 1991, the Sheikh and two others gained entry to the applicant’s house, beat him and took him at gunpoint in a government jeep to the Kuwaiti State Security Prison. The applicant was falsely imprisoned there for several days during which he was repeatedly beaten by security guards. He was released on 5 May 1991, having been forced to sign a false confession. 12. On or about 7 May 1991 the Sheikh took the applicant at gunpoint in a government car to the palace of the Emir of Kuwait’s brother. At first the applicant’s head was repeatedly held underwater in a swimming-pool containing corpses, and he was then dragged into a small room where the Sheikh set fire to mattresses soaked in petrol, as a result of which the applicant was seriously burnt. 13. Initially the applicant was treated in a Kuwaiti hospital, and on 17 May 1991 he returned to England where he spent six weeks in hospital being treated for burns covering 25% of his total body surface area. He also suffered psychological damage and has been diagnosed as suffering from a severe form of post-traumatic stress disorder, aggravated by the fact that, once in England, he received threats warning him not to take action or give publicity to his plight. 14. On 29 August 1992 the applicant instituted civil proceedings in England for compensation against the Sheikh and the State of Kuwait in respect of injury to his physical and mental health caused by torture in Kuwait in May 1991 and threats against his life and well-being made after his return to the United Kingdom on 17 May 1991. On 15 December 1992 he obtained a default judgment against the Sheikh. 15. The proceedings were re-issued after an amendment to include two named individuals as defendants. On 8 July 1993 a deputy High Court judge ex parte gave the applicant leave to serve the proceedings on the individual defendants. This decision was confirmed in chambers on 2 August 1993. He was not, however, granted leave to serve the writ on the State of Kuwait. 16. The applicant submitted a renewed application to the Court of Appeal, which was heard ex parte on 21 January 1994. Judgment was delivered the same day. The court held, on the basis of the applicant’s allegations, that there were three elements pointing towards State responsibility for the events in Kuwait: firstly, the applicant had been taken to a State prison; secondly, government transport had been used on 2 and 7 May 1991; and, thirdly, in the prison he had been mistreated by public officials. It found that the applicant had established a good arguable case, based on principles of international law, that Kuwait should not be afforded immunity under section 1(1) of the State Immunity Act 1978 (“the 1978 Act”: see paragraph 21 below) in respect of acts of torture. In addition, there was medical evidence indicating that the applicant had suffered damage (post-traumatic stress) while in the United Kingdom. It followed that the conditions in Order 11 rule 1(f) of the Rules of the Supreme Court had been satisfied (see paragraph 20 below) and that leave should be granted to serve the writ on the State of Kuwait. 17. The Kuwaiti government, after receiving the writ, sought an order striking out the proceedings. The application was examined inter partes by the High Court on 15 March 1995. In a judgment delivered the same day the court held that it was for the applicant to show on the balance of probabilities that the State of Kuwait was not entitled to immunity under the 1978 Act. It was prepared provisionally to accept that the Government were vicariously responsible for conduct that would qualify as torture under international law. However, international law could be used only to assist in interpreting lacunae or ambiguities in a statute, and when the terms of a statute were clear, the statute had to prevail over international law. The clear language of the 1978 Act bestowed immunity upon sovereign States for acts committed outside the jurisdiction and, by making express provision for exceptions, it excluded as a matter of construction implied exceptions. As a result, there was no room for an implied exception for acts of torture in section 1(1) of the 1978 Act. Moreover, the court was not satisfied on the balance of probabilities that the State of Kuwait was responsible for the threats made to the applicant after 17 May 1991. As a result, the exception provided for by section 5 of the 1978 Act could not apply. It followed that the action against the State should be struck out. 18. The applicant appealed and the Court of Appeal examined the case on 12 March 1996. The court held that the applicant had not established on the balance of probabilities that the State of Kuwait was responsible for the threats made in the United Kingdom. The important question was, therefore, whether State immunity applied in respect of the alleged events in Kuwait. Lord Justice Stuart-Smith finding against the applicant, observed: “Jurisdiction of the English court in respect of foreign States is governed by the State Immunity Act 1978. Section 1(1) provides: ‘A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. ...’ ... The only relevant exception is section 5, which provides: ‘A State is not immune as respects proceedings in respect of (a) death or personal injury ... caused by an act or omission in the United Kingdom.’ It is plain that the events in Kuwait do not fall within the exception in section 5, and the express words of section 1 provide immunity to the First Defendant. Despite this, in what [counsel] for the Plaintiff acknowledges is a bold submission, he contends that that section must be read subject to the implication that the State is only granted immunity if it is acting within the Law of Nations. So that the section reads: ‘A State acting within the Law of Nations is immune from jurisdiction except as provided ...’ ... The argument is ... that international law against torture is so fundamental that it is a jus cogens, or compelling law, which overrides all other principles of international law, including the well-established principles of sovereign immunity. No authority is cited for this proposition. ... At common law, a sovereign State could not be sued at all against its will in the courts of this country. The 1978 Act, by the exceptions therein set out, marks substantial inroads into this principle. It is inconceivable, it seems to me, that the draughtsman, who must have been well aware of the various international agreements about torture, intended section 1 to be subject to an overriding qualification. Moreover, authority in the United States at the highest level is completely contrary to [counsel for the applicant’s] submission. [Lord Justice Stuart-Smith referred to the judgments of the United States courts, Argentine Republic v. Amerada Hess Shipping Corporation and Siderman de Blake v. Republic of Argentina, cited in paragraph 23 below, in both of which the court rejected the argument that there was an implied exception to the rule of State immunity where the State acted contrary to the Law of Nations.] ... [Counsel] submits that we should not follow the highly persuasive judgments of the American courts. I cannot agree. ... A moment’s reflection is enough to show that the practical consequences of the Plaintiff’s submission would be dire. The courts in the United Kingdom are open to all who seek their help, whether they are British citizens or not. A vast number of people come to this country each year seeking refuge and asylum, and many of these allege that they have been tortured in the country whence they came. Some of these claims are no doubt justified, others are more doubtful. Those who are presently charged with the responsibility for deciding whether applicants are genuine refugees have a difficult enough task, but at least they know much of the background and surrounding circumstances against which the claim is made. The court would be in no such position. The foreign States would be unlikely to submit to the jurisdiction of the United Kingdom court, and in its absence the court would have no means of testing the claim or making a just determination. ...” The other two members of the Court of Appeal, Lord Justice Ward and Mr Justice Buckley, also rejected the applicant’s claim. Lord Justice Ward commented that “there may be no international forum (other than the forum of the locus delicti to whom a victim of torture will be understandably reluctant to turn) where this terrible, if established, wrong can receive civil redress”. 19. On 27 November 1996 the applicant was refused leave to appeal by the House of Lords. His attempts to obtain compensation from the Kuwaiti authorities via diplomatic channels have proved unsuccessful. 20. There is no rule under English law requiring a plaintiff to be resident in the United Kingdom or to be a British national before the English courts can assert jurisdiction over civil wrongs committed abroad. Under the rules in force at the time the applicant issued proceedings, the writ could be served outside the territorial jurisdiction with the leave of the court when the claim fell within one or more of the categories set out in order 11, Rule 1 of the Rules of the Supreme Court. For present purposes only Rule 1(f) is relevant: “... service of a writ out of the jurisdiction is permissible with the leave of the court if, in the action begun by the writ, ... (f) the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction ...” 21. The relevant parts of the State Immunity Act 1978 provide: “1. (1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. ... 5. A State is not immune as regards proceedings in respect of- (a) death or personal injury; ... caused by an act or omission in the United Kingdom ...” 22. The above provision (section 5 of the 1978 Act) was enacted to implement the 1972 European Convention on State Immunity (“the Basle Convention”), a Council of Europe instrument, which entered into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and signed by one other State (Portugal). Article 11 of the Convention provides: “A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.” Article 15 of the Basle Convention provides that a Contracting State shall be entitled to immunity if the proceedings do not fall within the stated exceptions. 23. In its Report on Jurisdictional Immunities of States and their Property (1999), the working group of the International Law Commission (ILC) found that over the preceding decade a number of civil claims had been brought in municipal courts, particularly in the United States and United Kingdom, against foreign governments, arising out of acts of torture committed not in the territory of the forum State but in the territory of the defendant and other States. The working group of the ILC found that national courts had in some cases shown sympathy for the argument that States are not entitled to plead immunity where there has been a violation of human rights norms with the character of jus cogens, although in most cases the plea of sovereign immunity had succeeded. The working group cited the following cases in this connection: (United Kingdom) Al-Adsani v. State of Kuwait 100 International Law Reports 465 at 471; (New Zealand) Controller and Auditor General v. Sir Ronald Davidson [1996] 2 New Zealand Law Reports 278, particularly at 290 (per Cooke P.); Dissenting Opinion of Justice Wald in (United States) Princz v. Federal Republic of Germany 26 F 3d 1166 (DC Cir. 1994) at 1176-1185; Siderman de Blake v. Republic of Argentina 965 F 2d 699 (9th Cir. 1992); Argentine Republic v. Amerada Hess Shipping Corporation 488 US 428 (1989); Saudi Arabia v. Nelson 100 International Law Reports 544. 24. The working group of the ILC did, however, note two recent developments which it considered gave support to the argument that a State could not plead immunity in respect of gross human rights violations. One of these was the House of Lords’ judgment in ex parte Pinochet (No. 3) (see paragraph 34 below). The other was the amendment by the United States of its Foreign Sovereign Immunities Act (FSIA) to include a new exception to immunity. This exception, introduced by section 221 of the Anti-Terrorism and Effective Death Penalty Act of 1996, applies in respect of a claim for damages for personal injury or death caused by an act of torture, extra-judicial killing, aircraft sabotage or hostage-taking, against a State designated by the Secretary of State as a sponsor of terrorism, where the claimant or victim was a national of the United States at the time the act occurred. In its judgment in Flatow v. the Islamic Republic of Iran and Others (76 F. Supp. 2d 16, 18 (D.D.C. 1999)), the District Court for the District of Columbia confirmed that the property of a foreign State was immune from attachment or execution, unless the case fell within one of the statutory exceptions, for example that the property was used for commercial activity. 25. The Kuwaiti Constitution provides in Article 31 that “No person shall be put to torture”. 26. Article 5 of the Universal Declaration of Human Rights 1948 states: “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.” 27. Article 7 of the International Covenant on Civil and Political Rights 1966 states as relevant: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” 28. The United Nations 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment provides in Article 3 that: “No State may permit or tolerate torture and other cruel inhuman or degrading treatment or punishment.” 29. In the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, adopted on 10 December 1984 (“the UN Convention”), torture is defined as: “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” The UN Convention requires by Article 2 that each State Party is to take effective legislative, administrative, judicial or other measures to prevent torture in any territory under its jurisdiction, and by Article 4 that all acts of torture be made offences under each State’s criminal law. 30. In its judgment in Prosecutor v. Furundzija (10 December 1998, case no. IT-95-17/I-T, (1999) 38 International Legal Materials 317), the International Criminal Tribunal for the Former Yugoslavia observed as follows: “144. It should be noted that the prohibition of torture laid down in human rights treaties enshrines an absolute right, which can never be derogated from, not even in time of emergency ... This is linked to the fact, discussed below, that the prohibition on torture is a peremptory norm or jus cogens. ... This prohibition is so extensive that States are even barred by international law from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. 145. These treaty provisions impose upon States the obligation to prohibit and punish torture, as well as to refrain from engaging in torture through their officials. In international human rights law, which deals with State responsibility rather than individual criminal responsibility, torture is prohibited as a criminal offence to be punished under national law; in addition, all States parties to the relevant treaties have been granted, and are obliged to exercise, jurisdiction to investigate, prosecute and punish offenders. ... 146. The existence of this corpus of general and treaty rules proscribing torture shows that the international community, aware of the importance of outlawing this heinous phenomenon, has decided to suppress any manifestation of torture by operating both at the interstate level and at the level of individuals. No legal loopholes have been left. 147. There exists today universal revulsion against torture ... . This revulsion, as well as the importance States attach to the eradication of torture, has led to a cluster of treaty and customary rules on torture acquiring a particularly high status in the international, normative system. ... 151. ... the prohibition of torture imposes on States obligations erga omnes, that is, obligations owed towards all the other members of the international community. ... 153. ... the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order. Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special or even general customary rules not endowed with the same normative force. 154. Clearly the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. ...” 31. Similar statements were made in Prosecutor v. Delacic and Others (16 November 1998, case no. IT-96-21-T, § 454) and in Prosecutor v. Kunarac (22 February 2001, case nos. IT-96-23-T and IT-96-23/1, § 466). 32. The United Kingdom ratified the UN Convention with effect from 8 December 1988. 33. Section 134 of the Criminal Justice Act 1988, which entered into force on 29 September 1988, made torture, wherever committed, a criminal offence under United Kingdom law triable in the United Kingdom. 34. In its Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3), judgment of 24 March 1999 [2000] Appeal Cases 147, the House of Lords held that the former President of Chile, Senator Pinochet, could be extradited to Spain in respect of charges which concerned conduct that was criminal in the United Kingdom at the time when it was allegedly committed. The majority of the Law Lords considered that extraterritorial torture did not become a crime in the United Kingdom until section 134 of the Criminal Justice Act 1988 came into effect. The majority considered that although under Part II of the State Immunity Act 1978 a former head of State enjoyed immunity from the criminal jurisdiction of the United Kingdom for acts done in his official capacity, torture was an international crime and prohibited by jus cogens (peremptory norms of international law). The coming into force of the UN Convention (see paragraph 29 above) had created a universal criminal jurisdiction in all the Contracting States in respect of acts of torture by public officials, and the States Parties could not have intended that an immunity for ex-heads of State for official acts of torture would survive their ratification of the UN Convention. The House of Lords (and, in particular, Lord Millett, at p. 278) made clear that their findings as to immunity ratione materiae from criminal jurisdiction did not affect the immunity ratione personae of foreign sovereign States from civil jurisdiction in respect of acts of torture. | 0 |
dev | 001-77500 | ENG | POL | CHAMBER | 2,006 | CASE OF PIATKOWSKI v. POLAND | 4 | Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed | Nicolas Bratza | 4. The applicant was born in 1950 and lives in Koluszki, Poland. 5. Between 1991 and 1993 the applicant was the Head of the Civic Gasification Committee of the “Łódzkie” housing co-operative (Społeczny Komitet Gazyfikacji “Os. Łódzkie”). 6. In July 1995 the Board of the Koluszki Commune (Zarząd Miasta i Gminy) requested the prosecution service to initiate an investigation against the applicant for not returning documents concerning the Committee. 7. On 16 October 1995 the applicant was charged with having hidden the documents. 8. On 2 January 1996 the applicant was indicted before the Tomaszów Mazowiecki District Court (Sąd Rejonowy). 9. On 9 May and 13 November 1996 the District Court held hearings. On the latter date it gave a judgment in which it found that the applicant had committed the offence. The trial court conditionally discontinued the proceedings. The applicant was given a term of probation of one year and ordered to pay PLN 300 to a charity. The applicant appealed. 10. On 23 September 1997 the Piotrków Trybunalski Regional Court (Sąd Wojewódzki) held a hearing and on 25 September 1997 it dismissed the applicant’s appeal. 11. In May 1998 the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). 12. On 9 January 2001 the Supreme Court dismissed the cassation appeal as manifestly ill-founded. 13. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.” 14. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads: “1. A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it. However, the claim shall in any case lapse ten years following the date on which the event causing the damage occurred.” 15. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland, no. 61444/00, §§ 34–46, ECHR 2005–... (extracts) and in Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005-.... | 1 |
dev | 001-58022 | ENG | BGR | CHAMBER | 1,997 | CASE OF LUKANOV v. BULGARIA | 2 | Violation of Art. 5-1;Not necessary to examine Art. 18;Just satisfaction rejected;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | John Freeland | 7. The applicant was a Bulgarian citizen. Formerly a Minister, then Deputy Prime Minister and, in 1990, Prime Minister of Bulgaria, he was a member of the Bulgarian National Assembly at the time of the events giving rise to the present case. On 2 October 1996 he was shot dead outside his home. 8. On leaving Sofia for Moscow on 7 March 1992, the applicant was informed by the border police at Sofia Airport that an order had been made to withdraw his diplomatic passport. As the order was not shown to him, he refused to hand over his passport. Following a similar incident on 11 March, the applicant lodged an appeal with the Supreme Court, which rejected the appeal on the ground that no administrative decision had been taken which could form the subject of an appeal. Subsequently, the applicant brought proceedings to obtain compensation for non-pecuniary damage sustained as a result of the unlawful order to withdraw his passport (see paragraph 24 below). 9. On 1 July 1992 the Prosecutor-General requested the National Assembly to authorise the institution of criminal proceedings against the applicant on suspicion of having contravened Articles 203 and 219 para. 3 of the Criminal Code (see paragraphs 25 and 27 below). The suspicion related in particular to his participation as a Deputy Prime Minister between 1986 and 1990 in a number of decisions granting sums, totalling 34,594,500 US dollars (USD) and 27,072,000 convertible Bulgarian leva, in assistance and loans to certain developing countries, including Nicaragua, Cuba, Laos, Kampuchea, Afghanistan, Angola and Yemen. The request stated: "The decisions ... have dramatically affected the country’s economic potential, its economic resources and export capacity, and have objectively speaking made it unable to repay its foreign debt. It should be emphasised that, due to decisions of this nature causing prejudice to the country and other illegal measures taken by party and government leaders during this period, our foreign debt rose from USD 4,119,700 in 1986 to USD 10,656,900,000 in 1989 ... The situation described is covered by the definition of the offence of `taking advantage of one’s position’ in respect of very large amounts of money, which constitutes a particularly serious matter falling within the provisions in Article 203 and Article 219 para. 3 of the Criminal Code. The offences mentioned are `serious’ within the meaning of Article 93 para. 7 of the Code." 10. On 7 July 1992 the National Assembly waived the applicant’s parliamentary immunity under Article 70 of the Bulgarian Constitution and authorised criminal proceedings against him and his arrest and detention on remand. 11. On 9 July 1992 the public prosecutor, Mr Doychev, of the Investigation Department of the Prosecutor-General’s Office, charged the applicant under Article 203, in conjunction with Articles 201, 202 and 282, of the Criminal Code (see paragraphs 25 and 28 below) with having misappropriated, in concert with the chairperson and the other vice-chairpersons of the then Council of Ministers, the funds allocated to certain developing countries as mentioned in paragraph 9 above. In breach of his official duties, he had facilitated the misappropriation in order to obtain an advantage for a third party, thereby causing considerable economic damage. In view of the very large amounts of money involved, the case was a particularly serious one. The prosecutor in addition ordered the applicant’s detention on remand, citing as grounds the need to show to the public the danger that the offences in question represented to society, the applicant’s identity and the need to secure his appearance before the trial court. The decision referred, inter alia, to Articles 147 and 152 para. 1 of the Code of Criminal Procedure (see paragraphs 29 and 30 below). On 9 July 1992 the applicant was arrested and remanded in custody at the premises of the National Investigation Service in Sofia. 12. On the same date the applicant’s lawyer lodged an appeal with the Bulgarian Supreme Court, requesting his release. She maintained that, contrary to Article 148 para. 1 of the Code of Criminal Procedure, the arrest warrant had failed to specify the grounds for his arrest. The fact that he risked a sentence of more than ten years’ imprisonment could not in itself justify his detention since, under paragraph 2 of Article 152, it was also a condition that there should be a risk of his absconding or of his committing a further crime (see paragraph 30 below). In addition, the measures had been taken on the basis of the applicant’s identity, notably the fact that he was a member of the National Assembly, a consideration which was not covered by any of the grounds that were exhaustively listed in Article 147 para. 1 (see paragraph 29 below). 13. At a court session held on 13 July 1992, at which the public prosecutor but not the applicant or his lawyer was present, the Supreme Court dismissed the appeal. Its decision included the following reasoning: "Under Article 152 para. 1 of the Code of Criminal Procedure a suspect is to be detained on remand if the offence is punishable by ten years’ imprisonment or more or by the death penalty. Offences under Article 203 para. 1, of the Criminal Code carry such sentences. [The above provision] lays down two cumulative conditions - the misappropriation must have occurred on a large scale and must have been particularly serious. [Whether the misappropriation has occurred] on a particularly large scale depends on the value of the public property involved. The seriousness of the case is determined on the basis of whether the misappropriation was carried out with the complicity of others, the level of the threat to society involved in the [measures] and the subject matter (Article 93 para. 8, of the Criminal Code). The argument that the eventuality envisaged in Article 152 para. 2 ... applies in the instant case is unfounded. When the accusation was made the applicant was a member of the National Assembly. By virtue of Article 72 of the Bulgarian Constitution he holds this status until such circumstances occur as may warrant the suspension from his functions as a member of the National Assembly. In his capacity as member of the National Assembly the [applicant] represents the people as a whole. It is precisely in this capacity that the [risk] mentioned in Article 152 para. 2 ... will materialise, and the likelihood of this is greater than in the case of an appellant who is not a member of the National Assembly. Furthermore, the applicant has lodged a judicial appeal against the administrative measure resulting in the withdrawal of his diplomatic passport ... The fact that he has taken such a step gives good grounds for fearing that he will not refrain from committing acts of the type mentioned in Article 152 para. 2 ... According to Article 70 of the Constitution `..., except in cases of serious crimes and where permission has been given by the National Assembly, its members may not be detained and no charges may be brought against them ...’. A logical and systematic interpretation of the aforesaid provision suggests that [what is decisive for] the measure of restraint, `detention’, [to be applied] in the context of the Criminal Code is whether the act entails a great danger to society and the particular status of the person who has committed it - a member of the National Assembly. For this reason the legislature envisaged ... detention in [such] cases. The prosecutor’s office has power to impose such a measure." 14. On 23 August 1992 the applicant was hospitalised at Sofia Penitentiary Hospital, where he received treatment. 15. On 4 September 1992 the applicant, relying on a change in circumstances concerning his state of health, filed a request with the Prosecutor-General for his release. 16. On 5 September 1992 his lawyer appealed to the Supreme Court against the Prosecutor-General’s implied refusal to grant the request of 4 September 1992. The Supreme Court dismissed the appeal on 17 September 1992 on the grounds that the applicant had already appealed against his detention and that, under the relevant Bulgarian law, he was not entitled to lodge a further appeal. 17. Subsequently, the applicant’s lawyer made a request for his release to the public prosecutor. At a meeting on 28 October 1992 between the public prosecutor and the applicant and his lawyer at the Military Hospital in Sofia, the lawyer invited the prosecutor to take a decision on the request for release. The applicant himself maintained that it was unreasonable to base his detention on the fact that he had complained about the withdrawal of his passport. He did not have any other passport. Nor was there any danger of his repeating the offence, as he was no longer in a position to do so. On 2 November 1992 the public prosecutor dismissed the applicant’s request for release. He gave as reasons that the Prosecutor-General had already dealt with it and had been of the view that, notwithstanding the medical reports concerning the applicant, there were no new circumstances warranting his release. His lawyers had been informed of the Prosecutor-General’s decision of 22 October 1992 and had been advised that no further appeal was possible. 18. By letter of 9 November 1992 the applicant’s lawyer asked the Prosecutor-General to terminate the investigation. She recalled that it had commenced on 8 July 1992 and, after the expiry of the statutory period of two months, had been extended for another two months until 8 November 1992. Under Article 222 para. 3 of the Code of Criminal Procedure, a further extension could only be justified in "exceptional" cases, which condition had not been satisfied in the applicant’s case. Nor had the Prosecutor-General obtained any new evidence during the four months which had elapsed since the investigation had started. The lawyer also contested the charges against the applicant. The decisions of the Council of Ministers had been taken collectively in accordance with the Constitution and the budget voted by the National Assembly. The decisions in question had been taken simply with a view to implementing policies of the government in power at the time and it was the government, not the applicant as a Deputy Prime Minister, which had administered the relevant funds. In any event, it had not been established that the applicant had committed the offences in issue for his own benefit or for that of a third party. 19. On 10 November 1992 the applicant’s lawyer lodged a request for his release with the Prosecutor-General, maintaining, inter alia, that the further prolongation of his detention breached Article 5 para. 3 of the Convention (art. 5-3) and that, contrary to Article 5 para. 1 (c) (art. 5-1-c), no grounds had been given for his detention. The argument that the applicant had appealed against the order to withdraw his passport was unfounded as he had only exercised his rights under Bulgarian law. The lawyer refused to comment on the allegation that the applicant constituted a particular danger to society on account of his position as member of the National Assembly. 20. On 11 November 1992 the Prosecutor-General informed the applicant’s lawyer orally that his request of 10 November 1992 had been dismissed in the absence of any new circumstances justifying modification of the decision to detain him on remand. 21. In a letter of 18 November 1992 to the Prosecutor-General the applicant, referring to Article 180 of the Code of Criminal Procedure, complained about the prosecutor’s failure to reply to his requests in writing. He asserted that the criminal proceedings against him had no legal basis and amounted to an overt act of political reprisal. 22. In a letter of 20 November 1992 to the public prosecutor, the applicant’s lawyer queried the outcome of the request of 10 November 1992 (see paragraph 19 above), stating that the information was important for the application filed with the Commission. On 25 November 1992 the public prosecutor replied that his decision of 11 November had been transmitted to the applicant’s lawyer on 16 November and that minutes relating to these measures had been prepared in accordance with Article 100 of the Code of Criminal Procedure. 23. On 29 December 1992 the Bulgarian National Assembly reversed its decision of 7 July 1992 authorising the applicant’s detention on remand. On 30 December 1992 the prosecutor decided to release the applicant on bail. 24. On 12 March 1994 the Sofia City Court awarded the applicant compensation for non-pecuniary damage suffered as a result of the attempts made by the border police to withdraw his passport in the absence of a lawful order to this effect. The decision was confirmed by the Supreme Court on 9 February 1995. 25. Under Article 201 of the Criminal Code, public servants who misappropriate public or private funds which are in their possession in their capacity as public servants or which they have been entrusted with to keep secure or administer are liable to up to eight years’ imprisonment. If a further offence has been committed in order to facilitate the misappropriation or if the offence has been committed with the complicity of others, between one and ten years’ imprisonment may be imposed (Article 202). Where an offence under Articles 201 or 202 involves particularly large amounts of public funds and is serious, Article 203 para. 1 provides for terms of between ten and thirty years’ imprisonment. 26. As appears from a number of rulings by the Supreme Court (D 133-77-II, p. 80; D 63-79-I, p. 61; D 271-85-II, p. 87; D 172-88-I, bull. no. 12/88, p. 4; D 144-79-I, p. 73; D 315-75-II, p. 52; and D 5-83-Pl., p. 17) supplied by the applicant’s lawyer in consultation with the Agent of the Government before the Court’s hearing, at the material time a condition for the offence of misappropriation under Article 201 of the Criminal Code was that the person concerned had disposed of the means in question as though they were his or her own, in order to obtain an advantage for himself or herself or for a third party. In a judgment of 1995 (no. 17/95) the Constitutional Court declared unconstitutional an amendment by the National Assembly to make it an express condition in Article 201 that the person concerned had used the funds to his own advantage or that of a third party. In the opinion of the Constitutional Court, such a limitation on the scope of the offence of misappropriation would entail too weak a protection of the right to property guaranteed by the Constitution of 1991. It should be decisive for the offence, not that there had been personal enrichment, but that the person had disposed of the means as though they were his own and had thereby harmed the owner’s interests. In connection with the above, the Constitutional Court stated that the amendment in question had been in line with the Supreme Court’s interpretation of Article 201. According to the Government, there was no example at the relevant time of a member of a government having been prosecuted under Articles 201 and 203 of the Criminal Code for his or her participation in collective decision-making by the government. 27. Article 219 para. 1 provides: "If a public servant, in his administration of assets or of money in his possession or in the execution of work which he has been ordered to do, negligently causes considerable material damage, or the destruction or dispersal of the assets, to the disadvantage of the service concerned or the national economy, he will be punished by a term of imprisonment of not more than three years or by forced labour in the public interest." According to paragraph 3, up to eight years’ imprisonment may be imposed if the offence is committed wilfully. 28. Article 282 provides: "(1) A public servant who does not fulfil his professional obligations or who commits an abuse of power with the aim of obtaining a material advantage for himself or for a third party or of causing damage to others, and if not insignificant material damage could arise, shall be punished by a term of not more than five years’ imprisonment ... (2) If the act results in considerable material damage or has been committed by a person occupying a senior administrative post, the person concerned shall be liable to a term of imprisonment of eight years ... (3) If such an act is particularly serious the term of imprisonment shall be between three and ten years ..." 29. Under Article 147 para. 1 of the Code of Criminal Procedure, an accused may be placed under court supervision in order to ensure that he or she does not abscond or commit a new offence or to prevent collusion. The kind of measure imposed depends on the evidence against the accused, his or her state of health, family situation, profession and any other information concerning his or her character. 30. Article 152 provides, in so far as relevant: "(1) Detention on remand shall be imposed if the charges concern crimes punishable by a term of imprisonment of ten years or more or by capital punishment. (2) The measure envisaged in the previous paragraph shall not be imposed if there is no danger of the accused evading justice or committing another crime. ... (4) The detained person may immediately lodge an appeal with the court against his detention. The Court shall decide within three days by means of a decision which is final." | 1 |
dev | 001-57828 | ENG | CHE | CHAMBER | 1,993 | CASE OF KRASKA v. SWITZERLAND | 3 | No violation of Art. 6-1 | R. Pekkanen | 6. Mr Martin Kraska is a Swiss national and lives in Zurich. He obtained his diploma in medicine in 1981 and has since practised mostly as an assistant doctor (Assistenzarzt), for which activity he does not require an authorisation in the Canton of Zurich. 7. On 19 October 1982 he received the authorisation to practise independently in the canton. The authorisation was, however, withdrawn by the Health Authority (Gesundheitsdirektion) on 26 April 1983 on the ground that, having moved to another canton, he had not used it. 8. The applicant lodged an administrative appeal (Rekurs) which the Cantonal Government (Regierungsrat) of Zurich rejected on 17 August 1983 for the following reasons: the possibility that a new authorisation would be granted as soon as he returned to Zurich was not sufficient to confer on the applicant a legally protected interest; in any event the authorisation in question was not of general validity, but related to a specific activity; as it was, Mr Kraska no longer lived in the canton. 9. From 6 August to 17 September 1984 the applicant worked as an assistant doctor in the emergency service of the District of Zurich Medical Association (Ärztlicher Notfalldienst des Ärzteverbandes des Bezirks Zurich). 10. On 28 August 1984 he fetched a partially paralysed patient from a private old peoples’ home and took her back to her flat, where he treated her. Shortly afterwards he drew up a bill on an emergency service form for 7,447.80 Swiss francs and sent it to the guardian (gesetzlicher Vertreter) of the patient, who had been placed in guardianship on a temporary basis on 13 September 1984. The sum in question was to be paid directly into the applicant’s post office account and not that of the medical association. A prosecution was subsequently brought against Mr Kraska for fraud and various infringements of the Zurich Public Health Act 1962; in particular it was alleged that he had treated the patient without being in possession of an authorisation to practise medicine independently as was required under section 7 para. 1 (a) of that Act. The Zurich District Court (Bezirksgericht) acquitted him on 13 January 1986, finding inter alia that the indictment had not indicated in sufficiently specific terms the medical treatment involved. 11. In the meantime, on 31 January 1985, the applicant had attempted to obtain a new authorisation. On 11 September 1985 the Zurich Health Authority had refused his request on the ground that he was not "trustworthy" within the meaning of section 8 para. 1 of the Public Health Act. On 1 October 1986 the Zurich Cantonal Government dismissed the applicant’s appeal. It took the view that he had infringed section 7 para. 1 (a) of the Act by submitting a bill for the treatment in question and that his acquittal by the District Court made no difference in this respect. The Cantonal Government noted in particular that in his bill the applicant had himself classified the treatment as medical acts. 12. In an appeal (Beschwerde) to the Zurich Administrative Court (Verwaltungsgericht) the applicant again sought the authorisation to practise his profession independently. The court dismissed his appeal on 11 March 1987. It also directed that he should wait until the beginning of 1988 before re-applying. 13. By a memorial of seventy-three pages Mr Kraska’s lawyer lodged with the Federal Court (Bundesgericht) a public-law appeal (staatsrechtliche Beschwerde), on which five judges deliberated at a public hearing on 22 October 1987 (section 17 para. 1 of the Federal Courts Act). The applicant’s lawyer was present in the courtroom, but was not allowed to address the court. Judge X submitted his report; Judge Y, who did not in fact have the status of co-rapporteur attributed to him at paragraph 68 of the Commission’s opinion, stated that he was unable to accept the conclusions of the report and proposed a solution contrary thereto. During the discussion which followed, a third judge put forward a counter proposal, which was adopted by the majority. In a letter to his client, the lawyer described the course of the deliberations. According to him, Judge X had proposed that the applicant’s public-law appeal should be allowed in full and that he should be granted the authorisation to practise. Judge Y had stated that he had been irritated by the length of the memorial, of which he had been able to read only thirty or so pages, and had complained that it had not been possible for him to study the file because, owing to an error on the part of the registry, he had not received it until a day before the hearing; he had then called for the dismissal of the appeal, basing his view exclusively on the above-mentioned decisions of 11 September 1985, 1 October 1986 and 11 March 1987 (see paragraphs 11-12 above). 14. The Federal Court gave judgment on the same day. By four votes to one, that of Judge X, it quashed the decision in so far as it imposed a waiting period on the applicant but dismissed the remainder of the appeal. It first declared a number of the applicant’s complaints inadmissible. It stated, nevertheless, that in cases of this kind, in the event of the appeal’s succeeding, it could by way of exception not only quash the contested decision, but also grant the authorisation sought, if all the other conditions were satisfied. The Federal Court then noted that, according to its case-law, the right to freedom of commerce and industry, guaranteed by Article 31 of the Federal Constitution, embraced the right to practise medicine on a professional basis. Having examined the criticisms levelled by the health authorities, it formed the opinion that at least two of them appeared material to assessing the applicant’s honesty: he had carried out a medical act without the necessary authorisation; in addition, the bill relating thereto dealt with both medical and non-medical acts and he had drawn it up on an emergency service form, thereby giving the impression that it concerned only the former. 15. On 8 December 1987 the Health Authority of the Canton of Zurich granted Mr Kraska’s third application for a new authorisation. 16. On 6 November 1987 Mr Kraska requested the Federal Court to re-examine its judgment of 22 October 1987, complaining that it had given its decision without sufficient knowledge of the file. His application was dismissed on 14 March 1988 on the ground, inter alia, that there was no legal basis for reopening the proceedings. The Federal Court summarised the contested deliberations as follows: "On the occasion of the public deliberations one judge expressed his dissatisfaction that the documents had not been available for a sufficiently long time (they had been sent first to a substitute judge); he had therefore been able to read thoroughly only the first thirty-five pages of the - much too long - appeal memorial which comprised seventy-three pages." 17. Mr Kraska subsequently filed three other applications for the reopening of the proceedings in the Federal Court; they were dismissed on 5 May and 23 August 1988 and on 6 June 1989. | 0 |
dev | 001-58876 | ENG | GRC | CHAMBER | 2,000 | CASE OF KARAKASIS v. GREECE | 3 | Preliminary objection rejected (six months);Preliminary objection joined to merits and rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award | Nicolas Bratza | 8. On 25 October 1990 and 9 November 1990 criminal complaints were lodged against the applicant for instigation to fraud and for issuing checks for the payment of which there were no adequate funds. The prosecutor instituted criminal proceedings against him. 9. In 1994 the investigating judge ordered the applicant’s provisional detention (warrant No. 22/94). However, the applicant evaded arrest. 10. On 5 August 1994 the indictments chamber of the first instance criminal court (simvulio plimmeliodikon) of Athens decided to commit the applicant for trial to the three-member Court of Appeal (trimeles efetio) of Athens, sitting as a first instance court, on the above charges. The chamber confirmed the investigating judge’s warrant concerning the applicant’s detention. 11. On 2 February 1995 the indictments chamber decided to commit the applicant for trial on a number of supplementary charges. 12. The applicant was arrested on 2 September 1995. Until 30 October 1995 the applicant was deemed to be serving a sentence that had been imposed on him for unrelated offences in 1989. As a result, the applicant’s detention on remand on the fraud and other charges mentioned above officially started on 30 October 1995. 13. On 17 July 1996 the applicant applied for his provisional release. On 22 August 1996 the indictments chamber of the Court of Appeal of Athens rejected his application. 14. On 2 September 1996 the applicant appeared, together with MB, JK and DK, before the three-member Court of Appeal of Athens. He was represented by counsel who also acted for MB and JK. The trial lasted until 3 September 1996 when the court heard the final submissions of the parties on the question of guilt of the applicant and his co-defendants. Then the court withdrew for deliberations in the course of which it decided to acquit the applicant and convict MB and JK. 15. The relevant decision was pronounced and then the court heard submissions on the sentences to be imposed on MB and JK. Counsel who represented the applicant as well as MB and JK was heard in this connection. The court withdrew for deliberations in the course of which it decided on the penalties to be imposed. It also decided that “the applicant should not be compensated for the time he spent in detention on remand”. The relevant decision was pronounced on the same day, i.e. on 3 September 1996. 16. However, its text was finalised (katharographi) on 9 December 1996. The applicant was informed of this development later on and obtained a certified copy on 28 July 1997. 17. The Code of Criminal Procedure provides as follows: “Persons who have been detained on remand and subsequently acquitted ... have the right to request compensation ..., if it has been established in the proceedings that they did not commit the criminal offence for which they have been detained on remand.” “The State does not have any obligation to compensate a person who ... has been detained on remand if the latter, intentionally or by gross negligence, was responsible for his own detention.” “Upon an application submitted orally by the person who has been acquitted, the court which heard the case shall decide on the State's obligation to pay compensation in a separate decision issued at the same time as the verdict. However, the court may also issue such a decision proprio motu ... The decision regarding the obligation of the State to pay compensation cannot be challenged separately; it is, however, quashed when the decision on the principal issue of the criminal trial is reversed.” “The person who has suffered prejudice may request compensation at a later stage before the same court. In these circumstances, the application must be submitted to the public prosecutor of this court strictly within forty-eight hours from the pronouncement of the judgment in open court.” “After it has been decided that the State must pay compensation, the person entitled thereto may bring his claim before the civil courts, which may not re-examine the existence of the State's obligation.” “Persons who have been unfairly ... detained on remand must be compensated for any material prejudice they have suffered as a result of their ... detention. They must also be compensated for moral damage ... .” | 1 |
dev | 001-90348 | ENG | RUS | CHAMBER | 2,008 | CASE OF KAZAKOV v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 10 | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 4. The applicant was born in 1948 and lives in the town of Karachev in the Bryansk Region. 5. In January 1999 the applicant, a former military officer, sent a letter to the commander of military unit no. 64176, who supervised the command of unit no. 92919. The letter read as follows: “On 24 December 1998 the command of military unit no. 92919 held a meeting of war veterans ... who live in the military compound. The meeting adopted an open letter to the Ministry of Defence of the Russian Federation with a request to return the town baths to the compound residents and to stop discrimination against the residents on account of their social or official status ... Commanders of the military unit conduct themselves as ‘usurpers, invaders and occupants’. In a short period of time the new commander of military unit no. 92919, Colonel Shatov, destroyed the town dance hall and the warehouse for vegetables, locked up the leisure centre of the unit, performed an unauthorised dismantling of the bus park and threw everyone out of the bathhouse which he converted into a ‘brothel’ for a narrow circle of chosen ones.” 6. Mr Shatov lodged a defamation action against the applicant, claiming that the letter of January 1999 had impaired his honour and dignity. He sought compensation in respect of non-pecuniary damage and a written apology, enclosing its proposed text. 7. By judgment of 13 July 2000, the Karachevskiy District Court of the Bryansk Region found for the plaintiff. It established that the dance hall and the warehouse had been indeed dismantled, but the materials had been used for the needs of the military unit, that the leisure centre was open, and that the soldiers and officers and their family members could still use the baths. The court noted that the document the applicant produced to prove the dismantling of the bus park could not be used in evidence as it bore no stamp. 8. The District Court found that the information stated in the letter of January 1999 had been untrue and damaging to Mr Shatov’s honour and dignity, and ordered as follows: “Pursuant to Articles 152 § 5 and 151 of the Civil Code, the court orders [the applicant] to pay Mr Shatov 500 Russian roubles in respect of non-pecuniary damage because the allegations about Mr Shatov’s ‘discrimination against citizens, [his acting as an] usurper, invader, occupant, destruction of the dance hall and the warehouse, unauthorised dismantling of the bus park and throwing everyone out of the bathhouse which he converted into a ‘brothel’ for a narrow circle’ have impaired Mr Shatov’s honour and dignity... ...to order that [the applicant] make a written apology to Mr Shatov within one month, worded as follows: “In January 1999 I, [the applicant], sent to the commander of military unit no. 64176 a letter containing information on your professional activities, which was untrue and damaging to your honour and dignity. This fact was established by the Karachevskiy District Court on 13 July 2000. I apologise to you for having disseminated such information, for undermining your authority in the eyes of your subordinates and superiors, compound residents and the Karachev town residents, and for causing you personal suffering”; ...and to make an apology to the commander of military unit no. 64176 of Moscow worded as follows “In January 1999 I, [the applicant], sent you a letter containing information on the professional activities of the commander of military unit no. 92919, Mr Shatov, which was untrue and impaired Mr Shatov’s honour and dignity. This fact was established by the Karachevskiy District Court on 13 July 2000. I apologise for misleading the command of military unit no. 64176 by giving untrue information.” 9. The applicant appealed against the judgment of 13 July 2000. He claimed that the letter of January 1999 contained his own value judgments, which were not amenable to proof. On 15 February 2001 the Bryansk Regional Court upheld the judgment, endorsing the reasons of the first-instance court. 10. Article 29 of the Russian Constitution guarantees the freedom of expression. Article 33 provides that Russian citizens shall have the right to petition in person, as well as to submit individual and collective appeals to, State authorities and local self-government bodies. 11. Article 12 of the Civil Code is a general provision containing a list of the forms of redress which can be obtained in respect of civil rights. It includes recognition of a right, restitutio in integrum, compensation in respect of pecuniary or non-pecuniary damage and other forms of redress prescribed by law. Article 152 of the Code reads in its relevant parts as follows: “1. A citizen shall have the right to claim through the court that the information discrediting his honour, dignity or business reputation be refuted, unless the person who has disseminated such information proves its truthfulness ... 2. If the information discrediting the honour, dignity or business reputation of the citizen has been disseminated by the mass media, it shall be refuted by the same media ... 3. The citizen with respect to whom the media have published the information infringing upon his rights or protected interests shall have the right to publish his reply in the same media ... 5. The citizen with respect to whom the information discrediting his honour, dignity or business reputation has been disseminated shall also have the right, in addition to the refutation of the given information, to claim compensation in respect of pecuniary and non-pecuniary damage caused by the dissemination. 6. If the person who has disseminated the information ... cannot be identified, the citizen shall have the right to turn to the court with a demand that it recognise the disseminated information as untruthful ...” 12. Resolution no. 11 of the Plenary Supreme Court of 18 August 1992 (as amended on 25 April 1995, in force at the material time) established that the notion “dissemination of information” employed in Article 152 of the Civil Code was understood as the publication of statements or their broadcasting, inclusion in professional references, public speeches, applications to State officials and communication in other forms, including oral, to at least one another person. It specified, however, that “communication of such information to the person whom it concerned could not be treated as dissemination”. 13. In their Resolution of 24 February 2005, the Plenary Supreme Court recalled that under Article 29 § 3 of the Constitution no one can be compelled to express his opinions or beliefs or compelled to refrain from expressing them. It thus instructed the courts below that an apology, whatever its form, was not prescribed under Russian law, including Article 152 of the Civil Code, as redress (point 18). The above does not exclude the possibility for a judge to approve a friendly-settlement agreement the terms of which require such an apology. The Supreme Court also instructed the other courts that when a citizen lodges a complaint with a public authority alleging, for instance, that a criminal offence has been committed and when such an allegation proves to be unfounded, the latter fact cannot serve as a basis for an action under Article 152 of the Civil Code. The Supreme Court explained that civil liability could not arise in such a situation in view of the applicant’s exercise of his right of petition to a public authority, which was to carry out an inquiry, and that such a situation did not equate to dissemination of false defamatory information (point 10). A defamation action may only succeed if a court has established that the petition to the public authority lacked any foundation and was intended to cause damage to another person, thus amounting to an abuse of the right (ibid). 14. Until 2006 the general administrative complaints procedure was prescribed by Decree no. 2534-VII issued by the Presidium of the USSR Supreme Council on 12 April 1968, as subsequently amended in 1980 and 1988, in so far as it was compatible with the 1993 Constitution and the 1993 Judicial Review Act. A number of public authorities had individual regulations on the matter. 15. According to the 1968 decree, a written petition or complaint should be signed by the complainant and should indicate his or her full name and place of residence (point 1). A petition or complaint should be submitted to the official or authority who is the immediate superior of the official or authority against whom the complaint is directed (point 3). The filing of defamatory petitions or complaints should be punishable by the law (point 15). 16. The Petition Procedure Act of 2 May 2006 (Federal Law no. 59-ФЗ) sets up a new framework for administrative complaints and petitions. According to its section 11 § 3, a petition containing obscene or insulting phrases, threats to life or limb of an official or his or her family members, may be left without examination on the merits; in such cases the complainant should be warned against the abuse of the right. | 1 |
dev | 001-72778 | ENG | GBR | ADMISSIBILITY | 2,006 | CODONA v. THE UNITED KINGDOM | 4 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicant, Mrs Leanne Codona, is a British national who was born in 1982 and lives near Fenstanton, Cambridgeshire. She is represented before the Court by Christopher Johnson, a lawyer practising in Birmingham. The applicant is a gypsy. She lived with her young son and other members of her extended family in caravans on what has become known as Plot 7 Woodside Caravan Park at Hatch, near Sandy in Bedfordshire (‘the Site’). Mid-Bedfordshire District Council (‘the Council’) was responsible for planning control in relation to the Site and was also the responsible housing authority. The applicant moved with other gypsies onto the Site with their caravans in mid-1997, in breach of planning control. Over time, the Site became divided into 27 plots. The Council first learned in early August 1997 that gypsies were occupying the Site. In October 1998, the Council served enforcement and stop notices on the occupiers of the Site under the provisions of the Town and Country Planning Act 1990. The occupiers appealed. It is not clear from the materials submitted whether the applicant was amongst those who appealed. Following a local public inquiry held in May 1999, a planning inspector dismissed the appeals by decision letter dated 29 June 1999. He gave the occupiers 12 months within which to comply with the enforcement and stop notices, so as to enable them to apply for planning permission in respect of smaller area. It appears that they took no steps to comply with either set of notices. In late 1999 or early 2000 the Council resolved to take enforcement action by way of injunction or prosecution; at about the same time, the occupiers, styling themselves “the owners of Woodside Caravan Park” made a further planning application, essentially to continue its use, albeit with more landscaping. Again, it is not clear from the materials submitted whether the applicant was involved in the making of this application. In July 2000, shortly after the expiry of the 12 month period of grace given by the inspector, the Council refused the application for planning permission. Following inquiry, the inspector dismissed the occupiers’ appeal in January 2001. Early in 2001, before the Council could put into motion steps to evict the occupiers, the latter, including the applicant, made 19 planning applications in respect of individual plots on the site. In the summer of 2001, the Council refused the majority of the applications, including those of the applicant. The applicant and 10 other occupiers each appealed the refusal in their individual case. In the meantime, in August 2001, the Council issued proceedings for injunctions against named and un-named occupiers of the Site. The latter responded in September 2001 by seeking and obtaining permission to apply for judicial review, it appears against the decision to issue these proceedings. In late 2001 and early 2002 an inspector held an inquiry into the 11 individual appeals. In June 2002, the inspector dismissed each of them. The Council then immediately sought and obtained (after a three day hearing, at which evidence was given) an injunction against her and all the other occupiers of the Site to remove themselves, their caravans, all hard standings and associated materials from the Site by 1 November 2002 (‘the injunction’). The applicant responded by making a further planning application, this time in relation to three plots on the land. The Council refused to determine this application because of its close similarity to the previous application. The applicant sought without success on paper to obtain permission to claim judicial review in respect of that decision. At about the same time she and other occupiers applied both to the High Court to vary the terms of the injunction as to the date when they should leave the Site and also to the Council for accommodation as homeless persons under the provisions of Part VII of the Housing Act 1996 (‘the 1996 Act’). In early November 2002, the High Court refused the occupiers’ application for variation of the injunction and refused them permission to appeal. Very shortly thereafter the Council exercised its power under s.178 Town and Country Planning Act 1990 to clear the majority of the occupiers from the Site, but not the applicant, who with her family continued to occupy so-called Plot 7 (with some 6 or 7 caravans). In late December 2002, the Court of Appeal refused the occupiers permission to appeal the decision of the High Court. The applicant did not seek to renew orally her judicial review application in respect of the Council’s refusal to entertain her application for planning permission, on the Council agreeing not to enforce the injunction without giving her and her family seven days notice of its intention to do so and to consider and determine their homeless applications (one made on 30 October 2002 and a revised one made on 31 October 2002, the former ultimately being subsumed into the latter). In that homelessness application, the applicant explained that she had an aversion to conventional “bricks and mortar” and that she: “...[did] not wish to be given bricks and mortar. She has always lived in a caravan, has only spent one night in a building in her life. Mrs Codona wishes to live in a caravan and have the support of her extended family around her.” On 4 March 2003, the Council, acting through Aragon Housing Association (to which it had delegated its housing function) (‘the Association’), accepted its duty under section 193 of the 1996 Act to provide the applicant and her family with suitable accommodation. The Association concluded that they could only offer them “bricks and mortar” accommodation in a “bed and breakfast establishment” until it could make a final offer of accommodation acceptable to them. The letter read to the applicant read in relevant part as follows: “The Association... have a duty to secure suitable accommodation is available for your occupation and, in doing so, shall have regard to all the relevant circumstances relating to you and those who normally reside with you or might reasonably be expected to reside with you. The Association is aware that there are six/seven caravans on Plot 7, Woodside Caravan Park, Hatch, the occupants of which you have included in your homelessness application. The Association is also aware that you consider the occupants of these other vehicles as part of your immediate household and that you have requested that they be accommodated with you. In your application you have also indicated that you do not wish to live in accommodation made of bricks and mortar and that you would consider the offer of a plot/piece of land. Unfortunately, as you aware from previous meetings, the Association is unable to offer land, and can only secure accommodation from either its own housing stock or, on some occasions, property owned by another Housing Association also operating within the Mid Beds Area. Further, it is also highly unlikely the Association will be able to secure a single property large enough to accommodate all the occupants of Plot 7, Woodside Caravan Park. However, given that each family occupying Plot 7 resided in their own separate unit of accommodation, the Association does not consider it unreasonable to offer an individual property for each family on Plot 7 and will endeavour to ensure the properties offered are in as close proximity to each other as is reasonably possible.” The applicant sought to clarify what accommodation the Association was intending to offer her; they made it clear that they were intending, in the short term, to offer her bed and breakfast accommodation. Through her solicitor, the applicant sought an internal review of this decision pursuant to section 202 of the 1996 Act. On 8 May 2003, the decision was upheld. The Council wrote in the following terms: “In relation to the question about reasonableness [sic] of an offer of Bed & Breakfast or other temporary accommodation I have reached the following conclusions: ... [the 1996 Act and the Homelessness Code of Guidance for Local Authorities (July 2002)] ... provide clarity of what constitutes suitable accommodation. Bed & Breakfast is deemed to be suitable accommodation particularly as... the Council have already confirmed that they will take all reasonable steps to minimise its use. Wherever reasonably practicable the offer of any temporary accommodation would be within Mid Beds and that such accommodation as would be provided would be fit for occupation and would not result in statutory overcrowding [a reference to section 210 of the 1996 Act]. ... I note your concerns regarding a stay in bricks and mortar accommodation and would certainly not underestimate the differences [sic] which you would have to face having always lived in a caravan. I understand that you are concerned about living without the support of your family but again... [the Council] have advised that all practical steps would be taken to accommodate you as a close family unit. Therefore having fully considered the details of your case and your cultural aversion to bricks and mortar as detailed... I find that, while sympathetic to them, I must also take into consideration the general makeup and stock of the housing within the area and also the availability of suitable accommodation and this leaves us with no alternative but to offer bricks and mortar accommodation.” The applicant then applied to the County Court for a statutory review pursuant to section 204 of the 1996 Act. She advanced multiple grounds, but only one of them, the question of whether the accommodation offered was suitable, was considered at length, the others being found to be entirely groundless. The County Court found: (1) that the Council had accepted and continued to accept that it owed a statutory duty to the applicant and her family to secure that suitable accommodation was made available to them; and (2) the applicant had a “cultural” aversion to living in “bricks and mortar” accommodation. However, the court also accepted that the Council did not have any land available for the applicant or members of her family to pitch their caravans, such that it was impossible for it to offer what she wanted. The County Court judge considered the position by reference to domestic decisions which had, in turn, considered the jurisprudence of this Court. The judge considered that he was bound by the decision in R (Price) v Carmathenshire County Council [2003] EWHC 42 (Admin) (in which the case of Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001I had itself been the subject of consideration). The High Court in Price found that, while it was necessary that special consideration be given to the position of gypsies as a minority, it could not be argued that an offer or bricks and mortar accommodation could never constitute a suitable alternative accommodation for a Gypsy with a cultural aversion to bricks and mortar. The County Court found that “to impose on the Housing Authority a duty to produce a pitch or berth for six or seven caravans is not supported by statute or by case law, whether in this country or in Europe.” It also found that, while the Council had not expressly considered Articles 8 or 14, it had proceeded in a way compatible with their requirements. The court therefore found that, in the circumstances, the Council’s offer was an adequate discharge of its duty under section 193. The applicant appealed to the Court of Appeal, which dismissed her application for permission to appeal on 15 July 2004. The Court of Appeal found that, while an empty pitch is not itself “accommodation” for purposes of section 193, a council could, by making it available as a site to pitch a caravan, and with the agreement of the individual, be said to have discharged its duty under the section. The Court of Appeal therefore considered at some length the question of whether bricks and mortar accommodation could be said to be “suitable” for a Gypsy with a cultural aversion to bricks and mortar. It considered the same domestic cases as had been considered by the lower court, as well as Chapman, and found there to be three main criteria for assessing the suitability of accommodation offered: “1) suitability to a [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223] minimum level of suitability in the nature, location and standard of condition of the accommodation having regard to the circumstances of the applicant and his or her resident family including the duration of their likely occupation of it; 2) the absolute nature of the duty which, though, coupled with an elastic concept of suitability is not elastic as to allow an offer below the Wednesbury minimum standard (or... outside the margin of appreciation); and 3) special consideration, in the regulatory and decision-making in individual cases, for the housing needs of particularly vulnerable applicants such as traditional gypsies with a view, so far as is practicable and when considered with all other circumstances, to facilitating their traditional way of life.” The Court of Appeal found that, if the Council had carried out a genuine consideration of a Gypsy’s needs, “where land is not available, or cannot readily be made available, on which a Gypsy applicant can station his or her caravan, it is open to a local authority to provide other accommodation of the conventional bricks and mortar kind, providing that it satisfies the Wednesbury minimum line of suitability.” The Court of Appeal found that the Council and first instance judge had correctly identified and applied the relevant principles in the applicant’s case. It also considered that the first instance judge had properly considered the Article 8 question in his own right. The Court of Appeal noted that the Council was required as “as a matter of relative urgency to find accommodation for an extended family occupying some six or seven caravans, who were insisting, because of their aversion to conventional housing, on being provided with an alternative site for all of their caravans on which they could continue to live together.” As with the first instance court, the Court of Appeal found that there was no such site available, nor was the Council immediately able to provide long-term conventional bricks and mortar accommodation for the extended family. It therefore concluded that, “depending on the quality of bed and breakfast accommodation offered and, on the reasonable assumption that the Council will see to it that their stay will only be for a short time,” the Council by offering bed and breakfast accommodation had discharged its duty under section 193 and had acted compatibly with Articles 8 and/or 14. It added the caveat that bed and breakfast accommodation could become unsuitable either under domestic law or by reference to Article 8 if too long a period elapsed before the provision either of conventional housing or, if it could be found, a caravan site. The House of Lords refused the applicant permission to appeal on 16 December 2004 on the basis that her petition did not raise an arguable point of law of general public importance which ought to be considered by the House at that time, given that it had already been the subject of judicial decision. On 28 September 2004, the Council reassessed the applicant and made a further offer of temporary accommodation. This was refused by letter dated 30 September 2004. No details of the accommodation offered at that point have been provided by the applicant. It is in particular not clear whether the Council offered bed and breakfast or permanent settled accommodation and/or whether it restated its view that there were no suitable caravan sites available. On 5 November 2004 (and again on 8 November 2004), the Council gave notice of its intention to enforce the injunction; the High Court dismissed an application for judicial review of the Council’s decision on 2 February 2005. The applicant and her family vacated the Site on or before 23 February 2005. It appears that they are now on unauthorised sites, and the applicant’s family is split because they have been unable to find a site where they can remain together. She contends that she (and her family) are now vulnerable to proceedings for possession from local authorities and private landowners, and also to the imposition of removal directions and/or possible criminal proceedings under sections 61, 62A-E, 77 and 78 of the Criminal Justice and Public Order Act 1994. The applicant has submitted a press release from the Office of the Deputy Prime Minister dated 7 March 2005, from which it appears that the Government is consulting on a revision to the directions given to local authorities with a specific view to increasing the number of authorised caravan sites available for use by travellers and gypsies. Local authority duties to the homeless are provided in Part VII of the Housing Act 1996. Section 193 provides, in material part: “(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. (2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.” Section 206 provides, again in material part, “(1) A local housing authority may discharge their housing functions under this Part only in the following ways – (a) by securing that suitable accommodation provided by them is available, ...” There is no definition of the word “suitable” in this section. By section 175 (2) of the 1996 Act “A person is also homeless if he has accommodation but – ... (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.” The meaning of the word “suitable” within the context of sections 193 and 206 of the 1996 Act has been considered in several domestic cases. The most relevant is that of R (Price) v Carmathenshire County Council [2003] EWHC 42 (Admin), in which the main issue was whether the Gypsy in question had a cultural aversion to bricks and mortar. However, the High Court had to consider as a starting point whether such an aversion of itself could prevent an offer of such accommodation from amounting to an offer of suitable accommodation. The High Court, expressly considering itself to be following Chapman, accepted that it was incumbent on local authorities to give effect to the positive obligation imposed on contracting States under Article 8 to facilitate the Gypsy way of life, but found that, had the respondent council concluded that: “the claimant’s cultural commitment to traditional life was so powerful as to present great difficulties in her living in conventional housing, it was not bound by duty to find her a pitch, but it would have been a significant factor in considering how far it should go to facilitate her traditional way of life.” | 0 |
dev | 001-22108 | ENG | ESP | ADMISSIBILITY | 2,001 | HILL v. SPAIN | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Brian Anthony Hill, is a British national, who was born in 1963 and lives in Gloucester (UK). The facts of the case, as submitted by the applicant, may be summarised as follows. On 20 November 1986, the Provincial High Court of Valencia convicted the applicant and his brother of arson and sentenced them to a term of imprisonment of six years and one day. The applicant lodged an appeal (recurso de casación) to the Spanish Supreme Court. On 6 July 1988, the Supreme Court rejected the appeal. The amparo appeal to the Constitutional Court was rejected on 8 May 1989. On 1 October 1992, the applicant and his brother submitted an application to the UN Human Rights Committee complaining that their right to a fair trial had been breached by the Spanish courts, namely the Provincial High Court of Valencia. Invoking several provisions of the International Covenant on Civil and Political Rights, they complained of the judicial authorities’ repeated refusal to grant bail before the trial, of the lack of competent interpreters during the interrogation by the police, that during the trial the legal aid lawyer had not defended them properly, and that his brother had been denied the right to defend himself in person. On 2 April 1997, the Human Rights Committee found Spain to be in breach of Articles 9 § 3, 10 and 14 § 3 (c) and 5 of the Covenant. In the subsequent response given to the Human Rights Committee’ findings, the Spanish Government, on 9 October 1997, guaranteed the applicant the right to administrative and judicial redress by the way of domestic legal procedures and, if necessary, by means of supranational organisations. On 10 June 1998, the applicant instituted two sets of proceedings. First, he claimed compensation from the Ministry of Justice for the defective operation of the machinery of justice under sections 292 and seq., of the Judicature Act (Ley Orgánica del Poder Judicial LOPJ). This appeal is still pending. Secondly, he lodged a judicial appeal with the Provincial High Court of Valencia asking for the annulment of the criminal proceedings. On 12 November 1999, the Provincial High Court of Valencia rejected the appeal on the ground that it had not been lodged within the specified time limit of five years after the notification of the judgment of 20 November 1986. Invoking Article 24 of the Spanish Constitution (right to a fair trial), the applicant lodged an amparo appeal with the Constitutional Court. By a decision of 13 November 2000, the Constitutional Court rejected the amparo appeal. The Court declared that granting compensation for the defective operation of the machinery of justice could be considered in certain circumstances as effective reparation in the case of a violation of Article 24 of the Constitution. However, when a person had been deprived of his liberty as in the present case, the grant of compensation was not the most appropriate way of remedying the infringement of fundamental rights. In these cases, the nullity appeal was not the only possibility and the applicant had at his disposal either an application for a retrial (recurso de revisión) or an application based on judicial error. The court came to the conclusion that the alleged violation could still be remedied. Consequently, it rejected the amparo appeal for non-exhaustion. | 0 |
dev | 001-77392 | ENG | UKR | CHAMBER | 2,006 | CASE OF DVOYNYKH v. UKRAINE | 3 | Preliminary objections dismissed (six-month period, non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 5. The applicant was born in 1947 and lives in Simferopol. 6. On 19 June 1999 the applicant was arrested on suspicion of theft and abuse of power. 7. On 23 June 1999 the applicant was placed in the Simferopol Temporary Detention Centre No. 15 (the “Simferopol SIZO”). 8. On 9 February 2000 the applicant was released on bail subject to an undertaking not to abscond. According to the applicant, he was released because of his poor state of health. 9. On 21 February 2000 the applicant was hospitalised. He was found to suffer from second degree hypertension, hyperpiesia, and other vascular diseases, and underwent medical treatment until 3 March 2000. 10. On 23 March 2000 the prosecutors decided to arrest the applicant on the same charges of theft and abuse of power. On 24 March 2000 the applicant was placed in the Simferopol SIZO. 11. On the latter day the applicant was examined by a paramedic, a general practitioner and a dermatologist, who all noted in the medical records, submitted by the Government, that the applicant did not have complaints about his state of health. The paramedic noted that the applicant suffered from coronary heart disease and that he had to be further examined by a doctor. The general practitioner noted that the applicant suffered from coronary heart disease and angina of effort. The dermatologist noted that the applicant was healthy. 12. According to the same records, on 20 September 2000 the applicant was further examined by a general practitioner and a dermatologist. They both noted that the applicant did not have complaints about his state of health. On 24 March, 24 September, and 27 November 2000 the applicant underwent three X-ray examinations, none of which revealed any pathological changes in his heart or lungs. 13. In his letter of 29 March 2000, the applicant requested the President of the Zaliznodorozhnyy District Court of Simferopol to release him on bail, alleging unlawfulness of his detention. The applicant maintained that he suffered from vascular diseases, stomach ulcer, and adenoma of the prostate, and that he required urgent medical treatment, which he could not receive in the Simferopol SIZO. On 17 April, 15 May 2000 the applicant made similar submissions to the General Prosecutor of Ukraine and the President of the Tsentralnyy District Court of Simferopol, respectively. 14. On 30 March 2000 the applicant's lawyer challenged before the Zaliznodorozhnyy District Court the decision of 23 March 2000. On 28 April 2000 the court refused to consider the lawyer's complaint on the ground that the criminal case against the applicant had been submitted to the Tsentralnyy District Court for consideration. The Zaliznodorozhnyy District Court further held that its decision was final and was not subject to appeal. 15. According to the Government, on 27 November 2000 the applicant requested medical aid and was immediately examined by a doctor, who found that the applicant suffered from a severe respiratory tract infection. The applicant received the necessary treatment, so that on 29 November 2000 the medical examination did not reveal any symptoms of such illness. 16. On 1 December 2000 the applicant was released from the Simferopol SIZO. 17. On 13 February 2002 the applicant was placed in a hospital, where he underwent an abdominal surgery. According to the medical records of 2003, submitted by the applicant, he suffered from several vascular and stomach diseases. 18. The applicant stated that he had been detained in the cells of around 14 square metres, which had been occupied by 16-17 inmates at the same time, some of whom had suffered from tuberculosis and AIDS. The applicant had had to take turns to sleep because there had been not enough beds. The natural light or fresh air virtually did not go through because of the shutters on the windows and the windows' size, while the electric light was very poor and it was on all the time. The cells were dirty and infested with pests, cockroaches and bedbugs. There was no access to hot water in the cells and cold water did not reach the cells higher than those on the forth floor. There was no heating in the cells. 19. The applicant maintained that he had had daily walks which were limited to 35-40 minutes outside in an area not larger than a cell. The area was not protected from direct sunlight. The applicant also stated that he had not been able to purchase medicines or enough food from outside of the SIZO, while the quality of food provided in the SIZO had been unsatisfactory. 20. The applicant further maintained that he had spent several hours in the special cells for detainees in transit, which measured 12 square meters, together with around 54 other persons, the majority of whom had been smoking. These cells were deprived of natural light and fresh air. 21. The Government submitted that from 24 March until 6 April 2000 the applicant was detained together with 7-9 other detainees in the cell no. 78, which measured 12 square metres; from 6 April until 5 May 2000 – in the cell no. 159 of 18.1 square meters together with 8-12 other detainees; and from 10 July until 29 August 2000 – in the cell no. 79 of 44 square meters occupied by 20 persons. The Government acknowledged the problem of overcrowding in the Simferopol SIZO at the material time. They however maintained that the cells were equipped with the necessary number of beds, lavatories, tables, chairs, electric light, etc. There were windows which allowed access of daylight and fresh air. In general, the conditions of the applicant's detention corresponded to the relevant hygiene and sanitation standards. The Government submitted photographs of several cells in the Simferopol SIZO which had been taken in July 2004. 22. The Government further maintained that the applicant had had daily walks for one hour and an eight hours' non-stop sleep a day. 23. On 14 July 2000 the Tsentralnyy District Court of Simferopol found the applicant guilty of aggravated theft and abuse of power, and sentenced him to four years' imprisonment under a special high security regime (“посиленого режиму”). The court also ordered confiscation of the applicant's property and deprived him of the right to occupy positions involving administrative functions for three years. 24. On 29 August 2000 the Supreme Court of the Autonomous Republic Crimea upheld the decision of 14 July 2000. 25. On the same day the Governor of the Simferopol SIZO, upon the applicant's motion, allowed him to work as an employee at the maintenance department of the Simferopol SIZO, while serving his sentence. According to the records submitted by the Government, the applicant's entire remuneration for his work at the Simferopol SIZO had been used to cover his expenses for food and other everyday necessities. 26. On an unspecified date the President of the Supreme Court of the Autonomous Republic Crimea lodged a request with the Presidium of that court, seeking initiation of supervisory review of the case. 27. On 1 December 2000 the Presidium allowed the request and partly changed the decisions of 14 July and 29 August 2000. It found the applicant guilty of abuse of power and sentenced him to three years' imprisonment. The Presidium also deprived him of the right to occupy positions involving administrative functions for three years. It further released the applicant from serving his prison sentence on the ground that he suffered from vascular diseases and that he was not dangerous to the society. 28. Under Article 8 §§ 2 and 3, the Constitution is directly applicable. There is a guaranteed right to lodge an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of the Constitution of Ukraine. 29. Under Article 55 §§ 2 and 4, everyone is guaranteed the right to challenge the decisions, actions or omissions of the State authorities, local self-government bodies, officials and officers of a court of law. After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which Ukraine is a member or participant. 30. Article 63 § 3 provides that a convicted person enjoys all human and citizens' rights, subject only to restrictions determined by law and established by a court ruling. 31. According to Article 1 of the Act, pre-trial detention is a preventive measure in respect of an accused, a defendant or a person suspected of having committed a crime punishable with imprisonment, or a convicted person whose sentence has not yet become final. Such detention shall be in compliance with the Constitution, Universal Declaration of Human Rights, other international norms and standards of treatment of detainees. 32. Under Article 4, convicted persons, upon their written motion, may be granted leave to stay in a temporary detention centre in order to carry out logistics related work. 33. Article 7 provides inter alia that persons placed in detention shall be searched, medically checked, and photographed. Their fingerprints must be taken. They shall be informed about their rights and obligations, as well as about the requirements of the detention regime. Detainees' personal belongings and correspondence must be checked. They are not allowed to keep money or valuables. The money shall be transferred to their bank accounts, while their valuables shall be deposited in the detention centre. 34. Pursuant to Article 9, detainees have the following rights: to be defended in accordance with the rules of criminal procedure law; to familiarize themselves with the rules of detention; to take a one-hour daily walk; to receive twice a month a parcel weighing up to eight kilograms and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery; to buy foodstuffs and toiletries to the value of one month's statutory minimum wage, paying by written order, as well as unlimited amounts of stationery, newspapers and books; to use their own clothing and footwear and to keep documents and notes related to their criminal cases; to use TV sets received from relatives or other persons and board games, newspapers and books borrowed from the library of the detention centre and bought at shops; to perform individually religious rituals and use religious literature and objects made of semi-precious materials pertaining to their beliefs, provided that this neither leads to a breach of the internal rules of the detention centre nor restricts the rights of other persons; to sleep eight hours a night, during which they shall not be required to participate in proceedings or to do anything else, except in cases of extreme emergency; to lodge complaints and petitions and send letters to the State authorities and officials in accordance with the procedure prescribed by section 13 of the Act. 35. Under Article 11, detainees shall be provided with everyday conditions that meet sanitary and hygiene requirements. The cell area for one person may not be less than 2.5 square metres. Detainees are to be supplied with meals, individual sleeping-places, bedclothes and other types of everyday provisions free of charge and according to the norms laid down by the Cabinet of Ministers of Ukraine. In case of need, detainees shall be supplied with clothes and footwear of a standard form. There shall be medical assistance and preventive treatment organised in accordance with the health care legislation and the rules developed by the State Department of Penitentiary, the Security Service, and the Ministry of Health. 36. Article 17 provides that detainees, upon their consent, may be engaged in work, which shall be remunerated in accordance with the wages existing in public economy. There may be contributions made in respect of writs of execution out of the detainees' earnings. Detainees may also be engaged, for no longer than two hours a day and when they do not take part in the investigative proceedings, in a non-remunerated work necessary for maintaining proper conditions of their detention. 37. Under Article 22, the prosecutors shall supervise observance of laws in detention facilities. The administration of the detention centres must comply with the resolutions and instructions issued by the prosecutors in respect of conditions of detention. 38. According to Article 24, persons sentenced to up to five years' imprisonment may, in exceptional cases and upon their written motion, stay in a temporary detention centre in order to carry out logistics related work. 39. The visit of the CPT delegation to Ukraine took place from 10 to 26 September 2000, in the course of which the delegation inspected inter alia the Temporary Detention Centre No. 15 in Simferopol. The CPT recorded “situations of grave concern in terms of conditions of detention” and those at the Simferopol SIZO were “particularly telling”. It was noted that substantial overcrowding was one of the major deficiencies at the SIZOs. The CPT stressed that the Ukrainian authorities should “increase the current standard of 2.5 m² of living space per prisoner to at least 4 m²” (paragraph 59). 40. The relevant parts of the CPT report read as follows (emphasis added by the CPT): “86. Simferopol SIZO No. 15, located within the town, was built at the beginning of the 19th century, and had a capacity of 2,200 persons in 210 cells. At the time of the visit, it accommodated some 2,500 persons, of which 177 women and 155 minors. While the majority of the prison population was on remand, there were some 600 sentenced prisoners, including 30 sentenced to life imprisonment. Prisoners were held in two blocks, one dating back to the early 19th century and the other of more recent design, built in 1973. 87. The detention areas reserved for women and juveniles (both male and female) offered the best material conditions, in terms of natural light, artificial lighting, cleanliness and furniture. In particular, the CPT welcomes the fact that the shutters covering the cell windows had been removed shortly before the visit, thereby providing not only adequate access to natural light, but also much better ventilation. Major deficiencies nevertheless remained. In particular, the occupancy rate was excessive in many cells (for example, up to 9 women in an area of 16 m², 24 in an area of about 35 m²) and, in addition, not all women had their own beds. 88. The remainder of the prison population (adult men, most of them on remand) were subjected to appalling material conditions. These inmates were crammed into severely overcrowded dormitories (for example, up to 22 prisoners in an area of 18 m² and up to 32 in an area of 26 m²), with virtually no natural light, often poor artificial lighting and inefficient ventilation. The air was so stifling that most of the inmates remained in their underclothes. Furthermore, the establishment was unable to provide each prisoner with a bed; consequently, in many dormitories, inmates had to take turns to sleep. While some dormitories had been freshly painted, many others were dirty and infested with cockroaches and other vermin. In-cell toilets (as a rule only partially partitioned) were in an extremely poor state. 89. The adult men had also greater difficulty maintaining satisfactory personal hygiene, since basic products were severely rationed (for example, only 80 g of soap per month as against 200 g for women and 400 g for minors). Further, they were not issued with toilet paper, which was restricted to women and minors. In practice, they were largely dependent on their families in this respect. In addition, as at Boutcha, arrangements for cleaning clothes were unsatisfactory: all prisoners were compelled to wash them in cold water in their cells. 90. As regards activities, efforts were made to offer minors some educational activities (secondary education), particularly with the aid of local authorities, which provided school textbooks and volunteer teachers who visited the SIZO in their free time. Further, the staff assigned to minors performed work of a social nature with them, which included teaching them behavioural norms and the rules of day-to-day living. Apart from this, minors had no other form of organised purposeful activities (such as sporting and cultural activities). The rest of the prison population had no real form of organised activities. Apart from a hundred or so inmates assigned to prison chores, prisoners had no work or sporting or recreational activities. In practice, the only time they spent out of their cells was for an hour's open air exercise per day, taken under conditions which did not allow real exercise (the exercise areas ranged from 10 m² to a maximum of 25 m²). 91. To sum up, the majority of prisoners were locked up for almost the whole of the day in severely overcrowded and insalubrious cells, without being offered any activities worthy of the name. Under such conditions, to be incarcerated in Simferopol SIZO No. 15 could only be a stultifying experience. 92. Lasting improvements to the situation at SIZO No. 15 will inevitably take time. This will very largely depend on a substantial reduction of overcrowding. Once more, the delegation's findings demonstrate the importance and urgency of implementing the recommendation made in paragraph 59 above. Nevertheless, measures can and must be taken without delay to palliate certain of the most serious deficiencies observed. 93. As regards material conditions, the CPT recommends that steps be taken: - to provide all inmates (men and women) with adequate amounts of personal hygiene products and cleaning products for their dormitories, and adequate facilities for cleaning their clothes; - to ensure that each inmate has a bed or sleeping place; - to ensure that material conditions throughout both detention blocks reach the standards prevailing in the women's and minors' sections as soon as possible, in terms of natural light (by removing the shutters on the windows), artificial lighting, ventilation and cleanliness. As regards activities, the CPT recommends that high priority be given to the development of activity programmes for minors to enable them to enjoy a full programme of educational, recreational and other purposeful activities designed to bring out their potential for social (re)integration; physical education should constitute an important part of that programme. As regards adult inmates, the CPT recommends that ways of providing them with a minimum of recreational and sporting activities be explored as of now. It is axiomatic that as overcrowding is reduced, fuller programmes of activities must be introduced. In this regard, the CPT draws attention to the long-term objectives for activities set out in paragraphs 130 and 33 respectively of the reports on the 1998 and 1999 visits, which apply to all the SIZO's in the country. Lastly, the CPT recommends that the design of the exercise yards be reviewed with a view to enlarging them.” 41. As regards medical assistance offered to detainees at the Simferopol SIZO, the CPT found as follows: “104. The 2000 visit again highlighted the extreme inadequacy of the arrangements for the supply of appropriate medicines (for example, Colony No. 52 had no medicines in stock at the time of the visit, while SIZO No. 15 did not have a sufficient amount or variety of medicines and none for the treatment of tuberculosis). Despite the contributions made by the Department for the Execution of Sentences out of its own budget, prisons depended mainly on the humanitarian aid they could secure and on prisoners' families. As the CPT has repeatedly emphasised, this solution is not satisfactory, and is intolerable where the treatment of certain diseases such as tuberculosis is concerned. The Committee must point out yet again that it is the responsibility of the State to ensure that, irrespective of the prevailing economic circumstances, persons in its custody have access to basic elements of health-care, including the medicines required by their state of health... 106. Simferopol SIZO No. 15 had provision for 10 full-time medical doctors (general practitioners and specialists in pneumology, psychiatry, gynaecology and dermatology, as well as a dentist). However, one general practitioner post was vacant. Moreover, the gynaecologist was an outside consultant and many women had no access to this specialist because they were unable to pay for the consultations. Such a situation is not acceptable. As regards feldshers, there were 12 posts, of which only 8 were filled. Such a team can hardly be deemed sufficient to provide adequate health-care to 2500 prisoners, in particular as regards the number of feldshers. The CPT recommends that the vacant doctor's and feldshers' posts be filled as soon as possible, and that the question of women's access to gynaecological care be immediately reviewed. The examination/consultation rooms were modestly equipped, but clean. As regards the supply of medicines, reference should be made to the recommendation in paragraph 104... 108. Medical screening of newly arrived prisoners was inadequate in several of the establishments visited. It was a perfunctory medical check confined, at best, to weighing the prisoner and measuring his blood pressure; moreover, at the Simferopol SIZO, this task was left to the feldsher alone, who consulted a doctor only if this was expressly requested by the prisoner. Every newly-arrived prisoner should be properly interviewed and physically examined by a medical doctor as soon as possible after his/her arrival; save for in exceptional circumstances that interview/examination should be carried out on the day of admission, especially in so far as remand establishments are concerned. Such medical screening on admission could also be performed by a feldsher reporting to the doctor. The CPT recommends that steps be taken to ensure that this is the case in all penitentiary establishments. 109. As regards the recording of injuries observed on prisoners, reference should be made to the recommendations made in paragraph 26 above and in paragraph 151 of the report on its 1998 visit. 110. In at least two of the establishments visited (Simferopol SIZO and Colony No. 52), neither the medical examinations on arrival nor those performed during detention were confidential, since prison staff attended the consultations. The CPT recommends that all medical examinations of prisoners (whether on arrival or at a later stage and irrespective of the category of prisoner) be conducted out of hearing and - unless the doctor concerned requests otherwise in a particular case - out of the sight of prison officers; the same rule should apply during treatment provided to prisoners. 42. The 2000 Report also contains the findings of the CPT concerning the conditions in which detainees were being transferred from one place of detention to another: “129. Concerning road transport of prisoners, the delegation inspected two Internal Affairs Ministry vans in Simferopol SIZO. Each vehicle had collective compartments and an individual compartment. The individual compartments were as small as 0.5 m²; in paragraph 189 of the report on its 1998 visit, the CPT has already recommended that the practice of placing prisoners in compartments of this size cease. Conditions in the vehicle were also similar in other respects to those described in the aforementioned paragraph of the report on the 1998 visit (poor artificial lighting, inadequate ventilation). 130. Concerning rail transport, the delegation examined the facilities in one of the special carriages used for transporting prisoners. It had compartments measuring 2 and 3.5 m², with folding benches. The authorised capacity in the smaller compartments was six persons for journeys lasting not more than four hours, and four persons for longer journeys. In the larger 3.5 m² compartments, up to sixteen persons could be accommodated for short distances and twelve for long distances. The compartments had some access to natural light; however, ventilation was poor. The toilets for prisoners were in a disgusting state, clogged with excrement, despite the fact that prisoners were due to board a few minutes later for a long journey. There were no arrangements to provide prisoners with food, even over long distances; as for drinking water, only a small container was provided to supply the prisoners throughout the journey. 131. The manner in which prisoners are transported, particularly by train, is unacceptable, having regard inter alia to the material conditions and possible duration of travel. The CPT recommends that conditions of prisoners' transport in Ukraine be reviewed in the light of the foregoing remarks. As an immediate measure, it recommends that the Ukrainian authorities take steps to: - significantly reduce the maximum number of prisoners per compartment in a railway carriage: 3.5 m² compartments should never contain more than six persons, and 2 m² compartments never more than three persons; - ensure that during rail transport, prisoners are supplied with drinking water and that for long journeys, the necessary arrangements are made for them to be properly fed; - no longer use 0.5 m² compartments in vans for transporting prisoners.” | 1 |
dev | 001-99186 | ENG | TUR | CHAMBER | 2,010 | CASE OF GÜL AND OTHERS v. TURKEY | 3 | Remainder inadmissible;Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria | 4. The applicants were born in 1966, 1977, 1979 and 1965 respectively. 5. On 30 November 1999 the applicants were arrested by police officers from the Anti-Terrorist Branch of the Ankara Police Headquarters. On the same day the applicants' representatives applied to the principal public prosecutor's office at the Ankara State Security Court seeking information about the applicants' arrest and the duration of their custody, as well as authorisation to provide them with legal assistance during their questioning by the police. The principal public prosecutor informed them that, under section 16 of Law no. 2845 and sections 30 and 31 of Law no. 3842, the applicants were not entitled to receive legal assistance during their police custody. 6. On 3 December 1999 the applicants were brought before a public prosecutor at the Ankara State Security Court and questioned about their alleged affiliation with the Turkish Communist Party/MarxistLeninist - Turkish Workers and Peasants' Liberation Army - Marxist-Leninist Youth Union of Turkey (“the TKP/ML-TIKKO-TMLGB”), an armed, illegal organisation. Before the public prosecutor, Mr Ercan Gül stated that he was not a member of the organisation in question. He maintained that the periodicals found in his apartment were legal publications and that the poster allegedly found there did not belong to him. He had therefore refused to sign the arrest and search report. The applicant further stated that he was one of the founders and directors of the Tüm Maliye-Sen (Tüm Maliye Çalışanları Sendikası – the Financial Sector Trade Union) and that, consequently, as a member of this trade union, he had participated in several demonstrations, such as the one on May Day and demonstrations to commemorate the 1993 Sivas Massacre. Mr Ercan Gül lastly contended that he had never shouted slogans in support of the TKP/ML-TIKKO-TMLGB. 7. Mr Erkan Aslanbenzer stated before the public prosecutor that he was not a member of the organisation in question. He maintained that the periodicals found in his apartment were legal publications and not propaganda tools for the TKP/ML-TIKKO-TMLGB. He further contended that he was a member of the Confederation of Public Employees' Trade Unions (“KESK”) and that he had participated in several demonstrations. When the applicant was shown a photograph, allegedly of him at a demonstration behind a banner bearing the name Partizan, a periodical, he maintained that the person in the photograph could not have been him. Lastly, he stated that he did not remember whether on 2 July 1998 he had participated in the demonstration to commemorate the 1993 Sivas Massacre. 8. Mr Deniz Kahraman maintained that he had no affiliation with the TKP/ML. He said that he had taken part in the May Day Workers demonstration in 1997 and in the demonstration of 2 July 1998. When the applicant was shown a photograph allegedly of him at a demonstration behind a Partizan banner, he maintained that the person in the photograph was not him. 9. Finally, Ms Zehra Delikurt stated that she was not a member of the TKP/MLTIKKO-TMLGB. She denied the allegation that she had written slogans in favour of the TKP/ML-TIKKO on the walls of schools in Ankara. When she was shown a photograph in which she was allegedly carrying a picture of the general secretary of the TKP/ML-TIKKO, Ms Zehra Delikurt contended that she had participated in the demonstration of 2 July 1998 and that she did not know the person in the picture. 10. On the same day the applicants were brought before a single judge at the Ankara State Security Court, where they repeated their statements made to the public prosecutor. The judge ordered Ms Delikurt's detention and the other applicants' release. 11. On 21 December 1999 the public prosecutor at the Ankara State Security Court filed a bill of indictment against ten persons, including the applicants. The public prosecutor charged Ms Zehra Delikurt with membership of an illegal organisation and the other applicants with aiding and abetting members of an illegal organisation, under Articles 168 and 169 of the former Criminal Code respectively. The public prosecutor alleged that Ms Zehra Delikurt had shouted slogans in support of the TKP/ML-TIKKO during the May Day demonstrations in 1997 and 1999 as well as the demonstration of 2 July 1998, where she had been behind the Partizan banner and carried a poster of the general secretary of the TKP/ML-TIKKO. It was alleged that during the said demonstrations Ms Delikurt had shouted: “Biz işçinin, köylünün yiğit sesiyiz, namluya sürülmüş halk mermisiyiz (We are the brave voice of the workers and peasants; we are the public's bullet lodged in the barrel of a gun)”; “Marks, Lenin, Mao, Önderimiz IBO, Savaşıyor Tikko (Marx, Lenin, Mao, our leader is Ibo; TIKKO is fighting)”. It was also alleged that she had written TKP/ML-TIKKO slogans on school walls in Ankara, such as “TKP-ML TIKKO”, “IBO yaşıyor, TIKKO savaşıyor (IBO is alive, TIKKO is fighting)”; “Yaşasın partimiz TKP-ML TIKKO (Long live our party TKP-ML, TIKKO)”; “Gerillalar ölmez, yaşasın halk savaşı (Guerrillas don't die; long live the people's war)”; “Parti ve devrim şehitleri ölümsüzdür (the martyrs of the party and revolution are immortal)”; “TKP-ML TIKKO işçi köylü elele demokratik devrime (TKP-ML, TIKKO, workers and peasants hand in hand, towards democratic revolution)”. The applicant was also alleged to have participated in seminars held in cultural centres and in the headquarters of a left-wing political party and a trade union. Furthermore, the applicant was suspected of having sold the periodical Özgür Gelecek. 12. As regards Mr Ercan Gül, the public prosecutor noted that he had participated in the May Day demonstration of 1997, where slogans in support of the TKP/ML-TIKKO had been shouted, such as “Liderimiz Ibrahim Kaypakkaya (Our leader is Ibrahim Kaypakkaya)”; “Yaşasın Halkın Adaleti (Long live the people's justice)”; “Yaşasın parimiz TKP-ML (Long live our party TKP-ML)”; “İktidar namlunun ucundadır (Political power grows out of the barrel of the gun)”; “Marks Lenin Mao önderimiz Ibo, Savaşıyor TIKKO (Marx, Lenin, Mao, Our leader is IBO; TIKKO is fighting)”; “Biz işçinin, köylünün yiğit sesiyiz, namluya sürülmüş halk mermisiyiz (We are the brave voice of the workers and peasants; we are the public's bullet lodged in the barrel of a gun)”; “Liderimiz İbrahim Kaypakkaya, işçi, köylü, gençlik halk savaşında birleştik (Our leader is İbrahim Kaypakkaya; workers, peasants and youth, we are all united in the people's war)”. The public prosecutor alleged that Mr Ercan Gül had also shouted illegal slogans in the demonstration of 1999. Furthermore, it was noted that some periodicals, a picture of a member of the TKP/ML-TIKKO and a book had been found in his apartment. 13. The public prosecutor alleged that Mr Erkan Arslanbenzer had participated in the May Day demonstrations of 1996 and 1997, the Newroz celebrations in 1998 and the demonstrations of 1997 and 1998 to commemorate the Sivas Massacre, where he had shouted slogans in favour of the TKP/MLTIKKO, such as “Yaşasın partimiz TKP/ML (Long live our party TKP-ML)”; “Faşizme isyan, halka önder partisan (Revolt against fascism; the leader is Partizan)”; “İktidar namlunun ucundadır (Political power grows out of the barrel of the gun)”; “Umudun adı TKP-ML (TKP-ML is our hope)”; “Biz işçinin, köylünün yiğit sesiyiz, namluya sürülmüş halk mermisiyiz (We are the brave voice of the workers and peasants; we are the public's bullet lodged in the barrel of a gun)”; “Kızılordu, TIKKO TMLGB (Red Army, TIKKO, TMLGB)”; “Faşist devlet, yıkacağız elbet (Fascist State will surely be demolished)”; “Bizde hesapları namlular sorar (It is the barrel of the gun that will call to account)”. He further noted that periodicals and books in support of that organisation had been found in the applicant's apartment. 14. Finally, the public prosecutor stated that Mr Deniz Kahraman had taken part in the May Day demonstrations of 1997 and 1998 and the demonstration of 2 July 1998, where he had shouted TKP/MLTIKKO slogans including “Faşisme isyan, halka önder Partizan (Revolt against fascism; the leader is Partizan)”; “Yaşasın parimiz TKP-ML (Long live our party TKP-ML)”; “Biz işçinin, köylünün yiğit sesiyiz, namluya sürülmüş halk mermisiyiz (We are the brave voice of the workers and peasants; we are the public's bullet lodged in the barrel of a gun)”; “işçi, köylü, gençlik halk savaşında birleştik (workers, peasants and youth, we are all united in the people's war)”; “Bizde hesapları namlular sorar (It is the barrel of the gun that will call to account)”. The public prosecutor also noted that certain periodicals had been found in the applicant's apartment. 15. On 26 January 2000 the Ankara State Security Court held the first hearing on the merits of the case and heard the accused. The applicants reiterated their statements made before the public prosecutor and the single judge on 3 December 1999 and retracted their statements taken by the police. On the same day, the first-instance court ordered Ms Zehra Delikurt's release from prison. 16. The Ankara State Security Court held eight hearings and on 9 August 2000 gave its judgment. The court convicted the applicants under Article 169 of the former Criminal Code, which read as follows at the material time: “Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years' imprisonment...” 17. The first-instance court sentenced the applicants to three years and nine months' imprisonment. It found it established that the applicants had participated in the demonstrations behind TKP/MLTIKKO banners and shouted slogans in support of that illegal organisation. The court based its judgment on the transcriptions of video recordings of demonstrations made by the Anti-Terrorist Branch of the Ankara Police Headquarters, photographs taken by the security forces and the applicants' “evasive” statements made to the police, the public prosecutor and the single judge at the Ankara State Security Court, as well as the arrest and search reports, according to which periodicals used as propaganda tools for the TKP/ML-TIKKO had been found in the applicants' apartments. The court also noted that some of the periodicals were illegal as the distribution of certain issues had been suspended by court decisions. 18. On 16 April 2001 the Court of Cassation upheld the judgment of 9 August 2000. 19. Following the enactment of Law no. 4963, which came into force on 7 August 2003, the phrase “or facilitates its operations in any manner whatsoever” was removed from the text of Article 169 of the former Criminal Code. 20. Subsequently, the case against the applicants was reopened at the request of both the applicants' representative and the public prosecutor at the Ankara State Security Court. 21. On an unspecified date Ms Zehra Delikurt filed a request with the Ankara State Security Court to benefit from the Reintegration of Offenders into Society Act (Law no. 4959), which came into force on 6 August 2003. 22. In the meantime, on 29 April 2004 Ms Zehra Delikurt started serving her prison sentence. 23. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicants was transferred to the Ankara Assize Court. 24. On 21 July 2004 the Ankara Assize Court delivered its judgment. It allowed Ms Zehra Delikurt's request and decided not to convict her, in conformity with section 4 of Law no. 4959. As a result, she was released from prison. As regards the other applicants, the Assize Court held that, following the amendment to Article 169 of the former Criminal Code, the acts committed by them could not be considered to constitute the offence defined in that provision. The court nevertheless found Mr Ercan Gül, Mr Erkan Arslanbenzer and Mr Deniz Kahraman guilty of disseminating propaganda related to an illegal armed organisation through incitement to use violent methods, an offence proscribed by section 7 § 2 of the Prevention of Terrorism Act. It sentenced them to ten months' imprisonment. 25. Mr Ercan Gül and Mr Erkan Arslanbenzer appealed. 26. On 26 February 2006 the principal public prosecutor at the Court of Cassation sent the case file back to the Ankara Assize Court for the reconsideration of its judgment of 21 July 2004 since, in the meantime, a new Criminal Code had entered into force (Law no. 5237). 27. On 15 December 2006 the Ankara Assize Court once again convicted Mr Ercan Gül and Mr Erkan Arslanbenzer under section 7 § 2 of the Prevention of Terrorism Act of disseminating the propaganda of an illegal armed organisation through incitement to use violent methods, and sentenced them to ten months' imprisonment. 28. Mr Ercan Gül and Mr Erkan Arslanbenzer appealed. According to the latest information in the case file, the proceedings are still pending before the Court of Cassation. 29. The relevant provision of the former Criminal Code reads as follows: Article 169 “Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever, shall be sentenced to not less than three and not more than five years' imprisonment...” 30. Under Section 7 § 2 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years. 31. Finally, Law no. 4959 on the Reintegration of Offenders into Society Act applies to members of terrorist organisations who surrender to the authorities without armed resistance, either directly, on their own initiative, or through intermediaries, those who can be considered to have left a terrorist organisation, and those who have been arrested. The law also applies to those who, despite being aware of the aims pursued by the terrorist organisation, provided shelter, food, weapons, ammunition or any other kind of assistance. An important feature of the rehabilitation law is that it provides the possibility of reducing the sentences of those who wish to take advantage of the law by providing relevant information and documents on the structure and activities of the terrorist organisation. | 1 |
dev | 001-75130 | ENG | TUR | ADMISSIBILITY | 2,006 | KOKLU v. TURKEY | 4 | Inadmissible | David Thór Björgvinsson | The applicant, Mr Talip Köklü, is a Turkish national who was born in 1940 and lives in Ordu. He is represented before the Court by Mr Vural Soytekin, a lawyer practising in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. On 3 September 1996 the applicant applied to the Giresun Forestry Management Directorate in order to cut 1/3 of the trees on his land. On 26 May 1997 the administration rejected his application on the ground that this part of the land was classified as forestland, therefore cutting of the trees therein was prohibited pursuant to the relevant legislation. On 27 May 1997 the applicant brought an action before the Trabzon Administrative Court to annul the administration’s decision. On 9 June 1997 the court notified the applicant’s lawyer in writing that the court charges have not been paid. On 6 October 1997 the court further notified the applicant’s lawyer that the adjudication of the case would be discontinued until the court’s receipt of the relevant charges pursuant to Article 6/4 of the Code on Administrative Procedures. On 12 November 1997 the applicant’s lawyer paid the court charges. On 17 June 1998 a new administrative court was established in Ordu to adjudicate on the legal claims in Ordu and Giresun provinces with a view to lightening the case-load of the Trabzon Administrative Court. On 3 July 1998 the case was transferred to the newly established Ordu Administrative Court which immediately started the proceedings by requesting the Ankara General Directorate of Forestry to submit their observations on the merits of the case. On 18 February 1999 the Ankara General Directorate of Forestry submitted their arguments on the merits of the case together with a report on the classification of the location of the applicant’s land supported by the relevant evidence. On 13 July 1999 the Ordu Administrative Court rejected the applicant’s claim for annulment of the administration’s decision. On 22 October 1999 the applicant appealed against this judgment before the Supreme Administrative Court. On 26 October 1999 the Supreme Administrative Court notified the applicant’s lawyer that the court charges had not been paid and informed him that the adjudication of the case would be discontinued until the court’s receipt of such payment. On 9 November 1999 the applicant’s lawyer paid the said charges. On 8 November 2001 the Supreme Administrative Court rejected his appeal against the administrative court’s judgment. On 3 December 2001 the administrative court’s judgment was communicated to the applicant. | 0 |
dev | 001-23617 | ENG | NLD | ADMISSIBILITY | 2,003 | MEYNE-MOSKALCZUK and OTHERS v. THE NETHERLANDS | 4 | Inadmissible | Gaukur Jörundsson | The applicants are all Netherlands nationals resident in the Netherlands. Mrs Hubertina Antoinette Thomas Boesten-Aarts was born in 1939 and lives in Heerlen. Mrs Maria Anna Hammann was born in 1931 and lives in Helmond. Mrs Sophia Stanislawa Meyne-Moskalczuk was born in 1925 and lives in Amsterdam. Mrs Cornelia Harmina Johanna Nagtegaal was born in 1931 and lives in Hilversum. The applicants are represented before the Court by Mr R.K. van der Brugge, a lawyer practising in The Hague. The facts of the case, as submitted by the applicants, may be summarised as follows. Mrs Boesten-Aarts married a Mr G. on 15 February 1960. They were divorced with effect from 3 March 1977. During the marriage Mr G. was employed and accumulated pension entitlements. Mrs Boesten-Aarts took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name. Mr G. became entitled to a pension from the General Civil Service Pension Fund (Algemeen Burgerlijk Pensioenfonds, “ABP”) as of 1 April 1995. Mrs Boesten-Aarts applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 12 May 1995, the ground being that she and Mr G. had been married for less than eighteen years. Mrs Boesten-Aarts lodged an administrative appeal (beroep) with the ABP’s Board of Management, arguing that the refusal was discriminatory. By a letter dated 19 October 1995 the ABP’s Board of Management informed Mrs Boesten-Aarts that her objection could not be received. The objection was directed against provisions of the law as such; these the ABP, an executive administrative body, was not empowered to set aside. Mrs Hammann married a Mr P. on 23 April 1963. They were divorced with effect from 10 October 1980. During the marriage Mr P. was employed and accumulated pension entitlements. Mrs Hammann took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name. Mr P. became entitled to a pension from the ABP as of 31 March 1992. Mrs Hammann applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 15 May 1995, the ground being that she and Mr P. had been married for less than eighteen years. Mrs Hammann lodged an administrative appeal with the ABP’s Board of Management, arguing that the refusal was discriminatory. By a letter dated 4 October 1995 the ABP’s Board of Management informed Mrs Hammann that her objection could not be received. The objection was directed against provisions of the law as such; these the ABP, an executive administrative body, was not empowered to set aside. Mrs Meyne-Moskalczuk married a Mr M. on 23 July 1958. They were divorced with effect from 22 May 1974. During the marriage Mr M. was employed and accumulated pension entitlements. Mrs Meyne-Moskalczuk took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name. Mr M. became entitled to a pension from the ABP as of 1 July 1991. Mrs Meyne-Moskalczuk applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 28 April 1995, the ground being that she and Mr M. had been married for less than eighteen years. Mrs Meyne-Moskalczuk lodged an administrative appeal with the ABP’s Board of Management, arguing that the refusal was discriminatory. By a letter dated 15 September 1995 the ABP’s Board of Management informed Mrs Meyne-Moskalczuk that her objection could not be received. The objection was directed against provisions of the law as such; these the ABP, an executive administrative body, was not empowered to set aside. Mrs Nagtegaal married a Mr L. on 25 May 1959. They were divorced with effect from 15 August 1977. During the marriage Mr L. was employed and accumulated pension entitlements. Mrs Nagtegaal took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name. Mr L. became entitled to a pension from the ABP as of 1 March 1991. One quarter of his pension was allocated to Mrs Nagtegaal. Mrs Nagtegaal applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 15 May 1995, the ground being that the divorce had occurred before 27 November 1981 and the law in force therefore entitled her to no more than one quarter of her former husband’s pension. Mrs Nagtegaal lodged an administrative appeal with the ABP’s Board of Management, arguing that this decision was discriminatory. By a letter dated 28 March 1996 the ABP’s Board of Management informed Mrs Nagtegaal that her objection had been dismissed on the ground that the applicable legal provisions had been correctly applied, and that there was no apparent justification for deviating from them. The applicants each lodged an appeal (beroep) to the Regional Court (arrondissementsrechtbank) of The Hague. A single hearing was held before the Regional Court in the cases of all four applicants on 14 November 1996. The Regional Court gave four separate but, for present purposes, identical decisions, one in respect of each applicant, on 20 December 1996 dismissing the appeals. It acknowledged that there was a difference in treatment between persons in the position of the applicants and persons divorced after 27 November 1981, but considered that the requirements of legal certainty constituted adequate reasonable and objective justification. The applicants lodged further appeals (hoger beroep) to the Central Appeals Tribunal (Centrale Raad van Beroep), the highest administrative tribunal in matters concerning social security and civil service pensions. The Central Appeals Tribunal held a single hearing in all four cases on 1 April 1999. It eventually dismissed the appeals in four separate but identical decisions on 12 May 1999. Like the Regional Court, it considered the difference in treatment justified by the requirements of legal certainty. Prior to 27 November 1981, it was considered that pensions were by their very nature connected (verknocht) solely to the person nominally entitled to them (see the judgment of the Supreme Court (Hoge Raad) of 7 October 1959, Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases – “BNB”) 1959, no. 355). This meant that pension entitlements could not be included in divorce settlements. In a landmark judgment of 27 November 1981, Nederlandse Jurisprudentie (Netherlands Law Reports) 1982, no. 503, the Supreme Court held that pension entitlements existing at the time that a marital community of property (gemeenschap van goederen) was dissolved by divorce or judicial separation were, in principle, part of that community of property even if they had not yet fallen due. This meant that they had to be taken into account in the settlement when the assets and liabilities belonging to the community were divided. The way in which such entitlements should be taken into account depended on considerations of equity (redelijkheid en billijkheid), as applicable to the dissolution of a marital community of property. In many cases, the party nominally entitled to the pension would be faced with an obligation, conditional on the survival of both parties, to pay a certain percentage of the pension instalments to the other party as they became due. However, equitable considerations might dictate other solutions, for example the purchase by the party nominally entitled to the pension of an annuity for the benefit of the other party. In certain cases, for example if adequate arrangements had been made for the maintenance of the other party in some other way, it might be equitable to reduce the other party’s claim to part of the pension or even to cancel it altogether. The Supreme Court recognised that this judgment involved a reversal of its case-law since 1959. It realised that many marital communities of property had been dissolved in the meanwhile without pension rights being taken into account. Although in principle the Supreme Court’s new approach could give rise to the reopening of such cases, considerations of equity coupled with interests of legal certainty entailed that, as a rule, the party nominally entitled to the pension should not be faced with hitherto unexpected claims. On 1 May 1995 the Pensions Equalisation (Divorce) Act (Wet verevening pensioenrechten bij scheiding, “the 1995 Act”) entered into force. In relevant part, it provides as follows: “1. In case of divorce and in so far as one of the spouses has accumulated pension entitlements after the marriage was contracted and before the divorce, the other spouse shall have a right to pension equalisation as provided in or under this Act ... 2. Pursuant to the right to pension equalisation referred to in the first paragraph, a right to payment of a part of each instalment of the pension [as it becomes] payable shall come into being vis-à-vis the implementing body ... 3. Payment shall take place subject to the conditions laid down in the applicable instrument. If the time at which the pension starts (pensioeningang) precedes or coincides with the time of the divorce, payment shall start at the time the pension starts ... 4. The right to payment shall end at the time when the right to the pension ends or at the end of the month in which the spouse entitled to pension equalisation dies ... ...” “1. The part referred to in section 2, paragraph 2, shall be half of the pension that would be payable if: (a) the spouse who is under an obligation to equalise had participated solely during the years of participation from the time the marriage was contracted until the time of the divorce; (b) he had terminated his participation at the time of the divorce; and (c) he were married or in a registered partnership during the period when he was entitled to the pension. 2. If the pension is increased or decreased after it starts, the sum resulting from the first paragraph shall be increased or decreased in proportion to the increase or decrease of the pension. ...” “1. This Act shall not apply to a divorce that took place before the date on which this Act entered into force. 2. Nonetheless, this Act shall apply by analogy (van overeenkomstige toepassing) to a divorce that has taken place before 27 November 1981, provided that the marriage lasted for at least 18 years and there were, during the marriage, minor children of the spouses together or one of them, it being understood that the part referred to in section 2, second paragraph, shall be only one quarter of the pension that would have to be paid pursuant to section 3, first and second paragraphs, and that there shall be no right to pension equalisation to the extent that the circumstance that the spouse entitled to equalisation has accumulated insufficient pension or none at all has already demonstrably been taken into account. ... ...” The Explanatory Memorandum to the Bill which later became the Act (Explanatory Memorandum (Memorie van Toelichting), Lower House of Parliament, 1990-91, 21,893, no. 3, pp. 1–2) explains that the Government’s intention in introducing this legislation was to make the rule stated by the Supreme Court in its judgment of 21 November 1981 more effective by replacing the claim of one spouse against the other with an automatic claim against the body responsible for paying out the pension. It was felt that this would simplify the realisation of the rights of the spouse who was not nominally entitled to the pension, and in addition forestall litigation by making it unnecessary. An additional aim was to recognise a shared claim after divorce to the pension regardless of whether the parties had been married in community of property or had made other arrangements by a marriage settlement (huwelijkse voorwaarden), the question of the applicability of the Supreme Court’s case-law in the latter situation having given rise to problems in that regard (Explanatory Memorandum, loc. cit., p. 2). Initially, the proposed wording of Article 12 of the Act comprised only the present first paragraph. It was intended that the new Act should not affect divorces pre-dating the Supreme Court’s judgment of 27 November 1981, and that divorces which became final after that date but before the entry into force of the Act should be dealt with in accordance with the case-law which that judgment defined (Explanatory Memorandum, loc. cit., p. 33). The second paragraph of section 12 resulted from an amendment proposed by two members of the Lower House of Parliament, Mesdames Kalsbeek-Jasperse and Soutendijk-van Appeldoorn (Modified Amendment (Gewijzigd amendement), Lower House of Parliament, 1992-93, 21,893, no. 30). It was intended as a compromise between the requirements of legal certainty and considerations of an equitable nature. For that reason it granted a particular, limited, category of persons divorced before 27 November 1981 a partial entitlement to pension rights accumulated by their former spouses, albeit a lesser one than that enjoyed by persons who were divorced after the entry into force of the Act (Memorandum in Reply (Memorie van antwoord), Upper House of Parliament, 1993-94, 21,893, no. 111b, and Further Memorandum in Reply (Nadere memorie van antwoord), Upper House of Parliament, 1993-94, 21,893, no. 111d). | 0 |
dev | 001-60761 | ENG | ITA | CHAMBER | 2,002 | CASE OF MERICO v. ITALY | 4 | Violation of P1-1;Pecuniary damage - financial award | Christos Rozakis | 8. The applicant is the owner of an apartment in Milan, which he had let to S.P. 9. In a registered letter of 28 June 1988, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 1 July 1988 and asked her to vacate the premises by that date. 10. In a writ served on the tenant on 20 February 1991, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate. 11. By a decision of 14 March 1991, which was made enforceable on 27 March 1991, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992. 12. On 30 November 1992, the applicant served notice on the tenant requiring her to vacate the premises. On an unidentified date, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 19 February 1993. 13. On 3 December 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for his mother. 14. Between 19 February 1993 and 12 May 1997 the bailiff made twenty attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 15. On 31 August 1997, the applicant repossessed the apartment. 16. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. | 0 |
dev | 001-79022 | ENG | LVA | GRANDCHAMBER | 2,007 | CASE OF SISOJEVA AND OTHERS v. LATVIA | 1 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) | Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ireneu Cabral Barreto;Jautrite Briede;Jean-Paul Costa;Karel Jungwiert;Lucius Caflisch;Luzius Wildhaber;Matti Pellonpää;Mindia Ugrekhelidze;Nicolas Bratza;Renate Jaeger;Vladimiro Zagrebelsky;Volodymyr Butkevych | 16. The applicants are a married couple, Svetlana Sisojeva (“the first applicant”) and Arkady Sisojev (“the second applicant”), and their daughter, Aksana Sisojeva (“the third applicant”). They were born in 1949, 1946 and 1978 respectively. The second and third applicants have Russian nationality, while the first applicant has no nationality. All three live in Alūksne (Latvia). 17. The first two applicants entered Latvian territory in 1969 and 1968 respectively, when the territory formed part of the Soviet Union. The second applicant, who was a member of the Soviet armed forces at the time, was stationed in Latvia and remained there until he finished his military service in November 1989. The third applicant and her elder sister, Mrs Tatjana Vizule, were born in Latvian territory. 18. Following the break-up of the Soviet Union and the restoration of Latvian independence in 1991, the applicants, who had previously been Soviet nationals, became stateless. In August 1993 Tatjana married a Latvian national. She is mother to two minor children who have Latvian nationality. 19. In 1993 the first and second applicants applied to the Latvian Ministry of the Interior’s Nationality and Immigration Department (Iekšlietu ministrijas Pilsonības un imigrācijas departaments – “the Department”) to obtain permanent-resident status and to be entered in the register of residents of the Republic of Latvia (Latvijas Republikas Iedzīvotāju reģistrs). However, on 19 June 1993 the Department issued them with temporary residence permits only. 20. The first and second applicants then lodged an application with the Alūksne District Court of First Instance, requesting it to direct the Department to enter them in the register of residents as permanent residents. In a judgment delivered on 28 October 2003, which was upheld on 8 December 1993 following an appeal on points of law, the court allowed their application. It considered that under the legislation in force the situation of the second applicant, who had left the army before 4 May 1990 – the date on which Latvia had declared its independence – could not be equated with that of a non-Latvian serviceman temporarily present on Latvian soil, who would be entitled to a temporary residence permit only. The Department subsequently entered all the applicants in the register of residents. 21. In the meantime, in January 1992, the first two applicants had each obtained two former Soviet passports and had therefore been able to have their place of residence registered in Izhevsk (Russia) despite already having a registered place of residence in Latvia (pieraksts or dzīvesvietas reģistrācija). The Department only discovered this fact in 1995. 22. In two decisions dated 3 November and 1 December 1995, the Alūksne police decided not to institute criminal proceedings against the applicants for using false identity papers. However, the Department imposed an administrative penalty of 25 lati (LVL) (approximately 40 euros (EUR)) on them for breach of the passport regulations. The Department also applied to the Alūksne District Court of First Instance to have the proceedings reopened to consider new facts, alleging fraudulent behaviour on the part of the first two applicants. The Department also noted that the third applicant had followed the example of her parents and sister in 1995, obtaining two passports and having her place of residence registered in both Russia and Latvia. 23. By an order of 28 May 1996, the Alūksne District Court of First Instance, ruling on the application for the proceedings to be reopened, allowed the Department’s application, quashed its own judgment of 28 October 1993 and ordered the removal of the applicants’ names from the register of residents. The first two applicants appealed to the Vidzeme Regional Court which, by an order of 3 June 1997, quashed the decision in question and referred the case back to the Alūksne Court of First Instance. 24. In 1996 the second and third applicants applied for and obtained Russian nationality. On 8 August 1996 the Russian embassy in Latvia issued them with Russian Federation passports. In March 1998 the third applicant, by now an adult, was joined as a party to the proceedings before the Alūksne Court of First Instance. 25. By a letter of 15 May 1998, the Tripartite Joint Committee for the implementation of the agreement between the governments of Latvia and the Russian Federation on the social welfare of retired military personnel of the Russian Federation and their family members residing on the territory of the Republic of Latvia (“the Russian-Latvian agreement” – see paragraph 53 below) requested the Ministry of the Interior’s Nationality and Migration Directorate (Iekšlietu ministrijas Pilsonības un migrācijas lietu pārvalde – “the Directorate”), which had replaced the Department, to issue the applicants with permanent residence permits, on the ground that they had the right to remain in Latvia under the above agreement. In a second letter sent the same day, the Committee informed the Alūksne Court of First Instance that the first applicant had neither Russian nor any other nationality. 26. In July 1998 the applicants submitted a further request to the Court of First Instance. In a joint memorial they argued that, as the second and third applicants had Russian nationality, they had the right to obtain permanent residence permits under the Russian-Latvian agreement. The first applicant, who had no nationality, contended that she was entitled to the status of a “permanently resident noncitizen (nepilsonis)” under the Law on the status of former USSR citizens without Latvian or other citizenship (“the Non-Citizens Act” – see paragraph 47 below). 27. In court, the applicants made no attempt to deny the actions of which they had been accused by the Department and the Directorate, but maintained that those actions had been in breach only of Russian law and therefore had no effect on their rights in Latvia. 28. In a judgment of 28 July 1998, the Alūksne District Court of First Instance allowed the applicants’ request. It noted that the applicants’ place of residence had been legally registered in Alūksne since 1970 and that they had lived there from then onwards. In the court’s view, since the procuring of second passports by the applicants and their registration in Russia were illegal and void acts, they had no impact on the applicants’ legal status in Latvia. The court also noted that the second applicant was on the list of former members of the Russian armed forces in receipt of a Russian military pension and entitled to remain in Latvia. That list had been drawn up jointly by the two governments in accordance with the Russian-Latvian agreement. Consequently, the court held that the first applicant was entitled to apply for a passport as a “permanently resident non-citizen” and that the second and third applicants were entitled to obtain permanent residence permits. 29. The Directorate appealed against that judgment to the Vidzeme Regional Court. In a judgment of 15 June 1999, the Regional Court dismissed the appeal, endorsing the findings and reasoning of the firstinstance court. 30. The Directorate then lodged an appeal on points of law with the Senate of the Supreme Court. In a judgment of 15 September 1999, the Senate quashed the Regional Court’s judgment and declared it null and void. The Senate found that secretly obtaining two passports and registering places of residence in two different countries, failing to disclose the second passports, and supplying false information to the authorities when applying for regularisation constituted serious breaches of Latvian immigration law. The Senate also referred to section 1(3), sub-paragraph 5, of the NonCitizens Act, which stated that the status of “permanently resident noncitizen” could not be granted to persons who, on 1 July 1992, had their permanent place of residence registered in a member State of the Commonwealth of Independent States (of which Russia is a member). The Senate considered that the provision in question was fully applicable to the applicants’ case. 31. The Senate also noted that the judgment of the Alūksne Court of First Instance of 28 October 1993 had been subsequently set aside when the proceedings were reopened, thereby depriving the entry of the applicants in the register of residents of any legal basis. It concluded that the second and third applicants, since they did not satisfy the requirements of the Law on aliens and stateless persons (entry and residence) (“the Aliens Act” – see paragraph 50 below), were also not entitled to obtain permanent residence permits. Consequently, the Senate set aside the judgment of 15 June 1999 and referred the case back to the appellate court. 32. For procedural reasons, the case was transferred to the Latgale Regional Court which, in a judgment of 10 January 2000, rejected the applicants’ application, reaffirming the reasons given by the Senate. Unlike the Tripartite Joint Committee, the Regional Court considered that the first applicant had Russian nationality under the Russian Federation’s Nationality Act. With regard to the second applicant, it considered that the fact that an individual was on the list of retired army personnel merely attested to the fact that the person concerned actually resided in Latvia and was in receipt of a Russian military pension; it did not in any sense confer entitlement to a residence permit. 33. In a judgment of 12 April 2000, the Senate of the Supreme Court dismissed an appeal by the applicants on points of law, endorsing in substance the arguments of the Regional Court. 34. In two letters dated 17 May and 26 June 2000, the Directorate reminded the applicants that they were required to leave Latvia. 35. On the morning of 6 March 2002, the first applicant, Svetlana Sisojeva, was summoned to the regional headquarters of the security police (Drošības policija). An officer of the security police asked her a number of questions, some of them relating to her application to the Court and to an interview she had given to journalists from a Russian television channel on the subject. In particular, the police asked the first applicant how the Russian journalists had made contact with her, how she had heard about the possibility of lodging an individual application with the Court, how she had found lawyers to represent her before the Court, and how she had known that certain persons had bribed Directorate officials in order to obtain Latvian residence permits. In addition, the police officer asked her several questions about her professional career and about the members of her family. 36. The dialogue between the first applicant and the police officer, as reconstructed by the applicant and sent to her lawyers on 4 April 2002, ran as follows: “Police officer: How did the television channel ORT find you? Applicant: We had had telephone calls in November [and] December. At the time, we had refused to meet them, but journalists are bloodhounds, they always get what they want. Police officer: And then? Applicant: They telephoned from Riga and said they wanted to meet us and talk to us. I agreed. They wanted to talk to several [people] who had brought cases before the courts. Police officer: When did they phone? Applicant: It was a Saturday night, about 10 p.m. They came round on the Sunday, at about 3.30 p.m. If you want to come round [too], you’re welcome. Our door is always open. Police officer: You said that you’d taken the case all the way to the European Court, didn’t you? Applicant: Yes, I did. There were fourteen sets of proceedings; we fought and fought [again], and eventually we turned to the European Court, because of the people in charge in the [Directorate]. They saw it as a game to get us deported from the country, while we wanted to prove that we were in the right. [Their] attitude towards us was based on prejudice: we hadn’t broken any laws in Latvia. Police officer: How and where did you find out that you could apply to the European Court? Applicant: The issue of our regularisation was discussed several times by the Tripartite Joint Committee. We had approached the Human Rights Committee. We had lawyers. The representatives of the Ministry of the Interior and the [Directorate] had told us at the last meeting that they had no objections to raise or accusations to make as far as we were concerned, and that everything would be fine. Unfortunately, they haven’t kept their promises so far. The Committee advised us to lodge an application with the European Court about the length of the proceedings if the case wasn’t resolved. Police officer: And how did you find those lawyers? Applicant: With the help of the lawyers in the social welfare office we were registered with. Police officer: Perhaps your lawyers threatened you, saying that if you didn’t give information to ORT they would stop working with you? Applicant: That’s nonsense. They told us not to give information to anyone without their consent, not even to ORT... Police officer: You said that over forty people had lodged applications? Applicant: Yes, I did. Actually, there are even more people involved: I meant that there were forty families. We’ve all been through the courts: some of us once, some twice, and some even three times. A lot of people solved the problem by paying backhanders. Police officer: How do you know that? Applicant: We were all in the same boat and we helped one another. We used to say to one another that if someone had money, it was better for him to pay, to avoid a trial. [The first applicant then gave the example of two families whose status had been regularised after they had bribed Directorate officials; she named one of the officials concerned.] Police officer: And why did you not come to us? Applicant: We didn’t know you could help us. Police officer: How did you come by the information that forty people had lodged applications? Applicant: Actually, the figure is higher. We’ve all had a lot of problems. [The applicant dwelt in detail on five specific cases concerning the regularisation of persons in a similar situation to her own.] Police officer: What does your husband think about the case? Applicant: He supports [me]: what would you do? [The police officer then asked the applicant a series of questions about her education, her work, her husband’s work and the family’s financial situation.] Police officer: Once more, how did you find out that you could take your case to the European Court? Applicant: We read the papers, we watch television; the cases of Podkolzina, Kulakova, Slivenko and several other families were reported in the media. We approached the Human Rights Committee, who gave us advice and even offered to [help us] find a lawyer. Strange, isn’t it? It was very hard for us, having to bring a case against Latvia before the European Court, but all the avenues open to us to try and resolve the problem in Latvia had been exhausted. It’s the fault of the [Directorate and its officials], who flout the law and force people to leave Latvia. They’re the ones who bring shame on Latvia. We haven’t broken any law. Police officer: When is the case going to be examined? Applicant: We don’t know. Police officer: What documents have you sent them? Applicant: The courts’ decisions.” 37. The Government contested the accuracy of this record, particularly in view of the length of time that had elapsed between the interview itself and the drafting of the document. The first applicant conceded that the document was probably less than perfect, given that it had been drafted from memory almost a month after the fact; she acknowledged that several other questions (which she could not recall) might have been asked during the interview. However, she contended that her record reflected with sufficient accuracy the content and tone of the interview. 38. On 11 November 2003 the Head of the Directorate sent a letter to each of the applicants explaining the procedure to be followed in order to regularise their stay in Latvia. The relevant passages of the letter sent to the first applicant (Svetlana Sisojeva) read as follows: “... The [Directorate] ... would remind you that, in accordance with the principle of proportionality, no order has hitherto been made for your deportation, and that it is open to you to regularise your stay in the Republic of Latvia in accordance with the [country’s] legislation. Under sections 1 and 2 of the Status of Stateless Persons Act, persons who are not considered to be nationals of any State under the laws of that State ... and who are legally resident in Latvia, may obtain stateless-person status. You satisfy the above requirements ... In view of the above, the Directorate is prepared to regularise your stay in Latvia by entering your name in the register of residents as a stateless person [resident] in Latvia and by issuing you with an identity document on that basis. In order to complete the necessary formalities, you will need to go in person to the Alūksne district office of the Directorate, bringing with you your identity papers, your birth certificate and two photographs ...” 39. The letters sent to the other two applicants were similar in content. The letter to the second applicant (Arkady Sisojev) stated in particular: “... If your wife, Mrs Svetlana Sisojeva, avails herself of the opportunity to regularise her stay in the Republic of Latvia in accordance with the provisions in force, you will be entitled, under the Immigration Act, to obtain a residence permit. The Directorate is not aware of any reason which would prevent you from applying for and obtaining a residence permit in Latvia. Under the terms of section 32 of the Immigration Act, only aliens residing in Latvia on the basis of a residence permit may apply to the Directorate for a residence permit ... In other cases, and where such a move accords with international human rights provisions and the interests of the Latvian State, or on humanitarian grounds, the Head of the Directorate may authorise the person concerned to submit the relevant papers to the Directorate in order to apply for a residence permit. As no order has hitherto been made for your deportation, you may submit the relevant papers ... to the Alūksne district office of the Directorate ... ... In view of the above, the Directorate is prepared to issue you with a residence permit at your wife’s place of residence, in accordance with section 26 of the Immigration Act, on condition that S. Sisojeva completes the necessary formalities in order to regularise her stay in Latvia as a stateless person, and that she responds to the invitation from the Alūksne office of the Directorate ...” 40. Lastly, the letter to the third applicant (Aksana Sisojeva) contained the following passages: “ ... If your mother, Mrs Svetlana Sisojeva, avails herself of the opportunity offered to her and, after completing the necessary formalities, regularises her stay in the Republic of Latvia in accordance with the provisions in force, you will be entitled, under the Immigration Act, to obtain a residence permit. The Directorate is not aware of any reason which would prevent you from applying for and obtaining a residence permit in Latvia. ... The Directorate would further inform you that, in accordance with section 23(3) of the Immigration Act, in cases not provided for by the Act, a temporary residence permit may be issued by the Minister of the Interior, where such a move is in accordance with the provisions of international law. Consequently, you are also entitled to apply to the Minister of the Interior for a residence permit valid for a period longer than that specified in section 23(1), sub-paragraph 1, of the Immigration Act. Furthermore, after a period of residence of ten years on the basis of a temporary residence permit, you may apply for a permanent residence permit in accordance with section 24(1), sub-paragraph 7, of the Immigration Act ...” 41. In addition, a letter containing the above information concerning the three applicants was sent to the Government’s Agent. On the same date, 11 November 2003, the Head of the Directorate signed three decisions formally regularising the applicants’ status in Latvia. More specifically, he ordered that the first applicant be entered in the register of residents as a “stateless person”, that she be issued with an identity document valid for two years, and that the second and third applicants be issued with temporary residence permits valid for one year and six months respectively. However, regularisation of the status of the second and third applicants was contingent upon that of the first applicant. In other words, in order for Arkady Sisojev and Aksana Sisojeva to obtain residence permits, Svetlana Sisojeva first had to submit the relevant documents to the Directorate. None of the applicants complied with the instructions outlined above in order to obtain residence permits. 42. By Decree no. 15 of 22 March 2005, the Cabinet of Ministers (Ministru kabinets) instructed the Minister of the Interior to issue Arkady Sisojev and Aksana Sisojeva with five-year temporary residence permits, “in accordance with section 23(3) of the Immigration Act”. In a letter sent on the same day, the Government informed the Court of the measure, pointing out that, after the five years had elapsed, the two applicants in question could obtain permanent residence permits 43. On 15 November 2005 the applicants applied to the Directorate to have their stay regularised on the basis they had requested initially, that is, for the first applicant to be granted the status of “permanently resident noncitizen” and for the other two applicants to be issued with permanent residence permits. The Directorate replied on the following day, 16 November 2005. After outlining the background to the case before the domestic courts and in Strasbourg, the Directorate went on: “ ... On 11 December 2003 you stated that you would not consider the Directorate’s proposals until after the European Court of Human Rights had delivered its judgment. In accordance with ... the Status of Stateless Persons Act ... in force at the time, an order was given for Svetlana Sisojeva to be issued with an identity document for stateless persons, and she was told that the authorities were willing to grant her stateless-person status. It was [therefore] open to Mrs Sisojeva to take advantage of that option, but she failed to do so. However, in accordance with the principle of respect for personal rights and the principle of legitimate expectation, the Directorate has not set aside its decision of 11 November 2003 in respect of Svetlana Sisojeva. Consequently, it remains open to her to regularise her stay in Latvia under section 6(1) of the Stateless Persons Act and paragraph 2 of its transitional provisions. Since Svetlana Sisojeva’s entitlement to stateless-person status ... was recognised before the entry into force of that Act, were she to obtain an identity document for stateless persons she would also be issued with a permanent residence permit ... As for Arkady Sisojev and Aksana Sisojeva, they would be entitled, on the same basis, to obtain temporary residence permits. ... The Directorate would further point out that, on 22 March 2005, the Cabinet of Ministers ... instructed the Minister of the Interior to issue Arkady Sisojev and Aksana Sisojeva with five-year temporary residence permits, under section 23(3) of the Immigration Act. In view of the above, the Directorate would remind you of the possibility of regularising your stay in the Republic of Latvia, on the following basis: Svetlana Sisojeva may obtain stateless-person status and be issued with a permanent residence permit; Arkady Sisojev and Aksana Sisojeva, meanwhile, may apply for and obtain temporary residence permits, in accordance with section 23(3) of the Immigration Act. ...” The remainder of the letter explained in detail to each of the applicants the procedure to be followed and the documents to be submitted in order to have their stay regularised, and the tax rates which applied for that purpose. The applicants did not take the steps indicated by the Directorate. 44. On 2 and 3 November 2005, the relevant official of the border police questioned the applicants, asking them why they had not regularised their stay. Following that conversation, the Commander of the border police requested details from the Head of the Directorate concerning the applicants’ precise status in Latvia. By a letter of 22 November 2005, the latter explained that, since 2000, there had been sufficient legal basis for issuing orders for the applicants’ deportation, but that no such orders had been issued on the grounds of proportionality and in view of the proceedings pending before the European Court of Human Rights. By a letter of 16 December 2005, the Directorate reminded the applicants once more that they had the possibility of regularising their stay. No reply was forthcoming. 45. As matters stand, the applicants are resident in Latvia without valid residence permits. According to the information supplied by the applicants, which has not been disputed by the Government, Svetlana Sisojeva has been unemployed since 1992. Arkady Sisojev works as a technician in a municipal communal heating plant in Alūksne; despite being cautioned repeatedly by the authorities, his employer has consistently refused to dismiss him on the sole ground that he is illegally resident in Latvia. Aksana Sisojeva, meanwhile, obtained a law degree from the Baltic Russian Institute (Baltijas Krievu institūts) in July 2004. The applicants contend that, owing to her irregular status, she has to date been unable to find work. 46. Latvian legislation on nationality and immigration distinguishes several categories of persons, each with a specific status: (a) Latvian citizens (Latvijas Republikas pilsoņi), whose legal status is governed by the Citizenship Act (Pilsonības likums); (b) “permanently resident non-citizens” (nepilsoņi) – that is, citizens of the former USSR who lost their Soviet citizenship following the break-up of the USSR but have not subsequently obtained any other nationality – who are governed by the Law of 12 April 1995 on the status of former USSR citizens without Latvian or other citizenship (Likums “Par to bijušo PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības” – “the NonCitizens Act”); (c) asylum-seekers and refugees, whose status is governed by the Asylum Act of 7 March 2002 (Patvēruma likums); (d) “stateless persons” (bezvalstnieki) within the meaning of the 18 February 1999 Status of Stateless Persons Act (Likums “Par bezvalstnieka statusu Latvijas Republikā”), read in conjunction with the Law of 9 June 1992 on aliens and stateless persons (entry and residence) (“the Aliens Act”) and, since 1 May 2003, with the Immigration Act of 31 October 2002 (Imigrācijas likums). On 2 March 2004 the Status of Stateless Persons Act was replaced by a new Stateless Persons Act; (e) “aliens” in the broad sense of the term (ārzemnieki), including foreign nationals (ārvalstnieki) and stateless persons (bezvalstnieki) falling solely within the ambit of the Aliens Act (before 1 May 2003), and the Immigration Act (after that date). 47. Section 1 of the Non-Citizens Act formally set forth detailed criteria for obtaining the status of “permanently resident non-citizen”. In the version in force since 25 September 1998, the first paragraph of section 1 reads as follows: “The persons governed by this Act – ‘non-citizens’ – shall be those citizens of the former USSR, and their children, who are resident in Latvia ... and who satisfy all the following criteria: 1. on 1 July 1992 they were registered as being resident within the territory of Latvia, regardless of the status of their housing; or their last registered place of residence by 1 July 1992 was in the Republic of Latvia; or a court has established that before the above-mentioned date they had been resident within Latvian territory for not less than ten years; 2. they do not have Latvian citizenship; and 3. they are not and have not been citizens of any other State.” 48. The relevant provisions of the former Status of Stateless Persons Act read as follows. Section 2 “(1) The status of stateless person may be granted to persons whose status is not defined either by the Law on the status of former USSR citizens without Latvian or other citizenship or by the Asylum Act, provided they ... 2. are legally resident in Latvia. (2) Stateless persons who have obtained outside Latvia documents attesting to the fact that they are stateless may obtain the status of stateless person in Latvia only if they have obtained a permanent residence permit in Latvia. ...” Section 3(1) “Stateless persons shall be issued with an identity document for stateless persons, which shall also serve as [a] travel document.” Section 4 “(1) Stateless persons in Latvia shall enjoy all the human rights enshrined in the Latvian Constitution [Satversme]. (2) In addition to the rights referred to in the first paragraph of this section, stateless persons shall be entitled 1. to leave and return to Latvia freely; 2. to be joined by their spouse from outside the country, and by their own minor children or those dependent on their spouse, in accordance with the rules laid down by the Aliens and Stateless Persons (Entry and Residence) Act; 3. to preserve their native language, culture and traditions, provided these are not in breach of the law; ... (3) During their stay in Latvia, stateless persons shall be bound by [the provisions of] Latvian law.” 49. On 29 January 2004 Parliament enacted a new Stateless Persons Act (Bezvalstnieku likums), which came into force on 2 March 2004 and replaced the former Status of Stateless Persons Act. The relevant provisions of the new Act read as follows. “In the Republic of Latvia, an individual may be recognised as a stateless person if no other State has recognised him or her as a national in accordance with its own laws.” “(1) In order to be recognised as a stateless person, the individual concerned must submit to the [Directorate]: 1. a [written] application; 2. an identity document; 3. a document issued by a competent body in the foreign State, to be determined by the Directorate, certifying that the person concerned is not a national of that State and is not guaranteed nationality of that State, or a document certifying the impossibility of obtaining such a document. (2) Where, for reasons beyond his or her control, the individual concerned is unable to produce one of the documents referred to in points 2 or 3 of the first paragraph, an official instructed by the Head of the Directorate shall decide whether or not to grant him or her the status of stateless person. The decision shall be taken on the basis of information available to the Directorate supported by documentary evidence.” “(1) The stateless person shall reside in the Republic of Latvia in accordance with the provisions of the Immigration Act. (2) A stateless person legally resident in the Republic of Latvia may obtain a travel document in accordance with the statutory arrangements ...” “A stateless person legally resident in the Republic of Latvia shall enjoy the rights guaranteed by ... the Convention of 28 September 1954 on the Status of Stateless Persons.” 50. The relevant provisions of the former Aliens Act, in force prior to 1 May 2003, read as follows. “The Head of the Directorate or of the regional office of the Directorate shall issue a deportation order ... ... (2) if the alien or stateless person is in the country without a valid visa or residence permit ...” “The individual concerned shall leave the territory of Latvia within seven days after the deportation order has been served on him or her, provided that no appeal is lodged against the order in the manner prescribed in this section. Persons in respect of whom a deportation order is issued may appeal against it within seven days to the Head of the Directorate, who shall extend the residence permit pending consideration of the appeal. An appeal against the decision of the Head of the Directorate shall lie to the court within whose territorial jurisdiction the Directorate’s headquarters are situated, within seven days after the decision has been served.” 51. Since 1 May 2003 the Aliens Act cited above has no longer been in force; it has been repealed and replaced by the Immigration Act. The relevant provisions of the new Act read as follows. “The present Act uses the following definitions: (1) an alien [ārzemnieks] – a person who is neither a Latvian citizen nor a “[permanently resident] non-citizen” of Latvia; ...” “In cases not covered by the present Act, the temporary residence permit shall be granted by the Minister of the Interior, where the relevant decision accords with the provisions of international law or the interests of the Latvian State, or on humanitarian grounds.” “(1) In accordance with the arrangements laid down in the present Act, the following persons may apply for a permanent residence permit: ... 7. an alien who has been resident without interruption in Latvia for at least five years immediately prior to submission of the application ...; ... (2) In cases not covered by the present Act, the permanent residence permit shall be granted by the Minister of the Interior, where it accords with the interests of the State. ... (5) The aliens referred to in paragraph 1, sub-paragraph ... 7, of this section may obtain a permanent residence permit if they have a command of the official language. The level of knowledge of the official language [and] the means of verifying that knowledge shall be determined by the Cabinet of Ministers. ... (6) Aliens who do not satisfy the requirements set forth in paragraph 5 of this section shall nevertheless be entitled to continue to reside in Latvia on the basis of a temporary residence permit.” “[By way of exception,] [t]he Head of the Directorate may authorise [the person concerned] to submit an application for a residence permit to the Directorate, where such authorisation accords with the provisions of international law or the interests of the Latvian State, or on humanitarian grounds.” “... When the time-limit set down [for submitting an application for a residence permit] has passed, the Head of the Directorate may authorise [the person concerned] to submit the [relevant] documents, where such authorisation accords with the interests of the Latvian State, or on grounds of force majeure or humanitarian grounds.” “(1) Where a decision is taken to refuse an application by an alien for a residence permit or to withdraw his or her residence permit, an appeal may be lodged against that decision ... with the Head of the Directorate, within thirty days of the entry into force of the decision. (2) Where the Head of the Directorate refuses an application for a residence permit an appeal may be lodged ... with the courts against that decision, in the manner prescribed by law ...” “(1) The [relevant] official of the Directorate shall issue a deportation order and determine the length of the ban on re-entering Latvian territory, requesting the alien concerned to leave the Republic of Latvia within seven days, where he or she has ... acted in breach of the rules on the entry and residence of aliens in the Republic of Latvia. ... (2) The Head of the Directorate may set aside a deportation order ... or suspend execution thereof on humanitarian grounds.” “(1) The alien concerned may appeal against the deportation order and the length of the ban on re-entering Latvian territory laid down therein to the Head of the Directorate, within seven days of the order’s entry into force. He or she shall have the right to remain in the Republic of Latvia while the appeal is being considered. (2) The alien concerned may appeal before the courts against the decision of the Head of the Directorate concerning the deportation order and the length of the ban on reentering Latvian territory laid down therein, within seven days of the decision’s entry into force. The lodging of an appeal with the court shall not suspend execution of the decision.” “(1) Within ten days of establishment of the facts detailed in the present paragraph, the [relevant] official of the Directorate shall take a forcible expulsion decision in respect of the alien and determine the length of the ban on re-entering Latvian territory ..., where: 1. the alien has not left the Republic of Latvia within seven days of receiving the deportation order, as required by section 41(1) of the present Act, and has not appealed against the order under section 42; ... (2) In the cases referred to in the first sub-paragraph of paragraph 1 of this section, no appeal shall lie against the forcible expulsion decision ... ... (4) The Head of the Directorate may set aside a forcible expulsion decision or stay its execution on humanitarian grounds.” 52. At the time of the facts reported by the applicants, the relevant provisions of the Regulatory Offences Code (Administratīvo pārkāpumu kodekss) read as follows. Section 187 “... Use of a passport which has been replaced by a new passport shall be punishable by a fine of up to 100 lati.” Section 190-3 “Failure to provide the offices of the Latvian Nationality and Immigration Department with the information to be entered in the register of residents within the time allowed shall be punishable by a fine of between 10 and 25 lati.” 53. An agreement between Russia and Latvia on the social welfare of retired military personnel of the Russian Federation and their family members residing on the territory of the Republic of Latvia was signed in Moscow on 30 April 1994. It was ratified by Latvia on 24 November 1994 and came into force on 27 February 1995. Under the terms of the second paragraph of Article 2 of the agreement, persons to whom the agreement applied and who were permanently resident in Latvian territory before 28 January 1992 retained the right to reside without hindrance in Latvia if they so wished. 54. Section 360(4) of the Administrative Procedure Act (Administratīvā procesa likums), in force since 1 February 2004, provides: “An administrative act may not be executed if more than three years have elapsed since it became enforceable. In calculating the limitation period, any period during which implementation of the administrative act was suspended shall be deducted.” 55. The main provisions governing interviews similar to that complained of by the first applicant are contained in the Law of 16 December 1993 on operational measures (Operatīvās darbības likums). The “operational measures” referred to in the Law cover all operations, covert or otherwise, aimed at protecting individuals, the independence and sovereignty of the State, the constitutional system, the country’s economic and scientific potential, and classified information against external or internal threats (section 1). Operational measures are aimed in particular at preventing and detecting criminal offences, tracing the perpetrators of criminal offences and gathering evidence (section 2). 56. The most straightforward measure is the “intelligence-related operational procedure” (operatīvā izzināšana), designed to “obtain information on events, persons or objects” (section 9(1)). The procedure takes one of the following forms: (i) an “operational request for intelligence” (operatīvā aptauja), during which “the persons concerned are asked questions about the facts of interest to the [relevant] authorities” (section 9(2)); (ii) “operational intelligence gathering” (operatīvā uzziņa), which involves “gathering information relating to specific persons” (section 9(3)); (iii) “operational clarification of intelligence” (operatīvā noskaidrošana), consisting in obtaining information by covert or indirect means where there is reason to suspect that the informer will be unwilling to supply the information directly (section 9(4)). 57. All operational measures must be implemented in strict compliance with the law and human rights. In particular, no harm – physical or otherwise – may be caused to the persons concerned, nor may they be subjected to violence or threats (section 4(1) to (3)). Any person who considers that he or she has suffered harm as a result of the actions of a member of the security forces may lodge a complaint with the prosecuting authorities or the relevant court (section 5). 58. Under section 15 of the 5 May 1994 National Security Establishments Act (Valsts drošības iestāžu likums), the security police come under the supervision of the Ministry of the Interior. They have powers to deploy operational measures in order to combat corruption. | 0 |
dev | 001-110460 | ENG | CYP | ADMISSIBILITY | 2,012 | EMIN AND OTHERS v. CYPRUS AND OTHER APPLICATIONS | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicants state that they are nationals of the “Turkish Republic of Northern Cyprus”. Their names, dates of birth and places of residence are set out in the Annex. They are represented before the Court by Ms Y. Renda, a lawyer practising in Nicosia. 2. The facts of the cases may be summarised as follows. They are relatives of Turkish-Cypriot men who went missing in either December 1963 or April-May 1964 during incidents of mounting tension and violence in which Turkish Cypriots or Turkish-Cypriot villages were targeted (see Annex for further details). 3. These men were listed as missing persons, the information being given to the Cypriot authorities, the Red Cross and the United Nations. 4. The remains of the missing men have been found during exhumations carried out by the United Nations Committee for Missing Persons(“CMP”) in 20069. Further details are set out in the Annex. 5. In three cases, the applicants wrote to the Cypriot authorities requesting information about any investigation into the disappearance of their relative and/or the discovery of the remains: in Akay and Others, no. 32744/08, by letter dated 6 May 2009 to the Minister of the Interior, in Gürtekin and Others, no. 3706/09, by letter dated 14 November 2008 to the Minister of the Interior and in Arkut and Others, no. 25180/09, by letters dated 22 February 2009, to the Attorney-General and to the Minister of the Interior. No reply or information was received, save for an e-mail from the Attorney-General’s office dated 18 March 2009 in the Arkut case, stating that all necessary action would be taken. 6. In this case, the claimants challenged the decision in 1997 to remove their relative, a Greek-Cypriot combatant last seen in July 1974, from the list of missing persons after examination of the list by the Attorney-General of the Republic of Cyprus; his file was communicated to the TurkishCypriot side instead on the basis that he had died of wounds during the fighting and not to the Committee of Missing Persons. In a decision dated 16 October 2003, the Supreme Court in its appellate jurisdiction rejected the case on the basis that the case did not concern an administrative decision but was an act of government outside the court’s jurisdiction. Matters relating to missing persons were part of the Cyprus problem and fell within the power of the political authority. 7. In these cases lodged in 2006, the relatives of five Turkish Cypriot men who went missing on 14 August 1974 after they had been taken from their homes by armed Greek Cypriots, lodged applications under Article 146 of the Constitution, claiming that the Republic of Cyprus had known of the deaths of the missing persons but had not searched for the corpses or brought the guilty persons to justice and that the Republic had not taken the necessary actions to pursue an effective investigation to determine the whereabouts and fate of the missing persons. In their response, the Republic of Cyprus stated that they had not been passive but had been unable to pursue their intentions to exhume and identify corpses due to the agreement between the United Nations, the Turkish-Cypriot side and themselves that exhumations would be conducted by a common programme of the Committee of Missing Persons. They also pointed out that exhumations had begun in 2004 and the programme indicated the likelihood of the exhumation of the graves in the relevant area would commence in August 2008. They disputed that the matter fell within the jurisdiction of the courts but fell rather under the supervision of the United Nations and the authority and initiative of the President of the Republic. 8. In its decision dated 29 May 2008, the Supreme Court in its appellate capacity held that the fate of missing persons fell under the authority of the President of the Republic as it had an international aspect; the cases therefore concerned an act of government which did not fall within the jurisdiction to annul of the Supreme Court. | 0 |
dev | 001-61752 | ENG | TUR | CHAMBER | 2,004 | CASE OF DONMEZ v. TURKEY | 4 | Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient | Georg Ress | 4. The applicant was born in 1936 and lives in Izmir. 5. On 11 February 1993 the General Directorate of National Roads and Highways, expropriated plots of land belonging to the applicant in Balçova, Izmir. A committee of experts assessed the value of the plots of land belonging to the applicant and compensation was paid to him when the expropriation took place. 6. Following the applicant’s request for increased compensation, the Izmir First Instance Court awarded him additional compensation at the statutory rate of 30% per annum, namely the rate applicable at the date of the court’s decision. The date 4 August 1995 was fixed by the domestic court for the running of the statutory rate of interest. On 28 December 1998, on the General Directorate’s appeal, the Court of Cassation upheld the decision of the first instance court. On 17 May 2000 the administration paid the applicant 3,919,570,000 Turkish Liras as the additional compensation awarded to him together with interest. 7. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25). | 0 |
dev | 001-58461 | ENG | GBR | CHAMBER | 2,000 | CASE OF McGONNELL v. THE UNITED KINGDOM | 1 | Preliminary objection rejected (estoppel);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient | John Laws;Nicolas Bratza | 7. The applicant bought the Calais Vinery, Calais Lane, St Martin’s in 1982. A number of planning applications were made to permit residential use of the land in the ensuing years. The applications were all refused, an appeal being dismissed by the Royal Court in July 1984. In 1986 or 1987 the applicant moved into a converted packing shed on his land. 8. In 1988 the applicant, through an advocate, made representations to a planning inquiry which was considering the draft Detailed Development Plan no. 6 (DDP6). In his report to the President of the Island Development Committee (IDC), the inspector set out the arguments led by the applicant’s advocate and by the advocate for the IDC, and concluded that a dwelling on the applicant’s site would be an intrusion into the agricultural/horticultural hinterland. He supported the IDC’s proposed zoning of the land as an area reserved for agricultural purposes and in which development was generally prohibited. 9. The President of the IDC submitted DDP6, in draft, to the President of the States of Deliberation on 22 May 1990. 10. The States of Deliberation, presided over by Mr Graham Dorey, the Deputy Bailiff, debated and adopted DDP6 on 27 and 28 June 1990. The zoning of the applicant’s land was not changed. 11. A retrospective application for planning permission to convert the packing shed into a dwelling was rejected by the IDC on 11 July 1991 as the IDC was bound to take into account DDP6, according to which the site was zoned as a Developed Glasshouse Area where residential development was not allowed. 12. On 27 March 1992 the applicant was convicted by the Magistrates’ Court on his guilty plea of changing the use of the shed without permission, contrary to section 14(1)(a) of the Island Development (Guernsey) Law 1966 (“the 1966 Law”). He was fined 100 pounds sterling, with ten days’ imprisonment in default. 13. On 15 February 1993 the IDC applied for permission under Section 37(1)(h) of the 1966 Law itself to carry out the necessary works to remedy the breach of the planning legislation. The application was adjourned in Ordinary Court by the Deputy Bailiff on 25 February 1993 for a date to be fixed. The Deputy Bailiff was also unwilling to hear the matter on the ground of having dealt with the applicant when he was Her Majesty’s Procureur. 14. A further application on the applicant’s behalf for permission to continue living in the shed was dismissed by the IDC on 18 May 1993, and a request for the section 37(1)(h) proceedings to be adjourned was dismissed by the Bailiff on 20 May 1993. On 25 June 1993 the Royal Court comprising the Bailiff and three Jurats granted the IDC’s application under Section 37(1)(h). 15. On 10 August 1993 the applicant’s current representative made a formal application for change of use on behalf of the applicant, together with a request that continued occupation be permitted pending determination of the expected appeal against an expected refusal. The application was rejected by the IDC on 26 October 1994 in the following terms: “I have to inform you that ... the Committee decided to reject your proposal for the following reason which is based on the considerations which the Committee is bound to take into account under the provisions of section 17 of the Island Development (Guernsey) Laws 1966-1990:– (a) Detailed Development Plan no. 6, as approved by the States. The site is located within a Developed Glasshouse Area and the Committee’s written statement of policy makes no provision for the form of development proposed. I enclose for your information a copy of the written statement of policy. ...” 16. On 6 June 1995 the Royal Court, comprising the Bailiff, by then Sir Graham Dorey, and seven Jurats, heard the applicant’s appeal. The applicant’s representative accepted that the written statement provided for no development other than “Developed Glasshouse” in the area, but submitted that there were nevertheless reasons in the case to permit the change of use: the external appearance of the building would not change and there would be no future prejudice to the horticultural use of the land, such that it was unreasonable for the IDC to take an unduly narrow view of what it allowed under the DDP. The Bailiff then summed up the applicant’s complaints to the Jurats, instructing them that the ultimate burden of proof was on the IDC to satisfy the Jurats that the IDC’s decision was reasonable. The appeal was dismissed unanimously. The decision recites the grounds of appeal, but gives no reasons. 17. The Court has been referred to one recent official document relating to the Constitution of Guernsey generally. It is the States of Guernsey Administrative and Accounting Guidelines, issued in 1991 as a manual of reference and best practice for the information and guidance of civil servants. It has forewords by the then Bailiff and President of the States, Sir Charles Frossard, and by the States Supervisor, Mr F.N. Le Cheminant. The section dealing with the Constitution and law of Guernsey is taken from a pamphlet by a former Bailiff, and the part dealing specifically with the position of the Bailiff reads as follows: “The Bailiff is the Island’s chief citizen and representative. The Bailiff is appointed by the Sovereign by Letters Patent under the Great Seal of the Realm and holds office during Her Majesty’s Pleasure subject to a retiring age of seventy years. He is President of the States of Election, President of the States of Deliberation, President of the Royal Court, President of the Court of Appeal and head of the Administration. The Bailiff, as President of the States of Deliberation, is entitled to speak on any matter and has no original vote but he has a casting vote if the Members are equally divided. In general, the Bailiff uses his voice to ensure a further investigation of questions on which the States are in doubt. He places measures before the States at the request of the States Committees but he can also on his own initiative place any matter before the assembly. He is, with the Lieutenant-Governor, a channel of communication between the Privy Council and the Secretary of State for the Home Department on the one hand and on the other, the Island authorities; and in a number of questions, as the head of the Administration of the Island, he would be expected to guide the Island authorities. He has been relieved of some of his administrative responsibilities by the appointment of the States Advisory and Finance Committee which is in the nature of a co-ordinating committee with advisory powers but the Bailiff may, in his own discretion, lay before the States any matter which he has previously referred to the Committee providing that he gives the Committee an opportunity to acquaint the States with its views. While the Bailiff is responsible for arranging the business to come before the States, he is not in a position to refuse to place before the States any question of business if so requested by Members or Committees of the States. The assembly looks to the Bailiff for advice on matters affecting the Constitution of the Island. In the course of insular legislation or in discussions arising from communications from the Privy Council or the Home Department, it is the duty of the Bailiff to represent the views of the Island in constitutional matters. In the event of differences between the Crown and the States it is the historical duty of the Bailiff to represent the views of the people of the Island.” 18. The Bailiff is the senior judge of the Royal Court. In the modern era, he has usually occupied the offices of Her Majesty’s Comptroller, Her Majesty’s Procureur (Solicitor-General and Attorney-General respectively) and, since 1970, Deputy Bailiff, before finally becoming Bailiff. In his judicial capacity, the Bailiff is the professional judge (with the lay Jurats) in the Royal Court, and is ex officio President of the Guernsey Court of Appeal. In his non-judicial capacity, the Bailiff is President of the States of Election, of the States of Deliberation, of four States committees (the Appointments Board, the Emergency Council, the Legislation Committee and the Rules of Procedure Committee), and he plays a role in communications between the island authorities and the government of the United Kingdom and the Privy Council. Where the Bailiff presides in his non-judicial capacity, he has a casting, but not an original, vote. 19. The States of Election elects people to fill the vacancies which occur amongst the twelve Jurats. Jurats sit as lay members of the Royal Court. It is their function to determine the issues of fact referred to them, and to decide whether or not to allow an appeal. They also sit on certain of the States committees, either because a committee mandate requires the election of a Jurat or by reason of abilities or interests personal to them. Jurats are not, however, eligible to sit on the States Committee for Home Affairs, the Gambling Control Committee or any States committee which administers legislation the provisions of which include a right of appeal to the Royal Court against a decision of that committee. 20. The States of Deliberation exercises its legislative power in Guernsey in the form of Laws and Ordinances. In practice, a “Billet d’Etat” is laid before the States, generally by one or other of the States committees. Having passed through the States of Deliberation, Projets de Loi (draft laws) are scrutinised by the Home Office and other relevant departments of the United Kingdom government before being submitted to the Privy Council in London for royal assent. Ordinances do not need royal assent and are made under the States of Deliberation’s limited common-law powers, or under powers delegated to the States by Guernsey laws or Acts of the United Kingdom parliament applicable to Guernsey. 21. The States of Deliberation is not divided on party political lines; members of the States are elected as individuals, and vote in all matters according to their consciences. All members are of equal importance, and there are no time-limits on the length of speeches or debates generally. The States is scheduled to meet twelve times each calendar year. Sittings usually last one or two days. 22. The States committees conduct the government of Guernsey. There are some fifty States committees, to which specific administrative tasks are given by statute or delegated by the States of Deliberation. Each committee is directly accountable to the States of Deliberation. 23. None of the States committees has legal supremacy over the others, although the Advisory and Finance Committee is the most important. It oversees Treasury matters and examines all proposals and reports which are to be placed before the States of Deliberation. The committees, each of which has a Chief Officer or Chief Executive, are supported by a professional civil service of some 1,800 staff. 24. The Appointments Board, one of the States committees, appoints officials to fill certain offices in the States’ service when those offices become vacant. With limited exceptions, it appoints at the level of Senior Officer Grade 8 or above. The offices include the States Supervisor and other senior civil servants such as senior medical personnel, the Prison Governor and the Chief Officer of Police. It has never appointed a Chief Executive of the IDC. The Appointments Board met twenty-four times in the ten years prior to 31 December 1998. 25. The Emergency Council has the power to declare a state of emergency, to make emergency regulations where the population or a substantial portion of it risks being deprived of the essentials of life, and to make other essential arrangements in the case of hostile attack by a foreign power. It has met three times in the last ten years. On none of those occasions was a state of emergency declared. 26. The Legislation Committee, which meets about once a month, reviews and revises the Projets de Loi, reviews and drafts Ordinances and, in certain cases, orders that an Ordinance shall come into force pending consideration by the States of Deliberation. The latter function has been used on sixteen occasions in the last ten years. 27. The Rules of Procedure Committee considers the Rules of Procedure in relation to assemblies of the States of Deliberation, receives representations from the States and makes representations to the States for amendments to the Rules. It has met twenty-five times in the last fifteen years. 28. The Bailiff’s role in communications between the island authorities and the government of the United Kingdom and Privy Council arises from his historical function of representing the views of the islanders to the Crown. The Bailiff represents a States committee’s views outside the island when specifically requested to do so, and in accordance with a clear mandate. Representations are generally on behalf of the smaller committees. Examples of this function are the Bailiff’s involvement in negotiating the level of fees payable in respect of Guernsey students attending higher education institutions in the United Kingdom, and in requesting the government to ensure that Heathrow Airport should have slots for aircraft from regional airports such as Guernsey. 29. The States Supervisor, the Chief Officer of the Advisory and Finance Committee, is the committee’s senior adviser on policy, and is also head of the Guernsey civil service. He liaises with other senior civil servants in relation to all proposals for legislation and other major administrative items submitted by the various committees to the States of Deliberation and comments on them for the benefit of the Advisory and Finance Committee’s deliberations on them. He also gives guidance to the Chief Officers of other committees and attends meetings of those committees where appropriate. 30. Section 14(1)(a) of the Island Development (Guernsey) Law 1966 provides: “A person shall not, without the permission in writing in that behalf of the Committee, carry out development of any land.” Section 17(a) provides: “In exercising its powers under the provisions of the last preceding section the Committee shall take into account the Strategic and Corporate Plan when approved by the States and any relevant Detailed Development Plans when so approved.” 31. In the case of Bordeaux Vineries Ltd v. States Board of Administration (4 August 1993), a challenge was made to the participation of the Bailiff as a judge in the Royal Court in an action against the States Board of Administration, one of the major States committees. The Court of Appeal noted that the then Bailiff, at first instance, had held: “Insofar as the constitutional position is concerned ... my first duty is to the Crown in all matters, and I do not espouse causes of the States. ... The point has been raised as to my casting vote ... the vote is to be cast constitutionally. The way I defined that was to vote against any proposition before the States and only if that vote impinged on my conscience would I contemplate any other course.” In connection with the existence of an appeal to it, the Court of Appeal noted: “... the decision upon a submission that the Bailiff ... is disqualified by interest from hearing any matter should in the first place be made by the Bailiff ... From that decision an appeal lies to this Court.” As to the participation of the Bailiff, the Court of Appeal found that: “... the Bailiff is invested by law with duties in the Royal Court and in the States. The consequence of this dual function is that he has on occasion to take part in the exercise by the court of jurisdiction over the States. I do not think that on these occasions his responsibility in the States disqualifies him from discharging his responsibility in this Court. He can properly discharge both responsibilities because although he is a member of the States his special position there means he is not responsible for the decisions of the States or the acts of its agencies ...” | 1 |
dev | 001-58227 | ENG | GRC | GRANDCHAMBER | 1,999 | CASE OF IATRIDIS v. GREECE | 1 | Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (six month period);Violation of P1-1;Violation of Art. 13;Not necessary to examine Art. 6-1;Not necessary to examine Art. 8;Just satisfaction reserved | Elisabeth Palm;Gaukur Jörundsson | 6. In 1929 K.N. inherited three-quarters of a tract of land known as the “Karras estate” from his adoptive father. In 1938 K.N.’s adoptive mother sold him the remaining quarter of the “Karras estate”, which she had inherited from her husband. The contract of sale gave the surface area of the “Karras estate” as 12,000,000 sq. m. 7. In 1950, having obtained the necessary permit from the authorities, K.N. built an open-air cinema – the “Ilioupolis” cinema – on part of this land. 8. In 1953 the Minister of Agriculture refused to recognise K.N. as owner of the whole “Karras estate”, taking the view that K.N.’s adoptive father had owned only part of the land, namely an area of between 320,000 and 520,000 sq. m, which did not include the part on which the “Ilioupolis” cinema had later been built. The rest of the area was public forest and was not included in the title deeds submitted by K.N. Thereupon K.N applied to the Supreme Administrative Court to set aside the decision of the Minister of Agriculture but his application was dismissed. On 8 February 1955 a royal decree designated the area in dispute as land to be reafforested. K.N. applied to the Supreme Administrative Court to set aside the royal decree but the court dismissed the application, holding that the disputed area was forest land belonging to the State. 9. By means of Cabinet decisions of 10 February 1965 and 11 March 1966, which were published in the Official Gazette (Eφημερίδα της Κυβερνήσεως) and entered in the Ilioupolis municipal register, the State transferred a 220,000 sq. m area of the “Karras estate” to the Police Officers’ Housing Cooperative. This area did not include the land on which the “Ilioupolis” cinema had been built. 10. On 28 July 1965 a royal decree ordering the reafforestation of land in Ilioupolis was promulgated. According to the Government, this decree covered an unspecified part of the “Karras estate”. On 2 December 1966 the decree was amended by a further decree, which was published in the Official Gazette. 11. On 3 April 1967 K.N. brought an action against the Police Officers’ Housing Cooperative to establish his title to the land which had been transferred to it. The State, as transferor, intervened in the proceedings in favour of the Cooperative. This action was entered in the Ilioupolis mortgage register. In the margin of the relevant page, the subsequent judgments of the Athens Court of First Instance (no. 16992/1973) and the Court of Appeal (no. 4910/1977 – see paragraph 13 below) dismissing the action and acknowledging the State’s ownership of the disputed area were noted. 12. In 1976 K.N. died and his heirs received an inheritance-tax demand in respect of the land on which the cinema had been built. The State took a mortgage on the land as security for the tax debt. The mortgage was paid off in 1982. 13. K.N.’s heirs continued the proceedings brought on 3 April 1967. On 21 June 1977 the Athens Court of Appeal held that the tract of land transferred to the Police Cooperative belonged to the State. In the reasons for its judgment the court agreed with the Minister of Agriculture, holding that K.N.’s adoptive father had owned only a part of the “Karras estate”, which had not included the part on which the “Ilioupolis” cinema had been built or the part which had been transferred to the Cooperative. The Court of Appeal based this conclusion on, inter alia, the fact that in 1905 the “Karras estate” had been entered in the national forest register as forest land and that the State had since, in good faith, had possession and use of it as owner. 14. Following a decision taken by the Deputy Minister of Finance on 19 September 1984, part of the “Karras estate”, including the part on which the cinema had been built, was entered in the register of State property on 27 June 1985. On 9 July 1985 this fact was noted in the Ilioupolis mortgage register. In 1987 K.N.’s heirs brought proceedings to establish their title to the land that had been entered in the register of State property. In 1988 the Athens Court of First Instance dismissed their application on the ground that on 21 June 1977 the Athens Court of Appeal had held that K.N.’s adoptive father had owned only a part of the “Karras estate”, covering an area of between 320,000 and 520,000 sq. m. K.N.’s heirs appealed against that decision. 15. On 9 February 1989 the Athens Court of Appeal held that in its judgment of 21 June 1977 it had resolved only the matter of ownership of the 220,000 sq. m which had been transferred to the Police Officers’ Housing Cooperative. The other dicta in the grounds of the judgment were not binding on K.N.’s heirs. The Court of Appeal consequently set aside the 1988 decision of the Court of First Instance and ordered that court to deal with the merits of the case. 16. On 29 May 1996 K.N.’s heirs applied to State Counsel at the Athens Court of First Instance for interim measures against the State and Ilioupolis Town Council. State Counsel refused their application on an unspecified date. K.N.’s heirs appealed against this decision. On 30 May 1997 Deputy State Counsel at the Athens Court of Appeal dismissed their appeal. 17. In 1978 K.N.’s heirs leased the “Ilioupolis” open-air cinema to the applicant, who completely restored it. On 4 July 1985 the Attica prefecture informed the applicant that with effect from 27 June 1985 the land on which the cinema had been built was considered to be State property, and that his retention of it was wrongful. The State would consequently be claiming compensation from him in accordance with Article 115 of the Presidential Decree of 11/12 November 1929, without prejudice to its right to evict him under Law no. 1539/1938 on the protection of State land. On 16 November 1988 the State Lands Authority (Kτηματική Εταιρία του Δημοσίου) assigned the cinema to Ilioupolis Town Council. On 24 November 1988 the Attica prefecture notified the applicant of this and ordered him to vacate the cinema within five days, failing which Law no. 1539/1938 would be applied. 18. On 9 February 1989 the Lands Department (Kτηματική Υπηρεσία) of the Attica prefecture ordered the applicant to be evicted, under Law no. 1539/1938 as amended by Law no. 263/1968. The order was “served” on the applicant on 16 March 1989 by being posted on the door of the cinema. The following day, when the members of the Bar were on strike and the applicant was absent, officials from Ilioupolis Town Council executed the order, forcing an entry into the cinema. An inventory was drawn up of a number of items of movable property belonging to the applicant (projectors, chairs, billboards and bar equipment). A Mr G.L., who was professionally connected with the applicant but was not acting as his representative, signed the inventory and asked the Council officials to store the goods. 19. The applicant challenged the eviction order in the Athens District Court, which dealt with the matter under summary procedure and found for the State. The applicant appealed to the Athens Court of First Instance sitting with a single judge, which on 23 October 1989, having heard the appeal under summary procedure, quashed the eviction order. The court ruled that the Lands Department could issue an eviction order only if the property in question belonged to the State, if the State’s title to the property was not in dispute, and if the property was being unjustifiably occupied by a third party. The court held, further, that these conditions had not been satisfied in the case before it, since the applicant had established the following facts with a fair degree of certainty: proceedings were pending before the courts in an action brought in a dispute between K.N.’s heirs and the State over the land on which the cinema had been built; K.N.’s heirs had considered themselves to be the owners of the land and the cinema for a very long time and had exercised all the rights and performed all the duties associated with ownership; and, lastly, the applicant had occupied the cinema under a lease since 1978. 20. Following that decision, the applicant made several approaches to the appropriate authorities to challenge the continued occupation of the cinema by Ilioupolis Town Council. On 2 April 1990 the Ministry of Finance stated that, since the eviction order had been quashed, the land should be returned to the applicant and the assignment of the cinema to Ilioupolis Town Council revoked. However, if the Council insisted on retaining the cinema, the matter of who was to compensate the applicant would have to be determined in accordance with the law on business tenancies. 21. On 11 July 1991 the State Legal Council (Nομικό Συμβούλιο του Κράτους), in answer to a question put to it by the Ministry of Finance, expressed the view that the cinema had to be returned to the applicant. The applicant’s claims in respect of the loss he had sustained owing to the eviction could be entertained only if he applied to the State Legal Council or brought proceedings. Furthermore, the State could assert its claim to be the owner of the land by bringing an action against K.N.’s heirs or by expediting the proceedings in the litigation between it and them, which had been pending before the courts since 1987. On 15 May 1994 the applicant applied to the State Lands Authority to have the cinema returned to him. 22. On 21 December 1994 the applicant sued the State and Ilioupolis Town Council in tort in the Athens Administrative Court for the loss he had sustained as a result of the failure to return the cinema to him. He claimed compensation in the amount of 32,300,000 drachmas (GRD), plus interest for loss of income from 1989 to 1994 and for the loss of his business equipment. 23. On 5 April 1995 the applicant applied to the mayor of Ilioupolis to have the cinema returned to him. On 5 May 1995 he lodged a criminal complaint against the mayor. On an unspecified date he also lodged a criminal complaint against the chairman of the State Lands Authority. 24. On 26 July 1995 the applicant filed an application in the Athens Court of First Instance for registration of a mortgage against Ilioupolis Town Council as security for lost income amounting to GRD 30,000,000. The court dismissed the application on the ground that there was no obligation to return the property, seeing that no application to that end had been made to the court and that there had been no final court decision in the matter. 25. On 31 July 1995 the State Lands Authority, following a further request from the applicant, recommended that the assignment of the cinema to Ilioupolis Town Council should be revoked and the cinema returned to the applicant, who was to be reinstated as tenant by the Ministry of Finance. That recommendation had to be approved by the Ministry of Finance pursuant to Law no. 973/1979. The applicant, who had not been notified of the recommendation, applied to the Minister of Finance on 4 October 1995. On 13 October 1995 he asked the Athens Court of First Instance to order interim measures against the mayor of Ilioupolis in the tort proceedings. On 16 October 1995 he applied to the Minister of Finance again. On 25 October 1995 the Court of First Instance held that there were no grounds for ordering interim measures, since there could be no liability on the part of the mayor. On 7 November 1995, following the intervention of State Counsel, the applicant was notified of the State Lands Authority’s decision of 31 July 1995. On 15 November 1995 the applicant requested the Deputy Minister of Finance to approve that decision. 26. On 7 August 1996 the State Legal Council expressed the view that the cinema should not be returned to the applicant, for the following reasons. Although the Athens Court of First Instance had set aside the eviction order of 23 October 1989, it had not ordered the cinema to be returned to the applicant. In its decision of 25 October 1995 the Court of First Instance had held that there was no obligation to return the cinema. Furthermore, under special case-law relating to State-owned property, the lease between K.N.’s heirs and the applicant was not valid. Consequently, the Ministry of Finance would be acting unlawfully if it revoked the assignment of the cinema to Ilioupolis Town Council. On 3 September 1996 the Deputy Minister of Finance approved the opinion of the State Legal Council. 27. On 31 October 1996 the Athens Administrative Court dismissed the action commenced by the applicant on 21 December 1994 on the ground that it should have been brought in the civil courts. On 17 December 1996 the applicant brought the action in the Athens Court of First Instance, seeking GRD 140,000,000 in damages for the loss of income he had suffered in 1995 and 1996 as a result of being unable to operate his cinema and for non-pecuniary loss. The action was due to be tried on 13 November 1997 but it was still pending on the day of the hearing before the Court. 28. On 7 January 1997 the Committals Division of the Athens Criminal Court decided to commence criminal proceedings against the mayor of Ilioupolis for dereliction of duty. 29. On 27 January 1998 the applicant brought an action against the State and Ilioupolis Town Council in which he sought payment of GRD 32,000,000 plus interest for loss of income during 1997 and for non-pecuniary damage. This action was still pending on the day of the hearing before the Court. 30. The cinema is still being operated by Ilioupolis Town Council and has not been returned to the applicant. The applicant has not set up an open-air cinema anywhere else. 31. The immovable property of the State is protected against third parties by Law no. 263/1968 amending and supplementing the provisions on State property. Section 2(2) and (3) of the Law provides: “… The relevant tax inspector shall issue an administrative eviction order against any person wrongfully taking over public property. An application to set aside such an order may be filed with the appropriate District Court within thirty days of its being served … An appeal against the decision of the District Court may be brought within thirty days before the President of the Court of First Instance, who shall hear it under the special procedure provided for in Article 634 of the Code of Civil Procedure. No appeal shall lie against the decision of the President of the Court of First Instance. The decision resulting from the foregoing procedure shall not prevent the parties from asserting their rights by means of ordinary procedure …” “… Κατά του αυτογνωμόνως επιλαμβανομένου οιουδήποτε δημοσίου κτήματος συντάσσεται παρά του αρμοδίου Οικονομικού Εφόρου Πρωτόκολλο Διοικητικής Αποβολής. Κατ΄αυτού επιτρέπεται άσκηση ανακοπής ενώπιον του αρμοδίου Ειρηνοδικείου μέσα σε αποκλειστική προθεσμία 30 ημερών από της κοινοποιήσεως του… Κατά της αποφάσεως του Ειρηνοδικείου χωρεί έφεση ενώπιον του Προέδρου Πρωτοδικών, που δικάζει με την ειδική διαδικασία του άρθρου 634 Πολ. Δικ., μέσα σε προθεσμία 30 ημερών. Κατά της αποφάσεως του Προέδρου Πρωτοδικών ουδέν ένδικο μέσο χωρεί. Η κατά την ανωτέρω διαδικασία εκδιδομένη απόφαση δεν παρακωλύει την επιδίωξη των εκατέρωθεν δικαιωμάτων κατά την τακτική διαδικασία …” Applications to set aside and the entire procedure for challenging administrative eviction orders are concerned solely with the validity of the eviction order and not with recognition of ownership or regulation of possession. 32. Where an administrative eviction order is quashed and it is desired that the decision make provision for the reinstatement of the evicted appellant, an application for reinstatement must be lodged either at the same time as the application to set aside – in which case a consequential order will be made if the application is allowed – or separately with the appropriate court (action for regulation of possession). An application for reinstatement is not subject to the time-limits laid down by section 2 of Law no. 263/1968 for applying to set aside an eviction order, since there is no provision to that effect (Athens Court of Appeal judgment no. 6802/89, Reports 1990, pp. 778-79, Athens Court of First Instance judgment no. 25950/1995, State Legal Council opinion no. 464/96, Annexes 14a and b and 13c). 33. The lessee of a property is the possessor of the leased property. This right of possession is protected by domestic law. The protection of possession both as a material fact and as a legal relationship is regulated in Greek law by Articles 997 et seq. of the Civil Code. 34. In particular, Article 997 of the Civil Code, entitled “Protection of possessors”, provides: “In the event of unlawful interference with the possession of property or of a right or in the event of dispossession, the person who, as lessee or bailee or as a consequence of a similar relationship, took possession of the property or right from the person who had use of it shall also have a possession claim against third parties.” “Επί παρανόμου διαταράξεως της νομής πράγματος ή δικαιώματος, ή αποβολής εξ αυτής, έχει κατά τρίτων τας περί νομής αγωγάς και ο παρά τιυ νομέως λαβών την κατοχή του πράγματος ή δικαιώματος ως μισθωτής ή θεματοφύλαξ ή συνεπεία άλλης παρομοίας σχέσεως.” 35. The possession claims that the lessee and possessor of the leased property may file are set out in Articles 987 and 989 of the Civil Code. Article 987 provides: “A possessor who has been unlawfully dispossessed shall be entitled to claim repossession from the person in unlawful possession. A claim for compensation under the provisions on torts shall not be excluded.” “Ο νομέας που αποβλήθηκε παράνομα από τη νομή έχει δικαίωμα να αξιώσει την απόδοσή της από αυτόν που νέμεται επιλήψιμα απέναντί του. Αξίωση αποζημιώσεως σύμφωνα με τις διατάξεις για τις αδικοπραξίες δεν αποκλείεται.” Article 989 provides: “A possessor whose possession has been the subject of unlawful interference shall be entitled to seek an order restraining the interference and prohibiting it in the future. A claim for compensation under the provisions on torts shall not be excluded.” “Ο νομέας που διαταράχθηκε παράνομα έχει δικαίωμα να αξιώσει την παύση της διατάραξης καθώς και την παράλειψή της στο μέλλον. Αξίωση αποζημίωσης κατά τις διατάξεις για τις αδικοπραξίες δεν αποκλείεται.” By Article 987, the possessor is protected in the event of dispossession, that is to say deprivation of control of the property. By Article 989, he is also protected in the event of interference, namely interference with his control of the property not amounting to dispossession. A classic example of interference, as held by the domestic courts, is threatening the possessor with prohibition of a specific act of possession. The purpose of these remedies is to protect possession itself, regardless of whether it is based on a right or not. It is for that reason that Article 991 of the Civil Code provides: “A defendant in an action for interference or dispossession can invoke a right giving him control over the property only if that right has been upheld in a final decision by a court after proceedings between him and the plaintiff.” “Ο εναγόμενος για διατάραξη ή αποβολή δεν μπορεί να επικαλεστεί δικαίωμα που του παρέχει εξουσία πάνω στο πράγμα παρά μόνο αν το δικαίωμα έχει αναγνωριστεί τελεσίδικα σε δίκη ανάμεσα σε αυτόν και τον ενάγοντα.” In accordance with Article 997 of the Civil Code, a possessor has these rights against third parties and not against the possessor from whom he derives the possession rights. Against the latter he has the rights afforded him by the legal relationship between them. 36. Where a possessor brings an action in possession, it will be either for repossession or for restraint of interference, depending on whether the possessor has been evicted or merely disturbed in the exercise of his control of the property. Furthermore, the possessor is entitled in the same proceedings to claim compensation for the damage sustained, under the provisions on torts (Articles 914 et seq.). 37. More particularly in respect of the State’s obligation to pay compensation, section 105 of the Introductory Act to the Civil Code is applied, under which unlawful conduct on the part of agents of the State creates an obligation to pay compensation irrespective of whether an offence has been committed by the agents in question. Moreover, where the unlawful situation arises from an administrative act, prior annulment of that act is not required. The court may consider the validity of the administrative act in the course of the proceedings and a specific prior ruling on its validity is not necessary. 38. A possessor whose right is created by a lease is also protected against the lessor if it becomes impossible for him to use the leased property. 39. Article 583 of the Civil Code provides: “If the agreed use of the leased property is taken from the lessee in whole or in part because of a third party’s right (legal defect), Articles 576 to 579 and 582 shall apply. However, the lessee may himself have the legal defect removed at the lessor’s expense.” “Αν η συμφωνηθείσα χρήση του μισθίου αφαιρεθεί από τον μισθωτή εν μέρει ή εν όλω εξαιτίας δικαιώματος τρίτου νομικό ελάττωμα εφαρμόζονται οι διατάξεις των άρθρων 576 έως 579 και 582. Αλλ΄ο μισθωτής δεν δύναται να προβεί ο ίδιος στην άρση του νομικού ελαττώματος με δαπάνες του εκμισθωτού.” 40. In that event, the lessee’s rights under Articles 576 to 579 and 582, to which Article 583 refers, are the following: the right to reduce the rent or not to pay the rent, the right to compensation, the right to bring an action against the lessor to have the legal defect removed, and the right to terminate the lease. Apart from the right to bring an action against the lessor to have the legal defect removed, the lessee may still bring an action in possession at his own expense against third parties in his capacity as possessor (Article 997). The lessor is exempt from liability only if the lessee was aware of the defect at the time when the lease was signed. 41. Lastly, leases of property for carrying on commercial activities (commercial leases) are also governed by all the above provisions under section 29 of Law no. 813/1978, codified by Presidential Decree no. 34/1995. That provision reads as follows: “Save as hereinafter provided, leases under the present Law shall be governed by the contractual terms and by the provisions of the Civil Code.” “Αι κατά τον παρόντα νόμον μισθώσεις, εφόσον δεν ορίζεται άλλως εις αυτόν, διέπονται υπό των συμβατικών περί αυτών όρων και των διατάξεων του Αστικού Κώδικος.” | 1 |
dev | 001-59592 | ENG | TUR | CHAMBER | 2,001 | CASE OF I. BILGIN v. TURKEY | 1 | Violation of Art. 2;Violation of Art. 5;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Elisabeth Palm | 7. The circumstances in which the applicant’s brother disappeared are disputed. In accordance with former Article 28 § 1 (a) of the Convention, the Commission conducted an investigation with the assistance of the parties and obtained documentary evidence and oral depositions. Delegates from the Commission heard witnesses on 17 September 1999 in Strasbourg and from 20 to 22 September 1999 in Ankara. They also visited the offices of the anti-terrorist branch at Ankara Security Directorate on 20 September 1999. Evidence was taken from the following witnesses: the applicant, eleven people who had been in custody at the material time at Ankara Security Directorate and who alleged that they had met Kenan Bilgin there and had witnessed the ill-treatment to which he had been subjected, two public prosecutors who had investigated the case, a deputy director at Ankara Security Directorate and a police officer from the anti-terrorist branch at Ankara Security Directorate. 8. At 10 a.m. on 12 September 1994 the applicant’s brother, Kenan Bilgin, was arrested at a taxi rank in Dikmen (Ankara) by plainclothes police officers. His family was not informed. 9. The applicant received three anonymous telephone calls from someone who confirmed that his brother was being held at Gölbaşı (Ankara) with three other prisoners. He was told that his brother’s condition was serious and that he was being administered serum. During the last conversation, which took place on 15 November 1994, the caller said that the applicant’s brother had been moved elsewhere. 10. On 3 October 1994 Kenan Bilgin’s lawyer, Ms Hatipoğlu, contacted the Human Rights Commission of the Turkish National Assembly. She and two other lawyers also made a written statement to the press. 11. By an undated letter the applicant requested information from the Principal Public Prosecutor at the Ankara National Security Court about his brother’s health, indicating that his brother had been arrested on 11 September 1994. On 4 October 1994 a similar request was made to the Principal Public Prosecutor by Ms Hatipoğlu, who put the date of the arrest at 13 September 1994. 12. In his letters in reply dated 10 October 1994 the Principal Public Prosecutor said that no one by the name of Kenan Bilgin had been interviewed and that no warrant had been issued for his arrest. 13. On 10 October 1994 the applicant made a written statement to the press. The same day, his representatives contacted the Ankara branch of the Human Rights Association about his brother’s case. On 11 October 1994 the association issued an appeal to the provincial governor of Ankara for Kenan Bilgin to be brought before the public prosecutor, while the applicant managed to obtain written statements signed by ten prisoners who had also been held at Ankara Security Directorate between 12 and 27 September 1994, in which they confirmed that Kenan Bilgin had been held there between those dates and subjected to ill-treatment. 14. On 12 October 1994 Ms Hatipoğlu wrote to the Principal Public Prosecutor at the Ankara National Security Court to enquire what had become of Kenan Bilgin. She explained that although several witnesses affirmed that they had seen him in police custody, the police denied that he had been detained. 15. On 9 November 1994 the applicant lodged a complaint with the Ankara public prosecutor against the officers who had been on duty while his brother was in custody, namely police officers from the anti-terrorist branch at the Ankara Security Directorate. Inter alia, he gave the names of witnesses who had testified that Kenan Bilgin had been held in the same building as them. 16. Furthermore, at a hearing on 21 November 1994 in criminal proceedings before the Ankara National Security Court, one of the defendants, whose name was Mr Yılmaz, testified to having met Kenan Bilgin at the Ankara Security Directorate. Another defendant, Mr Çoban, said in evidence before the court that police officers had threatened him, telling him that unless he made a confession he would meet the same fate as Kenan Bilgin. 17. When making a bail application to the Ankara National Security Court on 1 February 1995, a lawyer, Mr Demir, said that while he and Kenan Bilgin were in custody together they had spoken and Kenan Bilgin had told him that he had been held for twenty-two days and that the police intended to arrange for his disappearance. Kenan Bilgin had also asked Mr Demir to inform his family. 18. The Government’s position was that while it was true that Kenan Bilgin was a member of the Revolutionary Communist Party of Turkey (TDKP), he was not wanted by the police and had not been arrested by the security forces. As the Ankara public prosecutor had stated in a letter of 23 December 1994 to the Ministry of Justice, the custody records showed that Kenan Bilgin had not been arrested or detained. 19. In a statement made on 3 or 4 October 1994, a lawyer, Murat Demir, said that he had spoken with Kenan Bilgin, who had informed him that he had been in custody for twenty-two days and that his name had not been entered on the custody record. Ercan Aktaş stated that prisoners in custody in the offices of the anti-terrorist branch of the Ankara Security Directorate from 13 to 27 August 1994 had been systematically subjected to ill-treatment and that he had seen Kenan Bilgin during that period through an aperture in the cell-door window. Talat Abay stated that he had been held at the Ankara Security Directorate from 8 to 23 September 1994, during which period he and his fellow inmates had been constantly subjected to ill-treatment. On 18 or 19 September he had met Kenan Bilgin, whom he already knew, in the toilets. Bülent Kat stated that he had been held at the Ankara Security Directorate from 8 to 23 September 1994. On 18 or 19 September he had managed to make out through an aperture in the cell-door window a group of police officers dragging a prisoner along the ground to the bathroom. Approximately two hours later he had seen a person carrying a doctor’s bag leave the bathroom. He had subsequently learnt that the prisoner’s name was Kenan Bilgin. Cavit Nacitarhan stated that he had been held at the Ankara Security Directorate from 12 September to 6 October 1994 and had seen Kenan Bilgin on several occasions being led away, unclothed, by police officers. Müjdat Yılmaz stated that he had been held at the Ankara Security Directorate from 12 to 26 September 1994. He had heard the cries of prisoners being subjected to ill-treatment. Through the cell-door window he had seen a prisoner being dragged along the ground by police officers and had later heard his cries of distress and the police officers’ questions such as: “What is your name? If you do not tell us your name, we will kill you.” Later, he had seen the same prisoner being taken to the toilet and had heard him call out: “My name is Kenan Bilgin! I am registered at the Tunceli Records Office. The police want to kill me. Make sure that public opinion is informed about this!” Salman Mazı stated that he had been held from 12 to 26 September 1994, during which period police officers had subjected prisoners to ill-treatment. One day, he had seen a prisoner in the toilets. The man was in poor health. He introduced himself as Kenan Bilgin and told him that he had been held since 12 September 1994, that his name had not been entered on the custody record and that he feared he would be executed. Emine Yılmaz stated that she had been held from 12 to 25 September 1994. She recalled hearing someone call out: “My name is Kenan Bilgin! I was taken into custody on 12 September, but my name is not on the custody record.” Ayşe Nur İkiz Akdemir stated that while being held in custody between 13 and 25 September 1994 she had heard someone call out: “My name is Kenan Bilgin! I was taken into custody on 12 September and they want to arrange for me to disappear.” According to her, the prisoner she had seen through the cell-door window was Kenan Bilgin. He had difficulty walking and his body bore marks of torture. Özer Akdemir stated that he had been held from 12 to 25 September 1994 in the offices of the anti-terrorist branch at the Ankara Security Directorate. During that period all the prisoners had been systematically subjected to torture. He had been in cell no. 6. The prisoner in cell no. 8 was subjected to severe ill-treatment every day. He was taken away naked for torture sessions and dragged back to his cell afterwards. He saw him through an aperture in the cell-door window. The four people who took the prisoner away for interrogation were the same four people who had interrogated him, so he would have no difficulty in recognising them. One day, the prisoner from cell no. 8 cried out from the toilets where he had been taken: “My name is Kenan Bilgin. They want to arrange for me to disappear! My name is not on the custody record.” He had been brought back to cell no. 8 later. 20. The applicant alleged that his brother had been arrested on 11 September 1994 and that eyewitnesses had seen him in custody. He requested information about his brother’s fate. His brother’s lawyer made a similar request alleging that Kenan Bilgin had been taken into custody by police officers from the anti-terrorist branch of the Ankara Security Directorate on 13 September 1994. In its petition the Ankara Human Rights Association gave the names of the eyewitnesses who had seen Kenan Bilgin at the Ankara Security Directorate. 21. In a letter of 21 November 1994 referring to the complaints lodged by the applicant’s representatives, the Ankara public prosecutor, Selahattin Kemaloğlu, instructed the public prosecutor’s office at Pendik (Istanbul) to question the applicant about the matters raised. He also instructed the Ankara Security Directorate to start an investigation into the applicant’s allegations. 22. On 24 November 1994 the Ministry of the Interior informed the Ministry of Foreign Affairs that the Security Directorate had advised that Kenan Bilgin had not been taken into custody, his name had not been entered on the custody record and he was not wanted by the police. 23. On 9 December 1994 the deputy director at the Security Directorate, Ülkü Met, sent a letter to the Ankara public prosecutor’s office, the relevant parts of which read: “... Between 12 September and 21 November 1994 the anti-terrorist branch carried out 249 arrests. Of those arrested, 115 were brought before the principal public prosecutor at the National Security Court and the remaining 134 released. In addition on 16 and 17 October 1994 the Committee for the Prevention of Torture carried out two ad hoc visits to the Security Directorate. They did not report any case of unlawful detention there ... In the interests of an effective investigation, persons remanded in custody, whether members of the same or of different organisations, never see each other unless a confrontation becomes necessary. Even for the purposes of answering a call of nature, remand prisoners are taken to the toilets individually and are accompanied by a warder. Furthermore, members of the same organisation are put in cells that are far apart from each other ... The sole aim of the persons whose names appear in the complaint and who claim to have seen the person known as Kenan Bilgin is to mislead the judicial authorities, to discredit the police and to obstruct the operations being carried out against illegal organisations ... The Turkish police are proud of their 149-year history. Certain people seek to destroy the democratic secular Republic; they commit crimes, arguing that such unlawful acts are legitimate, and make allegations such as the present one to discredit the police and the State.” 24. On 23 December 1994 the Ankara public prosecutor, Nazmi Şarvan, informed the Ministry of Justice that, while it was true that an investigation had been started into the affairs of members of the TDKP, Kenan Bilgin’s name did not appear on the list of its members. 25. On 13 January 1995 the Ankara Principal Public Prosecutor, Özden Tönük, sent a letter to the Ankara public prosecutor’s office, which was in charge of the investigation. The relevant parts of the letter read: “The Committee for the Prevention of Torture (CPT) interviewed prisoners in Ankara Prison who had been transferred from the anti-terrorist branch at the Security Directorate and who said that they had seen Kenan Bilgin in September 1994 in the building where remand prisoners are detained. When we spoke to them, they said that they had seen Kenan Bilgin between 13 and 25 September 1994 through an aperture in their cell-door windows when he was being taken to the toilets, to the torture room or to be photographed. The investigation reveals that the section of the premises where remand prisoners are held contains individual cells with windows in the cell door that enable police officers to communicate with the prisoners or to pass them their food and which can only be opened from the outside by the warders. The cells are aired by a ventilator attached to the ceiling and it is impossible for prisoners to see what is happening outside. Prisoners are interrogated on the floor above in an interview room that complies with European standards. The cells are not numbered but a small sheet of paper bearing the prisoner’s name is attached to the cell door. Persons arrested are photographed and fingerprinted by the technical services at the Security Directorate. Between 1 January and 31 December 1994, 771 people were taken into custody at the anti-terrorist branch of the Security Directorate; of these, 160 were released by the police, 574 brought before a judge and 37 transferred to other branches at the Security Directorate. Thus, with the exception of Kenan Bilgin, there had been no complaints of any disappearances of prisoners being held in custody. According to the inquiry conducted by the CPT on 16 and 17 October 1994, in an unannounced visit to the Security Directorate, there are no reports of unlawful detention on the premises. Considering that the purported witnesses did not know either Kenan Bilgin or his family and that the Security Directorate state that his name was not on the custody record, it can safely be deduced that the allegations of the prisoners regarding the disappearance of the person known as Kenan Bilgin while in custody at the Security Directorate were aimed at misleading public opinion and harming the police as they attempted to mount operations against the illegal organisations.” 26. On 17 March 1995 the public prosecutor Selahattin Kemaloğlu took witness statements from Cavit Nacitarhan, Özer Akdemir, Salman Mazı, Murat Demir and Müjdat Yılmaz, who were all accused of being members of an illegal extreme left-wing organisation, the TDKP. The following depositions were taken. (a) Cavit Nacitarhan: “I was arrested on 12 September 1994 and remained in custody for twenty-four days. I did not know Kenan Bilgin. However, after my second day in custody I saw him every day. He would cry out: ‘My name is Kenan Bilgin, I have been in custody since 12 September and my name has not been entered on the records; if anyone is released, please inform the press, lawyers and human rights [associations] about my case.’ I do not know why he was arrested but I saw him over a period of twenty-one days. He was dressed only in his underpants. He did not have the strength to stand unaided and had to be supported by two people. After my release, I saw his photograph in newspaper articles about his disappearance and that is how I recognised him.” (b) Özer Akdemir: “I was taken into custody on 26 September 1994. I did not know Kenan Bilgin, but I saw him three times at the Security Directorate. He was dressed only in his underpants. I was in cell no. 6 and he was in cell no. 8. When he was taken to the toilets, he would cry out: ‘My name is Kenan Bilgin. They want to arrange for me to disappear. My name has not been entered on the custody records.’ Later, he was taken from his cell. That is all I witnessed. [I] certify that the signature on the written statement made on 16 or 17 September 1994 is mine.” (c) Salman Mazı: “I certify that I signed the written statement dated 11 October 1994. When I was in custody at the offices of the anti-terrorist branch at the Security Directorate between 12 and 25 September 1994, I saw Kenan Bilgin on several occasions. At one stage, I noticed that he was being dragged by his arm to the toilets in his underpants. He was often taken for interrogation and was severely tortured. He was in cell no. 8. On the eighth day I saw him in the toilets. He said to me in a weak voice: ‘My name is Kenan Bilgin, I was arrested on 12 September at Dikmen. My name has still not been entered on the records. They are probably going to arrange for me to disappear. If you get out of here, contact the public prosecutor’s office and inform the press.’ The warder then appeared and reprimanded him for having spoken to me, before taking him away. Later I recognised his photograph in the newspapers.” (d) Murat Demir: “I was taken into custody on 10 September 1994 and was put in cell no. 11. Kenan Bilgin was in no. 13 or 14. I did not know him. We were severely tortured. The remand prisoner in no. 13 stopped me and, as I was known as ‘the lawyer’, asked me if I really was a lawyer. He gave me his name and continued: ‘I have been here for twenty-two days. My name has not been entered on the records. They probably want to arrange for me to disappear. I worked at a printer’s. If you are brought before a judge, tell the lawyers that I am here.’ He too was tortured. I heard the sounds of torture and groans. I certify that the signature on the written statement is mine and confirm the content. I saw his photograph in the newspapers later. However, he seemed far more exhausted and tired [in custody].” (e) Müjdat Yılmaz: “I confirm the content of the written statement of 11 October 1994. I do not know Kenan Bilgin, but I saw him on two or three occasions. I was in cell no. 2. I saw him being taken to the toilets by his torturers and heard him call out: ‘My name is Kenan Bilgin. They want to arrange for me to disappear.’ I saw him like that three times. I am able to recognise these men [the police officers] because they also undressed my wife before my eyes. One of them was smaller than me, approximately 1.80 m tall with a receding hairline and was called ‘boss’ by the others. He was one of the men who took Kenan Bilgin away. I would recognise him without any hesitation. I made a statement to the public prosecutor who came to the prison.” 27. Referring to the statements of these witnesses, the public prosecutor Selahattin Kemaloğlu enquired of the Ankara Principal Public Prosecutor whether an investigation had been started following the allegations that Kenan Bilgin had been tortured and had disappeared after being taken into custody in the offices of the anti-terrorist branch of the Ankara Security Directorate. 28. On the instructions of the public prosecutor Selahattin Kemaloğlu, two police officers from the Security Directorate at Üsküdar (Istanbul) took a statement from the applicant on 5 April 1994. The applicant stated that a cousin had informed him that his brother had been arrested in Ankara on 12 September 1994. He and his brothers had gone to the offices of the Ankara Human Rights Association, had consulted lawyers and had learnt that certain prisoners had claimed that Kenan Bilgin had been in custody in the same building as them but had not been brought before a judge for an order to be made for his detention pending trial. 29. On 16 September 1995 the applicant had given a statement at Kısıklı (Istanbul) police station. He said that he had lodged a complaint with the Ankara public prosecutor’s office and had given the names of witnesses who said that they had seen Kenan Bilgin in the offices of the anti-terrorist branch at the Security Directorate. He had repeated his allegations and asked for news of his brother. 30. By a letter of 27 December 1995 in which he referred to the applicant’s complaint and statement, the public prosecutor Selahattin Kemaloğlu requested the Pertek (Tunceli) public prosecutor’s office for the locality where the register of births of the Bilgin family was held to conduct an investigation into the alleged disappearance of Kenan Bilgin, and in so doing to have regard to the possibility that he may have taken part in PKK (Workers’ Party of Kurdistan) activities. He added that the Security Directorate considered the allegations of the applicant and his lawyers regarding the alleged disappearance at the hands of the police to be an attempt to damage the police’s reputation. 31. By letters of 9 October and 27 November 1996 the Pertek public prosecutor instructed the district gendarmerie to make enquiries of the people with whom Kenan Bilgin was in close contact in order to establish whether he had joined the ranks of the PKK. 32. On 3 December 1996 the gendarmes took a statement from someone who lived in the village in which Kenan Bilgin was born. He said that the Bilgin family had left the village forty years earlier and that he did not know whether Kenan Bilgin was a member of the PKK. 33. On 9 July 1997 the public prosecutor Selahattin Kemaloğlu instructed the Ankara Security Directorate to carry out a search for Kenan Bilgin. The relevant part of his letter reads as follows. “An investigation has been carried out into allegations by İrfan Bilgin that his brother, who was arrested on 12 September 1994 at Dikimevi (Ankara), was taken into custody in the offices of the anti-terrorist branch of the Ankara Security Directorate, that he was seen by other prisoners but has given no signs of life since. Other enquiries have been made into the possibility that Kenan Bilgin belongs to the PKK organisation or that attempts have been made to damage the police’s reputation, and enquiries have been made of the authorities of the village where he was born and in the locality where he resides. However, it is not been possible to reach any conclusion in this case. “I wish to request your department to start an investigation into every eventuality, namely whether Kenan Bilgin disappeared while in police custody, or whether he has joined the ranks of the PKK or has been hiding in secret in Turkey and has in fact been used by people close to him with a view to damaging the reputation of the police. I should be grateful if you would then inform me of the result of your findings.” 34. The delegation visited the premises in which prisoners were held at the offices of the anti-terrorist branch of the Ankara Security Directorate. It was informed that alterations had been made to the layout of the cells on the ground floor at the end of 1994. There were now thirteen cells (three cells having been converted into a single cell) running along one side of a long, narrow corridor. The delegation found an empty room at the end of that corridor, with a small corridor leading off to the adjoining toilets. The prisoners’ names and numbers were written on cards inserted into slots above the doors with the reverse side facing outwards. The police officer in charge of the premises said: “Prisoners have no possibility of seeing or speaking to each other and their movements in the premises are made in accordance with official regulations. Dishes are passed directly through the door with the prisoners being required to stand back. The police officer in charge of the premises where prisoners are held has a list of the people in custody and of the cell numbers, and prisoners do not change cells while in custody.” The delegation carried out two experiments on the premises. (i) Two delegates were shut in two adjoining cells. One said his name out loud. He was heard by the other and by the group in the corridor. (ii) A delegate was shut in a cell and a lawyer from the delegation in a cell two doors away. In order to establish what they could hear, they were asked to speak in their cells. The lawyer heard the delegate’s voice but said that the noise from the ventilation system prevented him from making out what he said. The delegation then visited the interrogation room on the first floor. 35. The name Kenan Bilgin does not appear on the custody records at the Ankara Security Directorate. The records show that several people were arrested and taken into custody at the Directorate between 8 and 29 September 1994, including Bülent Kat and Talat Abay on 8 September, Salman Mazı, Müjdat Yılmaz and Emine Öğün on 12 September, Sahir Çoban, Ayse Nur İkiz Akdemir, Özer Akdemir and Ercan Aktaş on 13 September, Murat Demir on 27 September, and Cavit Nacitarhan on 25 September. 36. On 17 September in Strasbourg and between 20 and 22 September 1999 in Ankara, three Commission delegates took the following depositions. 37. İrfan Bilgin is the applicant and Kenan Bilgin’s brother. He said that his brother had been arrested on 12 September 1994 at Dikmen (Ankara) and that he had been informed of the arrest approximately twenty days later. His brother had been arrested as part of an operation that had been carried out by the security forces in different localities on the same day against members of the revolutionary movement. 38. Kenan Bilgin had previously been in custody in 1977 and had spent three years in prison. He had been a member of the revolutionary movement since 1976 and had been on the police’s wanted list. In 1993 he had been arrested at Gaziantep (a town in south-east Turkey) in possession of false identity papers. He had been held for twenty-five days and severely tortured. He had told his family that the police had made threats on releasing him, warning him: “This time, you are safe, you have escaped with your life, but the next time we catch you, you will not leave here alive.” 39. The applicant said that following his brother’s disappearance he had received two or three telephone calls from one Coşkun, who had informed him that his brother was being held at Gölbaşı (Ankara) and subjected to torture. He was in very poor shape and on a drip. 40. The applicant said that he had contacted people who claimed to have been held on the same premises as Kenan Bilgin. After speaking to them, he had lodged applications with the Ministry of the Interior, the National Security Court, the Secretary of State for Human Rights and the Security Directorate. However, despite the evidence of several prisoners, those authorities had denied that his brother had ever been in custody. 41. The applicant said that he had lodged a complaint with the public prosecutor’s office. However, he was unaware whether an investigation had been started. He had been required to attend the offices of the anti-terrorist branch at the Istanbul Security Directorate either once or twice and had repeated his allegations. 42. The witness is a lawyer who currently lives in Germany, where he has been granted political asylum. He said that he was arrested by police officers from the Ankara Security Directorate in his office on 27 September 1994 and held by the anti-terrorist branch for thirteen days. He was detained in a small cell and had changed cells on three or four occasions. 43. He gave the following description of the premises where prisoners were held. The cells were not numbered and ran the length of one side of a corridor. On the other side of the corridor was a room used for torture, toilets, a bathroom that was also used for torture, the warders’ office and two other cells that were larger and better furnished than the others. The doors were equipped with small windows, approximately 20 to 30 cm across, through which the prisoners could be observed. Both the windows and the cell doors were opened from time to time by the warders. By pressing his head firmly against the aperture in the cell-door window, he was able to see what was going on outside and had thus seen the other prisoners when they were taken away to be tortured. 44. When first taken into custody he had been put in a cell between the toilets and the bathroom that doubled up as a torture chamber. The prisoner in the cell next door was a university lecturer. The witness said that he had heard groans coming from the cell next to the lecturer’s. He explained that he was systematically tortured and that one evening, at the end of the torture session and after he had been taken back to his cell, the prisoner, who was groaning and was in very poor shape had said to him: “I have been detained for twenty-two days. My name is Kenan Bilgin. You are the lawyer of a close relative of mine, Hüseyin Özaslan, who is currently being held in Ankara Prison. My name has not been entered on the custody records. They are going to arrange for me to disappear. Could you inform my family and the lawyers that I have been detained?” On hearing this, the witness had tried to reassure the man, saying that he now had an eyewitness to his detention and that he could no longer be regarded as having disappeared. A few days later, on returning to his cell after another torture session that had lasted all night, he noticed that all the prisoners had changed cells. He had not see Kenan Bilgin again. 45. The witness said that detention in police cells was not always entered on the custody record and that the police officers used that practice as a form of torture. He had heard them tell certain prisoners in custody: “We have not entered your name on the custody record. We can do as we please with you.” 46. He said that he did not know Kenan Bilgin personally. Kenan Bilgin’s lawyer, Ms Hatipoğlu, had asked him while visiting the prison whether he had met Kenan Bilgin at the police station and he had informed her of their conversation. 47. Cavit Nacitarhan said that he had been arrested on 12 September 1994 by the police for being a member of an illegal organisation, the TDKP. He had been held in custody for twenty-four days. For eighteen or nineteen days he had been taken for interrogation twice daily at 10 a.m. and 10 p.m. During the interrogation sessions he had been systematically tortured. For the remainder of his time in custody he had been given medical attention to remove the marks left by the injuries on his body. 48. He described the events following his arrest as follows: he had firstly been taken to a place called Gölbaşı, where the police officers had threatened to kill him unless he cooperated with them; he had been interrogated there before being taken to the Ankara Security Directorate. 49. The witness gave the names of other people who had been in custody during the same period. He said that he had learnt their names following a confrontation that had been organised with them or after meeting some of them in the prison. He had heard Kenan Bilgin’s name while in police custody. 50. He related how, in general, prisoners were taken to the toilets in groups of four or five. However, that did not apply to certain prisoners, including himself and another prisoner. They were only allowed to leave their cells to go to the toilet when the doors of the other cells had been shut. Prisoners’ names, apart from his own and that of another prisoner who he later discovered was Kenan Bilgin, were written on small cards that were fastened to the cell doors. On seeing Kenan Bilgin’s photographs in the press, he had immediately realised that it was the same person. One day, when all the cells were closed, he had attempted to see what was going on in the corridor by looking through a small aperture next to the cell-door window. Although his angle of view had been very restricted, he had been able to make out two police officers leading a nearly naked prisoner whose eyes were blindfolded. The prisoner had been taken back to his cell many hours later. He had seen him several times being dragged across the floor to or from his cell. 51. A few days later he had heard a prisoner saying: “My name is Kenan Bilgin. My name has not been entered on the custody record. Please inform my family and public opinion about my case.” He had heard the same person cry out several times from the bathroom that had been converted into a torture chamber. The man had been asked repeatedly: “What is your name? Tell us your name. Do not shout.” 52. On 26 September a confrontation had been organised with other prisoners who had been arrested as part of the same operation. Kenan Bilgin was not among them. On 3 October 1994 the witness had again seen Kenan Bilgin being led away by police officers. He was in very poor shape. That same evening there seemed to be a panic and the doors had remained closed throughout the evening. Police officers were running in all directions. Since that day, he had not seen Kenan Bilgin again. In his opinion, Kenan Bilgin was executed on 3 October. 53. The witness said that the applicant had visited him in prison in 1996 and that was how he had informed him of the date he was taken into custody. They had had a very short discussion about Kenan Bilgin. He said that he had sent a written statement through his representatives certifying that Kenan Bilgin had been present at the Ankara Security Directorate. 54. According to the witness, although he had been taken into custody on 12 September 1994, his detention had not been recorded until 26 September 1994, after his admission to hospital. He had informed the public prosecutor of that fact but the public prosecutor had merely accepted the police officers’ account. 55. Bülent Kat said that he had been arrested on 8 September 1994 with two other people and had remained in custody in the offices of the anti-terrorist branch of the Ankara Security Directorate for fifteen days. When first detained, three or four prisoners were being held; a week later, their number had risen to approximately fifty. 56. The first prisoner he noticed was Cavit Nacitarhan, who was the nephew of a member of Parliament and occupied the cell next to his. The police officers had began the torture sessions with Cavit, whose body was swollen and covered in bruises and who had difficulty walking. The witness had a clear view of prisoners being taken to the torture chamber, which was diagonally opposite his cell. 57. He related how, after Cavit Nacitarhan was interrogated, it was the turn of another prisoner to suffer the same treatment. The question he heard most often was: “What is your name?” The prisoner’s cries had turned into grunts and groans. The last time he had seen him brought by a group of police officers for a torture session, either on 18 or 19 September, was identical to the others: the same groans, the same question, the same insults, the same cries. The witness went on: “Suddenly, there was total silence. The police officers came out of the torture chamber and a man carrying a black bag went inside. He looked like a doctor, but was probably from the police. They brought the prisoner out, dragging him behind them.” 58. The witness said that the warders opened the windows in their cell doors from time to time to give them bread or water. However, the aperture in the windows to the cells of Cavit Nacitarhan and the prisoner referred to above were kept shut. 59. He said that he did not know Kenan Bilgin before his arrest and had identified him from photographs in the press. 60. In practice, detention at the anti-terrorist branch was not entered on the records on the day the prisoner was taken into custody. The practice depended on how the interrogation proceeded. 61. The witness repeated that Kenan Bilgin had been on the same premises as him for at least fifteen days and had been tortured throughout that period. 62. He stated that he had signed a statement on 11 October 1994 as testimony for the benefit of public opinion and had made a statement to the public prosecutor. 63. Talat Abay said that he had been arrested on 8 September 1994 as a member of an illegal organisation, Rizgari, and had been held in custody for fifteen days at the Ankara Security Directorate. On 12 September a number of people had been taken into custody and all the cells were occupied. While in custody, prisoners were systematically subjected to torture. 64. He had known Kenan Bilgin before September 1994, as he had stayed at the witness’s home for almost two years in 1985 and 1986. 65. He had seen Kenan Bilgin on the night of 18 or 19 September 1994, when he was taken to the toilet. They had made eye contact but had not spoken. 66. The witness said that he had made a written statement confirming that Kenan Bilgin had been held in custody. In addition, he added that at his trial before the National Security Court he had testified to meeting Kenan Bilgin at the Ankara Security Directorate. 67. The witness, who was a student at the material time, had been held in custody from 13 to 27 September 1994, for being a member of the PKK. 68. As he had said in his written statement, he and the other prisoners had been systematically taken for torture sessions. The torture chamber was near his cell. For several nights another prisoner had been taken to the torture chamber after him. He was always asked the same question, “What is your name?”, and he had heard cries and groans. He had seen him once, through an aperture in the cell-door window, for five or six seconds, from the front and distinctly, being supported by two police officers. The prisoner could not walk without assistance and dragged his feet. The witness had subsequently learnt, after being transferred to prison, that the prisoner’s name was Kenan Bilgin. 69. The witness said that he had no difficulty in being certain that the prisoner who had groaned and cried out in agony was Kenan Bilgin, since he had seen almost all of the other prisoners in prison. 70. The police officers would accompany them to the toilet and when they washed their hands and faces in the wash basins, they had an opportunity of meeting other prisoners. 71. Sahir Çoban accompanied the delegates when they visited the offices of the anti-terrorist branch of the Ankara Security Directorate. 72. At the material time he was a teacher. He had been arrested by the police on 12 September 1994 in the village where he taught for aiding and abetting an illegal organisation. He had been detained at the Ankara Security Directorate on 13 September 1994. 73. The witness reported his findings concerning the premises visited by the delegates of the Commission. The premises had been altered. The cells had been ventilated through the open cell-door windows, there being no ventilation through the ceiling. The room where the custody records were made up had been at what was now the entrance. The cells had been smaller and closer together and there had been additional cells along another corridor. The witness had been held in one of those cells and had remained there for approximately seven days. On the second or third day of his detention, he had been able to make out, through the open window in his cell door, two other prisoners in cells diagonally opposite his own, approximately three metres away. He did not know Kenan Bilgin before his arrest. He had seen his photograph in the offices of the Human Rights Association. He had made a statement that he had seen him in custody at the Security Directorate and had agreed to give evidence to that effect. 74. After making his statement he had been intimidated, in the presence of his wife, by a police officer who had visited him at the school where he taught. The police officer had made threats such as: “You eat from the State’s plate. I will not allow you to dirty that plate. You will suffer the same fate as Kenan Bilgin.” He added that, despite the threats, he had deposed before the National Security Court in November 1994. 75. Müjdat Yılmaz said that he had been accused of being a member of the TDKP. He had been arrested on 12 September 1994 and had remained in custody until 26 September 1994. 76. As his two closest relatives had also been detained on the same premises, he had endeavoured to keep watch through an aperture in the cell-door window to see what was happening in the corridor. On 16 or 17 September he had seen a prisoner in the toilets, with his back to the wall. The prisoner was exhausted and did not have the strength to remain upright. He was being insulted and pulled backwards by his hair. The witness had seen the same prisoner on another occasion, in similar circumstances, being dragged along by police officers. On the third occasion he saw him, the prisoner was in very poor shape and incapable of standing up. He had cried out: “My name is Kenan Bilgin. I am registered at Tunceli. The police want to kill me. When you get out of here, inform public opinion about my case.” The officers in charge had prevented him from saying any more by taking hold of him by his hair and hitting him. After being transferred to prison, the witness had learnt that the prisoner concerned was called Kenan Bilgin. 77. The witness said that it was possible to communicate from one cell to another by raising one’s voice and that he had thus been able to converse from time to time with his niece. 78. In addition to his written statement he had made a deposition in prison in which he had stated that he could identify the police officers who had dragged Kenan Bilgin back to his cell. The same officers had undressed his wife before his eyes and he was certain he would recognise them. 79. Salman Mazı said that he had been arrested for aiding and abetting the TDKP and held in custody from 12 to 26 September 1994. 80. He had seen Kenan Bilgin in person three times and for almost fifteen days had heard his groans when he was taken away for interrogation. 81. Two prisoners were treated differently from the others. One was Cavit Nacitarhan. They were taken separately to the toilet, being dragged there by their arms by two police officers. On his eighth day in custody, while the witness was washing his hands in the washroom, one of the two prisoners had been brought there. He looked exhausted and had whispered: “My name is Kenan Bilgin. I was taken into custody on 12 September and my name has still not been entered on the record. I think they want to kill me or to arrange for me to disappear. Inform public opinion about my case.” The warder had intervened and dragged him back to his cell. He had seen him a second time, lying on his bed in his cell opposite the toilets in his underpants. A day or two later, he had seen him through the window in his cell door. He was being dragged away. 82. The witness affirmed that he had heard Kenan Bilgin cry out from his cell, giving his surname, first name and the name of the province from which he came. 83. Emine Öğün said that she had been arrested with her husband on 12 September 1994 for being a member of an illegal organisation and had remained in custody until 25 September 1994. 84. Two days before her release, when asking for water through the window in her cell door, she had seen a prisoner in a bad condition who had said to her: “My name is Kenan Bilgin. I was taken into custody on 12 September.” 85. Ayşe Nur İkiz Akdemir said that she had been arrested on 12 September 1994 at Çanakkale. She had been detained at the Ankara Security Directorate from 13 to 25 September. 86. She affirmed that she had heard someone cry out “My name is Kenan Bilgin”, and had caught a glimpse, through her cell window, of a dark man, bald and with a moustache, whom she had later identified as Kenan Bilgin. 87. The witness said that the public prosecutor had taken a statement from her in prison and had asked her to describe the circumstances in which she had seen Kenan Bilgin. 88. Özer Akdemir said that he had been arrested on 12 September 1994 for being a member of an illegal organisation and had remained in custody until 25 September. 89. He had been systematically subjected to torture while in detention. He had been able to see through an aperture in the cell-door window that the prisoner in cell no. 8 was subjected to more intensive torture then he. He had seen him being dragged along by four police officers, two of them supporting him by the arms. On the same date he had seen a person with a bag go into cell no. 8 and had heard someone say: “He is not taking any milk. He is not drinking any milk.” On another occasion the witness had seen, again through the window in his cell door, the same prisoner being taken to the toilet. The prisoner had cried out: “My name is Kenan Bilgin. They want to arrange for me to disappear.” 90. The witness explained that in principle prisoners were not allowed to communicate with each other. However, they would either speak in whispers while at the wash basins or attempt to make themselves heard between cells. 91. The witness affirmed that he had drafted his written statement in the prison where he was detained. He had been questioned about it by the public prosecutor . 92. Özden Tönük said that at the material time he had been the Ankara Principal Public Prosecutor, a position he still held. He had not been directly responsible for the investigation into the allegations concerning Kenan Bilgin’s disappearance. His letter of 13 January 1995 to the Ankara public prosecutor’s office contained a description of the actual conditions of detention and of the quarters used for holding prisoners at the Ankara Security Directorate. 93. He had been to the Security Directorate and had inspected the premises. He had heard evidence from people who said that they had seen Kenan Bilgin in custody. Without giving details, the witness affirmed that their statements were inconsistent. He declined to comment on the conclusion, which read: “Accordingly, it has been concluded that the statements of the persons held in custody were not true.” 94. The witness explained that he had drafted his report at the request of the Ministry of Justice and had not organised any confrontation between the prisoners who claimed to have seen Kenan Bilgin and the police officers present on the premises at the material time. 95. Selahattin Kemaloğlu said that at the material time he had been the Ankara public prosecutor. He was now the public prosecutor for the district of Elmadağ (Ankara). 96. The witness said that it had been another prosecutor, Özden Tönük, who had started the investigation into Kenan Bilgin’s disappearance. The witness had been assigned to the case after a complaint was lodged by Kenan Bilgin’s brother. 97. He summarised his investigation as follows. He had sent a letter to the Ankara Security Directorate enquiring whether Kenan Bilgin had been detained there. The police had replied that he had at no stage been in custody. He had taken evidence from the witnesses whose names had been supplied by İrfan Bilgin and they had repeated their written statements, saying that they had seen Kenan Bilgin, in very poor shape, in custody at the Ankara Security Directorate. After hearing that evidence he had become convinced that Kenan Bilgin had disappeared like many others. 98. The witness went on to say: “At the material time there had been a number of cases of disappearances and, as a prosecutor, I was very disturbed by this. On hearing the evidence of the witnesses, I realised that the information given by the police did not reflect the truth. I received no replies to the letters I sent to other police departments. I sent the documents from the investigation to the Principal Public Prosecutor, Özden Tönük, with a request for the cases to be joined. However, the case file was returned to me. I asked the Principal Public Prosecutor to institute criminal proceedings against the head of the Security Directorate under the laws that made it an offence to refuse to cooperate with the relevant prosecuting authorities, as he had failed to produce a list of the police officers on duty when the alleged offences were committed. As the authorities did not respond, I was unable to interview the police officers or to arrange a confrontation with the eyewitnesses. The police enjoyed a sort of immunity at the time. I was not able to visit the premises where the prisoners were detained.” 99. The witness explained that 12 September was a relatively sensitive date in Turkey and that, at that time of the year, several thousand people were being held in police custody; some of them later disappeared. He said: “At the material time we, the prosecutors, were unable to inspect prisons or police stations. During a visit to the Security Directorate, I heard certain noises and asked the police officers where they were coming from. They replied that they had recorded the sound of people crying out in pain with a view to subduing prisoners. With regard to the present case, I tried to investigate it to the best of my ability. I had strong suspicions but did not manage to get very far. I am of Kurdish origin and my telephone line was being monitored. I was transferred to Elmadağ (Ankara), the district where I worked thirty years ago.” 100. Mehmet Karataş said that at the material time he was a police officer with the anti-terrorist branch of the Ankara Security Directorate. He was responsible for compiling the custody records. 101. He described how the custody records were held. The following information was noted on them: the surname and first name of the accused; the surname and first names of the accused’s mother and father; the accused’s date of birth; and the date and time the accused was taken into custody. He said that it was impossible for the name of a person taken into custody to be omitted from the record and that he was under fairly strict instructions in that regard. He said that a custody report was sent every day to the departmental head and to the public prosecutor at the National Security Court. 102. He indicated that the labels attached to the door handles were numbered and that the prisoners’ names were written on other labels that were affixed to the cell doors. 103. With regard to the complaint concerning Kenan Bilgin’s disappearance, he had not been interviewed by the authorities and had not been the subject of any investigation. The witness was unable to say whether a prosecutor had inspected the premises in connection with the investigation. According to him, all the allegations of torture had been invented by certain movements hostile to the government and were totally unfounded. 104. He said that before the events that had given rise to the present case Kenan Bilgin had been arrested for being a member of the TDKP. He had been charged and had served his sentence. He had also been taken into custody for other activities as a member of that illegal organisation. His name was on file and the anti-terrorist branch had his case file containing details of his criminal record and of his membership of an illegal organisation. 105. Ülkü Met said that at the material time he was deputy director at the Ankara Security Directorate. 106. He stated that after Kenan Bilgin’s brother had lodged the complaint, the public prosecutor had begun an investigation and had made four or five written requests to the Security Directorate for information, but he had not inspected the premises. 107. The witness stated that the operation carried out by the police against the TDKP between 12 September and 21 November 1994 was routine and had been undertaken on the basis of information and statements received. The police had relatively large numbers of files on persons who were in custody or had been convicted for belonging to illegal organisations. He said that Kenan Bilgin had not been arrested during the operation; his name was not on the custody record and, in his opinion, the other prisoners’ claims that Kenan Bilgin had been detained at the Security Directorate had been concocted by militants. 108. He explained that at all times at least two police officers were on duty with the responsibility of carrying out body searches on anyone who had been arrested, collecting their personal effects and getting them to sign a list setting these out. They were also required to enter the names of persons arrested on the custody record. 109. The witness dismissed all allegations of ill-treatment or torture during custody and stated that, while he had been deputy director, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had carried out two ad hoc visits to the Security Directorate. He was, however, unable to comment on the two public statements made by the CPT, in which they had found: “Torture and other forms of ill-treatment were still important characteristics of police custody.” 110. The witness rejected the assertion of the public prosecutor Selahattin Kemaloğlu that the Security Directorate had failed to cooperate with him and said that prosecutors in charge of investigations could inspect the premises at any time. 111. The principles and procedures relating to liability for illegal acts may be summarised as follows. 112. Under the Turkish Criminal Code all forms of homicide (Articles 448-55) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a government employee to subject someone to torture (Article 243) or ill-treatment (Article 245). The authorities’ obligations in respect of conducting preliminary investigations into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors’ offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the course of his duties is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 113. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 114. If the suspected offender is a civil servant and if the offence was committed in the course of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the local administrative councils. If a decision not to prosecute is taken, the case is automatically referred to that court. 115. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 116. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 117. The CPT has carried out seven visits to Turkey. The first two visits, in 1990 and 1991, were ad hoc visits considered necessary in the light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of ill-treatment of persons deprived of their liberty, in particular, those held in police custody. A third visit took place at the end of 1992. There were further visits in October 1994, August and September 1996, and October 1997. The CPT’s reports on these visits, other than the one in October 1997, have not been made public, as the State’s consent is required for publication and has not been forthcoming. 118. The CPT has issued two public statements. 119. In its public statement adopted on 15 December 1992, the CPT concluded that torture and other forms of severe ill-treatment were important characteristics of police custody. On its first visit in 1990, the following types of ill-treatment were constantly alleged, namely hanging by the wrists tied together behind the back (Palestinian hanging), electric shocks, beating of the soles of the feet (falaka), hosing with pressurised cold water and incarceration in very small, dark, unventilated cells. Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature. The on-site observations in police establishments revealed extremely poor material conditions of detention. On its second visit, in 1991, it found that no progress had been made in eliminating torture and ill-treatment by the police. Many persons made complaints of similar types of ill-treatment – an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. On its third visit, from 22 November to 3 December 1992, its delegation was inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. At the Ankara and Diyarbakır Security Directorates, it found equipment that could be used for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remain[ed] widespread in Turkey”. 120. In its second public statement issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of the 1996 visits, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill-treatment by police. | 1 |
dev | 001-57552 | ENG | DEU | CHAMBER | 1,984 | CASE OF ÖZTÜRK v. GERMANY (ARTICLE 50) | 2 | Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed | null | 1. The present case was referred to the Court by the Government of the Federal Republic of Germany ("the Government") in September 1982 and then by the European Commission of Human Rights ("the Commission") in October 1982. The case originated in an application (no. 8544/79) against that State lodged with the Commission on 14 February 1979 by a Turkish national, Mr. Abdulbaki Öztürk. 2. The Chamber constituted to hear the case relinquished jurisdiction in favour of the plenary Court on 27 May 1983 (Rule 48 of the Rules of Court). By a judgment delivered on 21 February 1984, the Court held that there had been a breach of Article 6 para. 3 (e) (art. 6-3-e) of the Convention in that the applicant had not received the free assistance of an interpreter during proceedings before the Heilbronn District Court (Series A no. 73, paragraphs 57-58 of the reasoning and point 2 of the operative provisions, pp. 22-23). The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 9 to 41 of the above-mentioned judgment (pp. 8-16). 3. At the hearings held on 25 May 1983, Mr. Wingerter, counsel for the applicant, had sought, by way of just satisfaction for his client, reimbursement of interpretation fees of DM 63.90 and payment of lawyer’s costs incurred before the Convention institutions; as to the amount of the latter costs, he had stated that he left the decision to the discretion of the Court (ibid., p. 22, paragraph 59 of the reasoning). The Government had not taken a stand on the matter (ibid.). In its judgment of 21 February 1984, the Court reserved the whole of the question (ibid., paragraph 60 of the reasoning and point 3 of the operative provisions, pp. 22-23); the same day, it referred the question back to the Chamber under Rule 50 para. 4 of the Rules of Court. 4. The President of the Chamber, to whom the Chamber had delegated the power to fix the further procedure, obtained, through the Deputy Registrar, the views of the Agent of the Government and of the Delegates of the Commission. On 2 March 1984, he directed that the Agent should have until 16 March 1984 to file her comments and that the Delegates should then have one month within which to reply in writing. The Registrar received the Government’s memorial on 15 March. The Delegates’ memorial was lodged on 18 May, following an extension of the time-limit granted by the President of the Chamber on 9 May. On 16 August, the Secretary to the Commission informed the Registrar that the applicant’s lawyer had notified him of his claims and comments by telephone and not in writing, as he had been requested to do. 5. Mr. B. Walsh, substitute judge, replaced Mr. J. Pinheiro Farinha, who was prevented from taking further part in the consideration of the case (Rules 22 para. 1 and 24 para. 1). 6. After consulting the Agent of the Government and the Delegates of the Commission through the Deputy Registrar, the Chamber decided on 24 September that there was no need to hold a hearing. | 0 |
dev | 001-23101 | ENG | HRV | ADMISSIBILITY | 2,003 | VORWALD v. CROATIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Paul Vorwald, is a German national, who was born in 1926 and lives in Bad Endorf, Germany. He is represented before the Court by Mr Boris Kozjak, a lawyer practising in Virovitica, Croatia. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković. The facts of the case, as submitted by the parties, may be summarised as follows. During the night of 6 to 7 February 1993 a group of eight accomplices burglarised the applicant’s houses in the Naudovac village in Croatia. On 18 April 1994 the applicant filed a civil action against the perpetrators before the Virovitica Municipal Court (Općinski sud u Virovitici), seeking damages for his destroyed and stolen property. Before the period to be examined by the Court (i.e. before 5 November 1997 when the Convention entered into force in respect of Croatia) the court of first instance held two hearings. The hearing scheduled for 10 February 1998 was adjourned because the defendants did not appear. However, the court heard the applicant. The hearing scheduled for 12 May 1998 was adjourned because a witness did not appear. At the hearing of 25 June 1998 the court heard five defendants. The hearing scheduled for 22 September 1999 was adjourned because three defendants did not appear. At the next hearing on 13 October 1999 the court heard one witness. The case was then transferred to another judge. On 5 October 2000 the court invited the applicant to pay an advance for the costs of an expertise. On 15 February 2001 the applicant paid the advance. On 11 June 2001 the court carried out an on the spot investigation of the damages on the applicant’s house together with an expert. On 21 August 2001 the appointed expert submitted his expertise to the court. On 28 August 2001 the court sent the expertise to the parties. On 31 August and 11 September 2001 the applicant and the defendants, respectively, informed the court that they had no objections to the expertise submitted. On 4 January 2002 the court invited the applicant to adjust his claim with the results of the expertise. The next hearing scheduled for 27 February 2002 was adjourned because a witness did not appear. At the next hearing on 29 March 2002 the applicant specified his claim. On 5 April 2002 the court of first instance pronounced its judgment. On 2 and 3 July 2002 the applicant and five defendants, respectively, appealed against the judgment. It appears that the proceedings are presently pending before the appellate court. The relevant parts of Section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows: (1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment. | 0 |
dev | 001-76078 | ENG | POL | CHAMBER | 2,006 | CASE OF TABOR v. POLAND | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 7. In July 1993 the applicant was employed at the refinery “T.” as director of a department. From 1993 to 1997 the conditions of his contract of employment were changed several times. On 30 September 1997 the refinery gave notice to terminate the applicant’s contract. 8. On 7 October 1997 the applicant lodged with the Katowice Regional Court a compensation claim against the refinery, in the amount of PLN 19,273, for unlawful termination of his contract. He also claimed reinstatement. By a decision of 3 December of 1997 the Katowice Regional Court considered that it was not competent to examine his case and transmitted it to the Katowice District Labour Court. 9. By a judgment of 4 December 1998 the Katowice District Labour Court ordered the refinery to pay the applicant compensation of PLN 5,008.74 for unlawful termination of the employment contract. The compensation corresponded to 3 months’ remuneration. The court dismissed the remaining claims. 10. Both parties to the proceedings appealed against the first-instance judgment. By a judgment of 18 November 1999 the Katowice Regional Court dismissed their appeals. 11. On 26 November 1999 the applicant requested the Katowice Regional Court to grant legal aid for the purpose of instituting cassation proceedings. He referred to his difficult financial situation and to the fact that he had been unemployed from November 1997 to May 1999 due to the termination of his employment contract by the defendant company. He also submitted that from May 1999 he had been receiving a net salary of PLN 750 and submitted documents to show the period of his unemployment and his earnings. In December 1999 the applicant, having received no response from the Katowice Regional Court, lodged a cassation appeal himself. 12. By a decision of 17 January 2000 the Katowice Regional Court dismissed his request for legal aid for the purpose of instituting the cassation proceedings without giving written reasons for its decision. 13. On the same day, the Katowice Regional Court rejected the applicant’s cassation appeal on the ground that it had not been lodged by a lawyer, as required by the law. 14. The applicant lodged an appeal against these decisions with the Supreme Court. He also requested the grant of retrospective leave to lodge a cassation appeal out of time. He further asked that court to appoint a lawyer for him in order to assist him in the preparation of his appeal. The applicant argued that the Regional Court had failed to deal within the time-limit with his request for legal aid. This had forced the applicant to lodge the cassation appeal himself. The fact that the cassation appeal had been rejected, combined with the unmotivated refusal of legal aid, had made it impossible to have his interests protected and his arguments properly presented to the cassation court. 15. By a decision of 25 May 2000 the Supreme Court dismissed his appeal against the decision rejecting the cassation appeal. The court observed that the applicable law clearly provided that a cassation appeal could only be lodged by a lawyer. The Supreme Court further refused to entertain the appeal in so far as it was related to the refusal of legal aid, observing that under the applicable legal provisions an appeal to the Supreme Court against an interlocutory decision of the Court of Appeal was only available against a decision to reject a cassation appeal. 16. Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living. 17. Pursuant to Articles 117 of the Code, persons exempted from the court fees may request that legal aid be granted to them. The court will then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal adviser to the claimant’s case. 18. The Polish Code of Civil Procedure lays down the principle of mandatory assistance of an advocate in cassation proceedings. Article 393² § 1 of the Code of Civil Procedure, applicable at the relevant time, required that a cassation appeal be filed by an advocate or a legal adviser. 19. Under Article 3934 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected. 20. Article 394 of the Code of Civil Procedure guarantees to a party to the proceedings a right to appeal against a decision of the first-instance court which terminates the proceedings. Such an interlocutory appeal (zażalenie) is also available against certain interlocutory decisions, specified in this provision. An appeal is available against a refusal of exemption from court fee and, likewise, against a refusal of legal aid, when such decisions were given by a first-instance court. 21. The Supreme Court held in a number of its decisions that no appeal to the Supreme Court is available against an interlocutory decision on legal aid given by a second-instance court. It observed that a decision on legal aid was expressly mentioned in a list of interlocutory decisions against which an appeal was specifically provided for under Article 394 of the Code of Civil Procedure, but only when they were given by the first-instance court. Furthermore, under this provision an appeal was available against decisions which terminated the proceedings in the case. However, the court noted that a refusal of legal aid could not be regarded as “terminating the proceedings in the case” within the meaning of this provision because this notion had to be reserved for decisions containing a certain element of assessment of the merits of a given claim. The decisions on legal aid issues did not contain such elements. As they did not fall into either of the two principal categories listed in Article 394, the only possible conclusion was that no appeal was available against them (II CZ 9/97, 21 February 1997, unpublished; I CZ 27/97, 4 April 1997, OSNC 1997, No. 9, item 120; I CZ 14/97, 8 April 1997, OSN 1997 No. 9, item 120). 22. Pursuant to Article 357 of the Code of Civil Procedure, written grounds for interlocutory decisions shall be prepared by the court only if an appeal is available against such a decision. 23. Pursuant to Article 169 of the Code, a party to the proceedings may ask for retrospective leave to appeal outside the prescribed time-limit; the appeal shall be submitted simultaneously with the lodging of such a request. | 1 |
dev | 001-114487 | ENG | HRV | CHAMBER | 2,012 | CASE OF MARGUŠ v. CROATIA | 3 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence in person);No violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Acquittal;Conviction) | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 4. The applicant was born in 1961 and is currently serving a prison term in Lepoglava State Prison. 5. On 19 December 1991 the Osijek Police Department lodged a criminal complaint against the applicant and five other persons with the Osijek County Court, alleging that the applicant, a member of the Croatian Army, had killed several civilians. 6. On 25 September 1992 the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske) was enacted. 7. On 20 April 1993 the Osijek Military Prosecutor indicted the applicant before the Osijek County Court on charges of murder, inflicting grievous bodily harm, causing a risk to life and assets, and theft. The relevant part of the indictment read: “the first accused, Marguš Fred 1. on 20 November 1991 at about 7 a.m. in Čepin ... fired four times at S.B. with an automatic gun ... as a result of which S.B. died; ... 2. at the same time and place as under (1) ... fired several times at V.B. with an automatic gun ... as a result of which V.B. died; ... 3. on 10 December 1991 took N.V. to the “Vrbik” forest between Čepin and Ivanovac ... and fired at him twice with an automatic gun ... as a result of which N.V. died; ... 4. at the same place and time as under (3) fired at Ne.V. with an automatic gun ... as a result of which she died; ... 6. on 28 August 1991 at about 3 a.m. threw an explosive device into business premises in Čepinski Martinovec ... causing material damage; ... 7. on 18 November 1991 at 00.35 a.m. in Čepin placed an explosive device in a house ... causing material damage ...; ... 8. on 1 August 1991 at 3.30 p.m. in Čepin ... fired at R.C., causing him slight bodily injury and then ... kicked V.Ž ... causing him grievous bodily injury ... and also kicked R.C. ... causing him further slight bodily injuries ...; ... 9. between 26 September and 5 October 1991 in Čepin ... stole several guns and bullets ...; ...” He was further charged with appropriating several tractors and other machines belonging to other persons. 8. On 25 January 1996 the Osijek Deputy Military Prosecutor dropped the charges under counts (3), (4), (6), (7) and (9) of the indictment as well as the charges of appropriating goods belonging to others. A new count was added, by which the applicant was charged with having fired, on 20 November 1991 at about 7 a.m. in Čepin, at a child, Sl.B., causing him grievous bodily injury. 9. On 24 September 1996 the General Amnesty Act was enacted. It stipulated that a general amnesty was to be applied in respect of all criminal offences committed in connection with the war in Croatia between 17 August 1990 and 23 August 1996, save in respect of those acts which amounted to the gravest breaches of humanitarian law or to war crimes, including the crime of genocide (see paragraph 22 below). 10. On 24 June 1997 the Osijek County Court, sitting as a panel presided over by judge M.K., terminated the proceedings pursuant to the General Amnesty Act. The relevant part of this decision reads: “The Osijek County Court ... on 24 June 1997 has decided as follows: the criminal proceedings against the accused Fred Marguš on two charges of murder ... inflicting grievous bodily harm ... and causing a risk to life and assets ... instituted on the indictment lodged by the Osijek County State Attorney’s Office ... on 10 February 1997 are to be concluded under sections 1(1) and (3) and section 2(2) of the General Amnesty Act. ... The indictment of the Osijek Military State Attorney’s Office no. Kt-1/93 of 20 April 1993 charged Fred Marguš with three offences of aggravated murder under Article 35 § 1 of the Criminal Code; one offence of aggravated murder under Article 35 § 2(2) of the Criminal Code; two criminal offences of causing a risk to life and assets ... under Article 153 § 1 of the Criminal Code; one criminal offence of inflicting grievous bodily harm under Article 41 § 1 of the Criminal Code; one criminal offence of theft of weapons or other fighting equipment under Article 223 §§ 1 and 2 of the Criminal Code; and one criminal offence of aggravated theft under Article 131 § 2 of the Criminal Code ... The above indictment was significantly altered at a hearing held on 25 January 1996 before the Osijek Military Court, when the Deputy Military Prosecutor withdrew some of the charges and altered the factual and legal description and legal classification of some of the offences. Thus, the accused Fred Marguš was indicted for two offences of murder under Article 34 § 1 of the Criminal Code, one criminal offence of inflicting grievous bodily harm under Article 41 § 1 of the Criminal Code and one criminal offence of causing a risk to life and assets ... under Article 146 § 1 of the Criminal Code ... After the military courts had been abolished, the case file was forwarded to the Osijek County State Attorney’s Office, which took over the prosecution on the same charges and asked that the proceedings be continued before the Osijek County Court. The latter forwarded the case file to a three-judge panel in the context of application of the General Amnesty Act. After considering the case file, this panel has concluded that the conditions under section 1(1) and (3) and section 2(2) of the General Amnesty Act have been met and that the accused is not excluded from amnesty. The above-mentioned Act provides for a general amnesty in respect of criminal offences committed during the aggression, armed rebellion or armed conflict .... in the Republic of Croatia. The general amnesty concerns criminal offences committed between 17 August 1990 and 23 August 1996. The general amnesty excludes only the perpetrators of the gravest breaches of humanitarian law which amount to war crimes, and certain criminal offences listed in section 3 of the General Amnesty Act. It also excludes the perpetrators of other criminal offences under the Criminal Code ... which were not committed during the aggression, armed rebellion or armed conflict and which are not connected with the aggression, armed rebellion and armed conflict in Croatia. The accused, Fred Marguš, is indicted for three criminal offences committed in Čepin on 20 November 1991 and one criminal offence committed in Čepin on 1 August 1991. The first three of these offences concern the most difficult period and the time of the most serious attacks on Osijek and Eastern Croatia immediately after the fall of Vukovar, and the time of the most severe battles for Laslovo. In those battles, the accused distinguished himself as a combatant, showing exceptional courage and being recommended for promotion to the rank of lieutenant by the commander of the Third Battalion of the 106th Brigade of the Croatian Army, who was his superior officer at that time. In the critical period concerning the first three criminal offences, the accused was acting in his capacity as a member of the Croatian Army; in that most difficult period, acting as commander of a unit, he tried to prevent the fall of a settlement into enemy hands, when there was an immediate danger of this happening. The fourth criminal offence was committed on 1 August 1993, when the accused was acting in his capacity as an on-duty member of the Reserve Forces in Čepin and was dressed in military camouflage uniform and using military weapons. The accused had joined the Reserve Forces in July 1993, after the well-known events and the beginning of the armed rebellion in the village of Tenja, close to Osijek. The actions of the accused, in view of the time and place of the events at issue, were closely connected with the aggression, armed rebellion and armed conflict in Croatia, and were carried out during the period referred to in the General Amnesty Act. ... Against this background, this court finds that all the statutory conditions for application of the General Amnesty Act have been met ...” 11. On an unspecified date the State Attorney lodged a request for the protection of legality (zahtjev za zaštitu zakonitosti) with the Supreme Court, asking it to establish that section 3(2) of the General Amnesty Act had been violated. 12. On 19 September 2007 the Supreme Court, when deciding upon the above request, established that the above decision of the Osijek County Court of 24 June 1997 violated section 3(2) of the General Amnesty Act. The relevant part of that decision reads: “... Section 1(1) of the General Amnesty Act provides for a general amnesty from criminal prosecution and proceedings for the perpetrators of criminal offences committed in connection with the aggression, armed rebellion or armed conflict ... in Croatia. Under paragraph 3 of the same section the amnesty concerns criminal offences committed between 17 August 1990 and 23 August 1996. ... For the correct interpretation of these provisions – apart from the general condition that the criminal offence in question had to have been committed in the period between 17 August 1990 and 23 August 1996 (which has been met in the present case) – there must exist a direct and significant connection between the criminal offence and the aggression, armed rebellion or armed conflict. This interpretation is in accordance with the general principle that anyone who commits a criminal offence has to answer for it. Therefore, the above provisions have to be interpreted in a sensible manner, with the necessary caution, so that the amnesty does not become a contradiction of itself and call into question the purpose for which the Act in question was enacted. Therefore, the expression ‘in connection with the aggression, armed rebellion or armed conflict’ used in the General Amnesty Act, which does not specifically define the nature of that connection, has to be interpreted to mean that the connection must be direct and significant. ... Part of the factual description of the criminal offences with which the accused Fred Marguš is charged in counts 1, 2 and 3 of the indictment, which suggests some connection with the aggression against the Republic of Croatia or armed rebellion and armed conflicts in Croatia, relates to the arrival of the victims of these offences – S.B., V.B. and the minor Sl.B. – in Čepin, together with their neighbours, after they had all fled the village of Ivanovac on account of the attack by the so-called ‘Y[ugoslav] P[eoples’] A[rmy]’. It should be stressed that it is not in dispute that the accused Fred Marguš was a member of the Croatian Army. However, these circumstances are not such as to amount to a direct link with the aggression, armed rebellion or armed conflicts in Croatia which is required for the General Amnesty Act to apply. The factual description of the criminal offences under count 4 of the indictment states that the accused committed these acts as a member of the Reserve Forces in Čepin, after his tour of duty had terminated. This characteristic in itself does not represent a significant link between the criminal offences and the war because, were this to be the case, the amnesty would encompass all criminal offences committed between 27 August 1990 and 23 August 1996 by members of the Croatian Army or the enemy units (save for those specifically listed in section 3(1) of the General Amnesty Act); this was certainly not the intention of the legislature. Finally, the accused’s war career, described in detail in the impugned decision, cannot be a criterion for application of the General Amnesty Act ... The factual description of the criminal offences in the indictment ... does not show that the acts in question were committed during the aggression, armed rebellion or armed conflict in Croatia, or that they were committed in connection with them. ...” 13. On 26 April 2006 the Osijek County State Attorney’s Office indicted the applicant on charges of war crimes against the civilian population. The proceedings were conducted by a three-judge panel of the Osijek County Court, including judge M.K. During the entire proceedings the applicant was represented by a lawyer. 14. A concluding hearing was held on 19 March 2007 in the presence of, inter alia, the applicant and his defence lawyer. The applicant was removed from the courtroom during the closing arguments of the parties. The applicant’s lawyer remained in the courtroom and presented his closing arguments. The relevant part of the written record of that hearing reads as follows: “The president of the panel notes that the accused Marguš interrupted the Osijek County Deputy State Attorney (“the Deputy State Attorney”) in his closing arguments and was warned by the panel to calm down; the second time he interrupted the Deputy State Attorney he was warned orally. After the president of the panel orally warned the accused Marguš, the latter continued to comment on the closing arguments of the Deputy State Attorney. The panel therefore decides, and the president of the panel orders, that the accused Marguš be removed from the courtroom until the pronouncement of the judgment. ...” 15. The applicant was subsequently removed from the courtroom and the Deputy State Attorney, the lawyers for the victims, the defence lawyers and one of the accused gave their closing arguments. 16. The pronouncement of the judgment was scheduled for 21 March 2007 and the hearing was concluded. The applicant was present at the pronouncement of the judgment. He was found guilty as charged and sentenced to fourteen years’ imprisonment. The relevant part of the judgment reads as follows: “... The accused Fred Marguš ... and the accused T.D. ... are guilty [in that] in the period between 20 and 25 November 1991 in Čepin and its surroundings, contrary to Article 3 § 1 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and Article 4 §§ 1 and 2(a) and Article 13 of the Additional Protocol to the Geneva Conventions of 12 August 1949 Relative to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, while defending that territory from armed attacks by the local rebel Serbian population and the so-called Yugoslav People’s Army in their joint attack on the constitutional legal order and territorial integrity of the Republic of Croatia, Fred Marguš, in his capacity as the commander of Unit 2 in the 3rd Corpus of the 130th brigade of the Croatian army, and the accused T.D., as a member of the same Unit under the command of Fred Marguš, with the intention of killing Serbian civilians [acted as follows]; the accused Fred Marguš (a) on 20 November 1991 at about 8 a.m. in Čepin, recognised V.B. and S.B. who were standing ... in front of the Fire Brigade Headquarters in Ivanovac and were fleeing their village because of the attacks by the Yugoslav People’s Army, ... fired at them with an automatic gun ... which caused S.B. a gunshot wound to the head ... and neck as a result of which S.B. immediately died, while V.B. was wounded and fell to the ground. The accused then drove away and soon afterwards came back, and, seeing that V.B. was still alive and accompanied by his nine-year-old son Sl.B. and ... his wife M.B., again fired the automatic gun at them, and thus shot V.B. twice in the head ...twice in the arm ... as a result of which V.B. soon died while Sl.B. was shot in the leg ... which amounted to grievous bodily harm; (b) in the period between 22 and 24 November 1991 in Čepin, arrested N.V. and Ne.V., threatening them with firearms, appropriated their Golf vehicle ... took them to the basement of a house ... where he tied them by ropes to chairs and kept them locked in without food or water and, together with the members of his Unit ... beat and insulted them, asked them about their alleged hostile activity and possession of a radio station, and during that time prevented other members of the Unit from helping them ... after which he took them out of Čepin to a forest ... where they were shot with several bullets from firearms ... as a result of which N.V. ... and Ne.V. died; (c) on 23 November 1991 at about 1.30 p.m. at the coach terminal in Čepin, arrested S.G. and D.G. and their relative Lj.G. and drove them to a house ... tied their hands behind their backs and, together with the late T.B., interrogated them about their alleged hostile activity and in the evening, while they were still tied up, drove them out of Čepin ... where he shot them ... as a result of which they died; the accused Fred Marguš and T.D. [acting] together (d) on 25 November 1991 at about 1 p.m. in Čepin, on seeing S.P. driving his Golf vehicle ... stopped him at the request of Fred Marguš ... ... and drove him to a field ... where ... Fred Marguš ordered T.D. to shoot S.P., [an order] which T.D. obeyed, shooting S.P. once ... after which Fred Marguš shot him several times with an automatic gun ... as a result of which S.P. ... died and Fred Marguš appropriated his vehicle. ...” 17. The applicant’s conviction was upheld by the Supreme Court on 19 September 2007 and his sentence was increased to fifteen years’ imprisonment. The relevant part of the judgment by the Supreme Court reads as follows: “Under Article 36 § 1 (5) of the Code of Criminal Procedure (CCP) a judge is exempted from performing judicial functions if he or she participated in the same case in the adoption of a decision of a lower court or if he participated in adopting the impugned decision. It is true that judge M.K. participated in the proceedings in which the impugned judgment was adopted. He was the president of a panel of the Osijek County Court which adopted the decision ... of 24 June 1997 by which the proceedings against the accused Fred Marguš were terminated under section 1(1) and (3) and section 2(2) of the General Amnesty Act ... Even though both sets of proceedings were instituted against the same accused, it was not the same case. The judge in question participated in two different cases before the Osijek County Court against the same accused. In the case in which the present appeal has been lodged, judge M.K. did not participate in adopting any decision of a lower court or in a decision which is the subject of an appeal or an extraordinary remedy. ... The accused incorrectly argued that the first-instance court had acted contrary to Article 346 § 4 and Article 347 §§ 1 and 4 of the CCP when it held the concluding hearing in his absence and in the absence of his defence lawyer because it had removed him from the courtroom when the parties were presenting their closing arguments. Thus, he claimed, he had been prevented from giving his closing arguments. Furthermore, he had not been informed about the conduct of the hearing in his absence, and the decision to remove him from the courtroom had not been adopted by the trial panel. Contrary to the allegations of the accused, the written record of the hearing held on 19 March 2007 shows that the accused Fred Marguš interrupted the [Osijek] County Deputy State Attorney in his closing arguments and was twice warned by the president of the trial panel. Since he continued with the same behaviour, the trial panel decided to remove him from the courtroom ... Such action by the trial court is in conformity with Article 300 § 2 of the CCP. The accused Fred Marguš started to disturb order in the courtroom during the closing arguments of the [Osijek County Deputy] State Attorney and persisted in doing so, after which he was removed from the courtroom by a decision of the trial panel. He was again present in the courtroom when judgment was pronounced on 21 March 2007. Since the trial court complied fully with Article 300 § 2 of the CCP, the accused’s appeal is unfounded. In the case in issue there has been no violation of the defence rights, and the removal of the accused from the courtroom during the closing arguments of the parties had no effect on the judgment. ... The accused Fred Marguš further argues ... that the impugned judgment violated the ‘ne bis in idem’ principle ... because the proceedings had already been discontinued in respect of some of the charges giving rise to the impugned judgment ... ... It is true that criminal proceedings were conducted before the Osijek County Court under no. K-4/97 against the accused Fred Marguš in respect of, inter alia, four criminal offences ... of murder ... committed against S.B., V.B., N.V. and Ne.V, as well as the criminal offence ... of creating a risk to life and assets ... These proceedings were terminated by final decision of the Osijek County Court no. Kv 99/97 (K-4/97) of 24 June 1997 on the basis of the General Amnesty Act ... Despite the fact that the consequences of the criminal offences which were the subject of the proceedings conducted before the Osijek County Court under no. K 4/97, namely the deaths of S.B., V.B., N.V. and Ne.V. and the grievous bodily injury of Sl.B., are also part of the factual background [to the criminal offences assessed] in the proceedings in which the impugned judgment has been adopted, the offences [tried in the two sets of the criminal proceedings at issue] are not the same. Comparison between the factual background [to the criminal offences assessed] in both sets of proceedings shows that they are not identical. The factual background [to the offences referred to] in the impugned judgment contains a further criminal element, significantly wider in scope than the one forming the basis for the proceedings conducted before the Osijek County Court under no. K-4/97. [In the present case] the accused Fred Marguš is charged with violation of the rules of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and of the Additional Protocol to the Geneva Conventions of 12 August 1949 Relative to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, in that, in the period between 20 and 25 November 1991, while defending that territory from armed attacks by the local rebel Serbian population and the so-called Yugoslav People’s Army in their joint attack on the constitutional legal order and territorial integrity of the Republic of Croatia, and in violation of the rules of international law, he killed and tortured civilians, treated them in an inhuman manner, unlawfully arrested them, ordered the killing of a civilian and robbed the assets of the civilian population. The above acts constitute a criminal offence against the values protected by international law, namely a war crime against the civilian population under Article 120 § 1 of the Criminal Code. Since the factual background to the criminal offence at issue, and its legal classification, differ from those which were the subject of the earlier proceedings, such that the scope of the charges against the accused Fred Marguš is significantly wider and different from the previous case (case-file no. K-4/97), the matter is not res judicata ...” 18. A subsequent constitutional complaint by the applicant was dismissed by the Constitutional Court on 30 September 2009. The Constitutional Court endorsed the views of the Supreme Court. 19. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003, 178/2004 and 115/2006) provide as follows: “(1) Where the accused ... disturbs order at a hearing or does not comply with the orders of the presiding judge, the latter shall warn the accused ... The panel may order that the accused be removed from the courtroom ... (2) The panel may order that the accused be removed from the courtroom for a limited time. Where the accused again disturbs the order [he or she may be removed from the courtroom] until the end of the presentation of evidence. Before the closure of the presentation of evidence the presiding judge shall summon the accused and inform him about the conduct of the trial. If the accused continues to disturb order and insults the dignity of the court, the panel may again order that he be removed from the courtroom. In that case the trial shall be concluded in the accused’s absence and the presiding judge or another member of the panel shall inform him or her about the judgment adopted, in the presence of a typist. ...” “(1) A grave breach of criminal procedure shall be found to exist where ... 3. a hearing has been held without a person whose presence is obligatory under the law ... ...” 20. The relevant part of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia of 25 September 1992 (Official Gazette no. 58/1992, Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske) reads as follows: “Criminal prosecution of perpetrators of criminal offences [committed] during the armed conflicts, the war against the Republic of Croatia or in connection with these conflicts or war, committed between 17 August 1990 and the day when this Act comes into force, shall be discontinued. In respect of these offences no criminal prosecution or criminal proceedings shall be instituted. Where criminal proceedings have been instituted, a court shall terminate them of its own motion. Where a person concerned by the amnesty ... has been detained, he or she shall be released.” “No amnesty under section 1 of this Act shall be granted to perpetrators of the criminal offences in respect of which the Republic of Croatia is obliged to prosecute under international law.” “A state attorney may lodge an appeal within twenty-four hours from the service of a decision under section 1 ... of this Act, where she or he considers that the decision contravenes section 2 of this Act.” 21. The relevant part of the amendments to the above Act of 6 June 1995 reads as follows: “In section 1, paragraph 1 of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Official Gazette no. 58/92) the words ‘the day when this Act comes into force’ are to be replaced by the words ‘10 May 1995’.” 22. The relevant part of the General Amnesty Act of 24 September 1996 (Official Gazette no. 80/1996, Zakon o općem oprostu) reads as follows: “This Act grants general amnesty from criminal prosecution and proceedings to the perpetrators of criminal offences committed during the aggression, armed rebellion or armed conflicts and in connection with the aggression, armed rebellion or armed conflicts in the Republic of Croatia. No amnesty shall apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph 1 of this section. Amnesty from criminal prosecution and proceedings shall apply to offences committed between 17 August 1990 and 23 August 1996.” “No criminal prosecution or criminal proceedings shall be instituted against the perpetrators of the criminal offences under section 1 of this Act. Where a criminal prosecution has already commenced it shall be discontinued and where criminal proceedings have been instituted a court shall issue a decision terminating the proceedings of its own motion. Where a person granted amnesty under paragraph 1 of this section has been detained, he or she shall be released.” “No amnesty under section 1 of this Act shall be granted to perpetrators of the gravest breaches of humanitarian law, which have the character of war crimes, namely, the criminal offence of genocide under Article 119 of the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996); war crimes against the civilian population under Article 120; war crimes against the wounded and sick under Article 121; war crimes against prisoners of war under Article 122; organising groups [with the purpose of committing] or aiding and abetting genocide and war crimes under Article 123; unlawful killing and wounding of the enemy under Article 124; unlawful taking of possessions from the dead or wounded on the battleground under Article 125; use of unlawful means of combat under Article 126; offences against negotiators under Article 127; cruel treatment of the wounded, sick and prisoners of war under Article 128; unjustified delay in repatriation of prisoners of war under Article 129; destruction of cultural and historical heritage under Article 130; inciting war of aggression under Article 131; abuse of international symbols under Article 132; racial and other discrimination under Article 133; establishing slavery and transferring slaves under Article 134; international terrorism under Article 135; putting at risk persons under international protection under Article 136; taking hostages under Article 137; and the criminal offence of terrorism under the provisions of international law. No amnesty shall be granted to perpetrators of other criminal offences under the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996) and the Criminal Code of the Republic of Croatia (Official Gazette no. 32/1993, consolidated text, nos. 38/1993, 28/1996 and 30/1996) which were not committed during the aggression, armed rebellion or armed conflicts and are not connected with the aggression, armed rebellion or armed conflicts in the Republic of Croatia. ...” “A state attorney may lodge an appeal against a court decision under section 2 of this Act where a court has granted amnesty in favour of the perpetrators of criminal offences in respect of which this Act grants amnesty within the legal classification of the criminal offence by a state attorney.” 23. The relevant part of common Article 3 of the Geneva Conventions of 1949 reads: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. ...” 24. The relevant parts of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 – hereafter “the First Geneva Convention”) read: “The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. ...” “Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” 25. Articles 50 and 51 of the Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva, 12 August 1949 – hereafter “the Second Geneva Convention”) contain the same text as Articles 49 and 50 of the First Geneva Convention. 26. Articles 129 and 130 of the Convention (III) relative to the Treatment of Prisoners of War (Geneva, 12 August 1949 – hereafter “the Third Geneva Convention”) contain the same text as Articles 49 and 50 of the First Geneva Convention. 27. Articles 146 and 147 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949 – hereafter “the Fourth Geneva Convention”) contain the same text as Articles 49 and 50 of the First Geneva Convention. 28. The relevant part of the Additional Protocol (II) to the Geneva Conventions, relating to the Protection of Victims of Non-International Armed Conflicts (Geneva, 8 June 1977) reads: “1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors. 2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever: (a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; ...” “1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this part, unless and for such time as they take a direct part in hostilities.” 29. Mandated by the States convened at the 26th International Conference of the Red Cross and Red Crescent, the International Committee of the Red Cross (ICRC) presented in 2005 a Study on Customary International Humanitarian Law (J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law, 2 Volumes, Cambridge University Press & ICRC, 2005). The Study contains a list of customary rules of international humanitarian law. Rule 159 which refers to non-international armed conflicts reads: “At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.” “The Security Council: ... 7. Urges the Government of the Republic of Croatia to eliminate ambiguities in implementation of the Amnesty Law, and to implement it fairly and objectively in accordance with international standards, in particular by concluding all investigations of crimes covered by the amnesty and undertaking an immediate and comprehensive review with United Nations and local Serb participation of all charges outstanding against individuals for serious violations of international humanitarian law which are not covered by the amnesty in order to end proceedings against all individuals against whom there is insufficient evidence; ...” 30. The relevant text of the Resolution on human rights in the world and Community human rights policy for the years 1991/1992 reads: “The European Parliament ... 7. Believes that the problem of impunity ... can take the form of amnesty, immunity, extraordinary jurisdiction and constrains democracy by effectively condoning human rights infringements and distressing victims; 8. Affirms that there should be no question of impunity for those responsible for war crimes in the former Yugoslavia ...” 31. The United Nations Human Rights Committee noted in 1994 in its General Comment No. 20 on Article 7 of the International Covenant that some States had granted amnesty in respect of acts of torture. It went on to state that “[a]mnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible”. “18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7). Accordingly, where public officials or State agents have committed violations of the Covenant rights referred to in this paragraph, the States Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties (see General Comment 20 (44)) and prior legal immunities and indemnities. Furthermore, no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility; ...” “The Commission on Human Rights: ... 2. Also emphasizes the importance of taking all necessary and possible steps to hold accountable perpetrators, including their accomplices, of violations of international human rights and humanitarian law, recognizes that amnesties should not be granted to those who commit violations of international humanitarian and human rights law that constitute serious crimes and urges States to take action in accordance with their obligations under international law; ...” “The Commission on Human Rights: ... 3. Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes, urges States to take action in accordance with their obligations under international law and welcomes the lifting, waiving, or nullification of amnesties and other immunities. ...” “The Commission on Human Rights: ... 3. Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes, urges States to take action in accordance with their obligations under international law and welcomes the lifting, waiving, or nullification of amnesties and other immunities, and recognizes as well the Secretary-General’s conclusion that United Nations-endorsed peace agreements can never promise amnesties for genocide, crimes against humanity, war crimes, or gross violations of human rights. ...” 32. In 1998, in the conclusions and recommendations of his fifth report on the question of the human rights of all persons subjected to any form of detention or imprisonment, in particular, torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur of the UN Commission on Human Rights stated with respect to the Draft Statute for an International Criminal Court: 33. The relevant part of the Furundžija case (judgment of 10 December 1998) reads: “155. The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act. What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: “individuals have international duties which transcend the national obligations of obedience imposed by the individual State.” 34. In 1992, in a report on a case with respect to the Las Hojas massacres in El Salvador in 1983 during which about 74 persons were allegedly killed by members of the Salvadoran armed forces with the participation of members of the Civil Defence, and which had led to a petition before the Inter-American Commission on Human Rights, the latter held that: “... the application of [El Salvador’s 1987 Law on Amnesty to Achieve National Reconciliation] constitutes a clear violation of the obligation of the Salvadoran Government to investigate and punish the violations of the rights of the Las Hojas victims, and to provide compensation for damages resulting from the violations ... The present amnesty law, as applied in these cases, by foreclosing the possibility of judicial relief in cases of murder, inhumane treatment and absence of judicial guarantees, denies the fundamental nature of the most basic human rights. It eliminates perhaps the single most effective means of enforcing such rights, the trial and punishment of offenders.” 35. In 1994, in a report on the situation of human rights in El Salvador, the Inter-American Commission on Human Rights stated, with regard to El Salvador’s General Amnesty Law for Consolidation of Peace, as follows: “... regardless of any necessity that the peace negotiations might pose and irrespective of purely political considerations, the very sweeping General Amnesty Law [for Consolidation of Peace] passed by El Salvador’s Legislative Assembly constitutes a violation of the international obligations it undertook when it ratified the American Convention on Human Rights, because it makes possible a ‘reciprocal amnesty’ without first acknowledging responsibility ... because it applies to crimes against humanity, and because it eliminates any possibility of obtaining adequate pecuniary compensation, primarily for victims.” 36. In 1999, in a report of a case concerning El Salvador’s 1993 General Amnesty Law for Consolidation of Peace, the Inter-American Commission on Human Rights stated: “112. The Commission should emphasize that [this law] was applied to serious human rights violations in El Salvador between January 1, 1980, and January 1, 1992, including those examined and established by the Truth Commission. In particular, its effect was extended, among other things, to crimes such as summary executions, torture, and the forced disappearance of persons. Some of these crimes are considered of such gravity as to have justified the adoption of special conventions on the subject and the inclusion of specific measures for preventing impunity in their regard, including universal jurisdiction and inapplicability of the statute of limitations ... ... 115. The Commission also notes that Article 2 of [this law] was apparently applied to all violations of common Article 3 [of the 1949 Geneva Conventions] and of [the 1977 Additional Protocol II], committed by agents of the State during the armed conflict which took place in El Salvador. ... 123. ... in approving and enforcing the General Amnesty Law, the Salvadoran State violated the right to judicial guarantees enshrined in Article 8(1) of the [1969 American Convention on Human Rights], to the detriment of the surviving victims of torture and of the relatives of ... who were prevented from obtaining redress in the civil courts; all of this in relation to Article 1(1) of the Convention ... ... 129. ... in promulgating and enforcing the Amnesty Law, El Salvador has violated the right to judicial protection enshrined in Article 25 of the [1969 American Convention on Human Rights], to the detriment of the surviving victims ...” In its conclusions, the Inter-American Commission on Human Rights stated that El Salvador “has also violated, with respect to the same persons, common Article 3 of the Four Geneva Conventions of 1949 and Article 4 of [the 1977 Additional Protocol II]”. Moreover, in order to safeguard the rights of the victims, it recommended that El Salvador should, “if need be, ... annul that law ex-tunc”. 37. In its judgment in the Barrios Altos case in 2001 involving the question of the legality of Peruvian amnesty laws, the Inter-American Court of Human Rights stated: “41. This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law. 42. The Court, in accordance with the arguments put forward by the Commission and not contested by the State, considers that the amnesty laws adopted by Peru prevented the victims’ next of kin and the surviving victims in this case from being heard by a judge ... they violated the right to judicial protection ... they prevented the investigation, capture, prosecution and conviction of those responsible for the events that occurred in Barrios Altos, thus failing to comply with Article 1(1) of the [1969 American Convention on Human Rights], and they obstructed clarification of the facts of this case. Finally, the adoption of self-amnesty laws that are incompatible with the [1969 American Convention on Human Rights] meant that Peru failed to comply with the obligation to adapt internal legislation that is embodied in Article 2 of the [1969 American Convention on Human Rights]. 43. The Court considers that it should be emphasized that, in the light of the general obligations established in Articles 1(1) and 2 of the [1969 American Convention on Human Rights], the States Parties are obliged to take all measures to ensure that no one is deprived of judicial protection and the exercise of the right to a simple and effective recourse, in the terms of Articles 8 and 25 of the [1969 American Convention on Human Rights]. Consequently, States Parties to the [1969 American Convention on Human Rights] which adopt laws that have the opposite effect, such as self-amnesty laws, violate Articles 8 and 25, in relation to Articles 1(1) and 2 of the [1969 American Convention on Human Rights]. Self-amnesty laws lead to the defenselessness of victims and perpetuate impunity; therefore, they are manifestly incompatible with the aims and spirit of the Convention. This type of law precludes the identification of the individuals who are responsible for human rights violations, because it obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation. 44. Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the [1969 American Convention on Human Rights] have been violated.” In his concurring opinion, Judge Antônio A. Cançado Trinidade added: “13. The international responsibility of the State for violations of internationally recognized human rights, – including violations which have taken place by means of the adoption and application of laws of self-amnesty, – and the individual penal responsibility of agents perpetrators of grave violations of human rights and of International Humanitarian Law, are two faces of the same coin, in the fight against atrocities, impunity, and injustice. It was necessary to wait many years to come to this conclusion, which, if it is possible today, is also due, – may I insist on a point which is very dear to me, – to the awakening of the universal juridical conscience, as the material source par excellence of International Law itself.” | 0 |
dev | 001-119972 | ENG | AZE | CHAMBER | 2,013 | CASE OF ZEYNALOV v. AZERBAIJAN | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Tribunal established by law) | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1935 and lives in Siyazan. He is a farmer. 6. Following a dispute over ownership rights to a plot of land between the applicant and the Sadan Municipality in the district formerly known as Davachi (“the Municipality”), criminal proceedings were instituted against the applicant. 7. On 29 December 2004 the Davachi District Court convicted the applicant under Article 188 of the Criminal Code (violation of a lawful owner’s right to a plot of land, by means of unauthorised occupation, alteration or cultivation thereof) and sentenced him to a fine in the amount of one hundred conventional financial units (550,000 old Azerbaijani manats, equivalent to 110 new Azerbaijani manats (AZN), which according to the official exchange rates published by the Central Bank of the Republic of Azerbaijan amounted to approximately 84 euros (EUR) at the relevant time). The court found that the applicant had unlawfully occupied and cultivated a plot of land of 0.8 hectares owned by the Municipality. The Court based its findings on witness statements and information provided by the State Committee of Land and Cartography (“the SCLC”). 8. On an unspecified date, the applicant appealed against the judgment of 29 December 2004, arguing that the plot of land in question was part of a larger parcel of land measuring 50 hectares belonging to his family farming business. On 18 March 2005 the Court of Appeal upheld the first-instance court’s judgment. 9. The applicant lodged an appeal on points of law, alleging that the lower courts had erred in their assessment of the facts. On 9 August 2005 the Supreme Court, composed of a panel of three judges including judge N.H., quashed the judgment of the Court of Appeal of 18 March 2005 and remitted the case for a new examination to the Court of Appeal. The Supreme Court noted, in particular, that the conviction was based on insufficient evidence. 10. Taking into consideration the findings of the Supreme Court, the Court of Appeal sent a new request to the SCLC and the Municipality requesting detailed information about the exact location, measurements and ownership of the plot of land. The Municipality submitted that, according to the official records, the plot in question belonged to the Municipality and not the applicant. The SCLC conducted an on-site inspection of the plot of land and submitted to the court that the plot in question was part of the Municipality’s estate. On 12 July 2006 the Court of Appeal delivered a new judgment upholding the Davachi District Court’s judgment of 29 November 2004 convicting the applicant. The court held that the disputed plot of land which the applicant cultivated belonged to the Municipality and that the relevant law had been applied correctly. 11. The applicant appealed. On 10 October 2006 the Supreme Court, composed of a panel of three judges including judge N.H., examined the applicant’s appeal. It found that the Court of Appeal had examined all the relevant and available evidence and had committed no breaches of substantive or procedural law. Accordingly, the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment of 12 July 2006. 12. The relevant provisions of the Code of Criminal Procedure of 2000 (“the CCrP”) concerning the disqualification of judges provided as follows: Article 109. Objection to a judge “109.1. An objection to a judge (or judicial formation) must state reasons ... An objection to a judge may be considered justified and be granted unconditionally if there exists at least one of the following grounds precluding a person’s participation in a criminal proceedings as a judge: ... 109.1.6. if the judge had participated as a judge in the examination of the same criminal case or another prosecution matter in a court of first instance or appeal or before the Supreme Court, or on the basis of newly discovered facts (the judge’s examination of the file at the pre-trial stage by way of judicial supervision, or the initial hearing of the case, shall not preclude his subsequently examining the case as a member of the court of first instance or appeal or the Supreme Court); ... 109.2. In any of the cases covered by Article 109.1 of this Code, the judge shall disqualify himself or herself.” 13. The following are the relevant provisions of the CCrP concerning the review of the relevant decisions delivered in domestic proceedings and reopening of the domestic proceedings following a finding by the Court of a violation of the Convention: Article 455. Grounds for review of judicial decisions in connection with the violation of rights and freedoms “455.0. The following are grounds for review of judicial decisions in connection with the violation of rights and freedoms: ... 455.0.2. finding by the European Court of Human Rights of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in the criminal proceedings, simplified pre-trial proceedings or proceedings involving a complaint under the private prosecution procedure, conducted by courts of the Republic of Azerbaijan; ...” Article 456. Procedure for review of judicial decisions in connection with the violation of rights and freedoms “456.1. The Plenum of the Supreme Court of the Republic of Azerbaijan is vested with the competence to review judicial decisions in connection with the violation of rights and freedoms. 456.2. Where grounds exist under Articles 455.0.1 and 455.0.2 of this Code, the Plenum of the Supreme Court examines the cases only on points of law, in connection with the execution of judgments of the Constitutional Court of the Republic of Azerbaijan and the European Court of Human Rights. After a judgment of the Constitutional Court or the European Court of Human Rights is received by the Supreme Court, the President of the Supreme Court assigns the case to one of the [Supreme Court] judges for preparation and presentation of the case at the Plenum [of the Supreme Court]. The case shall be reviewed at a hearing of the Plenum of the Supreme Court no later than three months after the judgment of the Constitutional Court or the European Court of Human Rights is received by the Supreme Court. ...” Article 459. Decision taken after review in connection with the finding by the European Court of Human Rights of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in the criminal proceedings conducted by courts of the Republic of Azerbaijan “459.0. Having conducted a review in cases stipulated by Article 455.0.2 of this Code, the Plenum of the Supreme Court has competence to deliver one of the following decisions: 459.0.1. to quash, fully or partially, judicial decisions of the first-instance, appellate and cassation courts, as well as judicial decisions delivered under the procedure of additional cassation ..., and to remit the criminal case, the case materials of simplified pre-trial proceedings, or the case materials of proceedings involving a complaint under the private prosecution procedure, for re-examination by the relevant firstinstance or appellate court; 459.0.2. to amend a decision of the court of cassation and/or additional cassation in situations stipulated in Articles 421.1.2 and 421.1.3 of this Code; 459.0.3. to quash a decision of the court of cassation and/or additional cassation and to deliver a new decision.” 14. In its decision no. 3 of 24 November 2005 concerning the courts’ practice on implementation of the rules concerning objections to a judge or the bench, the Plenum of the Supreme Court held that when relevant legal grounds for disqualification exist, a judge must withdraw from the examination of the case of his or her own accord, even when the parties to the proceedings have not raised an objection. This requirement to withdraw is defined by the Plenum as the judge’s “legal duty” (paragraph 3.2). A judge who has already heard a criminal case in a court of first instance, appeal or cassation, cannot take part in the re-examination of the same criminal case (paragraph 13). | 1 |
dev | 001-107014 | ENG | BGR | CHAMBER | 2,011 | CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA (No. 2) | 3 | Remainder inadmissible;Violation of Art. 11;Non-pecuniary damage - award | George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 7. The individual applicants were born in 1938, 1954, 1940, 1932, 1949, 1931, 1948, 1951, 1933, 1952, 1964, 1929 and 1944 and live in Krupnik, Sandanski, Gotse Delchev, Ilindentsi, Katuntsi, Kamena, Petrich and Kolarovo. They are all members of Ilinden’s managing council. 8. The relevant background circumstances are described in detail in paragraphs 921 of the Court’s judgment in the case of United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 59491/00, 19 January 2006). 9. On 20 October 2002 a group of one hundred and eleven supporters of Ilinden held a meeting at which they resolved to form a non-profit association. They adopted its articles and elected its bodies, including thirteen members of its managing council. 10. Clause 6(1) of the articles, which defined the association’s goals, said, inter alia, that Ilinden was “a successor and continuer of the national liberation struggle of the Macedonian nation”, including the “Macedonian fighters who fell victim to Bulgarian state terrorism and genocide”. Clause 6(2) specified that Ilinden “recognise[d] and respect[ed] the territorial integrity of the Republic of Bulgaria and its laws and constitution, but only if they [were] consonant with international law and international agreements on human rights, fundamental freedoms and minorities’ rights”. Clauses 6(4) and 6(5) stated that Ilinden’s goals included “expressing and defending the civil, national, social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation (jurisdiction), and of the Macedonians who live in Bulgaria” and “requesting cultural autonomy status for Pirin Macedonia in order for the assimilation process to be stopped”. 11. Clause 7(1) to (6) of the articles provided that to attain its goals Ilinden would propagate Macedonian culture and traditions, hold meetings to commemorate historical dates, “nominate Macedonians for Members of Parliament”, petition the government and various international institutions for the “national rights of the Macedonians”, and organise conferences and seminars. 12. Clause 32(1) said that the association would be run and represented by a managing council. According to clause 32(3), it would have three to seven members. However, clause 32(5) specified that the first managing council would have three members. 13. On 21 October 2002 Ilinden applied for registration to the Blagoevgrad Regional Court. In a judgment of 18 November 2002 the court refused to register the association. It gave the following reasons: “The evidence ... shows ... that the activities of the organisation seeking registration are directed against the sovereignty and the territorial integrity of the country and the unity of the nation. This is apparent from the association’s main goals ... and the means for attaining them... Their wording ... shows their political character. ...The organisation says that it is a successor of and continues the ‘national liberation struggle of the Macedonian nation’, including the ‘Macedonian fighters who fell victim to Bulgarian State terrorism and genocide’[. Its articles of association] specify that [the organisation] will respect the territorial integrity of the Republic of Bulgaria, but only if ‘[it is] consistent with international law and international agreements on human rights, fundamental freedoms and the rights of minorities’; [that the organisation] will ‘express and safeguard the civil, social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation (jurisdiction) and of the Macedonians who live in Bulgaria’[. The articles also] insist that ‘the process of assimilation in Pirin Macedonia must be stopped’. Obviously, the aim is to distort the historical truth, to ignore the Bulgarian character of certain geographical regions [and] to provoke overt opposition by one part of the population to another. This also threatens the territorial integrity of the country, whereas Article 44 § 2 of [the Constitution] prohibits organisations from engaging in such activities. Even if, despite [what was found] above, it is assumed that the activities of [Ilinden] do not run counter to [the Constitution], its Article 12 § 2 provides that associations may not pursue political goals and carry out political activities that are characteristic solely of political parties. The political character of the aims [of Ilinden] is clearly shown by [its articles of association], while the [applicable law] provides that organisations seeking to engage in political, tradeunion or religious activities must be regulated in a separate statute. All this leads to the conclusion that what is sought is the registration of an association whose aims are illegal. It cannot be accepted that what is at issue is an organisation seeking to preserve the historical traditions and the cultural riches of a specific community. ... The realisation of the true aims [of Ilinden] would no doubt be at the expense of the unity of the Bulgarian nation [and] the sovereignty and the territorial integrity [of the country], which is declared inviolable by Article 2 § 2 of the Constitution.” 14. Ilinden appealed to the Sofia Court of Appeal, arguing, inter alia, that it was not threatening the country’s sovereignty and territorial integrity, nor trying to distort the “historical truth”. The refusal to register it was in breach of Article 38 of the Constitution (see paragraph 18 below), as it was based on the fact that it expressed views which differed from the officially sanctioned ones. It was not proposing to engage in activities characteristic solely of a political party either. 15. On 11 July 2003 the Sofia Court of Appeal upheld the lower court’s judgment. It held, in so far as relevant: “The Blagoevgrad Regional Court ... received an application by the managing council of the newly formed non-profit association [Ilinden], requesting it to be registered ... in the special register kept by the court... In [the impugned judgment the Blagoevgrad Regional Court] refused to register the association..., holding that [Ilinden]’s goals and the means for attaining them have a political character and run counter to the spirit of [the 2000 NonProfit Legal Persons Act] and the provisions of the [Constitution]. This court shares those conclusions. The evidence submitted alongside the application for registration, namely the articles of the nonprofit association [Ilinden], the minutes of its founding meeting, held on 20 October 2002, a list of the founders, thirteen sample signatures of the members of the managing council, notarised and expressly stating that these persons wish to take part in the association’s management and representation, and their criminal records, shows that a founding meeting was held on 20 October 2002. It was attended by 111 individuals, who unanimously resolved to form a nonprofit association named [Ilinden], adopted its articles and elected a managing council consisting of thirteen members. However, the wording of the articles – clauses 6 and 7, [which set out] the association’s goals and the means for attaining them – reveal their political character, which is impermissible for a nonprofit association. This follows from the interpretation of paragraph 2 of [the 2000 NonProfit Legal Persons Act], which provides that organisations intending to carry out political, tradeunion or religious activities must be regulated by separate statutes. For instance, in clause 6(1), (4) [and] (5) of its articles the organisation proclaims itself as being a successor of and continuing the ‘national liberation struggle of the Macedonian nation’, including ‘the Macedonian fighters who fell victim to Bulgarian State terrorism and genocide’, declares that ‘it will express and defend the civil, social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation (jurisdiction) and of the Macedonians living in Bulgaria’, insists that ‘the assimilation process in Pirin Macedonia must stop’, etc. All those goals set by the newly formed organisation are directed towards distorting the historical truth and ignoring the Bulgarian character of certain geographical regions, with a view to stirring overt confrontation between one group of Bulgarian citizens and another, which imperils both the territorial integrity of the country and the unity of the nation. This is in breach of the imperative rule of Article 44 § 2 of [the Constitution] which provides that ‘organisations whose activities are directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... are prohibited’. Moreover, the political goals and the ways of attaining them, set by the organisation in clause 7(2), (3) and (4) of its articles, are in breach of paragraph 2 of [the 2000 NonProfit Legal Persons Act] and Article 12 § 2 of [the Constitution]. Apart from that, the founders have elected thirteen members of the managing council, in breach of the articles which provide, in clause 32(5), that the first managing council will consist of three members who will manage and represent the association (clause 32(1)). This was equally in breach of section 20(6) and (9) in conjunction with section 18(1)(3) of [the 2000 NonProfit Legal Persons Act], because it engenders uncertainty as to the manner of managing and representing the organisation. In view of the foregoing, this court finds that the newly formed organisation [Ilinden] has goals, ways of attaining them and representation which run counter to the provisions of [the 2000 NonProfit Legal Persons Act]. For this reason, it should not be entered on the register of non-profit legal persons kept by [the Blagoevgrad Regional Court]. ...” 16. On 3 November 2003 Ilinden appealed on points of law. It argued, inter alia, that, contrary to the Sofia Court of Appeal’s ruling, its articles, when read properly, showed that it did not intend to participate in political life. Nor was it trying to distort the historical truth – its aim was to promote it. The refusal to register it violated its right to freedom of association, enshrined in Article 44 § 1 of the Constitution, and was in breach of Article 38 of the Constitution (see paragraph 18 below). Ilinden also contested the Sofia Court of Appeal’s findings concerning its managing council. 17. In a final judgment of 12 May 2004 (реш. № 342 от 12 май 2004 г. по гр. д. № 1992/2003 г., ВКС, търговска колегия) the Supreme Court of Cassation upheld the Sofia Court of Appeal’s judgment in the following terms: “The Sofia Court of Appeal founded the refusal to register the association on the wording of the articles of association, more specifically clauses 6 and 7, which show that the goals sought to be attained by the association and the means for their attainment are political in character. The [Constitution] guarantees freedom of association, but only in line with the requirements of the law. It is not permissible for a nonprofit association to carry out political, tradeunion or religious activities. The assertion in the appeal that [Ilinden] does not seek to engage in political struggles is not substantiated. As correctly observed by [the Sofia Court of Appeal], an organisation which proclaims itself as being a successor and continuing the ‘national liberation struggle of the Macedonian nation’, and its founders as spiritual successors of ‘the Macedonian fighters who fell victim to Bulgarian State terrorism and genocide’ has a markedly political character. The [lower court] correctly held that an activity consisting in ‘safeguarding the social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation and of the Macedonians living in Bulgaria’ is in breach of Article 44 § 2 of the [Constitution], which prohibits organisations whose activities are directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, or towards the incitement of racial, national, ethnical or religious enmity. But even if [the court] were to accept the argument in the appeal that the organisation does not seek to attain goals which run counter to the constitutional order, those goals run counter to the [2000 NonProfit Legal Persons Act], as they are characteristic of a political party, not of a nonprofit association. Thus, the alleged violation of Article 38 of the [Constitution] has not been made out. The argument in the appeal that the articles of association in reality merely mention the minimum number of members of the managing council, without further restrictions, is unfounded. Clause 32(3) of the articles enclosed in the case file says that the managing council consists of three to seven members. Clause 32(5) makes special provision for the first managing council and says that it will consist of three members serving three years. That is, clause 32(5) does not merely set a minimum, as claimed in the appeal. For this reason, [the Sofia Court of Appeal] correctly found that the imperative rule of section 20(6) and (9) in conjunction with section 18(1)(3) of the [2000 NonProfit Legal Persons Act] has not been complied with – the manner of managing and representing the organisation is unclear. For the foregoing reasons, the court is of the opinion that the grounds of appeal have not been made out and that [the impugned judgment] should be upheld.” 18. The relevant provisions of the 1991 Constitution read: “The territorial integrity of the Republic of Bulgaria shall be inviolable.” “Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties.” “No one may be persecuted or restricted in his rights because of his views, nor detained or forced to provide information about his or another’s convictions.” “1. Citizens may freely associate. 2. Organisations whose activities are directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... and organisations which seek to achieve their goals through violence are prohibited. 3. The law shall specify the organisations which are subject to registration, the manner of their dissolution and their relations with the State.” 19. Under paragraph 2 of the transitional and concluding provisions of the 2000 Non-Profit Legal Persons Act (“Закон за юридическите лица с нестопанска цел”) – the Act which regulates the formation, registration and activities of nonprofit legal persons such as associations – organisations which intend to engage in political, trade union and religious activities were to be regulated by separate statutes. 20. Section 18 (1)(3) of the Act provides that the names and the offices of the persons who represent the association must be entered in the register. Section 20 (6) and (9) provide that an association’s articles must set out its managing bodies and the manner of its representation. | 1 |
dev | 001-77805 | ENG | RUS | CHAMBER | 2,006 | CASE OF KOMAROVA v. RUSSIA | 4 | Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 4. The applicant was born in 1955 and lives in Yaroslavl. 5. Between 1991 and 1998 the applicant worked as a senior accountant in the private company Gatchina. 6. On 2 July 1998 a local police investigator (Заволжский районный отдел внутренних дел г. Ярославля) initiated criminal proceedings on suspicion of misappropriation of the company's assets by some of its employees. 7. On 22 July 1998 an initial interview was held with the applicant in the presence of her counsel. 8. The applicant was formally charged on 24 July 1998. 9. On 22 July 1998 the applicant was remanded in custody pending the investigation. 10. On 24 and 31 July 1998 an investigator again questioned the applicant. 11. The applicant's repeated complaints concerning her detention were rejected by decision of the Frunzenskiy District Court of the city of Yaroslavl (Фрунзенский районный суд г. Ярославля) on 10 November 1998 and 13 January 1999. The decision of 10 November 1998 was upheld on appeal by the Yaroslavl Regional Court (“the Regional Court” – Ярославский областной суд) on 8 December 1998. 12. On 22 June 1999 the applicant was released on the ground that all the investigative measures had been concluded and on health grounds. The investigator imposed a measure of restraint on her in the form of an undertaking not to leave her place of residence. 13. It appears that while in detention the applicant also repeatedly complained that she was unfit for custody on medical grounds. By decisions dated 14 October 1998 and 1 June 1999 the investigator twice ordered a medical examination of the applicant. 14. The examinations took place between 23 October and 11 November 1998 and from 7 June to 1 July 1999 respectively, and found the applicant to be in good health. 15. On 13 January 1999 the investigator opened a new criminal case against the applicant, this time for alleged fraud. The two cases against the applicant were joined. 16. According to the Government, between 1 July 1999 and 29 March 2000 the applicant had access to the case file and availed herself of that opportunity on eight occasions. 17. By decision of 29 March 2000 the proceedings were suspended owing to the applicant's state of health. She underwent in-patient treatment in a hospital. 18. On 17 July 2000 the proceedings resumed. Over the next month the investigator brought similar charges against two other people and ordered a further medical examination of the applicant. 19. From 15 August 2000 the applicant and the other defendants in the case had access to the case file again. It appears that the other defendants and the applicant's counsel completed their study of the case by 20 and 27 November 2000 respectively. 20. As regards the applicant, she again underwent inpatient treatment between 16 August and 1 September 2000 and only started to familiarise herself with the case file on 9 October 2000. 21. On 27 November 2000 the investigator, fearing that the applicant might cause delays in the proceedings, set a deadline of 27 December 2000 for the applicant to familiarise herself with the case file. 22. In January 2001 the deadline was extended until 24 February 2001. 23. On 28 February 2001 the preliminary investigation of the applicant's case was concluded and the bill of indictment was prepared and signed by a local prosecutor. The applicant and two co-defendants were charged with fraud. 24. On 1 March 2001 the case was transferred to the Zavolzhskiy District Court of Yaroslavl (“the District Court” – Заволжский районный суд г. Ярославля) for trial. 25. On 26 April 2001 the applicant submitted to the court a number of documents allegedly confirming her innocence. In response and at the prosecutor's initiative, the court ordered the Centre for Forensic Examinations of the Russian Ministry of Justice to examine the documents with a view to verifying their authenticity. The court also stayed the proceedings in the case pending the outcome of the expert examinations. 26. On 27 June 2001 the Centre responded that it was impossible to carry out the expert examinations requested by the court. 27. On 23 August 2001 the court decided to examine the documents with the assistance of a different expert body, the North-Western Regional Centre for Forensic Examinations (“the Centre”). However, on 21 December 2001 the Centre informed the court that, owing to malfunctioning of technical equipment, no examination could take place. 28. Having consulted counsel for the defence, the court fixed 20 May 2002 as the date of the next hearing. It appears that the hearing of 20 May 2002 did not take place and that the proceedings were adjourned until 14 August 2002 and then until 27 November 2002. 29. On 27 November 2002 the proceedings resumed. 30. By decision of 6 December 2002, taken at the prosecutor's initiative, the court decided again to order an expert examination. However, on 6 May 2003 the Centre again refused and informed the court that no such examination was possible. According to the applicant, the Centre could not carry out that examination because the court had failed to furnish it with the necessary documents in time. 31. On 31 July 2003 the court for the third time requested the Centre to carry out the examination. By letter of 27 November 2003 the Centre acceded to the request but asked for further information. It appears that the necessary information was furnished. 32. The court received a completed expert report on 30 July 2004 and scheduled the next hearing for 30 November 2004. On that date the proceedings did not take place because of the judge's involvement in a different set of proceedings. The case was adjourned until 6 December 2004. The hearings of 6, 7 and 8 December did not take place owing to the failure of counsel for one of the defendants to attend. 33. The proceedings resumed on 9 December 2004 and lasted until 15 December 2004, when they were interrupted by the illness of a lay assessor. 34. The proceedings continued on 12 January 2005 and lasted, with interruptions, until 25 February 2005. On the latter date the court adjourned the hearing first until 14 March 2005 owing to the illness of counsel for one of the defendants and then until 14 April 2005, citing the involvement of counsel for the same defendant in different sets of proceedings. 35. The hearing of 19 April 2005 was adjourned with reference to the need to secure the attendance of some of the witnesses by force. 36. On 22 April 2005 the hearings did not take place as the applicant requested that an additional witness be summoned; on 25, 27 and 28 April 2005 the applicant's counsel and one of the defendants failed to appear. 37. On 3 and 11 May 2005 the prosecutor requested that the proceedings be adjourned, referring to a lack of time to prepare for the judicial pleadings stage. The requests were granted. 38. On 20 May 2005 the proceedings were adjourned at the applicant's request, as apparently her counsel was ill. 39. It appears that by judgment of 28 July 2005 the District Court convicted the applicant as charged. 40. The judgment was quashed on appeal by the Regional Court on 28 October 2005. The case was remitted for a fresh examination at first instance. 41. It appears that the case is currently pending before the trial court. | 1 |
dev | 001-72925 | ENG | ITA | GRANDCHAMBER | 2,006 | CASE OF SCORDINO v. ITALY (No. 1) | 1 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Reasonable time);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabeth Steiner;Giovanni Bonello;Jean-Paul Costa;Karel Jungwiert;Lech Garlicki;Lucius Caflisch;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Mariavaleria Del Tufo;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens;Vladimiro Zagrebelsky | 12. The applicants were born in 1959, 1949, 1951 and 1953 respectively and live in Reggio di Calabria. 13. In 1992 the applicants inherited from Mr A. Scordino several plots of land in Reggio di Calabria, entered in the land register as folio 111, parcels 105, 107, 109 and 662. On 25 March 1970 Reggio di Calabria District Council had adopted a general development plan, which was approved by the Calabria Regional Council on 17 March 1975. The land in issue in the present application, an area of 1,786 sq. m designated as parcel 109, was made the subject of an expropriation permit under the general development plan with a view to the construction of housing on the land. The land was subsequently included in the zonal development plan approved by the Calabria Regional Council on 20 June 1979. 14. In 1980 Reggio di Calabria District Council decided that a cooperative society, Edilizia Aquila, would carry out building work on the land in question. In a decision of 13 March 1981, the administrative authorities granted the cooperative permission to occupy the land. 15. On 30 March 1982, pursuant to Law no. 385/1980, Reggio di Calabria District Council offered an advance on the compensation payable for the expropriation, the amount having been determined in accordance with Law no. 865/1971. The sum offered, 606,560 Italian lire (ITL), was calculated according to the rules in force for agricultural land, using a value of ITL 340 per square metre as a basis, with the proviso that the final amount of compensation would be determined once a law had been enacted laying down new compensation criteria for building land. 16. The offer was refused by Mr A. Scordino. 17. On 21 March 1983 the Regional Council issued an expropriation order in respect of the land. 18. On 13 June 1983 the District Council made a second offer of an advance, this time amounting to ITL 785,000. The offer was not accepted. 19. In judgment no. 223 of 15 July 1983, the Constitutional Court declared Law no. 385/1980 unconstitutional on the ground that it made the award of compensation subject to the enactment of a future law. 20. As a result of that judgment, Law no. 2359/1865, which provided that compensation for expropriation should correspond to the market value of the land in question, came back into force. 21. On 10 August 1984 Mr A. Scordino served formal notice on the District Council to determine the final amount of compensation in accordance with Law no. 2359/1865. On 16 November 1989 he learned that Reggio di Calabria District Council had assessed the final amount at ITL 88,414,940 (ITL 50,000 per square metre) in an order of 6 October 1989. 22. On 25 May 1990, contesting the amount of compensation he had been awarded, Mr A. Scordino brought proceedings against the District Council and the cooperative in the Reggio di Calabria Court of Appeal. 23. He argued that the amount determined by the District Council was ridiculously low in relation to the market value of the land and requested, among other things, to have the compensation calculated in accordance with Law no. 2359/1865. He also sought compensation for the period during which the land had been occupied before the expropriation order had been issued, and for the area of land (1,500 sq. m) that had become unusable as a result of the building work. 24. Preparation of the case for hearing began on 7 January 1991. 25. The cooperative gave notice of its intention to defend and raised an objection, arguing that it could not be considered a party to the proceedings. 26. On 4 February 1991, as the District Council had still not given notice of its intention to defend, the Reggio di Calabria Court of Appeal declared it to be in default and ordered an expert assessment of the land. By an order of 13 February 1991, an expert was appointed and was given three months in which to submit his report. 27. On 6 May 1991 the District Council gave notice of its intention to defend and raised an objection, arguing that it could not be considered a party to the proceedings. The expert agreed to his terms of reference and was sworn in. 28. On 4 December 1991 the expert submitted a report. 29. On 14 August 1992 Law no. 359 of 8 August 1992 (“Urgent measures aimed at stabilising public finances”) came into force. Section 5 bis of the Law laid down new criteria for calculating compensation for the expropriation of building land. The Law was expressly applicable to pending proceedings. 30. Mr A. Scordino died on 30 November 1992. On 18 September 1993 the applicants declared their intention to continue the proceedings. 31. On 4 October 1993 the Reggio di Calabria Court of Appeal appointed another expert and instructed him to assess the compensation for the expropriation according to the new criteria laid down in section 5 bis of Law no. 359/1992. 32. The expert submitted his report on 24 March 1994, concluding that the land’s market value on the date of the expropriation had been ITL 165,755 per square metre. In accordance with the new criteria laid down in section 5 bis of Law no. 359/1992, the compensation due was ITL 82,890 per square metre. 33. At a hearing on 11 April 1994, the parties asked for time to submit comments on the expert’s report. Counsel for the applicants produced a separate expert opinion and observed that the expert appointed by the court had omitted to calculate the compensation for the 1,500 sq. m of land that was not covered by the expropriation order but had become unusable as a result of the building work. 34. A hearing was held on 6 June 1994 at which observations were submitted in reply. The next hearing, scheduled for 4 July 1994, was adjourned by the court of its own motion until 3 October 1994 and then until 10 November 1994. 35. By an order of 29 December 1994, the court ordered a further expert assessment and adjourned the proceedings until 6 March 1995. However, the hearing was subsequently adjourned on several occasions as the investigating judge was unavailable. At the applicants’ request, the investigating judge was replaced on 29 February 1996 and the parties made their submissions at a hearing on 20 March 1996. 36. In a judgment of 17 July 1996, the Reggio di Calabria Court of Appeal held that the applicants were entitled to compensation calculated according to section 5 bis of Law no. 359/1992, both for the land that had been formally expropriated and for the land that had become unusable as a result of the building work. It also held that the compensation thus determined should not be subject to the further 40% statutory deduction applicable where the owner of the expropriated land had not signed an agreement for its transfer (cessione volontaria), seeing that in the applicants’ case the land had already been expropriated when the Law had come into force. 37. In conclusion, the Court of Appeal ordered the District Council and the cooperative to pay the applicants: (a) ITL 148,041,540 (ITL 82,890 per square metre for 1,786 sq. m of land) in compensation for the expropriation; (b) ITL 91,774,043 (ITL 75,012.50 per square metre for 1,223.45 sq. m) in compensation for the part of the land that had become unusable and was to be regarded as having been de facto expropriated; and (c) compensation for the period during which the land had been occupied prior to its expropriation. 38. Those amounts were to be index-linked and subject to interest until the date of settlement. 39. On 20 December 1996 the cooperative appealed on points of law, arguing that it could not be considered a party to the proceedings. On 20 and 31 January 1997 respectively the applicants and the District Council likewise appealed. On 30 June 1997 the cooperative applied for a stay of execution of the Court of Appeal’s judgment. That application was dismissed on 8 August 1997. 40. In a judgment of 3 August 1998, deposited with the registry on 7 December 1998, the Court of Cassation allowed the cooperative’s appeal, acknowledging that it was not a party to the proceedings as it had not formally been a party to the expropriation, although it had benefited from it. It upheld the remainder of the Reggio di Calabria Court of Appeal’s judgment. 41. In the meantime, on 18 June 1997, the amount awarded by the Court of Appeal had been deposited at the National Bank. On 30 September 1997 tax was deducted from it at a rate of 20% in accordance with Law no. 413/1991. 42. On 18 April 2002 the applicants applied to the Reggio di Calabria Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining about the excessive length of the above-described proceedings. The applicants asked the court to find that there had been a violation of Article 6 § 1 of the Convention and order the Italian State and the Ministry of Justice to compensate them for non-pecuniary damage, which they assessed at 50,000 euros (EUR), and the pecuniary damage that they considered they had sustained as a result of the application of Law no. 359/1992 to their case. 43. In a decision of 1 July 2002, deposited with the registry on 27 July 2002, the Reggio di Calabria Court of Appeal found that the length of the proceedings had been excessive. It held as follows: “... The proceedings began on 24 May 1990 and ended on 7 December 1998. They were conducted at two levels of jurisdiction and were not particularly complex. It can be seen from the case-law of the European Court of Human Rights that three years is deemed to be an acceptable period for proceedings at first instance and two years at second instance. The applicants declared their intention to continue the proceedings as the heirs of Mr A. Scordino, who died in 1992, when a reasonable time had not yet been exceeded. Accordingly, the delays must be calculated only in respect of the subsequent period, and amount to three years and six months. It is not the applicants who are responsible for the delay, but rather the malfunctioning of the judicial system. The pecuniary damage alleged by the applicants has not been caused by the length of the proceedings and cannot therefore be compensated. Having regard to the foregoing, the applicants are entitled only to compensation for the non-pecuniary damage they have sustained on account of the length of the proceedings, that is, the prolonged uncertainty regarding the outcome of the proceedings and the distress generally experienced as a result of that uncertainty. In view of what was at stake, the amount to be awarded for non-pecuniary damage is EUR 2,450.” 44. The Court of Appeal ordered the Ministry of Justice to pay the applicants a total sum of EUR 2,450 for non-pecuniary damage alone. With regard to the government, the Court of Appeal considered that they could not be considered as a party to the proceedings. 45. Regarding the apportionment of the legal costs, the Court of Appeal ordered the Ministry of Justice to pay EUR 1,500 and the applicants to pay the remaining EUR 1,500. 46. The applicants did not appeal to the Court of Cassation. The Court of Appeal’s decision became final on 26 October 2003. 47. Section 39 of Law no. 2359/1865 provided that, where land was expropriated, the compensation to be paid should correspond to its market value at the time of the expropriation. 48. Article 42 of the Constitution, as interpreted by the Constitutional Court (see, inter alia, judgment no. 138 of 6 December 1977), guarantees the payment of compensation for expropriation, in an amount lower than the market value of the land. 49. Law no. 865/1971 (supplemented by section 4 of Legislative Decree no. 115/1974, which subsequently became Law no. 247/1974, and by section 14 of Law no. 10/1977) laid down new criteria: compensation for any land, whether it was agricultural or building land, should be paid as though it were agricultural land. 50. In judgment no. 5 of 25 January 1980, the Constitutional Court declared Law no. 865/1971 unconstitutional on the ground that it afforded the same treatment to two very different situations by providing for the same form of compensation for building and agricultural land. 51. The scope of a decision of the Constitutional Court declaring a law illegal is not limited to the case in question but is erga omnes. It is of retrospective effect in that the law declared unconstitutional can no longer produce any effects or be applied from the day after the publication of the decision (Article 136 of the Constitution taken in conjunction with section 1 of Constitutional Act no. 1 of 1948 and section 30(3) of Law no. 87/1953). The Constitutional Court has often made explicit the retrospective effect of declarations of unconstitutionality (see, inter alia, judgment no. 127 of 15 December 1966). It has indicated in this connection that a declaration of unconstitutionality can be equated with a straightforward annulment, since it makes the law in question unconstitutional from the time of its entry into force, annuls it and makes it inapplicable to any non-final situation (and to the final situations defined by law). Furthermore, no one at all, in particular the courts, may rely on provisions that have been declared unconstitutional to assess a given situation, even if that situation arose prior to the declaration of unconstitutionality (see, on this point, judgment no. 49 of 2 April 1970 and decisions no. 271 of 1985, no. 329 of 1985 and no. 94 of 1986). A similar decision has been given by the Court of Cassation, declaring that “where a law has been declared unconstitutional it cannot in any circumstances be applied, given that it must be considered as having never existed, and that a decision declaring a law unconstitutional has a retrospective effect regarding any non-final situation” (Court of Cassation, Section II, 23 June 1979; Section V, 15 June 1992). 52. When the Constitutional Court declares a law unconstitutional the provisions that had previously been applicable come back into force (reviviscenza), unless they have also been declared unconstitutional. 53. After judgment no. 5/1980 had declared Law no. 865/1971 unconstitutional, Parliament enacted Law no. 385 of 29 July 1980, which reaffirmed, but this time on a provisional basis, the criteria that had been declared unconstitutional. The Law provided that compensation should be paid in the form of an advance, to be supplemented by a payment calculated on the basis of a subsequent law that would lay down specific compensation criteria for building land. 54. In judgment no. 223 of 15 July 1983, the Constitutional Court declared Law no. 385/1980 unconstitutional on the ground that it made the award of compensation for the expropriation of building land subject to the enactment of a future law and that it reintroduced – even if only on a provisional basis – compensation criteria that had been declared unconstitutional. In that connection the Constitutional Court reiterated that the legislature had to accept that a law that had been declared illegal stopped producing its effects immediately, and stressed the need to draw up provisions for substantial awards of compensation for expropriation (serio ristoro). 55. As a result of judgment no. 223 of 1983, section 39 of Law no. 2359/1865 came back into force. Consequently, the compensation payable for building land was to correspond to the land’s market value (see, for example, Court of Cassation, Section I, judgment no. 13479 of 13 December 1991; Section I, judgment no. 2180 of 22 February 1992; and plenary court, judgment no. 3815 of 29 August 1989). 56. Section 5 bis of Law no. 359 of 8 August 1992 introduced a “temporary, exceptional and urgent” measure aimed at stabilising public finances, to remain valid until structural measures were adopted. That provision applied to any expropriation under way and to any pending proceedings related thereto. Section 5 bis of Law no. 359/1992, which was published in the Official Gazette on 13 August 1992, came into force on 14 August 1992. 57. Section 5 bis provides that the compensation payable for the expropriation of building land is to be calculated using the following formula: market value of the land plus the total of annual ground rent multiplied by the last ten years, divided by two, minus a 40% deduction. 58. In such cases, the compensation corresponds to 30% of the market value. That amount is subject to tax, deducted at source at a rate of 20% (in accordance with section 11 of Law no. 413/1991). 59. The 40% deduction can be avoided if the basis for the expropriation is not an expropriation order but a “voluntary agreement” for the transfer of the land or, as in the instant case, if the expropriation took place before section 5 bis came into force (see the Constitutional Court’s judgment no. 283 of 16 June 1993). In such cases, the resulting compensation corresponds to 50% of the market value. Again, that amount is subject to tax at a rate of 20% (see paragraph 58 above). 60. The Constitutional Court has held section 5 bis of Law no. 359/1992 and its retrospective application to be compatible with the Constitution (judgment no. 283 of 16 June 1993, and judgment no. 442 of 16 December 1993) on account of the urgent and temporary nature of the Law. 61. The Code of Expropriation Provisions (Presidential Decree no. 327/2001, subsequently modified by Legislative Decree no. 302/2002), which came into force on 30 June 2003, codified the existing provisions and the principles established by the relevant case-law in respect of expropriation. Article 37 of the Code reiterates the main criteria for calculating compensation for expropriation set forth in section 5 bis of Law no. 359/1992. 62. Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to Article 375 of the Code of Civil Procedure “(1) Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction. (2) In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case. (3) The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules: (a) only damage attributable to the period beyond the reasonable time referred to in subsection (1) may be taken into account; (b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.” “(1) Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending. (2) The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure. (3) The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister. (4) The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel [Avvocatura dello Stato] at least fifteen days prior to the date of the hearing before the Chamber. (5) The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up until five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties. (6) The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately. (7) To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.” “A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.” “If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.” “(1) Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made. (2) The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection (1) of this section.” “(1) The financial cost of implementing this Act, which is put at 12,705,000,000 Italian lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-03 in the chapter concerning the basic current-liability estimates from the ‘special fund’ in the year 2001 forecast of the Ministry of the Treasury, Economy and Financial Planning. Treasury deposits shall be set aside for that purpose. (2) The Ministry of the Treasury, Economy and Financial Planning is authorised to make the appropriate budgetary adjustments by decree.” 63. On appeal from decisions delivered by the courts of appeal in “Pinto” proceedings, the Court of Cassation, sitting as a full court (Sezioni Unite), gave four judgments (nos. 1338, 1339, 1340 and 1341) of 27 November 2003, the texts of which were deposited with the registry on 26 January 2004, quashing the appeal court’s decision and remitting the case for a rehearing. It held that “the case-law of the Strasbourg Court is binding on the Italian courts regarding the application of Law no. 89/2001”. In its judgment no. 1340 it affirmed, inter alia, the principle that “the court of appeal’s determination of non-pecuniary damage in accordance with section 2 of Law no. 89/2001, although inherently based on equitable principles, must be made in a legally defined framework since reference has to be made to the amounts awarded, in similar cases, by the Strasbourg Court. Some divergence is permissible, within reason”. 64. Extracts from the plenary Court of Cassation’s judgment no. 1339 deposited with the registry on 26 January 2004 read as follows: “2. The present application poses the fundamental question of what legal effect must be given – in implementing Law no. 89 of 24 March 2001, and in particular in determining the non-pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of the European Court of Human Rights, whether considered generally as interpretative guidelines which the said Court has laid down with regard to the consequences of the said violation, or with reference to a specific case in which the European Court has already had occasion to give a judgment on the delay in reaching a decision. ... As stipulated in section 2(1) of the said Law, the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the ‘violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the “reasonable time” requirement in Article 6 § 1 of the Convention’. In other words, Law no. 89/2001 identifies the fact constituting the right to compensation by reference to a specific provision of the European Convention on Human Rights. This Convention instituted a Court (the European Court of Human Rights, with its seat in Strasbourg) to ensure compliance with the provisions contained therein (Article 19). Accordingly, the competence of the said Court to determine, and therefore to interpret, the significance of the said provisions must be recognised. As the fact constituting the right conferred by Law no. 89/2001 consists of a violation of the Convention, it is for the Strasbourg Court to determine all the elements of such a legal fact, which thus ends by being ‘brought into conformity’ by the Court, whose case-law is binding on the Italian courts in so far as the application of Law no. 89/2001 is concerned. It is not necessary therefore to pose the general problem of the relationships between the Convention and the internal judicial system, which the Advocate-General [Procuratore Generale] has amply discussed in court. Whatever opinion one may have about that controversial issue and therefore about the place of the Convention in the context of the sources of domestic law, it is certain that the direct implementation in the Italian judicial system of a provision of the Convention, established by Law no. 89/2001 (that is, by Article 6 § 1 in the part relating to ‘reasonable time’), cannot diverge from the interpretation which the European Court gives to the same provision. The opposite argument, which would permit a substantial divergence between the application accorded to Law no. 89/2001 in the national system and the interpretation given by the Strasbourg Court to the right to the reasonable length of proceedings, would deprive the said Law no. 89/2001 of any justification and cause the Italian State to violate Article 1 of the Convention, according to which ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’ (including the said Article 6, which provides for the right to have a case decided within a reasonable time). The reason behind the enactment of Law no. 89/2001 was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings, so as to give effect to the subsidiary character of intervention on the part of the Strasbourg Court, expressly provided for by the Convention (Article 35: ‘The Court may only deal with the matter after all domestic remedies have been exhausted ...’). The European system for the protection of human rights is founded on the said principle of subsidiarity. From it derives the duty of the States which have ratified the Convention to guarantee to individuals the protection of the rights recognised by the Convention, above all in their own internal order and vis-à-vis the organs of the national judicial system. And this protection must be ‘effective’ (Article 13 of the Convention), that is, of a kind to remedy the claim without the need for recourse to the Strasbourg Court. The domestic remedy introduced by Law no. 89/2001 did not previously exist in the Italian system, with the consequence that applications against Italy in respect of a violation of Article 6 of the Convention had ‘clogged’ (the term used by rapporteur Follieri in the sitting of the Senate of 28 September 2000) the European Court. The Strasbourg Court observed, prior to Law no. 89/2001, that the said failures on the part of Italy to comply ‘reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy. This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention’ (see the four judgments of the Court delivered on 28 July 1999 in Bottazzi, Di Mauro, Ferrari and A.P.). Law no. 89/2001 constitutes the domestic remedy to which a ‘victim of a violation’ (as defined by Article 34 of the Convention) of Article 6 (failure to comply with the reasonable-time requirement) must have recourse before applying to the European Court to claim the ‘just satisfaction’ provided for in Article 41 of the Convention, which, when the violation exists, is only awarded by the Court ‘if the internal law of the High Contracting Party concerned allows only partial reparation to be made’. Law no. 89/2001 has therefore allowed the European Court to declare inadmissible applications lodged with it (including before the Act was passed) and aimed at obtaining the just satisfaction provided for in Article 41 of the Convention for the excessive length of proceedings (see Brusco v. Italy, decision of 6 September 2001). This mechanism for implementation of the Convention and observance of the principle of subsidiarity in respect of interventions of the European Court of Strasbourg does not operate, however, in cases in which the Court holds that the consequences of the established violation of the Convention have not been redressed by domestic law or that this has been done only ‘partially’, because in such an event the said Article 41 provides for the intervention of the European Court to protect the ‘victim of the violation’. In such cases an individual application to the Strasbourg Court on the basis of Article 34 of the Convention is admissible (see Scordino v. Italy, decision of 27 March 2003) and the Court acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law. The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is, obviously, the European Court, whose duty it is to apply Article 41 of the Convention to ascertain whether, in the presence of a violation of a provision of the Convention, the internal law has been able to redress fully the consequences of this violation. The argument whereby, in applying Law no. 89/2001, the Italian courts may follow a different interpretation from that which the European Court has given to the provisions of Article 6 of the Convention (violation of which is the fact giving entitlement to the right to compensation attributed by the said national law) implies that the victim of the violation, if he or she receives reparation at national level considered inadequate by the European Court, must obtain the just satisfaction provided for in Article 41 of the Convention from the latter Court. This would defeat the purpose of the remedy provided for in Italian law by Law no. 89/2001 and entail a violation of the principle of the subsidiarity of the intervention of the Strasbourg Court. It is therefore necessary to concur with the European Court of Human Rights, which, in the above-mentioned decision on the Scordino application (concerning the inadequacy of the protection afforded by the Italian courts in implementing Law no. 89/2001), affirmed that ‘it follows from the principle of subsidiarity ... that the national courts must, where possible, interpret and apply domestic law in accordance with the Convention’. ... The preparatory documents of Law no. 89/2001 are even more explicit. In the report concerning the bill of Senator Pinto (proceedings of the Senate no. 3813 of 16 February 1999) it is affirmed that the compensatory mechanism proposed in the legislative initiative (and then adopted by the Act) secures for the applicant ‘a protection analogous to that which he or she would receive in the international court’, as the direct reference to Article 6 of the Convention makes it possible to transfer to domestic level ‘the limits of applicability of the same provision existing at international level, limits which depend essentially on the State and on the development of the case-law of the Strasbourg authorities, especially that of the European Court of Human Rights, whose decisions must therefore guide ... the domestic court in the definition of these limits’. ... 6. The considerations expounded in sections 3 to 5 of the document refer in general to the importance of the interpretative guidance of the European Court on the implementation of Law no. 89/2001 with regard to reparation for non-pecuniary damage. In this particular instance, however, any possibility for the national court to exclude non-pecuniary damage (despite having found a violation of Article 6 of the Convention) must be considered as non-existent because such is precluded by the previous decision of the European Court which, with reference to the same proceedings, had already ascertained that the unjustified delay in reaching a decision had had consequences involving non-pecuniary damage for the applicant, which the Court itself redressed for a limited period. From such a decision of the European Court it follows that, once the national court has ascertained that the violation has continued in the period following that considered in the said decision, the applicant has continued to suffer non-pecuniary damage, which must be compensated for in application of Law no. 89/2001. It cannot therefore be maintained – as the Rome Court of Appeal has done – that compensation is not due because of the small amounts at stake in the proceedings in question. Such reasoning, apart from being rendered immaterial by the fact that the European Court has already ruled that non-pecuniary damage had been sustained because of a delay in the same action, is in any case incorrect, because the amount of what is at stake in an action in which non-compliance with reasonable time-limits has been ascertained can never have the effect of excluding non-pecuniary damage, given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it. 7. In conclusion the decision appealed against must be quashed and the case remitted to the Rome Court of Appeal, which, in a different composition, will order payment to the applicant of compensation for non-pecuniary damage payable as a result of the violation of the reasonable-time requirement for the period following 16 April 1996 alone, taking as a reference point payments of the same kind of damages by the European Court of Human Rights, from which it may diverge, but only to a reasonable extent (Court HR, 27 March 2003, Scordino v. Italy).” 65. The Court of Cassation held as follows: “...Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no. 89/2001 [the ‘Pinto Act’] this shall preclude a right [to just satisfaction] from arising and passing to the heirs, in accordance with the general rule that a person who has died cannot become entitled to a right conferred by an Act that is passed after their death ...” 66. The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from the Pinto Act. The mechanism put in place by the European standard did not give applicants a cause of action before the domestic courts. Accordingly, the right to “just satisfaction” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force. The fact that the deceased had, while alive, lodged an application with the Strasbourg Court was not decisive. Section 6 of the Pinto Act did not constitute, as the applicants had maintained, a procedural standard bringing about a transfer of powers from the European Court to the domestic courts. 67. In this case, which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of Article 6 § 1 on account of the length of the proceedings, the First Division of the Court of Cassation referred the case to the full court indicating that there was a conflict between the case-law authorities, that is, between the restrictive approach taken by the Court of Cassation in the earlier judgments regarding heirs and the Pinto Act and the four judgments delivered by the Court of Cassation, sitting as a full court, on 26 January 2004 to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since Italy ratified the European Convention on 4 August 1955. 68. In the case giving rise to the order mentioned above referring the case to the full court (see paragraph 67), the Court of Cassation, sitting as a full court, established the following principles, thus preventing any further conflicting decisions being given by the courts: “(i) Law no. 848 of 4 August 1955, which ratified the Convention and made it enforceable, introduced into the domestic legal order the fundamental rights, belonging to the category of rights conferred on the individual by public law, provided for in Section I of the Convention and which correspond to a large extent to those set forth in Article 2 of the Constitution. In that respect the Convention provisions are confirmatory and illustrative. ... (ii) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in Article 6 of the Convention, which is immediately applicable in domestic law. The distinction between the right to a hearing within a reasonable time, introduced by the European Convention on Human Rights (or even pre-existing as a constitutionally protected value), and the right to equitable reparation, which was allegedly introduced only by the Pinto Act, cannot be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by the Strasbourg Court, the domestic courts being bound to comply with the case-law of the European Court. ... (iii) Accordingly, the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no. 89/2001 must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date, subject only to the condition that the claim has not already been lodged with the Strasbourg Court and the Court has not ruled on admissibility. ...” 69. This judgment of the Court of Cassation concerned an appeal by the Ministry of Justice challenging a court of appeal’s award of compensation for non-pecuniary damage to a juristic person. The Court of Cassation referred to the decision reached in Comingersoll S.A. v. Portugal ([GC], no. 35382/97, ECHR 2000-IV) and, after referring to the four judgments of the full court delivered on 26 January 2004, found that its own case-law was not in line with the European Court. It held that there was no legal barrier to awarding just satisfaction to “juristic” persons according to the criteria of the Strasbourg Court. Accordingly, since the court of appeal had correctly decided the case, the appeal was dismissed. 70. The Court of Cassation made the following observations: “... [Considering that] non-pecuniary damage is the normal, albeit not automatic, consequence of a breach of the right to a hearing within a reasonable time, it will be deemed to exist, without it being necessary to specifically prove it (directly or by presumption), on the basis of the objective fact of the breach, on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned (Cass. A.P., 26 January 2004, nos. 1338 and 1339); – the assessment on an equitable basis of compensation for non-pecuniary damage is subject – on account of the specific reference in section 2 of Law no. 89 of 24 March 2001 to Article 6 of the European Convention on Human Rights (ratified by Law no. 848 of 4 August 1955) – to compliance with the Convention, in accordance with the judicial interpretation given by the Strasbourg Court (non-compliance with which results in a violation of the law), and must therefore, as far as possible, be commensurate, in substantive and not merely formal terms, with the amounts paid in similar cases by the European Court, it being possible to adduce exceptional circumstances that suggest themselves in the particular case, on condition that they are reasoned, not excessive and not unreasonable (Cass. A.P., 26 January 2004, no. 1340); ... – a discrepancy in the method of calculation [between the Court’s case-law and section 2 of the Pinto Act] shall not affect the general vocation of Law no. 89/2001 to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time (vocation acknowledged by the European Court in, inter alia, a decision of 27 March 2003 in Scordino v. Italy (application no. 36813/97)), and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by the Italian Republic when ratifying the European Convention and the formal recognition, also at constitutional level, of the principle of Article 6 § 1 of that Convention ...” 71. In the report CM/Inf/DH(2004)23, revised on 24 September 2004, the Ministers’ Deputies made the following indications regarding an assessment of the Pinto remedy: “11. As regards the domestic remedy introduced in 2001 by the ‘Pinto Act’, a number of shortcomings remain, particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention: in particular, the law does not provide yet for the acceleration of pending proceedings. ... 109. In the framework of its examination of the 1st annual report, the Committee of Ministers expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts. ... 112. It should be pointed out that in the framework of its examination of the 2nd annual report, the Committee of Ministers had noted with concern that the Convention had no direct effect and had consequently invited the Italian authorities to intensify their efforts at national level as well as their contacts with the different bodies of the Council of Europe competent in this field. ...” 72. In this interim resolution the Ministers’ Deputies indicated as follows: “The Committee of Ministers ... Noting ... ... – the setting-up of a domestic remedy providing compensation in cases of excessive length of proceedings, adopted in 2001 (the ‘Pinto’ law), as well as the recent development of the case-law of the Court of Cassation, increasing the direct effect of the case-law of the European Court in the Italian legal system, while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims; Stressing that the setting-up of domestic remedies does not dispense States from their general obligation to solve the structural problems underlying violations; Finding that despite the efforts undertaken, numerous elements still indicate that the solution to the problem will not be found in the near future (as evidenced in particular by the statistical data, the new cases before both domestic courts and the European Court, the information contained in the annual reports submitted by the government to the Committee and in the reports of the Prosecutor General at the Court of Cassation); ... Stressing the importance the Convention attaches to the right to fair administration of justice in a democratic society and recalling that the problem of the excessive length of judicial proceedings, by reason of its persistence and extent, constitutes a real danger for the respect of the rule of law in Italy; ... URGES the Italian authorities to enhance their political commitment and make it their effective priority to meet Italy’s obligation under the Convention and the Court’s judgments, to secure the right to a fair trial within a reasonable time to all persons under Italy’s jurisdiction; ...” 73. The European Commission for the Efficiency of Justice was set up at the Council of Europe by Resolution Res(2002)12 with the aim of (a) improving the efficiency and the functioning of the justice of member States with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively, thereby generating increased confidence of the citizens in the justice system and (b) enabling a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice. 74. In its framework programme (CEPEJ (2004) 19 Rev 2 § 6), the CEPEJ noted that the mechanisms which are limited to compensation are too weak and do not adequately incite the States to modify their operational process, and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays. | 1 |
dev | 001-111421 | ENG | HUN | CHAMBER | 2,012 | CASE OF TATÁR AND FÁBER v. HUNGARY | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque | 5. The applicants were born in 1967 and 1969 respectively and live in Budapest. 6. On 27 February 2007 the applicants exposed, in the course of an event which they considered a “political performance” – necessitated by what they perceived as a general political crisis in the country following the tumultuous events of late 2006 –, several items of dirty clothing on a rope attached to the fence around Parliament in Budapest. They stated that the symbolic meaning of this expression was “to hang out the nation’s dirty laundry”. The applicants spent exactly 13 minutes on the scene, during which time they answered some questions from journalists who appeared on the scene. Afterwards, the applicants left on their own motion. 7. On the same day, the website of the daily paper Magyar Nemzet published a short article covering the incident, in which the applicants explained that the “performance” was meant to be provocative and for that reason had not been notified to the police. It was specified that the event had been prepared clandestinely, that only a few journalist had been invited and that no other protester had participated. 8. Subsequently the Budapest V District Police Department fined each applicant 80,000 Hungarian forints (HUF) (approximately 250 euros) for the regulatory offence of abusing the right to peaceful assembly. It was considered that their act had constituted an “assembly” which should have been declared to the authorities three days in advance. 9. The applicants complained about the decision of the Budapest 5th District Police Department without offering any particular arguments. 10. On 11 July 2007 the Pest Central District Court upheld the police decision, finding that the applicants, in breach of the relevant legal provisions, had failed to notify the police of their ‘demonstration’ and that the sanction imposed was proportionate to the gravity of the offence and adequate to motivate the applicants to abide by the law in the future. The court relied on the report of the police officer involved, the pictures recorded by the street cameras and the contents of the websites covering the incident. 11. On 26 July 2007 the applicants requested that a hearing be held in the case. At the hearing of 7 December 2007 the court heard the second applicant and the police officer. The first applicant did not wish to make a statement. The second applicant first made contradictory statements as to who had been notified of the event in advance, but finally confirmed, in reply to a question put by the judge, that an announcement of the event had been published on the website of the applicants’ organisation. In their closing statements, counsel for the applicants claimed that the applicants had not invited anybody to the event and that they had wrongly assumed that their actions had been lawful. 12. Based on the evidence before it, the District Court was satisfied that the event had been publicly announced and thus it had been an “organised event” falling within the scope of section 6 of the Assembly Act (as opposed to a cultural event as argued by the applicants), that the applicants had been aware that they should have notified the police of their performance and that the fine was necessary to prevent the applicants from further breaches of the law. It therefore upheld the decision of 11 July 2007. The decision of 7 December 2007 was served on 24 January 2008. 13. Act No. III of 1989 on the Right to Freedom of Assembly (“the Assembly Act”) provides as follows: “(1) In the framework of the exercise of the right to assembly, peaceful gatherings, marches and demonstrations ... may be held where the participants may freely express their opinion. (2) The participants of an assembly are entitled to make their jointly formed position known to all interested parties ...” “The following shall not be covered by the Act: a) meetings falling within the ambit of the Act on Election Procedure; b) religious services, events and processions organised in the premises of legally recognised churches; c) cultural and sport events; d) events related to family occasions. ...” “The organisation of an assembly to be held in public shall be notified to the police department having jurisdiction over the venue of the assembly – in Budapest to the Budapest Police Department – a minimum of three days prior to the planned date of the assembly. The obligation to notify the police lies with the organiser of the assembly.” “If the holding of an assembly subject to prior notification seriously endangers the proper functioning of the representative bodies or the courts, or the circulation of traffic cannot be secured by another route, the police may ban the holding of the assembly at the place or time indicated in the notification, within forty-eight hours of the receipt of the notification.” 14. Act No. LXIX of 1999 on Administrative Offences (as in force at the relevant time) provides as follows: “Anyone who organises or holds a gathering, march or demonstration subject to notification without notification or the provision of prior information of the planned new date, or despite a prohibiting decision of the police, may be punished by a fine of up to HUF 100,000...” 15. According to decision no. 55/2001. (XI.29.)AB of the Constitutional Court: “[...T]he Constitutional Court holds that the enforcement of the fundamental constitutional right of assembly should be protected not only from undue interferences by the State but also from others, such as persons who dislike a certain demonstration or hold a counterdemonstration, as well as other persons who disturb public order. In other words, the State also has positive obligations in guaranteeing the enforcement of the right of assembly. The judgments of the European Court of Human Rights in cases related to the right of assembly support this view. ... It follows that the authorities are even allowed to use force, where needed, in order to secure the holding of lawful assemblies, and they shall prevent others from disturbing such assemblies. ... ... The necessity of the obligation of notification to assemblies to be held on public premises is justified by the fact that ... such premises constitute an area, road, street or square with unlimited access for everyone. This means that both the participants of the assembly and everyone else who does not participate should have equal access to the public ground. ... The State’s obligation to respect and protect fundamental rights is not limited to abstaining from violating such rights but includes the obligation of guaranteeing the conditions necessary for their enforcement ...; in order to prevent a potential conflict between two fundamental rights ... the authority should be statutorily empowered to ensure the enforcement of both fundamental rights ... This requirement justifies the obligation of notifying the authority in advance of the assembly to be held on public ground... ... The aim and the agenda of the assembly are pieces of information necessary for the authority partly for the assessment of whether the planned assembly is to be prohibited on the ground of seriously endangering the operation of the representative organs or of the courts, or on the ground of causing disproportionate prejudice to the order of traffic ..., and partly for determining the probability of [any incident occurring during the event warranting police intervention or dispersal]. ... ... The failure to notify the authorities of an assembly – or the holding of an assembly in a manner significantly different from that specified in the notification – cannot be interpreted as an insignificant administrative omission. Such a failure deprives the authority of the opportunity to assess whether the planned assembly would seriously disturb the operation of the representative organs or of the courts, or the order of traffic. To impose no sanction on holding the assembly at a time, location, or route other than that notified would make it useless to require a notification and would allow for abusing the right of assembly...” 16. According to decision no. 4/2007. (II.13.)AB of the Constitutional Court: “...The aim of assemblies held on the basis of the right to assembly is to enable the citizens exercising their right to assembly to form joint opinion and to share their views with others or jointly express those views.” 17. According to Decision no. 75/2008. (V.29.)AB of the Constitutional Court: “III. [The term ‘assembly’], as used in the Constitution ..., refers to joint expressions of opinions within fixed time-limits. ... The bodies applying the law must assess whether the notification pertains to a peaceful, joint expression of opinions falling under the scope of [the Assembly Act] or to a different use of the public area. IV. ... In today’s constitutional democracies, the primary purpose of assemblies held on public ground is the joint representation and demonstration of the opinions and views already formed. The main connection between freedom of expression and freedom of assembly is the joint, public expression of the opinion. The significance of the right of assembly as a communication right is increased by the fact that, in contrast with the press, it ensures for everyone the right to participate directly, without access barriers, in forming the political will. ... 3.1. ... Several types of assemblies on public ground may fall within the category of peaceful spontaneous assemblies. Indeed, spontaneous assemblies are not generated in a previously planned and arranged manner since they are the result of the actions of several persons who act, more or less, independently. ... 5.1. In the system of [the Assembly Act], assemblies not requiring notification include, on the one hand, events excluded from the scope of [the Act] (events of electoral, religious, cultural, sport or family nature). On the other hand ... it is not necessary to file a notification of assemblies falling under [the Act]. but not held on public ground... Furthermore, Section 6 of [the Act] does not apply to spontaneous assemblies held without prior organisation. Namely, the provision at issue requires the notification of “organising an assembly” to be held on public ground, and the statutory obligation is imposed on the organiser. ... The notification obligation ... forms a constitutional restriction on the right of assembly. This statutory provision is justified, on the one hand, by the need to have the public order secured by the police ... The notification and its confirmation by the police is a guarantee that the police shall implement the necessary tasks related to the security of the event. ...” 18. The Guidelines on Freedom of Peaceful Assembly Adopted by the Venice Commission at its 83rd Plenary Session (Venice, 4 June 2010) provide as follows: “... For the purposes of the Guidelines, an assembly means the intentional and temporary presence of a number of individuals in a public place for a common expressive purpose... 16. An assembly, by definition, requires the presence of at least two persons.” | 1 |
dev | 001-96887 | ENG | BGR | ADMISSIBILITY | 2,010 | TENCHEVA-RAFAILOVA v. BULGARIA | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Ms Daniela Borisova TenchevaRafailova, is a Bulgarian national born in 1959 and living in Sofia. In an order of 10 July 2002 the Minister of Health announced, by reference to Article 91 of the 1986 Labour Code (see Relevant domestic and practice law below), a competition for the post of director of the Emergency Medical Centre in Sofia. The order laid down the conditions which the candidates for the post had to fulfil, and the test and the interview which they had to pass. The competition announcement was published on 16 July 2002. On 1 August 2002 the Minister appointed a commission to make a preselection of the candidates. On 27 September 2002, having earlier laid down the manner in which the test and the interview were to be conducted, he appointed another commission to conduct those. The applicant applied for the post. She and four other candidates were pre-selected. The five of them took part in the test and the interview. On 14 October 2002 the applicant was informed that she had been ranked second. The candidate ranked fist was Dr G.G. The Minister then issued a decision validating the results of the competition. The applicant objected to this decision but did not receive a reply. On 24 October 2002 the applicant lodged an application for judicial review of the Minister’s decision with the Supreme Administrative Court. She argued that Dr G.G. did not meet all the criteria laid down in the order of 10 July 2002, because he had not had two hundred hours of training in medical management. In a decision of 3 February 2003 (опр. № 842 от 3 февруари 2003 г. по адм. д. № 10116/2002 г., ВАС, V о.) a threemember panel of the Supreme Administrative Court declared the application inadmissible. After analysing the matter in some detail, it found that the competition had not been governed by the special rules applicable to some other medical posts, but by the general provisions of the Labour Code relating to competitions. In competitions governed by the Labour Code the Minister acted in a capacity of an employer, not as an administrative authority. Therefore, his decisions relating to the competition were not administrative decisions amenable to judicial scrutiny. This applied a fortiori to the commission which had organised the competition. The applicant could challenge the manner in which the competition had been conducted by means of a civil claim: she could seek a declaration that the contractual relationship between the Minister and Dr G.G. had not come into existence because the competition had been tainted by irregularities. One judge dissented. He disputed the conclusion that the competition had been governed by the general provisions of the Labour Code and not by special rules. However, even assuming that this had been so, in his view, by taking part in the competition the applicant had sought to exercise her right to work, recognised by the Constitution. Therefore, the refusal to appoint her to the desired post had to have a lawful basis. Such basis could be found in the fact that she had not been ranked first. However, this basis was valid only if the competition had been conducted lawfully. If it was tainted by irregularities, each candidate after the first was injured in the exercise of his labour rights, whereas those rights deserved protection from the courts. Since, in view of the former Supreme Court’s and the Supreme Court of Cassation’s caselaw (see Relevant domestic law and practice below), the applicant would be unlikely to obtain such protection from the civil courts, as suggested by the majority, she was entitled to obtain it from the administrative courts, in order not to be faced with a denial of justice. The applicant’s subsequent appeal on points of law was rejected by a fivemember panel of the Supreme Administrative Court on 16 June 2003 (опр. № 5921 от 16 юни 2003 г. по адм. д. № 2431/2003 г., ВАС, петчленен св). The court fully agreed with the threemember panel’s reasoning, and went on to say that the dissenting judge’s view that the competition had not been governed by the Labour Code was erroneous, as was his view that the Minister’s decisions in connection with employment competitions were subject to review by the administrative courts. Those decisions did not amount to an exercise of public powers affecting the rights of others, and were therefore not administrative decisions amenable to judicial scrutiny. On 19 June 2003 the applicant brought a civil claim against the Ministry of Health, seeking a declaration that the competition had been tainted by irregularities and that the resulting employment agreement between the Ministry of Health and Dr G.G. was unlawful. However, on 20 June 2003 the Sofia District Court discontinued the proceedings. On appeal, its decision was upheld by the Sofia City Court on 19 August 2003. The applicant’s subsequent appeal on points of law was rejected by the Supreme Court of Cassation on 18 December 2003 (опр. № 579 от 18 декември 2003 г. по ч. гр. д. № 569/2003 г., ВКС, ІІІ г. о.). The court found that her claim did not concern an employment dispute, because such disputes were only those between the person who had come first in the competition and the employer. The remaining candidates did not have an employment relationship with the employer. The actions carried out by the employer during a competition were simply preliminary steps for the creation of an employment relationship; they could not be challenged before the courts but merely before the employer whose decision was final. The court went on to say that the applicant did not have the requisite legal interest to seek a declaration that the employment of the person who had won the competition was unlawful. Such a declaration would have no impact on her legal sphere, because she could not expect to be employed unless the person ranked first failed to take up his or her duties. Section 3(2) of the 1999 Regulations on the organisation and the operations of the Emergency Medical Centre (Правилник за устройството и дейността на център за спешна медицинска помощ) issued by the Minister of Health, provides that the Centre’s director is employed on the basis of a competition conducted in line with the provisions of the Labour Code. The manner in which employment competitions are to be conducted is governed by Articles 89 to 97 of the 1986 Labour Code. Article 90 § 1 provides that the posts to be filled by means of a competition must be set forth in a statute or a statutory instrument, or a decision of the employer. Article 90 § 3 stipulates that those posts can be filled only by means of a competition. Article 91 specifies the contents of the competition notice and the manner in which it should be published, as well as the rights of the candidates to get acquainted with the job description of the advertised post. Candidates are admitted to the competition by a commission appointed by the employer (Article 93 § 1). Those who are not allowed to take part in the competition must be informed in writing about the reasons for that; they may object before the employer, who rules on the matter by means of a final decision (Article 93 § 2). Another commission then conducts the competition (Article 94), by assessing the qualities of the candidates and ranking only those who have successfully passed the tests (Article 95 § 1). They have to be notified of that within three days (Article 95 § 2). The individuals ranked first are considered as employed from the date when they receive the notice (Article 96 § 1). They then have to take up their duties within two weeks but for good reasons that time-limit may be extended to three months (Article 96 § 2). If they fail to do so, the employment relationship with them is considered as nonexistent, and the individual ranked second is considered as employed (Article 96 § 4). The former Supreme Court and the Supreme Court of Cassation have held that those who have lost employment competitions cannot challenge those competitions in the civil courts. Such disputes are not employment disputes within the meaning of the Labour Code; nor can they be examined pursuant to claims for declaratory judgment, because the persons concerned do not have the requisite legal interest to bring such claims, as they can not expect to be offered employment even if the competitions are declared unlawful (реш. № 609 от 30 юни 1992 г. по гр. д. № 307/1992 г. ВС, III г. о.; опр. № 319 от 31 май 2005 г. по гр. д. № 219/2005 г., ВКС, III г. о.). In a line of decisions beginning in January and February 2003, the Supreme Administrative Court adopted the position, initially against the dissent of the same judge who dissented in the applicant’s case, that decisions made by public bodies in connection with employment competitions conducted by them are not administrative decisions subject to judicial review, chiefly because those bodies do not act in their capacity of administrative authorities but are placed on an equal footing visàvis the persons willing to be employed by them (опр. № 590 от 27 януари 2003 г. по адм. д. № 7925/2002 г., ВАС, V о.; опр. № 841 от 3 февруари 2003 г. по адм. д. № 8388/2002 г., ВАС, V о.; опр.№ 844 от 3 февруари 2003 г. по адм. д. № 10741/2002 г., ВАС, V о.; опр. № 845 от 3 февруари 2003 г. по адм. д. № 202/2003 г., ВАС, V о.; опр. № 846 от 3 февруари 2003 г. по адм. д. № 203/2003 г., ВАС, V о.; опр. № 9870 от 4 ноември 2003 г. по адм. д. № 8293/2003 г., ВАС, V о.; опр. № 10238 от 14 ноември 2003 г. по адм. д. № 6090/2003 г., ВАС, V о.; опр. № 6853 от 16 юли 2004 г. по адм. д. № 5694/2004 г., ВАС, IV о.; опр. № 9778 от 24 ноември 2004 г. по адм. д. № 5138/2004 г., ВАС, V о.; опр. № 1650 от 15 февруари 2007 г. по адм. д. № 1249/2007 г., ВАС, V о.; опр. № 1676 от 13 февруари 2008 г. по адм. д. № 1344/2008 г., ВАС, IV о.; опр. № 5860 от 20 май 2008 г. по адм. д. № 4444/2008 г., ВАС, VII о.; опр. № 10511 от 11 септември 2009 г. по адм. д. № 11449/2009 г., ВАС, VII о.). | 0 |
dev | 001-58157 | ENG | FRA | CHAMBER | 1,998 | CASE OF RICHARD v. FRANCE | 3 | Preliminary objection rejected;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | R. Pekkanen | 6. Mr Michel Richard, a French national born in 1958, is a postmaster. He is a haemophiliac and has received numerous blood transfusions. 7. A test carried out in November 1985 showed that the applicant had been infected with the human immunodeficiency virus (HIV). Since 6 June 1991 he has been classified as having reached stage II of the four stages on the scale of the Atlanta Center for Disease Control. 8. On 27 December 1989 the applicant submitted a preliminary application for compensation to the Minister for Solidarity, Health and Social Protection. He sought 2,500,000 French francs (FRF) in compensation for the medical disorders of all kinds he had suffered on account of his infection with HIV. His application was rejected on 30 March 1990. 9. On 30 May 1990 Mr Richard filed an application in the Caen Administrative Court for FRF 2,500,000 in compensation for the damage sustained as a result of the State’s failure to take appropriate measures to prevent his becoming infected with HIV. 10. On 1 June 1990 the applicant made an urgent application to the President of the Caen Administrative Court for an expert report. This application was granted on 13 July 1990. The expert report was filed on 6 June 1991. 11. On 24 July 1991 the case was referred to the Conseil d’Etat, which then designated the Paris Administrative Court to deal with it. The application was registered with that court on 14 August 1991. 12. On 21 October 1991 the Minister of Health lodged his defence pleadings. 13. After holding a hearing on 7 February 1992, the Administrative Court ruled in a judgment of 21 February 1992 that the State was liable for the applicant’s infection and ordered it to pay him compensation of FRF 500,000. 14. On 21 April 1992 the Minister for Health and Humanitarian Action appealed against the above judgment to the Paris Administrative Court of Appeal. On 22 June 1992 he lodged supplementary pleadings. 15. On 11 August 1992 the applicant lodged pleadings in which he requested the court to dismiss the appeal and made a cross-appeal for the State to be ordered to pay him compensation of FRF 2,500,000. 16. On 29 October 1992 and 28 July 1993 pleadings were lodged by the Minister of Health and the applicant respectively. 17. On 22 February 1993 the Compensation Fund for Transfusion Patients and Haemophiliacs infected with HIV informed the Administrative Court of Appeal that Mr Richard had accepted the Fund’s offer of compensation (see paragraphs 30–33 below). 18. On 9 April 1993, the Judicial Assembly of the Conseil d’Etat gave three landmark judgments, fixing 22 November 1984 as the start of the period of the State’s liability and awarding the victims compensation at a flat rate of FRF 2,000,000 (see paragraph 35 below). 19. On 23 and 25 April 1992 and 17 February 1994 the Orne Health Insurance Office filed an application and two memorials seeking an order requiring the State to refund it all payments made or to be made to Mr Richard on account of his infection with HIV. It also claimed interest at the statutory rate. 20. After holding a hearing on 5 July 1994, the Administrative Court of Appeal ruled on 19 July 1994 that, in accordance with the above-mentioned case-law of the Conseil d’Etat (see paragraph 18 above), the State should be held liable for the applicant’s infection. It assessed the amount of compensation due to the applicant at FRF 2,000,000. It deducted the offer of FRF 1,743,000 made by the Compensation Fund for Transfusion Patients and Haemophiliacs (see paragraph 31 below), which included the FRF 500,000 awarded by the Administrative Court and FRF 100,000 allocated by the Haemophiliacs’ Solidarity Fund. It thus increased the compensation payable by the State from FRF 500,000 to FRF 757,000. The court calculated the interest on the outstanding balance, that is FRF 757,000, from 3 January 1990. 21. On 21 October 1994 Mr Richard appealed on points of law to the Conseil d’Etat, complaining about the method of calculation used by the Administrative Court of Appeal. 22. On 9 May 1995 Mr Richard lodged an application (no. 27316/95) with the European Commission of Human Rights. On 23 January 1996, having declared the application admissible, the Commission adopted a report pursuant to Article 28 § 2 of the Convention noting that the parties had reached agreement on a friendly settlement (see paragraph 39 below). 23. On 19 June 1995 the Admissibility Committee declared the applicant’s appeal admissible. He was then informed that his appeal had been referred to the President of the Judicial Division of the Conseil d’Etat who would examine it. 24. The Compensation Fund for Transfusion Patients and Haemophiliacs and the Minister of Health filed their observations on 17 October 1995 and 14 February 1996 respectively. 25. In the meantime, on 30 November 1995, Mr Richard had written to the President of the Fifth Section of the Judicial Division of the Conseil d’Etat, which was dealing with the case, drawing his attention to the length and protractedness of the proceedings and the urgency of the case given his state of health. He received no reply. 26. On 2 October 1996 the applicant lodged a further application (no. 33441/96) with the Commission, which was registered on 14 October 1996, complaining that the proceedings were still pending before the Conseil d’Etat. 27. On 21 February 1997 the Conseil d’Etat gave judgment quashing the Administrative Court of Appeal’s judgment of 19 July 1994 on the ground that, contrary to the Conseil d’Etat’s relevant case-law (see paragraph 36 below), it had deducted from the amounts the State was required to pay Mr Richard the offer of compensation in the event of Aids being diagnosed made by the Compensation Fund for Transfusion Patients and Haemophiliacs. The Conseil d’Etat remitted the case to the Paris Administrative Court of Appeal without applying section 11 of Law no. 87-1127 of 31 December 1987, which would have allowed it to determine the merits of the case without remitting it to the Administrative Court of Appeal. 28. The case was remitted on 13 March 1997. 29. In a letter of 20 March 1997 the senior registrar at the Paris Administrative Court of Appeal informed the applicant that his case had been remitted to that court by the Conseil d’Etat and invited him to submit his observations. The applicant’s observations were registered at the court registry on 28 March 1997. 30. In separate proceedings the applicant had submitted a claim to the Compensation Fund for Transfusion Patients and Haemophiliacs, set up by the Act of 31 December 1991 (see paragraph 34 below). 31. In a decision of 24 July 1992 the Fund awarded him compensation of FRF 1,743,000, of which FRF 1,307,250 was payable in three equal annual instalments and FRF 435,750 if and when Aids was diagnosed. The Fund deducted from this offer the FRF 100,000 paid out by the Haemophiliacs’ Solidarity Fund and the FRF 500,000 awarded by the Paris Administrative Court. 32. On 7 August 1992 the Compensation Fund paid Mr Richard FRF 235,750, which was the first annual instalment. 33. After several judgments of 27 November 1992 in which the Paris Court of Appeal had ruled that compensation payments should not be made in instalments, the applicant received, on 11 February 1993, the balance of the first part of the compensation, that is FRF 471,500. 34. The Act of 31 December 1991 making miscellaneous social-welfare provisions set up special machinery for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. Section 47 provides: “I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the French Republic shall be compensated in the manner set out below. II. ... III. Full compensation for the damage defined in subsection I shall be provided by a Compensation Fund, having legal personality, presided over by a serving or retired divisional president or judge of the Court of Cassation and administered by a compensation board. ... IV. In their claims for compensation, victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives. ... Victims or their heirs shall communicate to the Fund all the information in their possession. Within three months of the receipt of a claim, a period which may be extended at the request of the victim or his heirs, the Fund shall consider whether the conditions for payment of compensation have been fulfilled. It shall investigate the circumstances under which the victim was infected and make any necessary inquiries, which may not be resisted on grounds of professional secrecy. ... V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection I within a time-limit laid down by decree, which may not exceed six months from the day on which the Fund receives full proof of the damage... ... VI. The victim shall inform the Fund of any judicial proceedings pending. If legal proceedings are brought, the victim shall inform the court of his application to the Fund. VII. ... VIII. The victim shall not be entitled to take legal action against the Compensation Fund unless his claim for compensation has been dismissed, no offer has been made to him within the time-limit referred to in the first paragraph of subsection V, or he has not accepted an offer made to him. Proceedings shall be brought in the Paris Court of Appeal. IX. The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim’s rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons’ liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence. The Fund may intervene in proceedings in the criminal courts, even if it does not do so until the appeal stage, where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection I. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law. If the acts which caused the damage have given rise to criminal proceedings, the civil court shall not be required to defer its decision until there has been a final decision by the criminal court. X. Unless otherwise provided, the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the Conseil d’Etat. XI. ... XII. The Compensation Fund’s sources of revenue shall be specified in a subsequent Act. XIII. ... XIV. ...” 35. In three judgments of 9 April 1993 the Judicial Assembly of the Conseil d’Etat decided that “the State was wholly liable in respect of persons who were infected with the human immunodeficiency virus following transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985”. 36. In a series of landmark judgments of 24 March 1995 the Conseil d’Etat ruled that payment of the sum offered by the Compensation Fund for Transfusion Patients and Haemophiliacs in the event of Aids being diagnosed was “a latent possibility subject to the onset of the disease” and that accordingly the Paris Administrative Court of Appeal had “made an error of law in deducting it from the sums it ordered the State to pay in compensation for the same damage” (see paragraph 18 above). 37. At the material time the Administrative Courts and Administrative Courts of Appeal Code contained, inter alia, the following provisions: “Except in cases concerning public works, proceedings may not be instituted in the Administrative Court otherwise than in the form of an appeal against a decision; such an appeal shall be lodged within two months of the notification or the publication of the contested decision. Where no reply is forthcoming from the relevant authority for more than four months, that silence is to be construed as a decision rejecting the complaint. ...” “The President of the Administrative Court or of the Administrative Court of Appeal, or a judge delegated by one of them, may, where the existence of an obligation cannot seriously be contested, award an advance to a creditor who has filed an application on the merits in the court in question. He may, even of his own motion, make the payment of the advance subject to the lodging of a security.” “Immediately after the application instituting the proceedings has been registered by the registry, the president of the court or, in Paris, the president of the division to which the application has been transmitted, shall appoint a rapporteur. “Where one of the parties or the administrative department has been asked to submit observations and has not complied with the time-limit laid down pursuant to Articles R.142 and R.147 of this Code, the president of the court or division shall issue a formal notice to comply. In the event of force majeure, a final extension of time may be granted. If the formal notice to comply has no effect or if the final time-limit given is not complied with, the court shall give judgment.” “Where a final notice to comply relates to an administrative department of the State, it shall be sent to the authority with competence to represent the State; in other cases it shall be sent to the party or his representative if he has appointed one.” “A member of the Administrative Court or the Administrative Court of Appeal may be assigned by the competent court or by the latter’s president to carry out any investigative measures other than those provided for in sections 1 to 4 of this chapter.” 38. Decree no. 93-906 of 12 July 1993 applies to all proceedings pending at the date of its publication. It lays down provisions for the implementation of section 47 of the Act of 31 December 1991 (see paragraph 34 above): “Part II Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991 In order to bring the action by subrogation provided for in subsection IX of section 47 of the aforementioned Act of 31 December 1991, the Fund may intervene in proceedings in any of the administrative or ordinary courts, even if it does not do so until the appeal stage. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law. The registries of the administrative and ordinary courts shall send the Fund by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991. Within one month of receipt of the letter referred to in Article 16, the Fund shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and, if so, what stage the procedure has reached. It shall also state whether or not it intends to intervene in the proceedings. Where the victim has accepted an offer made by the Fund, the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted. The Fund shall, where relevant, indicate the stage reached in proceedings instituted in the Paris Court of Appeal under the provisions of Part I of this decree and forward any judgment delivered by that court. The registry shall notify the parties of the information communicated by the Fund. The registry shall send the Fund copies of the decisions given at first instance and, where relevant, on appeal in proceedings in which the Fund has not intervened. ... The provisions of Articles 15 to 19 shall be applicable to cases pending on the date of entry into force of [this] decree...” 39. On 9 May 1995 Mr Richard lodged an application with the Commission, registered on 15 May 1995 under file no. 27316/95, in which he complained of the length of the compensation proceedings and relied on Article 6 § 1 of the Convention. On 23 January 1996 the Commission adopted a report in which it noted, pursuant to Article 28 of the Convention: “… On 19 July 1995 the applicant’s representative informed the Commission that the applicant was prepared to accept the sum of 200,000 (two hundred thousand) French francs (FRF) for non-pecuniary damage, to which were to be added FRF 23,720 for the costs and expenses he had incurred before the Commission, the whole to be paid within one month of the adoption of the Commission’s report. He also requested the payment of interest in the event of delayed settlement. He repeated these proposals in a letter of 20 September 1995. In a letter of 27 December 1995, received on 15 January 1996, the Agent of the Government informed the Commission that the Government were prepared to agree to a settlement based on these proposals. On 23 January 1996 the Commission noted that the parties had reached agreement on the terms of a settlement. It also stated the opinion, having regard to Article 28 § 1 (b) of the Convention, that the parties had reached a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention. …” The text of the applicant’s declaration that he accepted the friendly settlement, which bears his signature, reads as follows: “I acknowledge that the payment of these sums will constitute full and final compensation in respect of all the damage alleged in my application and will likewise cover all the lawyers’ fees and other costs I have incurred in this case. I therefore agree to withdraw from these proceedings and to waive the right to bring any further proceedings on this account against the French State in the French and international courts.” | 1 |
dev | 001-89892 | ENG | RUS | ADMISSIBILITY | 2,008 | ALEKSEYEV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Mr Vladimir Nikolayevich Alekseyev, is a Russian national who was born in 1952 and lives in Ivanovo, a town in the Ivanovo Region. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a bailiff. In February 2002 (according to the applicant) or January 2003 (according to the Government) the applicant sued his employer, the Ministry of Justice, for unpaid night shifts and overtime. On 16 October 2003 the Justice of the Peace of Circuit 4 of the Frunzenskiy District of Ivanovo ordered the Ministry to recalculate the applicant’s salary from 2000, to pay arrears, and to amend the applicant’s contract. On 4 December 2003 the Frunzenskiy District Court of Ivanovo upheld this judgment on appeal and the judgment became binding. It was gradually enforced by 22 December 2004. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. | 0 |
dev | 001-109099 | ENG | LVA | ADMISSIBILITY | 2,012 | KOVALKOVS v. LATVIA | 4 | Inadmissible | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 1. The applicant, Mr Gatis Kovaļkovs, is a Latvian national who was born in 1970 and lives in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 18 February 2002 the Jelgava Court convicted the applicant of attempted robbery. He was sentenced to six years’ imprisonment, suspended for two years. On 5 November 2003 the Dobele District Court established that during that two-year period the applicant had committed various infractions. For that reason it ordered the applicant to start serving his sentence pursuant to the Jelgava Court’s judgment of 18 February 2002, effective immediately. 4. On 13 November 2003 the applicant was transferred from the Central prison in Rīga to serve his sentence in Pārlielupe prison in Jelgava. According to the applicant, soon after his arrival at Pārlielupe prison he began to have disagreements with the administration of the prison and with his cellmates. It appears that the primary cause of conflict was the fact that almost all of the prisoners and staff at Pārlielupe prison spoke Russian. According to the applicant, their knowledge of Latvian – the official language of Latvia and the applicant’s native language – was limited or non-existent. The applicant made numerous requests to be transferred to a place of imprisonment where he could freely communicate in Latvian. However, all his requests to that effect were rejected. 5. It furthermore appears that at the relevant time the applicant frequently made dismissive and disparaging oral remarks concerning the Russian minority of Latvia. Similar statements were also included in the applicant’s correspondence with State authorities and in articles which he regularly published in an extreme right-wing magazine. As a result, other inmates became hostile towards the applicant. 6. On 18 August 2005 the applicant was transferred from Pārlielupe prison to Jēkabpils prison after the governor of Pārlielupe prison had written a report in which it was noted that the applicant “constantly provoke[d] conflicts with the administration of the prison by sending unsubstantiated complaints to various Latvian newspapers”. 7. On 7 October 2005 the applicant was transferred to Valmiera prison. 8. On 7 November 2005 the applicant was transferred to Matīsa prison in Rīga (in 2009 Matīsa prison merged with the adjacent Central prison). The report concerning the desirability of the applicant’s transfer noted that “all of the [applicant’s] conflicts and disagreements in prison [were] caused by himself, [he] provoke[d] the [prison] administration and incite[d] other prisoners to write complaints”. At the applicant’s request, one month after his arrival in Matīsa prison he was placed in an individual cell. The applicant remained in Matīsa prison until his release upon having served his sentence on 8 January 2009. 9. The applicant alleges that his cellmates and also the chaplain at Pārlielupe prison ridiculed him because of his religious beliefs. He furthermore alleges that he was prevented from adequately performing the fundamental rituals of Vaishnavism (the Hare Krishna movement). 10. On 19 May 2005 the applicant complained about the purported infringements of his religious freedoms to the Directorate of Religious Affairs (Reliģijas lietu pārvalde) of the Ministry of Justice. In particular he complained that the chaplain of Pārlielupe prison had described the Hare Krishna movement as a “satanic” religion. He also pointed out that he was not receiving the same level of spiritual support as the prisoners belonging to the Christian faith. 11. On 8 June 2005 the applicant submitted a request to the governor of Pārlielupe prison. He explained that in prison he worked as a cobbler. Part of his earnings he had to spend to buy food in the prison store, since his religion did not allow him to eat some of the food served by the prison canteen. He furthermore complained that in his cell he was unable to read religious writings because of his cellmates’ tendency to discuss their immoral lifestyles by using countless swear words. He invoked Articles 9 and 14 of the Convention and requested to be placed in a separate (individual) cell. It appears that he did not receive any written response. 12. In a letter from the Directorate of Religious Affairs of 20 June 2005 the applicant was informed that his religious rights were being respected “in so far as it was possible”. He was furthermore informed that a Christian education programme was operating in Pārlielupe prison. 13. On 27 June 2005 the applicant complained to the Prison Administration (Ieslodzījuma vietu pārvalde) of being mocked and humiliated by the prison staff and his fellow prisoners because of his religious beliefs. He invoked Articles 9 and 14 of the Convention and complained that the circumstances in his cell and the negative attitude of his cellmates prevented him from devoting himself to meditation and studies of Vaishnavism. 14. On 15 July 2005 the deputy governor of the Prison Administration replied to the applicant by explaining that it was not appropriate to perform religious rituals in a common cell, since it might disturb other prisoners. However, the applicant was informed that the administration of the prison would set aside a specific time for him to visit the prison chapel or another appropriate space so that he would be alone for praying, reading religious literature, and meditating. According to the applicant, that never happened. 15. On 16 November 2005 the deputy governor of the Prison Administration responded to an enquiry from the Ministry of Justice for information about the applicant. The letter referred to an unspecified prison where the applicant had been held and indicated, inter alia: “[the applicant’s] religious activities create tense situations. [The applicant] in the presence of other convicted persons in the residential areas regularly and openly performs religious rituals – singing, meditation, massages with oils and so on – thus disturbing the other convicted persons. Despite the fact that the administration of the prison indicated [to the applicant] that residential areas are not meant for carrying out religious activities and offered the use of another room for this purpose, [the applicant] refused and stubbornly continued to perform religious rituals in the residential areas. ... With his actions [the applicant] offends the honour and dignity of other convicted persons and creates a negative attitude towards himself.” 16. During a search of the applicant’s belongings at Matīsa prison on 20 January 2006 a guard found and confiscated some incense sticks. According to the applicant, the incense was necessary for him to perform the religious rituals of Vaishnavism. The record of the search contains a space for any objections that the prisoner might have. The applicant signed the record but the space for objections was left blank. 17. On 13 June 2007 the Prison Administration wrote to the president of the Rīga Chapter of the International Society of Krishna Consciousness asking for an explanation of certain religious rituals that several prisoners had sought to perform in prisons. Namely, the Prison Administration wished to ascertain whether Vaishnavism required a twice-daily loud chanting of mantras for fifteen minutes. The president of the Rīga Chapter responded on 28 June 2007. He explained that there existed two methods for praying to Krishna. The first – japa – involves the repetition of a mantra in a soft voice by using prayer beads. The second – kirtan – is chanting of the Hare Krishna mantra at a regular volume. Typically kirtan is performed by a group of devotees as a form of a religious service. It appears that both forms of prayer are equally acceptable. 18. At the request of the Agent of the Government, on 2 November 2007 the Directorate of Religious Affairs provided certain information concerning the organisation of religious life in prisons, about the applicant’s complaints received by the Directorate, and concerning certain specific aspects of Vaishnavism. Concerning the latter, members of the Rīga congregation had explained to representatives of the Directorate that some of the basic rituals of Vaishnavism were the burning of incense sticks, a daily washing, a special diet, studies of religious writings, and meetings with other followers of Vaishnavism. The obligation to observe those rituals was, however, conditional. For instance, if circumstances did not permit it, the burning of incense sticks was not mandatory. According to the members of the congregation, in a prison environment it would recommendable for a follower of Vaishnavism to be placed in a single cell, since the observance of the religious rituals in a shared cell could incite a negative attitude among other prisoners. Concerning religious literature, the members of the congregation affirmed that upon request religious writings could and would be sent to inmates. Lastly, concerning the dietary requirements it was emphasised that the ban on eating meat products was particularly significant for followers of Vaishnavism. 19. On 1 September 2005 the applicant refused to stay in his wing of Jēkabpils prison. He submitted a written statement to the Prison Administration, in which he requested to be moved to Jelgava prison and explained that he was in danger in Jēkabpils prison. According to the applicant, he orally informed the representatives of the administration of Jēkabpils prison that on that day he had been beaten by other prisoners. He also complained that the smallest detention wing that had been offered to him held forty other prisoners. 20. On the same day the administration of Jēkabpils prison took a written statement from several prisoners saying that the applicant had not been subjected to physical or mental harassment and that he had not had any conflicts with any of the inmates. Two hours after the applicant had refused to return to his wing he was seen by a medical assistant (feldšere) who examined him and did not find any bruises on his body. The relevant excerpt from the applicant’s medical record reads as follows: “At 15.40 brought for examination due to bodily injuries. Does not have any complaints. According to the prisoner, there is no need for a medical examination. Body examined in its entirety. Concl[usion]: No bruises or subcutaneous haematomas have been observed.” The applicant received a disciplinary penalty in the form of seven days’ detention in a punishment cell for the refusal to return to his wing. 21. On 5 September 2005 the applicant was moved to a different wing of Jēkabpils prison where the prisoners are placed in cells (as opposed to dormitories in the rest of the prison). 22. On 10 and 13 October 2005 the applicant submitted complaints to the Specialised Public Prosecutor’s Office (Specializētā vairāku nozaru prokuratūra). He stated that in Jēkabpils prison he had been beaten by “Russian speakers” who had been incited to do so by one of the wardens. The applicant asked to be moved to Matīsa prison because he felt threatened in all the other prisons in Latvia. 23. The applicant’s complaint was forwarded to the Prison Administration, which on 28 October 2005 refused to initiate criminal proceedings concerning the applicant’s alleged beating in Jēkabpils prison. An inspector of the Prison Administration took into account written reports that had been drawn up by the administration of Jēkabpils prison and written statements from the applicant’s cellmates. It was found that all the information in the file consistently pointed to the conclusion that the applicant had not been attacked by anyone. 24. On 14 November 2005 the applicant appealed to the Specialised Public Prosecutor’s Office for Organised Crime and Other Offences (Organizētās noziedzības un citu nozaru specializētā prokuratūra) against the Prison Administration’s refusal to initiate criminal proceedings. He named two prisoners who had allegedly beaten him and complained that the investigator of the Prison Administration had not questioned them. He furthermore pointed out that immediately after his arrival at Jēkabpils prison as well as on 31 August 2005 he had complained to representatives of the administration that he was threatened by other inmates, yet no action had been taken. The applicant noted that the prisoners who had been questioned by the investigator of the Prison Administration had been the ones friendly to him and that there had been no reason to question them in relation to his alleged beating. Concerning his medical examination on 1 September 2005 the applicant submitted that the medical assistant had observed him “while holding a cup of coffee in her hands”. She had declared that the applicant had a “red head” and had only noticed a scratch on his skin when the applicant himself had pointed it out. The medical assistant had refused to give any treatment for the scratch or for the applicant’s headache and had not even recorded his complaints. 25. On 28 November 2005 his appeal was rejected by a senior prosecutor of the Specialised Public Prosecutor’s Office. In reply to the applicant’s complaint that the investigator of the Prison Administration had not questioned the two inmates whom he had singled out as being responsible for his beating, the prosecutor explained that persons could be questioned only after criminal proceedings had been initiated. Considering that, in the absence of any recorded injuries, there was no reason to initiate criminal proceedings concerning the applicant’s alleged beating, the two prisoners named by the applicant could not be questioned. 26. On 1 December 2005 the applicant appealed against the reply of 28 November 2005. He essentially repeated the arguments that had been set out in his previous complaints, namely, that he had identified by name a prisoner who had threatened and then beaten him, yet that person had never been questioned and that his medical examination on 1 September 2005 had been very superficial. 27. In a final decision of 14 December 2005 another senior prosecutor of the Specialised Public Prosecutor’s Office for Organised Crime and Other Offences rejected the applicant’s complaint. The response was essentially identical to the previous ones given to the applicant but also added that the “lodging of complaints is to be seen as a counteraction against the administration of the prison and against prisoners negatively disposed towards [the applicant]”. 28. On 12 February 2004 the Criminal Law was amended. Among other things, the minimum prison term for robbery was reduced. The applicant wrote numerous letters to the Supreme Court and to prosecutors requesting that his sentence be reduced. He received an explanation that the transitional provisions concerning the entry into force of the amendments to the Criminal Law provided that the reduction in the minimum term of imprisonment was not applicable to persons sentenced prior to 1 January 2005, the date when the amendments to the law came into effect. The applicant’s subsequent attempts to appeal to the Constitutional Court remained unsuccessful. 29. Also in 2005 the applicant enquired with the State authorities about the possibility of changing his Russian-sounding surname (Kovaļkovs) to the surname which he had had until the age of five (Bite). He received a response stating that under the law he could not change his name before his criminal record was expunged. 30. In a letter of 7 March 2006 which was addressed to the Human Rights Bureau (Cilvēktiesību birojs) the director of the Prison Administration described the applicant’s personal situation and characterised the applicant in negative terms. The applicant subsequently sought in vain to initiate criminal proceedings for defamation against the director of the Prison Administration. In July 2006 the applicant requested State-granted legal aid in order to lodge a civil claim for damages against the director of the Prison Administration. On 9 July 2006 the Legal Aid Administration (Juridiskās palīdzības administrācija) rejected the applicant’s request for the reason that the law did not provide for legal aid for such claims. The claim which had been drafted by the applicant himself was not accepted by the Rīga City Latgale District Court for procedural reasons. The final decision in that regard was adopted on 14 September 2006. 31. On 1 November 2007 (after the case had been communicated to the Government) a psychiatrist issued a one-paragraph report on the applicant’s mental health, finding him to be a querulent personality with a tendency to misinterpret other people’s actions towards him as hostile or dismissive and to “aggressively exaggerate his rights by incessantly writing unsubstantiated complaints”. 32. Article 461 of the Sentence Enforcement Code (Sodu izpildes kodekss), as in force at the relevant time, provided for the existence of a chaplaincy service in prisons and indicated that the prisoners’ meetings with clerics and their participation in “moral development activities” were to be regulated by the Internal Rules of Order of an Institution of Deprivation of Liberty, which were contained in regulations of the Cabinet of Ministers. 33. As in force until 3 June 2006, Regulation of the Cabinet of Ministers no. 73 (2002) provided in paragraph 36 that the chaplains and other staff members of prisons were to organise “moral development activities”, such as lectures, educational talks and musical performances. The “moral development” also included religious events organised by chaplains, such as studies of religious literature, services, sacraments and other ceremonies. It was also noted that “convicted persons shall have the opportunity to educate themselves individually”. Paragraph 37 provided that with the permission of the prison governor or of the director of the Prison Administration “representatives of registered religious and public organisations” could be involved in the organisation of the educational activities for prisoners. 34. Paragraph 46 of the Regulation provided that convicts could only keep a limited selection of objects in their cells, which was exhaustively listed in amendment no. 3 to that Regulation. The list in the amendment did not include incense sticks. 35. On 3 June 2006 the previous Regulation was replaced by Regulation of the Cabinet of Ministers no. 423 (2006). Paragraph 35 of the new Regulation provides that the spiritual care of convicted persons is to be organised or performed by chaplains. Paragraph 39 provides that “[o]nly the religious organisations listed in the normative acts concerning the chaplaincy service shall be authorised to distribute religious literature in prisons”. 36. At the relevant time the chaplains’ work in prisons was regulated by Regulation of the Cabinet of Ministers no. 277 (2002), entitled “Regulations on the Chaplaincy Service” (Noteikumi par kapelānu dienestu). The second paragraph of the Regulation provided that chaplains were responsible for ensuring respect for freedom of religion in, among other institutions, prisons. Paragraph 3 provided that chaplains were nominated by the leaders of the Lutheran, Catholic, Orthodox, Old Believer, Methodist, Baptist, Seventh-day Adventist, Jewish, and Pentecostal denominations. 37. Paragraph 15 of Regulation no. 277 specified that chaplains were to ensure the spiritual care of prisoners, to lend them moral support and to give them consultations concerning questions of religion and ethics when necessary. According to the information furnished by the Directorate of Religious Affairs the chaplaincy service was ecumenical. Prison chaplains were obliged to provide spiritual support to all prisoners, irrespective of their faith, or, should that prove to be impossible, they could invite representatives of the respective religious movement to assist them in their work. Since 31 March 2006 those principles have been specifically laid down in an internal instruction of the Prison Administration entitled the Regulation on the Prison Chaplaincy Service (Ieslodzījuma vietu kapelānu dienesta reglaments). 38. In addition, Regulation no. 423 provided that convicted persons could only keep a limited selection of objects in their cells, which was exhaustively listed in amendment no. 1 to that Regulation. The list in the amendment did not include any objects of a religious character, although some of the objects, such as books, photographs and headwear could have religious significance. 39. In 2010 the constitutionality of amendment no. 1 to Regulation no. 423 was challenged in the Constitutional Court. In a judgment of 18 March 2011 in case no. 20105003 the Constitutional Court declared amendment no. 1, in so far as it did not allow the storage of religious objects, unconstitutional and void as of 1 October 2011. 40. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member states on the European Prison Rules, which lay down the following guidelines: “Freedom of thought, conscience and religion 29.1 Prisoners’ freedom of thought, conscience and religion shall be respected. 29.2 The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs.” | 0 |
dev | 001-79542 | ENG | DEU | ADMISSIBILITY | 2,007 | KOHLER v. GERMANY | 4 | Inadmissible | Peer Lorenzen | The first applicant, Ms Jutta Köhler, is a German national who was born in 1962 and lives in Nuremberg, Germany. She lodged the application also in the name of her daughter Julia Köhler (second applicant), a German national born in 1996. s, may be summarised as follows. The second applicant, Julia Köhler (J.), is the daughter of the first applicant and E. She was born out of wedlock on 2 January 1996. Pursuant to the statutory provisions (section 1626a § 2 of the Civil Code) the first applicant had sole custody of J. who has been living with her mother since her birth. At the age of three, J. was diagnosed with a general development and autistic disorder and with retrogressive speaking capacities. She was not admitted to an ordinary nursery school. On 31 August 2001 the Nuremberg Youth Office lodged a motion with the Nuremberg District Court (no. 110 F 02973/01) to restrict the first applicant’s custodial right to decide on her daughter’s whereabouts and health care and to appoint the Youth Office as special curator (Ergänzungspfleger) to deal with these issues. On 26 November 2001 the Nuremberg District Court appointed Ms L.-K., a lawyer, as J.’s curator ad litem to represent her interests the custody proceedings. On 28 December 2001 the Nuremberg District Court refused to change its decision to appoint a curator ad litem on the first applicant’s motion, arguing that no appeal lay against such an interim decision. In any event, the appeal would also be ill-founded, as the first applicant failed to give convincing reasons against Ms L.-K.’s appointment. On 17 January 2002 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision. On 18 February 2002 the Nuremberg District Court, having heard the first applicant, her daughter’s curator ad litem and a representative of the Youth Office, restricted the first applicant’s sole custody over her daughter pursuant to section 1666 of the Civil Code. It ruled that the first applicant was no longer entitled to choose which nursery school or school her daughter should attend and had no right to determine her daughter’s whereabouts. It appointed the Nuremberg Youth Office as special curator to decide on these issues. The court authorised the Youth Office to enforce the child’s surrender, if necessary with the help of the police, in order to secure the execution of the court’s decision. Having regard to the report of a doctor working for the city of Nuremberg dated 7 February 2002, earlier medical reports and its own attempt on 10 January 2002 to hear J. (with whom, however, a communication had proved impossible), the District Court found that it was almost certain that J. suffered from a severe development disorder and showed clearly autistic behaviour. Therefore, J. was in need of care in a specialised institution. The first applicant was acutely endangering her daughter’s mental welfare by refusing to accept her daughter’s illness and to send the child to an institution responding to her needs. Instead, the first applicant insisted on sending her daughter to an ordinary (nursery) school or to a school merely treating speaking irregularities. Her custody of J. therefore had to be restricted in respect of these issues. The District Court observed that it was in J.’s best interests to attend an institution individually educating children with autistic behaviour while living with her mother. However, should the first applicant continuously refuse to send her daughter to a suitable institution it was necessary, as a last resort, to separate mother and daughter and to place J. in a home providing her with the necessary individual care. On 3 April 2002 the Nuremberg District Court dismissed the first applicant’s motions to rectify the protocol of the court’s hearing. It found that the changes proposed by the first applicant concerned additional information she had not yet given in the hearing itself. On 16 May 2002 the Nuremberg Court of Appeal dismissed the applicant’s appeal against the District Court’s decision dated 3 April 2002, as no appeal lay against this decision. On 30 July 2002 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint against the decisions of 26 November 2001, 28 December 2001, 3 April 2002 and 16 May 2002 (no. 1 BvR 1067/02). In July 2002 J. attended test lessons in an ordinary school together with her mother and grandmother. At the outset J. was crying and shouting loudly and refused to stay in the classroom. She only calmed down after she had been running up and down the corridor with her mother and both had been shouting for twenty minutes. Back in the classroom, she refused to follow any of the teacher’s instructions and did not react to any questions. She then wrote the alphabet on the blackboard and, when interrupted, had a rage attack and was jumping around in the classroom to calm down. She did not speak a single word during the lessons and did not establish contact with anyone. In further test lessons at a later date J. was only running around in the classroom, did not react to any instructions and frightened other children by running closely towards them uttering inarticulate sounds. In view of this, the school director and teachers informed the first applicant that it was impossible to educate J. and respond to her needs in an ordinary school. On 19 August 2002 J. was taken away from her mother with the help of the police on the motion of the Youth Office, acting as J.’s special curator, as her mother had refused to allow her to attend a specialised school taking account of her educational needs. She was placed in an open youth home – the location of which was not disclosed to the first applicant – in which she subsequently attended a school furthering its pupils’ learning progress individually. On 21 August 2002 the Nuremberg Court of Appeal, having heard the first applicant, the second applicant’s curator ad litem and a representative of the Youth Office, dismissed the applicant’s appeal against the District Court’s decision dated 18 February 2002, which thereby became final. On 16 September 2002 the applicants lodged a complaint with the Federal Constitutional Court (no. 1 BvR 1792/02) against the impugned decisions of the District Court dated 18 February 2002 and of the Nuremberg Court of Appeal dated 21 August 2002. In at least one letter dated 22 January 2003 the Youth Office invited the first applicant to contact the Youth Office in order to set up a visiting arrangement. However, no contacts between mother and daughter could be built up. A subsequent action for damages brought by the first applicant with the Nuremberg civil courts against J.’s curator ad litem because of her conduct in the custody proceedings was to no avail. The Federal Constitutional Court refused to admit the first applicant’s constitutional complaint concerning these decisions on 25 August 2005 (no. 1 BvR 1439/05). On 13 October 2006 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint (no. 1 BvR 1792/02) against the decisions of 18 February 2002 of 21 August 2002. On 23 February 2004 the first applicant lodged a motion with the Nuremberg District Court (no. 110 F 610/04) to be surrendered her daughter. She argued that the separation from her and her daughter’s placement in a youth home constituted an illegal deprivation of liberty. Moreover, her daughter’s right to be integrated in an ordinary school as protected by the Constitution had been breached. In its report dated 3 March 2004 the Youth Office stated that J. had settled well in the institution for disabled children she lived in since August 2002. While her father was visiting her regularly since May 2003 her mother had not reacted to several attempts made in letters addressed to her by the Youth Office in 2003 to re-establish contacts with her daughter and showed no real interest in being informed about her daughter’s development. Sending J. back to live with her mother would not be in J.’s best interests. On 15 April 2004 the Nuremberg District Court held a hearing, in which it heard the first applicant, a representative of the Youth Office and the child’s father E. It did not hear J. in person, because, as confirmed by E., a verbal communication with her was impossible, as had also been found by the court itself in its hearing on 10 January 2002 in the custody proceedings. On 27 April 2004 the Nuremberg District Court dismissed the first applicant’s motion to surrender her daughter to her. It found that the first applicant did not have a right to be rendered her daughter pursuant to section 1632 § 1 of the Civil Code. The court noted that the District Court’s decision dated 18 February 2002 restricting the first applicant’s custody of her daughter had become final. The Youth Office, acting as J.’s special curator, had therefore been entitled to order her full-time placement in a home and to take the child away from her mother, as had been done on 19 August 2002. In particular, a child’s right to attend an ordinary school was subject to his or her physical and mental ability to meet its demands. As had been found by the civil courts in previous decisions, J. could not meet these demands due to her illness and could not be expected to do so in the future. The District Court further found that there was nothing to indicate that it was in J.’s best interests to re-award custody in all respects to her mother. In particular, J.’s placement in a youth home which furthered her adequately in view of her illness had clearly proved to be beneficial to her. As long as her mother was unable to accept that her daughter would be absolutely overstrained in and could not be integrated in an ordinary school, the child could not be taken care of in her mother’s home. In an obiter dictum the District Court noted that it could not understand why the Youth Office refused the first applicant any contacts with her daughter whose whereabouts still had not been disclosed to her. It considered it indispensable for the child’s welfare to organise visits of her mother as soon as possible. On 17 June 2004 the Nuremberg Court of Appeal (no. 7 UF 1604/04), following the first applicant’s appeal, heard the first applicant, J.’s curator ad litem and a representative of the Youth Office. The latter stated that she had now informed the first applicant about her daughter’s whereabouts and offered to organise contacts either at the first or the second applicant’s place of residence. The first applicant stated that she had not visited her daughter yet because she feared that the Youth Office could again assert that she was endangering her daughter’s welfare which, in her view, amounted to an allegation that she had abused or ill-treated her daughter. On 18 June 2004 the Nuremberg Court of Appeal dismissed the first applicant’s appeal as ill-founded. It found that the Youth Office had acted legally in taking away the child from her mother and placing the child in a youth welfare institution, as its decision could be based on the District Court’s decision dated 18 February 2002. The Court of Appeal observed that pursuant to the statements of a child psychiatrist dated 4 June 2004 it was clear that J. showed severe signs of autism so that intensive care was necessary which her mother could not provide and which made it impossible for her to attend an ordinary school for the time being. As the first applicant was unable to understand her daughter’s needs it was necessary to uphold the partial deprivation of her custody. On 7 July 2004 the first applicant lodged a complaint with the Federal Constitutional Court against the decisions of the District Court dated 27 April 2004 and of the Court of Appeal dated 18 June 2004. She argued in particular that the continuous restriction of her custody and the failure to surrender her daughter, who was kept in a care institution and had to attend a school for disabled children, violated her parental rights and her daughter’s right to liberty and education as guaranteed by the Basic Law. On 25 November 2004 the Federal Constitutional Court refused to admit the first applicant’s constitutional complaint (no. 1 BvR 2248/04). On 13 October 2006 the Federal Constitutional Court refused to admit another constitutional complaint lodged by the applicants against, inter alia, the decisions of the Nuremberg District Court dated 27 April 2004 and of the Nuremberg Court of Appeal dated 18 June 2004 (1 BvR 1416/04). On 8 December 2002 E., the father of the second applicant, brought a motion with the Nuremberg District Court (no. 110 F 4498/02) to be granted access to his daughter. On 20 February 2003 the Nuremberg District Court dismissed the first applicant’s motion for bias against District Court judge A. On 26 March 2003 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision as ill-founded. In the court’s view, the fact alone that judge A. had already sat in earlier cases brought by the first applicant in the District Court in accordance with the court’s internal assignment of functions did not warrant the conclusion that he was biased. The applicant’s constitutional complaint against these decisions was to no avail (decision no. 1 BvR 726/03 of 22 September 2004). On 24 April 2003 the Nuremberg District Court, having heard the first applicant and the child’s father E. and having consulted the Youth Office, granted E. a right of access to his daughter for four hours once in three weeks. On 27 May 2003 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision as inadmissible. It argued that the first applicant was not prejudiced by the decision as she had expressly claimed not to object to the access order, but merely complained against the court’s reasoning referring to her daughter as being a “sick child”. On 22 September 2004 the Federal Constitutional Court refused to admit the first applicant’s constitutional complaint against the latter decision (no. 1 BvR 1537/03). On 10 July 2003 the Nuremberg Court of Appeal dismissed as inadmissible the applicants’ motion for a judicial decision on the refusal of the Nuremberg General Public Prosecutor to institute criminal proceedings for fraud against P. It observed that the applicants failed to set out in a comprehensible manner facts which could warrant the conclusion that P., a representative of the Nuremberg Youth Office, had committed fraud. On 17 November 2003 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint (no. 2 BvR 1297/03). On 19 November 2003 the Nuremberg Court of Appeal dismissed as inadmissible the applicants’ motion for a judicial decision on the refusal of the Nuremberg General Public Prosecutor to institute criminal proceedings for having threatened another person with the commission of a crime against M., O., H. and L. It found that the applicants’ motion was in any event ill-founded as there were no sufficient grounds for suspicion that an offence had been committed by the impugned representatives of the Youth Office and policemen when separating J. from her mother on 19 August 2002. A further identical motion lodged with the Court of Appeal was to no avail. On 3 and 9 March 2004 and on 24 November 2004 the Federal Constitutional Court refused to admit the applicants’ constitutional complaints against the Court of Appeal’s decisions (nos. 2 BvR 57/04, 2 BvR 2330/03 and 2 BvR 1806/04). Pursuant to section 1629 § 1 of the Civil Code, parental custody encompasses the right to legal representation of the child. It is uncontested that the scope of the right to legal representation is identical to the – possibly restricted – scope of a parent’s right of custody. Pursuant to section 1632 § 1 of the Civil Code, the right to personal custody comprises the right to claim the surrender of the child from anyone illegally withholding the child from one or both parents. Section 1666 § 1 of the Civil Code provides that the family courts are entitled to take the necessary measures to avert dangers to the physical, mental or spiritual welfare of a child caused by an abusive exercise of parental custody, by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers. Pursuant to section 1666a § 1 of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including aids by public authorities. | 0 |
dev | 001-78663 | ENG | TUR | ADMISSIBILITY | 2,006 | SIMSEK v. TURKEY | 4 | Inadmissible | David Thór Björgvinsson | The applicant, Mr Ramazan Şimşek, is a Turkish national, who was born in 1976 and lives in Batman. He is represented before the Court by Ms Y. Dora Şeker, a lawyer practising in Adana. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 October 1995 the applicant was arrested by police officers from the anti-terrorist branch of the Izmir Security Directorate on suspicion of his involvement in the PKK. On 6 November 1995 the applicant was brought before the public prosecutor and the investigating judge, who remanded the applicant in custody. On 20 November 1995 the public prosecutor at the Konya State Security Court filed an indictment with the same court accusing the applicant of being a member of the PKK. On 19 May 1997, after the promulgation of Law No. 4210, which abolished the Konya State Security Court, the case file was transferred to the Adana State Security Court. The criminal proceedings at the Adana State Security Court began on 11 June 1997. On 16 June 1998 the Adana State Security Court convicted the applicant of the offence as charged and sentenced him to the death penalty. It then commuted this to life imprisonment. On 6 May 1999 the Court of Cassation quashed the judgment of the State Security Court on account of “the lack of a final investigation” and remitted the case file back to the latter. The criminal proceedings at the Adana State Security Court began on 24 August 1999. On 23 November 1999 the court convicted the applicant of the same offence and issued the same sentence. On 27 September 2000 the Court of Cassation quashed the judgment of the first instance court and remitted the case to the Adana State Security Court. On 15 March 2001, the Adana State Security Court, after having complied with the requirement of the Court of Cassation, sentenced the applicant to life imprisonment. On 27 September 2001 the Court of Cassation upheld the latter judgment. The applicant was notified of this judgment on 9 April 2002. | 0 |
dev | 001-21977 | ENG | CZE | ADMISSIBILITY | 2,001 | KRÖHNERT v. THE CZECH REPUBLIC | 4 | Inadmissible | null | The applicant is a German national, born in 1947 and living in Altenstadt, Germany. Until 21 July 2001, he was serving a prison term in the Czech Republic. He was placed under guardianship by the Weiden District Court (Amtsgericht) in 1995 and his health requires permanent medical control. Before the Court, he is represented by Mr R. Giebenrath, a lawyer practising in Offenburg and Strasbourg. The respondent Government are represented by their Agent, Mr E. Slavík, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 9 February 1994 the Sokolov District Court (okresní soud) (“the District Court”) convicted the applicant of assault on a public officer and sentenced him conditionally to a year’s imprisonment. The applicant was further prohibited from driving motor vehicles for one year. The District Court established that on 2 July 1993 the applicant had driven his car at a policeman who had attempted to stop him after he had committed a road traffic offence. The policeman saved himself by jumping to one side. The Sokolov District Attorney (okresní státní zástupce) appealed against the judgment. On 7 June 1995 the Plzeň Regional Court (krajský soud) (“the Regional Court”) modified the first instance judgment in that it imposed an immediate fifteen month prison sentence on the applicant. It also prohibited the applicant from driving motor vehicles for two years. The Regional Court noted that the applicant is a foreigner without a permanent or temporary residence in the Czech Republic. It therefore considered that it would be impossible to control the applicant’s behaviour during a probationary period if a conditional prison sentence were imposed. In its judgment the Regional Court pointed out that the District Court had acted erroneously in that it had held the main hearing on 6 January 1994 in the applicant’s absence without duly notifying him. It considered, however, that the evidence available permitted a decision in the case without taking into account the evidence heard at the main hearing before the District Court. The Regional Court therefore held that these shortcomings did not affect the decision on the merits of the case. It appears that the applicant did not attend the hearing before the appellate court and that he was represented by a lawyer appointed ex officio. On the same day, the judgment of the Regional Court became enforceable. According to the Government, it was served on the applicant on 12 October 1995. On 6 February 1996 the District Court ordered the applicant to reimburse the fees of the lawyer who had been appointed to represent him. On 17 August 1998 the Regional Court dismissed the applicant’s complaint about that decision. On 24 July 2000 a clerk of the District Court delivered a decision rectifying the sum the applicant actually had to pay. In the meantime, on 21 June 2000, the applicant had been arrested by the Czech police. He was placed in the Horní Slavkov prison where he started serving his prison sentence. On 13 July 2000 he was transferred to the Kynšperk nad Ohří prison. On 2 August 2000 the applicant complained to the director of the Kynšperk nad Ohří prison that he had some problems with his glasses and that the water had not been running for an hour. In two letters dated 2 and 23 September 2000, respectively, the applicant complained to the Constitutional Court (Ústavní soud) in summary terms about the criminal proceedings leading to his conviction and the enforcement of the sentence. On 24 September 2000 the applicant sent a letter to several institutions and officials, including the Constitutional Court, the Attorney General (Vrchní státní zástupce) and the director of the Kynšperk prison, in which he complained that the Czech authorities had failed to react to his written submissions and that he had not been provided with adequate medical care in prison. He also made a request for a desk and a typewriter. On 12 October 2000 the applicant complained to the prison director that he was no longer allowed to prepare his application in the prison dining room. He explained that he could not concentrate on such work in the cell where he was detained together with ten or eleven other people. On 27 October 2000 he complained in writing to the prison director that he was not allowed to use a typewriter or make copies of documents. He also alleged that he was not provided with adequate medical care. In January 2001 the applicant was taken to a hospital in Brno for an examination of his mental health. On 3 January 2001 the Vice-President of the Constitutional Court warned the applicant that his petitions to the Constitutional Court did not satisfy the formal requirements for lodging a constitutional appeal. He informed the applicant that an appellant must be legally represented before the Constitutional Court, must indicate his name, specify the subject of his constitutional appeal, sign the appeal and date it. He also informed the applicant about the sixty-day time-limit for lodging a constitutional appeal. On 16 January 2001 the Ministry of Justice (Ministerstvo spravedlnosti) informed the applicant that his two requests for the introduction of a complaint for a breach of law (podnět k podání stížnosti pro porušení zákona), on 1 July and 1 August 2000, were rejected as having no basis. According to the Government, on 4 April 2001, after a discussion between the applicant and the prison director, the latter held that the applicant would be provided with necessary aid for his correspondence and, in particular, that his correspondence would be sent without delay and given to him immediately upon its arrival at the prison. By letter of 25 April 2001, the Czech Bar Association (Česká advokátní komora) acknowledged receipt of the applicant’s letter of 23 March 2001 which, however, they had found to be unclear. He was therefore invited to specify his claims. A list of German speaking lawyers was joined to the letter. By letter of 8 June 2001 the applicant urged the Constitutional Court inter alia to decide on his constitutional appeals. Article 10 provides that the ratified and promulgated international treaties on human rights and fundamental freedoms, by which the Czech Republic is bound, shall be applicable as directly binding regulations having priority over the law. According to Article 3 § 1, fundamental human rights and freedoms are guaranteed to everybody irrespective of sex, race, colour of skin, language, faith, religion, political or other conviction, ethnic or social origin, membership of a national or ethnic minority, property, birth, or other status. According to Article 8 §§ 1 and 2, personal liberty is guaranteed. Nobody shall be persecuted or deprived of their liberty save for reasons and in a manner prescribed by law. Article 10 §§ 1 and 2 provides inter alia that everybody is entitled to protection of his/her human dignity or personal integrity, and against unauthorised interference with private or family life. According to Article 13, nobody may violate the confidentiality of correspondence or other papers and records, whether privately kept or sent by post or in another manner, except in cases and in a manner specified by law. Article 31 guarantees inter alia to everybody the right to the protection of his /her health. Article 36 provides that everybody can claim his/her rights in a prescribed manner before an independent and impartial tribunal or, in certain cases, before another organ. According to Article 38, everybody is entitled to a fair and public hearing within a reasonable time, in his/her presence, and to comment upon all the evidence submitted. Section 72(1)(a) provides that a constitutional appeal may be introduced by any natural person who claims to be the victim of a breach of the fundamental rights or freedoms recognised in a constitutional law or an international treaty (Article 10 of the Constitution) by a legitimate decision taken in proceedings to which he/she was a party, and being a measure or interference by ‘a public authority’. According to paragraph 2, a constitutional appeal shall be submitted within a period of sixty days. If the law affords a remedy for the protection of rights, this period starts to run on the day when the final effective decision becomes enforceable or, if no such remedy exists, on the day on which the impugned events occurred. According to section 75(1), a constitutional appeal is inadmissible if the applicant failed to exhaust all the procedural remedies available in law for the protection of his/her rights. Section 30(1) provides that the applicant must be represented by an attorney, a commercial lawyer or a notary to the extent provided for in the relevant special law. Section 34(1) provides that a constitutional appeal shall be submitted in writing to the Constitutional Court. The appeal shall include the following information: the person who is making the appeal, the matter to which it relates, and its object. The appeal must be signed and dated. Furthermore, it shall include a true description of the crucial facts, indicate the evidence which the applicant will introduce, and specify the claim. The appeal shall contain the other elements required by this Act. According to paragraph 2, the appeal shall be submitted in a sufficient number of copies so that the Constitutional Court as well as each party to the appeal may have a copy. According to section 82, in its judgment the Constitutional Court shall hold that it allows the constitutional appeal in its entirety, dismisses it in its entirety, or partially allows and partially dismisses it. If the court allows the constitutional appeal, it shall inter alia declare in its judgment which of the constitutionally guaranteed rights or freedoms or which provision of a constitutional act or an international treaty were violated, and what act by a public authority perpetrated the violation. If it allows the constitutional appeal of a natural person, the court shall annul the contested decision of the public authority, or, if a constitutionally guaranteed fundamental right or freedom has been violated as a result of an action by a public authority other than a decision, the court shall order the authority to discontinue the violation and order it, to the extent possible, to restore the situation to that which existed prior to the violation. According to section 68(1)(c) and (d), a punishment becomes time-barred after the expiration of a period of ten years if it was a prison sentence exceeding five years, and after a five year period in respect of other sanctions. Section 68(2) provides inter alia that the period of prescription begins on the date on which the judgment becomes enforceable. This period does not include any time when the sentenced person was abroad or was serving another prison sentence. Code of Criminal Procedure (Act no. 141/1961, as amended) Section 202(2) allows a trial to be held in the absence of the accused if the court considers that the case can be decided and the purpose of the criminal proceedings achieved in the accused’s absence, provided that the formal indictment was duly served, the accused was properly summoned to attend the trial and was heard as to the facts constituting the subject of the indictment by a competent authority, was officially informed of the charges (section 160) and of the possibility to study the criminal file and make any suggestions regarding the completion of the investigation (section 166(1)). According to section 248(1), an appeal shall be lodged with an appellate court within eight days of the accused receiving the judgment against which appeal is made. According to section 15, all prisoners have the same rights in the same circumstances within the scope of this Act. Section 16(5) provides that a prisoner has the right to medical care in accordance with a special law on the subject, subject to the limitations associated with the aim of the punishment. Section 26(1) provides that a prisoner has a right to file complaints and requests to the competent authorities in order to enforce those rights and interests protected by law. Such complaints and requests must be made without delay. According to section 79, the medical expenses of an uninsured prisoner are to be met by the prison service. According to section 3(1), a prisoner serves his/her prison sentence on the basis of a legitimate and enforceable court decision and pursuant to an order for the enforcement of that sentence. Section 34(1) provides that a prisoner has a right to submit complaints and requests to national authorities or such international authorities and organisations which are considered, on the European and world level, to be part of the process of gathering and examining information concerning violations of human rights. Section 18(2) provides that everyone has the right to legal representation. Those who cannot find legal representation may ask the Bar Association to appoint an attorney. According to section 12, the Czech Bar Association may decide that the remuneration of the lawyer’s fees shall be reduced or waived if it assigns a lawyer to a person who could not find legal services and his/her social and financial situation justifies such a decision. | 0 |
dev | 001-23431 | ENG | TUR | ADMISSIBILITY | 2,002 | ARSLAN v. TURKEY | 1 | Inadmissible | null | The applicant, Mr Murat Arslan, is a Turkish national who was born in 1979 and is currently detained in Nazilli Prison (Turkey). He was represented before the Court by Mr E. Yildiz, a lawyer practising in Izmir. On 9 October 2001 the applicant was arrested and taken into police custody at the headquarters of the anti-terrorism branch of the Izmir security police. On 12 October 2001, after being interviewed by the public prosecutor at the Izmir National Security Court, he was taken before a judge of that court who on 13 October 2001 ordered his detention pending trial. On 19 October 2001 the public prosecutor committed the applicant for trial in the National Security Court. The criminal proceedings against the applicant are still pending. The applicant’s lawyer dated his application 12 April 2002 and took it on 19 April to the post office in Konak (central Izmir), where post is collected regularly several times a day. | 0 |
dev | 001-104873 | ENG | BGR | ADMISSIBILITY | 2,011 | TSVETKOV v. BULGARIA | 4 | Inadmissible | Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva | The applicant, Mr Ivan Krastev Tsvetkov, is a Bulgarian national who was born in 1939 and lives in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs R. Nikolova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 15 November 1997 the applicant entered into a preliminary contract under which a Mr K.N. undertook to sell to the applicant a plot of land. Shortly afterwards, K.N. died. On 17 November 1998 the applicant brought an action against K.N.’s heirs before the Sofia District Court, requesting the court to declare the contract final. In these proceedings the applicant argued that K.N. could have sold the land as he had obtained it through adverse possession. The defendants contested the claim, stating that the land had belonged to their father, a son of K.N., who had died before K.N. and who had purchased the plot in 1969. The court held a number of hearings in which the applicant participated without counsel. By a judgment of 19 May 2000 the District Court dismissed the action, finding that the preliminary contract had been null and void ab initio as it had not determined with sufficient precision the boundaries of the disputed plot of land. On an unspecified date the applicant filed an appeal with the Sofia Regional Court. The court held several hearings. At the hearing of 7 February 2002 the applicant failed to appear. According to the record from the hearing, the court accepted a request, filed by the applicant’s representative, for additional evidence to be obtained. By a judgment of 9 July 2002 the Regional Court upheld the lower court’s judgment. On 5 December 2002 the applicant filed a cassation appeal, presenting once again his arguments, namely that the preliminary contract had been valid as the plot had been identifiable and that K.N. had acquired it through adverse possession. The defendants made submissions in reply, which were accessible to the applicant. The hearing before the Supreme Court of Cassation was listed for 18 February 2004. On 16 February 2004 the applicant requested the adjournment of the hearing on the ground of ongoing health problems. In support he presented a medical certificate. At the hearing on 18 February 2004 the defendants objected to the applicant’s request for adjournment. They stated that the applicant had counsel who could represent him. Following deliberations, the court found that the applicant: “... had had counsel in the proceedings before the second-instance court as evident from the legal representation contract [between him and] P.V. [The latter] was authorised to represent the [applicant] at all levels of the court proceedings ...” The court therefore found that the conditions for adjournment set out in Article 107 § 2 of the Code of Civil Procedure had not been met and proceeded with the hearing. At the hearing the defendants requested that the cassation appeal be dismissed on the grounds already set out in their written submissions in reply to the cassation appeal. By a judgment of 27 February 2004 the Supreme Court of Cassation dismissed the appeal. The court examined the arguments of the parties and agreed with the applicant that the preliminary contract had been valid. It found, however, that K.N. had never obtained title to the plot. The applicant has submitted a declaration by P.V. to the effect that he never acted as counsel for the applicant in the proceedings at issue. At the material time the relevant court was under a duty to adjourn a hearing in the event that a party and his representative were not able to attend due to an impediment which the party could not have removed (Article 107 § 2 of the Code of Civil Procedure 1952). This provision was reproduced verbatim in the new Code of Civil Procedure 2007 (Article 142 § 2). At the material time the cassation appeal was to be submitted to the relevant Court of Appeal which was under a duty to send a copy to the other party. The other party was then entitled to submit, within fourteen days, submissions in reply to the cassation appeal. On expiration of this period, the Court of Appeal was duty-bound to send both the cassation appeal and the reply to the Supreme Court of Cassation, which would then examine the case in an open hearing (Article 218в § 1 in relation to Articles 218г and 218e of the Code of Civil Procedure 1952). The Code of Civil Procedure 2007 introduced new requirements and procedure for the admissibility of cassation appeals. | 0 |
dev | 001-57416 | ENG | GBR | CHAMBER | 1,985 | CASE OF ABDULAZIZ, CABALES AND BALKANDALI v. THE UNITED KINGDOM | 2 | Violation of Art. 14+8;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | C. Russo | 10. The applicants are lawfully and permanently settled in the United Kingdom. In accordance with the immigration rules in force at the material time, Mr. Abdulaziz, Mr. Cabales and Mr. Balkandali were refused permission to remain with or join them in that country as their husbands. The applicants maintained that, on this account, they had been victims of a practice of discrimination on the grounds of sex, race and also, in the case of Mrs. Balkandali, birth, and that there had been violations of Article 3 (art. 3) of the Convention and of Article 8 (art. 8), taken alone or in conjunction with Article 14 (art. 14+8). They further alleged that, contrary to Article 13 (art. 13), no effective domestic remedy existed for the aforesaid claims. 11. The evolution of immigration controls in the United Kingdom has to be seen in the light of the history of the British Empire and the corresponding developments in nationality laws. Originally all persons born within or having a specified connection with the United Kingdom or the dominions owed allegiance to the Crown and were British subjects. A common British nationality was, however, difficult to reconcile with the independence of the self-governing countries of the Commonwealth into which the Empire was transformed. As the various territories concerned became independent, they introduced their own citizenship laws but, for the purposes of United Kingdom law, persons having the citizenship of an independent Commonwealth country retained a special status, known as "British subject" or "Commonwealth citizen" (these terms being synonymous). This status was also held by "citizens of the United Kingdom and Colonies". Prior to 1 January 1983, the latter citizenship was, briefly, acquired by birth within the United Kingdom or one of its remaining dependencies, by descent from a father having that citizenship, by naturalisation or by registration (British Nationality Act 1948). 12. Whereas aliens have been subject to continuing strict immigration controls over a long period, the same is not true of Commonwealth citizens. Until 1962, the latter, irrespective of their local citizenship, all had freedom to enter the United Kingdom for work and permanent residence, without any restriction. A rapid rise in the influx of immigrants, especially in 1960 and 1961, and the consequent danger of the rate of immigration exceeding the country's capacity to absorb them led to a radical change in this situation. The Commonwealth Immigrants Act 1962, and then the Commonwealth Immigrants Act 1968, restricted the right of entry of, and imposed immigration controls on, certain classes of Commonwealth citizens, including citizens of the United Kingdom and Colonies, who did not have close links to Britain. 13. The existing immigration laws were amended and replaced by the Immigration Act 1971 ("the 1971 Act"), which came into force on 1 January 1973. One of its main purposes was to assimilate immigration controls over incoming Commonwealth citizens having no close links to Britain to the corresponding rules for aliens. The Act created two new categories of persons for immigration purposes, namely those having the right of abode in the United Kingdom ("patrials") and those not having that right ("non-patrials"). 14. "Patrials" were to be free from immigration controls. The status of "patrial" was intended to designate Commonwealth citizens who "belonged" to the United Kingdom and, in summary, was conferred (by section 2 of the 1971 Act) on: (a) citizens of the United Kingdom and Colonies who had acquired that citizenship by birth, adoption, naturalisation or registration in the British Islands (that is, the United Kingdom, the Channel Islands and the Isle of Man), or were the children or grandchildren of any such persons; (b) citizens of the United Kingdom and Colonies who had at any time been settled in the British Islands for at least five years; (c) other Commonwealth citizens who were the children of a person having citizenship of the United Kingdom and Colonies by virtue of birth in the British Islands; (d) women, being Commonwealth citizens, who were or had been married to a man falling within any of the preceding categories. 15. Under section 1(2) of the 1971 Act, "non-patrials" (whether Commonwealth citizens or aliens) "may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed" by the Act. Subject to certain exceptions not relevant to the present case, a "non-patrial" shall not enter the United Kingdom unless given leave to do so (section 3(1)). He may be given such leave (or, if he is already in the country, leave to remain) either for a limited or for an indefinite period; in the former case, the leave may be subject to conditions restricting employment or requiring registration with the police or both (ibid.). Where limited leave to enter or remain is granted, it may subsequently be varied, either as regards its duration or the conditions attaching thereto but, if the limit on duration is removed, any conditions attached to the leave cease to apply (section 3(3)). The power to give or refuse leave to enter is exercised by immigration officers but the power to give or vary leave to remain can be exercised only by the Home Secretary (section 4(1)). 16. Under section 3(2) of the 1971 Act, the Home Secretary is obliged from time to time to lay before Parliament statements of the rules, or of any changes therein, laid down by him as to the practice to be followed in the administration of the Act for regulating entry into and stay in the United Kingdom. These rules contain instructions to immigration officers as to how they shall exercise the statutory discretions given to them by the Act and statements of the manner in which the Home Secretary will exercise his own powers of control after entry. The rules are required to provide for the admission of persons coming for the purpose of taking employment, or for the purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom, but uniform provision does not have to be made for these categories and, in particular, account may be taken of citizenship or nationality (sections 1(4) and 3(2)). Thus, different rules can be and are made for nationals of the member States of the European Economic Community under Community law, and Irish citizens are in a special position. 17. The rules are subject to a negative resolution procedure whereby, if a resolution disapproving the Home Secretary's statement is passed by either House of Parliament within forty days of its being laid, he is required as soon as may be to make such changes as appear to him to be required in the circumstances and to lay the rules as amended before Parliament within forty days of the passing of the resolution (section 3(2)). The statement of rules thus amended is subject to the same procedure as the original statement. Because of the continuous nature of decision-making by immigration officers, the statement originally laid is not abrogated by any negative resolution; it will come into operation when made or on the date therein provided and will remain in force until replaced. 18. The exact legal status of the rules is of some complexity. This question was considered by the Court of Appeal in R. v. Secretary of State for the Home Department, ex parte Hosenball [1977] 3 All England Law Reports 452, when Lord Denning MR said: "[The Home Secretary's rules] are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the [1971 Act]. They can be, and often are, prayed in aid by applicants before the courts in immigration cases. To some extent the courts must have regard to them because there are provisions in the Act itself, particularly in section 19, which show that in appeals to an adjudicator, if the immigration rules have not been complied with, then the appeal is to be allowed. In addition the courts always have regard to those rules, not only in matters where there is a right of appeal; but also in cases under prerogative writs where there is a question whether officers have acted fairly. But they are not rules in the nature of delegated legislation so as to amount to strict rules of law." Lord Justice Geoffrey Lane also doubted whether the rules constituted delegated legislation. He observed: "These rules are very difficult to categorise or classify. They are in a class of their own. They are certainly a practical guide for ... immigration officers .... Indeed they are, as to large parts, ... little more than explanatory notes of the [1971 Act] itself." However, he noted that if Parliament disapproved of the rules, they were not thereby abrogated. Furthermore, at least as far as an adjudicator dealing with appeals was concerned, the rules had the force of law, although it seemed that they could be departed from with the consent of the applicant himself. Lord Justice Cumming-Bruce said: "[The rules] are a totally different kind of publication from the rules that usually come into being under the authority delegated to Ministers under Acts of Parliament; ... they are not in my view in any sense of themselves of legislative force. It is true that ... the rules are given legal effect in the field of the appellate process to the adjudicator or the tribunal .... But the legal effect that the rules have in that limited field flows not from the fact that they have been published by the Minister and laid before Parliament, but because by section 19(2) of the [1971 Act] the rules are given an effect which is in a certain field clearly legally enforceable, and that is a quite different matter." 19. Notwithstanding that an application for entry clearance (see paragraph 22 (b) below) or leave to enter or remain may fall to be refused under the relevant immigration rules, the Home Secretary has a discretion, deriving from historic prerogative powers, to authorise in exceptional circumstances the grant of entry clearance or of leave to enter, or to allow a person to remain in the United Kingdom. Where the applicant is a husband seeking to join or remain with his wife settled in the United Kingdom, factors which the Home Secretary will consider include the extent of her ties with that country and of the hardship she might suffer by going to live abroad, and any recommendations by the immigration appellate authorities (see paragraphs 34-37 below). 20. The rules in force at the time of the events giving rise to the present case were contained in the "Statement of Changes in Immigration Rules" (HC 394), laid before Parliament on 20 February 1980 ("the 1980 Rules"); they applied to all decisions taken on or after 1 March 1980, except those relating to applications made on or before 14 November 1979. A draft of the rules had previously been included in a White Paper published in November 1979. The 1980 Rules, which in paragraph 2 instructed immigration officers to carry out their duties without regard to the race, colour or religion of the intending entrant, detailed firstly the controls to be exercised on the entry into the United Kingdom of "non-patrials" and then those to be exercised after entry. The former depended on whether the individual concerned was coming for temporary purposes (for example, visitors or students), for employment or business or as a person of independent means, or for settlement. As under the rules previously in force, visitors were normally to be prohibited from taking employment and persons wishing to come for employment were subject to strict regulations as to work permits. The work-permit requirements, however, did not apply to nationals of other member States of the European Economic Community nor to persons covered by the "United Kingdom ancestry rule"; under the latter rule, which had been in force since the 1971 Act came into operation, a Commonwealth citizen having a grandparent born in the British Islands and wishing to take or seek employment in the United Kingdom could obtain indefinite leave to enter even without a work permit. A further exception was to be found in the "working holiday rule", whereby young Commonwealth citizens could, without a permit, take employment incidental to an extended holiday being spent in the United Kingdom; however, the period of their stay could, under the 1980 Rules, not exceed two years. All these exceptions have been maintained in subsequent immigration rules. 21. A particular feature of the changes introduced by the 1980 Rules was the inclusion of a number of provisions directed towards implementing a policy of protecting the domestic labour market at a time of high unemployment by curtailing "primary immigration", that is immigration by someone who could be expected to seek full-time work in order to support a family. In taking these measures, the Government were concerned also to advance public tranquillity and, by exercising firm and fair immigration control, to assist in securing good community relations. To these ends, among the changes effected was the introduction of stricter conditions for the grant of leave to a "non-patrial" husband or fiancé seeking to join or remain with his wife or fiancée settled in the United Kingdom. Previously, any such husband or fiancé would normally have been allowed to settle after a qualifying period, provided that the primary purpose of the marriage was not to obtain settlement in that country. These new measures were not extended to the wives and fiancées of settled men, a fact attributed by the Government to long-standing commitments (based allegedly on humanitarian, social and ethical reasons) to the reunification of the families of male immigrants. Nor did the new measures apply to nationals of other member States of the European Economic Community. 22. The relevant provisions of the 1980 Rules - and of their successors - are summarised below in terms of the following expressions. (a) A person is "settled in the United Kingdom" when he or she is ordinarily resident there without having entered or remained in breach of the immigration laws, and is free from any restriction on the period for which he or she may remain (paragraph 1). (b) An "entry clearance" (paragraphs 10-14) is a document (either a visa, an entry certificate or a Home Office letter of consent, depending on the nationality of the person concerned) which is to be taken by an immigration officer as evidence that the holder, although a "non-patrial", is eligible under the immigration rules for entry to the United Kingdom. It is obtained at British missions abroad or from the Home Office prior to arrival in the United Kingdom. (c) A marriage or intended marriage is "non-qualifying" if there is reason to believe that: - its primary purpose is to obtain admission to or settlement in the United Kingdom; or - the parties do not intend to live together permanently as man and wife; or - the parties have not met (paragraphs 50, 52 and 117). (d) There is "potential evasion of the rules" if there is reason to believe that a husband has remained in the United Kingdom in breach of the immigration rules before the marriage, that the marriage has taken place after a decision or recommendation that he be deported or that the marriage has terminated (paragraph 117). (e) The "financial requirement" is a requirement that varies according to the circumstances of the particular case : basically it means that adequate maintenance and accommodation must be available to the person concerned without the need for recourse to public funds (paragraphs 42, 52 and 55). 23. Where a "non-patrial" whose spouse or intended spouse was "settled in the United Kingdom" came to that country for settlement, he or she would be admitted for that purpose provided that he or she held a current "entry clearance" and unless the circumstances specified in paragraph 13 of the 1980 Rules obtained (for example, false representations, medical grounds, criminal record, exclusion would be conducive to the public good). (a) Where the intending entrant was a husband or fiancé, he could, under paragraphs 50 and 52, obtain an "entry clearance": (i) unless the marriage or intended marriage was "non-qualifying"; (ii) if his wife or fiancée was a citizen of the United Kingdom and Colonies who or one of whose parents had been born in the United Kingdom; and (iii) if, in the cases of fiancés only, the "financial requirement" was satisfied. (b) Where the intending entrant was a wife or fiancée, she could, under paragraphs 42, 43 and 55, obtain an "entry clearance" irrespective of the nationality of her husband or fiancé or of his own or his parents' place of birth. Here, there was no provision as to "non-qualifying" marriages, but the "financial requirement" had generally to be satisfied. (c) Wives admitted under these rules would be given indefinite leave to enter; husbands would be initially admitted for twelve months and fiancés or fiancées for three months, with the possibility, subject to certain safeguards, of applying subsequently to the Home Office for indefinite leave (paragraphs 44, 51, 53, 55, 114 and 116). 24. "Non-patrials" already admitted to the United Kingdom in a temporary capacity who subsequently married a person "settled in the United Kingdom" could also obtain permission to stay. (a) Where the "non-patrial" seeking permission was a man, the basic conditions (paragraph 117) were that: (i) his wife was a citizen of the United Kingdom and Colonies who or one of whose parents had been born in the United Kingdom; and (ii) the marriage was not "non-qualifying" and there was not "potential evasion of the rules". (b) Where the "non-patrial" seeking permission was a woman, she would normally be granted leave to remain on application (paragraph 115). (c) Leave to remain granted under these rules would be, for wives, indefinite and, for husbands, for an initial period of twelve months with the possibility, subject again to the conditions referred to in sub-paragraph (a) (ii) above, of subsequent removal of the time-limit (paragraphs 115 and 117). 25. Decisions on applications for leave to remain were taken in the light of all relevant facts; thus, even where the individual satisfied the formal requirements, permission would normally be refused if the circumstances specified in paragraph 88 of the 1980 Rules obtained (for example, false representations, non-compliance with the time-limit or conditions subject to which he or she had been admitted or given leave to remain, undesirable character, danger to national security). 26. One result of the 1971 Act was that the right of abode in the United Kingdom became divorced from nationality : thus, a number of citizens of the United Kingdom and Colonies did not have that right (for example, because they had not been born in the British Islands; see paragraph 14 (a) above), whereas it was enjoyed by a number of persons who were not such citizens (for example, Commonwealth citizens having an ancestral link with the United Kingdom; see paragraph 14 (c) above). With a view to bringing citizenship and immigration laws into line, the position was substantially amended by the British Nationality Act 1981, which came into force on 1 January 1983. So far as is relevant for the present purposes, that Act: (a) replaced citizenship of the United Kingdom and Colonies (see paragraph 11 in fine above) with three separate citizenships, "British", "British Dependent Territories" and "British Overseas"; (b) provided, in section 11(1), that on 1 January 1983 "British citizenship" was to be acquired by persons who were then citizens of the United Kingdom and Colonies and had the right of abode in the United Kingdom under the 1971 Act; this category could include a person who was neither born nor had a parent born in the United Kingdom (see paragraph 14 (b) above); (c) laid down detailed provisions on the acquisition of British citizenship by persons born after 1 January 1983; (d) contained, in section 6 and Schedule 1, detailed provisions on naturalisation as a British citizen on the basis of residence in the United Kingdom, the grant of a certificate of naturalisation being at the discretion of the Home Secretary; (e) amended the 1971 Act by providing in section 39 that the right of abode in the United Kingdom - use of the expressions "patrial" and "non-patrial" was abandoned - and the consequential freedom from immigration controls were in future to be enjoyed only by British citizens and by such Commonwealth citizens as on 31 December 1982 had the right of abode under the 1971 Act. 27. On 6 December 1982, after debates in the House of Commons and the House of Lords, the Home Secretary laid before Parliament a Statement of Changes in Immigration Rules (HC 66; "the 1982 Rules"), intended to harmonise the immigration rules with the British Nationality Act 1981 and expressed to come into force on 1 January 1983. However, on 15 December 1982 the House of Commons passed a resolution disapproving the Statement, some Members finding the changes too lax and others, insufficient. Since by 1 January 1983 no further changes had been laid before Parliament, the 1982 Rules came into force on that date, notwithstanding the negative resolution (see paragraph 17 above). 28. The 1982 Rules made no changes to the regime governing wives and fiancées, described in paragraphs 23-25 above. The regime governing a husband or fiancé was modified in the following main respects. (a) The requirement that, for him to be eligible for leave to enter or remain, his wife or fiancée had to be a citizen of the United Kingdom and Colonies born or having a parent born in the United Kingdom was, under paragraphs 41, 54 and 126, replaced by a requirement that she be a British citizen. The place of her own or her parents' birth ceased to be material since British citizens could include persons without the territorial birth link (for example, a woman born in a former Colony but having the right of abode in the United Kingdom by virtue of long residence there; see paragraphs 14 (b) and 26 (b) above). (b) By virtue of paragraphs 41, 54 and 126, the onus of proof was reversed, so that it became for the man seeking leave to enter or remain to show that the marriage was not "non-qualifying" or, in cases to which paragraph 126 applied, that there was not "potential evasion of the rules". (c) Leave to remain for settlement following marriage, granted to a man admitted in a temporary capacity (cf. paragraph 24 (c) above), would be for an initial period of twelve months, followed by a further period of twelve months and then by the possibility, subject again to the conditions referred to in sub-paragraph (b) above, of subsequent removal of the time-limit (paragraph 126). 29. No provision was made in the 1982 Rules for women settled in the United Kingdom who were not British citizens to be joined by their husbands, although leave could be granted by the Home Secretary in the exercise of his extra-statutory discretion (see paragraph 19 above). These women could also apply for naturalisation as British citizens on the basis of residence, under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above). 30. On 9 February 1983, a further Statement of Changes in Immigration Rules (HC 169; "the 1983 Rules") was laid before Parliament. A motion disapproving these rules was defeated in the House of Commons and they came into force on 16 February 1983. 31. The 1983 Rules again did not modify the regime governing wives and fiancées. That governing husbands was amended, so far as is material to the present case, in that, under paragraph 126, the position concerning the length of leave to remain granted to a man already in the United Kingdom reverted to that obtaining under the 1980 Rules (that is, initial leave of twelve months, followed by the possibility of indefinite leave; see paragraph 24 (c) above). This change was coupled with a transitional provision (paragraph 177) concerning men who, whilst the 1982 Rules were in force (see paragraph 28 (c) above), had been granted thereunder an extension of stay for a second period of twelve months: they were entitled to apply immediately for indefinite leave without awaiting the expiry of that period. 32. There was no change in the position concerning women settled in the United Kingdom who were not British citizens, described in paragraph 29 above. 33. Under sections 3(5)(a), 3(6), 5, 6, 7 and 24(1)(b) of the 1971 Act, a person not having the right of abode in the United Kingdom and having only limited leave to enter or remain in that country who overstays the period of leave or fails to observe a condition attached thereto: (a) commits a criminal offence punishable with a fine of not more than £200 or imprisonment of not more than six months or both, to which penalties the court may, with certain exceptions, add a recommendation for deportation; and (b) is, with certain exceptions, liable to deportation, although he cannot be compelled to leave unless the Home Secretary decides to make a deportation order against him. 34. Appellate authorities in immigration matters were established by the Immigration Appeals Act 1969. They consist of: (a) adjudicators, who sit alone and are appointed by the Home Secretary; (b) the Immigration Appeal Tribunal which sits in divisions of at least three members; the members are appointed by the Lord Chancellor and a certain number must be lawyers. There is no further right of appeal as such to the ordinary courts, but decisions of the appellate authorities are susceptible to judicial review by the High Court on the ground of such matters as error of law or unreasonableness. Judicial review of immigration decisions may also cover questions of an abuse or excess of power by the Home Secretary or whether an immigration officer acted impartially and fairly. 35. Under sections 13, 14 and 15 of the 1971 Act, an appeal may, subject to certain exceptions, be made to an adjudicator against, inter alia: (a) refusal of leave to enter the United Kingdom or of an entry clearance; (b) variation of, or refusal to vary, a limited leave to remain in the United Kingdom; (c) a decision to make a deportation order. An appellant shall not be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending against a refusal to enlarge or remove the limit on the duration of the leave. However, no appeal lies against refusal of an extension of leave to remain if application therefor was made after expiry of the existing leave. 36. Except as otherwise provided by the 1971 Act, an adjudicator is, under section 19(1), to allow an appeal only if he considers: (a) that the decision or action in question was not in accordance with the law or any immigration rules applicable to the case; or (b) that, where the decision or action involved the exercise of a discretion by the Home Secretary or an officer, that discretion should have been exercised differently. If, however, the decision or action is in accordance with the rules, the adjudicator may not review a refusal by the Home Secretary of a request, by the person concerned, that he should depart from the rules (section 19(2)). Where an appeal is allowed, the adjudicator must give such directions for giving effect to his decision as he thinks requisite and may also make further recommendations; the directions are binding on the Home Secretary except so long as an appeal to the Immigration Appeal Tribunal can be brought or is pending (sections 19(3) and 20(2)). 37. Any party to an appeal to an adjudicator may appeal against his decision to the Immigration Appeal Tribunal, which may affirm that decision or make any other decision which the adjudicator could have made; it also has similar duties and powers in the matter of directions and recommendations. As the law stood at the relevant time, leave to appeal had generally to be obtained; it had to be granted, inter alia, if determination of the appeal turned upon an arguable point of law (section 20(1) of the 1971 Act and Rule 14 of the Immigration Appeals (Procedure) Rules 1972). 38. (a) The Government estimated total immigration into the United Kingdom from the New Commonwealth (that is, the Commonwealth except Australia, Canada and New Zealand) at 500,000 in the period from 1955 to mid-1962. It was thought that by the latter date some 600 million people had the right of abode (see paragraphs 13-14 above) in the United Kingdom. Between mid-1962 and the end of 1981, a further 900,000 people were estimated to have settled in that country from the New Commonwealth and Pakistan, some 420,000 from non-Commonwealth countries other than Pakistan and some 94,000 from the Old Commonwealth (Australia, Canada and New Zealand); relatively few countries were said to have accounted for most of this immigration. The official estimates for 1981 show that the population of the United Kingdom (53.7 million) included 2.2 million persons of New Commonwealth and Pakistan origin (of whom about 1 million were in the Greater London area) and 1.2 million other persons not born in the United Kingdom (including those born in the Old Commonwealth but not those born in the Republic of Ireland). It is estimated that the population of New Commonwealth and Pakistan origin could rise to 2.5 million by 1986 and 3 million (5 per cent of the projected total population) by 1991. (b) According to the Government, some 3,500 persons entered the United Kingdom annually under the "United Kingdom ancestry rule" (see paragraph 20 above), but many of them emigrated after a few years. (c) In 1980-1983, there was an average net annual emigration from the United Kingdom of about 44,000, but the population density in 1981 - 229 persons per square kilometer or 355 persons per square kilometer for England alone - was higher than that of any other member State of the European Communities. (d) Statistics supplied by the Government showed that in Great Britain in 1981 90 per cent of all men of working age and 63 per cent of all women of working age were "economically active" (that is, either in employment, or self-employed, or unemployed). The corresponding figures for persons coming from the Indian sub-continent were 86 per cent for men and 41 per cent for women and, for persons coming from the West Indies or Guyana, 90 per cent for men and 70 per cent for women. The statistics also disclosed that a considerably higher proportion of "economically active" women (particularly married women) than men were in part-time employment only - 47 per cent of married women, compared with 2.3 per cent of men. Recent years have seen a high level of unemployment in the United Kingdom. In 1983, 15.3 per cent of "economically active" men and 8.4 per cent of "economically active" women were unemployed, as measured by official figures based on persons claiming unemployment benefit. There was a marked increase between 1980 and 1981, when the figures rose from 7.9 to 12.5 per cent and from 4.3 to 6.4 per cent, respectively. (e) The Government also produced to the Court detailed statistics in support of their claim that the overall effect of the 1980 Rules had been to lead to an annual reduction of up to 5,700 (rather than 2,000, as they had estimated before the Commission) in the number of husbands either accepted for settlement or applying successfully to come for settlement from all parts of the world. They recognised, however, that part - though not a major part - of this figure might represent a decrease attributable to economic conditions. In their submission, this reduction was of a considerable scale when viewed in relation to the figures for the total number of persons accepted for settlement into the United Kingdom. The latter figures (about one-half of which were in each year accounted for by wives and children of men already settled in the country) were: over 80,000 in 1975 and in 1976; around 70,000 in each year from 1977 to 1980; 59,100 in 1981; 53,900 in 1982; and 53,500 in 1983. The number of men accepted for settlement by reason of marriage was 11,190 in 1975; 11,060 in 1976; 5,610 in 1977; 9,330 in 1978; 9,900 in 1979; 9,160 in 1980; 6,690 in 1981; 6,070 in 1982; and 5,210 in 1983. The number of women so accepted was 19,890 in 1977; 18,950 in 1978; 19,780 in 1979; 15,430 in 1980; 16,760 in 1981; 15,490 in 1982; and 16,800 in 1983. The claimed reduction of 5,700 per annum was questioned by the applicants on the following grounds: it was based on a comparison with the figures for 1979, a year in which the number of applications from the Indian sub-continent was artificially high; in order to take account of the delays in processing applications and the twelve-month waiting-period before indefinite leave to remain would be granted, a more meaningful comparison would be between the 1981 and the 1983 figures; no account was taken of the natural decline in applications; and no account was taken of persons properly excluded (for example, on the ground that the marriage was not genuine). 39. Mrs. Nargis Abdulaziz is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in Malawi in 1948 and brought up in that country. Her parents were also born there. According to her, she was a citizen of Malawi at birth but, being of Indian origin, was subsequently deprived of that citizenship and is now stateless. She holds a Malawian travel document. This applicant went to the United Kingdom on 23 December 1977. She was given leave, as a "non-patrial" (see paragraphs 13-15 above), to enter as a visitor, leave which was subsequently extended on three occasions. Since special vouchers had been allocated to members of her family enabling them to settle in the United Kingdom, an application was made on her behalf for indefinite leave to remain. On 16 May 1979 as an act of discretion outside the immigration rules (see paragraph 19 above), she was given such leave, essentially on the ground that she was an unmarried woman with little prospect of marriage who formed part of a close family, including her father and mother, settled in the United Kingdom. 40. Mr. Ibramobai Abdulaziz is a Portuguese national who was born in Daman, a former Portuguese territory in India, in 1951. He emigrated to Portugal in 1978. On 4 October 1979, he was admitted, as a "non-patrial", to the United Kingdom for six months as a visitor. He met the applicant six days later and they became engaged to be married on 27 November. They were married on 8 December 1979 and, during the following week, Mrs. Abdulaziz applied for leave for her husband to remain permanently in the United Kingdom. Shortly afterwards, the Joint Council for the Welfare of Immigrants also applied for leave for him to remain, for a period of twelve months. 41. After Mr. and Mrs. Abdulaziz had been interviewed at the Home Office on 6 June 1980, her application was refused, on 1 July, on the ground that she was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 117 of the 1980 Rules; see paragraph 24 (a) (i) above). Mr. Abdulaziz appealed to an adjudicator (see paragraphs 34-36 above) against this decision but the appeal was dismissed on 6 October 1981 as he did not qualify for leave to remain under the 1980 Rules. The adjudicator pointed out that, had the application been made before 14 November 1979 or the decision taken before 1 March 1980, Mr. Abdulaziz would have been admitted, under the previous rules (see paragraphs 20 and 21 above). Leave to appeal to the Immigration Appeal Tribunal was refused by the Tribunal on 9 December 1981 on the ground that the determination of the appeal did not turn on any arguable point of law and that leave to appeal was not otherwise merited (see paragraph 37 above). 42. Subsequently Mr. Abdulaziz remained, and still remains, in the United Kingdom, without leave. He is currently employed as a chef in a restaurant; his wife does not work. A son was born to the couple in October 1982. In a letter of 24 February 1982 to one Member, the Minister of State at the Home Office indicated that the authorities would shortly be advising Mr. Abdulaziz to depart without delay, adding that if he did not, "consideration will have to be given to enforcing his departure"; however, a letter of 29 November 1982 to another Member stated that "[the Minister did] not propose for the time being to take any action regarding [Mr. Abdulaziz's] removal". In fact, the authorities have not to date instituted any criminal or deportation proceedings (see paragraph 33 above) against him; their decision, according to the Government, was taken in the light of all the circumstances, including the Commission's decision on the admissibility of Mrs. Abdulaziz's application (see paragraph 55 below). The couple's situation has not until now been changed by the 1982 or the 1983 Rules since Mrs. Abdulaziz, although settled in the United Kingdom, is not a British citizen (see paragraphs 27-32 above). She has, however, applied, on 16 August 1984, for naturalisation as such a citizen, under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above). 43. At the Home Office interview, Mr. Abdulaziz said that his wife could not be expected to live in Portugal because she had always been close to her family and because her sick father - who in fact died in September 1980 - needed her company. Before the Commission and the Court, she claimed that her health was under strain because of her husband's settlement problems and that humanitarian considerations prevented her going to Portugal, a country where she had no family and whose language she did not speak. The Government maintain that there is no obstacle whatever to her going with her husband to live in Portugal. 44. Mrs. Arcely Cabales is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in the Philippines in 1939 and was brought up there, and is of Asian origin. She had the nationality of that country until 1984 (see paragraph 47 below). Her parents were born and live in the Philippines. This applicant went to the United Kingdom in 1967 with a work permit for employment as a nursing assistant and was admitted, as a "non-patrial" (see paragraphs 13-15 above), for twelve months. She remained in approved work thereafter and, on 10 June 1971, the conditions attached to her stay were removed and she was allowed to remain in the United Kingdom indefinitely. She is now employed, and has an established career, as a State-enrolled nurse. 45. Mr. Ludovico Cabales is a citizen of the Philippines, born in that country in 1937. He met the applicant in Manila in 1977 when she was on holiday and again in 1979 when she was there for one or two months. During the latter period, the couple became engaged. On 23 April 1980, they went through a ceremony of marriage in the Philippines. The applicant returned to the United Kingdom shortly afterwards to take up her job again. In May 1980, she informed the Home Office of the marriage and applied for leave for Mr. Cabales to enter the United Kingdom, a request which she repeated in August. On 27 November, he, being a "non-patrial", applied to the British Embassy in Manila for a visa to join his wife for settlement in the United Kingdom. 46. After Mrs. Cabales had supplied certain further information requested by it, the Home Office wrote to her on 23 February 1981 to advise her that the visa application had been refused on the ground that she was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 50 of the 1980 Rules; see paragraph 23 (a) (ii) above). Notice of the decision was not handed to Mr. Cabales until 12 November 1981 as he had failed to respond to an invitation of March 1981 to attend at the Manila Embassy for that purpose. On 20 August 1981, the Joint Council for the Welfare of Immigrants wrote to the Home Office Immigration and Nationality Department, seeking a review of this decision. However, on 13 January 1982, the Department, having considered the circumstances, informed the Council of its decision to maintain the refusal. Mr. Cabales had on 8 December 1981 lodged an appeal with an adjudicator (see paragraphs 34-36 above) against the decision but the appeal was dismissed on 25 July 1983 on the ground that the visa officer's decision was in accordance with the law and the immigration rules. The adjudicator, who noted that Mrs. Cabales had not taken legal advice but had thought at the time of the marriage ceremony that a forthcoming change in the law would allow Mr. Cabales to be admitted, expressed the hope that the authorities would look at the case sympathetically. This was not initially recognised by the authorities as a recommendation, but the Home Secretary subsequently concluded that there were not sufficient grounds for acting outside the immigration rules. There is no record of an application for leave to appeal to the Immigration Appeal Tribunal. Representations to the Home Office were also rejected, basically on the ground that the couple could live together in the Philippines and that there were not sufficient reasons for the Home Secretary to exercise his extra-statutory discretion. 47. Between April 1980 and December 1984, Mr. Cabales continued to live in the Philippines and the couple were separated, apart from a short period in 1983 when Mrs. Cabales visited that country. However, following an application made by her in November 1982 under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above), Mrs. Cabales obtained naturalisation as a British citizen with effect from 18 April 1984; she thereby lost her Philippine citizenship. On 10 July 1984, Mr. Cabales applied for entry clearance for permanent settlement as the husband of a British citizen, under paragraph 54 of the 1983 Rules (see paragraphs 30-31 above). For the reasons and in the circumstances indicated in the following paragraph, this application was refused on 1 October 1984 but, on the following day, Mr. Cabales applied for and was granted a visa entitling him to enter the United Kingdom for three months for the purposes of marriage. He arrived in that country on 19 December 1984 and the parties were married there on 26 January 1985. On 4 February, he was granted leave to remain as a husband for the next twelve months; on the expiry of that period, he will be eligible to apply for indefinite leave. 48. In a memorial filed with the Court on 27 July 1984, the Government questioned the validity of the 1980 marriage (see paragraph 45 above). Under Articles 53 and 80 of the Philippine Civil Code, a marriage solemnised without a licence was to be considered void, save in the case of a "marriage of exceptional character", that is one between persons who have lived together as husband and wife for at least five years (Article 76). The Cabales marriage contract recited that the ceremony the couple went through in 1980 had been performed, without a licence, under Article 76. The parties had stated in a contemporaneous affidavit that they had previously cohabited for at least five years, but according to Mrs. Cabales' version of the facts this could not be so since she had not met Mr. Cabales until 1977 (see paragraph 45 above). According to the Government, the requirements of Article 76 were therefore not satisfied and the marriage thus had to be considered void. At the hearings on 25 September 1984, the applicant's counsel expressed the view that, assuming a defect existed, it was purely formal and the status of Mr. and Mrs. Cabales could be regarded as akin to that of the parties to a common-law marriage. Her representative subsequently filed with the Court details of the advice he had received from Philippine lawyers, to the effect that under the law of that country the marriage was to be presumed valid unless and until it was declared void by a court. The Government replied that they had been advised that the marriage was void ab initio and that no judicial decree was necessary to establish its invalidity. This opinion was contradicted in further advice obtained on behalf of Mrs. Cabales. Mr. and Mrs. Cabales were interviewed by the United Kingdom authorities in August and September 1984. They adduced no evidence to alter the Government's conclusion that the marriage was void. However, Mrs. Cabales stated that if Mr. Cabales were admitted to the United Kingdom, the couple would go through a ceremony of marriage in that country. It was in these circumstances that in October 1984 Mr. Cabales was refused leave to settle as a husband but was regarded as eligible, under the 1983 Rules, for leave to enter the United Kingdom temporarily as the fiancé of a British citizen. 49. Before the Commission and the Court, Mrs. Cabales submitted that there would have been real obstacles to her returning to live in the Philippines: she was too old, her qualifications were not recognised there and, by working in the United Kingdom, she was able to support financially her parents and other members of her family. These claims were contested by the Government, in particular on the ground that it was unrealistic to suppose that her nursing skills could not be put to good use in the Philippines. 50. Mrs. Sohair Balkandali is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in Egypt in 1946 or 1948. Her parents were born and live in that country. This applicant first went to the United Kingdom in November 1973 and was given leave, as a "non-patrial" (see paragraphs 13-15 above), to enter as a visitor for one month. Subsequently, she obtained several further leaves to remain, as a visitor or a student, the last being until August 1976. She has a high level of university education. In 1978, she married a Mr. Corbett, a citizen of the United Kingdom and Colonies, and, five days later, was given indefinite leave to remain in the United Kingdom, by virtue of her marriage, under the provisions then in force. On 26 October 1979, again by virtue of her marriage, she obtained registration as a citizen of the United Kingdom and Colonies under the British Nationality Act 1948, as a result of which she became a "patrial" (see paragraphs 11 in fine and 14 (a) above). At that time, she was already separated from Mr. Corbett and the marriage was dissolved in October 1980. 51. Mr. Bekir Balkandali is a Turkish national born in Turkey on 9 April 1946. In January 1979, he was granted leave, as a "non-patrial", to enter the United Kingdom, apparently as a visitor, for one month. Subsequently, he obtained leave to remain as a student until 31 March 1980. His application of 2 April for an extension of this leave was refused on 23 September 1980 because he had not attended his course of studies and the Home Secretary was not satisfied that he was a genuine student who intended to leave the country on their conclusion. Since his application for an extension had been made after his leave had expired, he had no right of appeal under the 1971 Act (see paragraph 35 above); he was advised to leave the United Kingdom and warned of the risk of criminal or deportation proceedings (see paragraph 33 above) if he did not. 52. Since the autumn of 1979, the applicant had been living with Mr. Balkandali. In April 1980 they had a son, who has the right of abode in the United Kingdom. On 14 October 1980, an application was made by the Joint Council for the Welfare of Immigrants for leave for Mr. Balkandali to remain in the United Kingdom until he married his fiancée, the applicant. They were interviewed together by Home Office officials on 30 March 1981 and produced evidence of their marriage, which had been celebrated in January 1981. The application was therefore treated as one to remain as the husband of a woman settled in the United Kingdom. Leave was refused on 14 May 1981 on the ground that Mrs. Balkandali was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 117 of the 1980 Rules; see paragraph 24 (a) (i) above). There was no right of appeal against this decision as Mr. Balkandali had no current leave to remain at the time when his application was made (see paragraph 35 above). Representations through a Member of Parliament to the Home Office were rejected, basically on the ground that the couple could live together in Turkey and that there were not sufficient compelling compassionate circumstances to warrant exceptional treatment outside the immigration rules. In a letter of 18 December 1981 to the Member, the Minister of State at the Home Office wrote that "Mr. Balkandali should now make arrangements to leave the United Kingdom forthwith, otherwise arrangements will be made to enforce his departure"; however, a letter of 3 December 1982 to the Member stated that "[the Minister did] not propose for the time being to take any action against [Mr. Balkandali]". In fact, the authorities did not at any time institute criminal or deportation proceedings (see paragraph 33 above) against him; their decision, according to the Government, was taken in the light of all the circumstances, including the Commission's decision on the admissibility of Mrs. Balkandali's application (see paragraph 55 below). 53. On 20 January 1983, as the husband of a British citizen, Mr. Balkandali was given twelve months' leave to remain in the United Kingdom in accordance with paragraph 126 of the 1982 Rules (see paragraph 28 (a) above); this was possible because, on 1 January 1983, Mrs. Balkandali had automatically acquired British citizenship by virtue of the British Nationality Act 1981 (see paragraph 26 (b) above). Mr. Balkandali subsequently applied for indefinite leave to remain and this was granted on 18 January 1984 under paragraph 177 of the 1983 Rules (see paragraph 31 above). In September 1984, he was working in the catering business and planned shortly to open a restaurant; his wife was working two days a week in a creche. 54. Before the Commission and the Court, Mrs. Balkandali submitted that there would have been real obstacles to her going with her husband to live in Turkey: she cited her strong ties to the United Kingdom and alleged that as an educated woman and the mother of an illegitimate child she would have been treated as a social outcast in Turkey. The Government maintain that there were no real obstacles. | 1 |
dev | 001-58802 | ENG | FRA | CHAMBER | 2,000 | CASE OF GNAHORE v. FRANCE | 1 | No violation of Art. 6-1;No violation of Art. 8;Preliminary objection rejected (non-exhaustion of domestic remedies) | Nicolas Bratza | 9. The applicant was born in 1952 and lives at Villeurbanne (France). He is the father of three children whom he had been bringing up alone: I. and Ch., who were born in the Ivory Coast in 1974 and 1976 respectively, and C., who was born in France in 1988. 10. On 14 January 1992 the applicant took C. to the ophthalmic unit of Herriot Hospital in Lyons. The child, who presented bruising to each eye, a cut to the right forearm, abrasions to the abdomen and healed scar tissue to the face, was admitted to the paediatric ward. The Lyons public prosecutor's office was informed and a police investigation set in motion. On 15 January 1992 the public prosecutor made an order placing C. in the care of the child-welfare service (“the ASE”) of the Rhône département. A doctor examined the child on 16 January and concluded that his tegumentary lesions could have been caused by abuse. 11. On 17 January 1992 the investigating judge at the Lyons tribunal de grande instance charged the applicant with assault with intent by an ascendant on a minor aged under 15 and placed him under court supervision. 12. On 20 January 1992 the children's judge at the Lyons tribunal de grande instance made an order under Articles 375 et seq. of the Civil Code for C.'s temporary placement with the ASE and issued an injunction against the applicant banning him from “all contact before the hearing of 12 February 1992” on the ground that “... [C.] [had] been admitted to hospital and that he [was] at risk in the family home ...”. By a judgment of 12 February 1992 the children's judge placed C. with the ASE for a period of one year. He put the applicant's two other sons in the care of the same authority; I. was to remain in care until he reached his majority and Ch. for one year. The reasons given in the judgment were: “... the domestic situation is difficult and the children are in danger; ... their removal from home is necessary to enable relations with the father to become less conflictual and to make the children feel more secure by helping them to resolve their personal difficulties”. On an appeal by the applicant, the Special Minors' Division of the Lyons Court of Appeal upheld all the provisions of the judgment of the court below in a decision of 23 March 1992, on the following grounds: “... Mr Gnahoré is bringing up his three sons in circumstances made difficult in particular by the fact that he works as a night-watchman and the three mothers are absent: two live in Africa, while his relations with the third, Ch.'s mother, are very intermittent. ... on 8 January 1990 Mr Gnahoré applied for educative assistance measures in respect of his son, I., who had run away from home and was beyond his control; ... in an interview with the caseworkers on 12 April 1990, the father came across as someone who was inflexible, incapable of understanding his son's sufferings and with whom it would be impossible to implement any educative measures; I. has had to remain in care ... ... Ch. has been virtually abandoned and no longer tolerates the tension in his relations with his father or his father's authoritarianism. ... it appears that he is unable to obtain from his father a response to his emotional and educative needs. ... accordingly, since the conditions in which the minor is brought up are highly unsatisfactory, the order for Ch.'s placement will stand. ... ... on both occasions [C.] was admitted to hospital – on 3 August 1991 with a cranial traumatism and bruising to both eyelids and on 15 January 1992 with bilateral periorbital bruising – the public prosecutor's office was advised by the Lyons civil hospital authorities of the suspect origin of the injuries. ... whatever the origin of the injuries, it does not appear that Mr Gnahoré offers the material and educative guarantees necessary to ensure the child's health and safety. ...” 13. On 18 May 1992 Professor D., a doctor at Herriot Hospital, examined C. and found that he presented post-traumatic ecchymosis caused by a fall a few days' earlier in the home where he had been placed. On 25 May he said in a letter to the investigating judge that it was “possible that the child presented a propensity to major haematomic reaction to moderate trauma and [that it was] quite possible that that propensity had ... led to the degree of trauma being over-estimated during the child's two stays in hospital that had resulted in the public prosecutor's office being informed. ...”. A copy of that letter was sent to the children's judge. He also wrote to the public prosecutor's office. 14. By an order of 10 August 1992 the children's judge suspended the applicant's rights to contact until 30 September 1992 on the ground that “[the applicant's] visits invariably provoke[d] violent incidents, [C.] [was] disturbed and insecure afterwards, a carer had been subjected to violence by the applicant” and “arrangements were being made for [the child] to be placed with foster parents”. He further ordered that the name and address of C.'s foster parents were not to be communicated to the father and contact was only to be arranged after 30 September 1992, “in a neutral location to be determined by the ASE, and provided that there [was] no risk of violence and that Mr Gnahoré complie[d] with the timetable and the conditions imposed”. 15. In a judgment of 14 December 1992 the children's judge extended the period of C.'s placement with the ASE for a year starting on 12 February 1993. On an appeal by the applicant, the Special Minors' Division of the Lyons Court of Appeal upheld that judgment in a decision of 10 May 1993, subject to arrangements being made for contact. It held in particular: “... the ASE says that the child has made positive progress in his foster home, ... having gained in confidence and not demonstrating any behavioural disorders. ... the father does not accept the care order and the attitude of both father and son during the monthly visits is passive, although the boy subsequently vents his emotions. ... The father refuses to speak with the social workers. ... the father lodged a report by a forensic expert in the criminal proceedings with the court. In addition to containing an opinion on whether the abuse was intentional or not (a matter for the judge dealing with the criminal proceedings), it refers to the psychological trauma suffered by the child as a result of his separation from his mother and to the child's need to live in a home, as the father is unable in his present condition to assume both the paternal and maternal roles. ... those circumstances make it necessary to continue with protective measures, while it is hoped that relations between the father and the social services will improve through mutual acceptance. ... It does, however, appear necessary for the child's development to facilitate contact with the father by making it more extensive than the child-welfare service has currently decided, namely [an hour every month]. ... the court considers it necessary to regulate access by allowing visits [of four hours, twice monthly]. ... It has been explained to Mr Gnahoré that if the visits take place without disruption he will be able to apply to the children's judge for a review of the arrangements and that any incidents must be referred to the children's judge, who will review the case in the interest of the child.” 16. On 26 February 1993 an expert appointed by the investigating judge on 3 April 1992 had lodged a report. The Government quoted the following extract from that report in their memorial of 2 August 1999: “The scars to the abdomen, face, and the right forearm are of traumatic origin. The lesions to the abdomen and face appear to have been caused by a blunt or cutting instrument and the lesion to the right forearm by a cigarette burn. An examination of the child's mental state ... has not revealed any marked pathological symptoms but does suggest retarded development of adequate defence mechanisms to counter anxiety ... He does not present any of the characteristic psychological disorders seen in abused children. [On] examination, the cutaneous lesions presented by [the child] on his admission to hospital on 14 January 1992 are consistent in both form and evolution with the suspected abuse, but cannot constitute concrete evidence of abuse. On the other hand, the psychological after-effects which the child currently presents are directly related to the serious situation that has arisen as a result of severance from the mother figure which the child went through probably in his third year. Those psychological after-effects also demonstrate the incapacity of his father and brother to adopt with him a sufficiently stable maternal role ... The psychological after-effects by themselves justify his placement in a foster home, as it appears risky to force the father to assume the mother's role alone, when the characteristic nature of that role is continuous presence.” 17. On 26 May 1993 the investigating judge held that the applicant had no case to answer as there was insufficient evidence against him. 18. In a letter of 9 June 1993, the applicant's counsel requested the children's judge to hear further evidence from the applicant and to review the care order in the light of the decision to drop the prosecution. 19. By an order of 16 June 1993 the children's judge suspended the applicant's right to contact until 9 August 1993, on the following grounds: “[C.] is showing worrying behavioural disorders and severe anxiety at the prospect of seeing his father. A meeting with a psychiatrist has been arranged and it appears necessary to suspend the visits until that meeting has taken place. An order has been made for a psychiatric report on the child.” 20. On 15 September 1993 the children's judge renewed the order suspending contact, holding: “An order for a psychiatric report has been made and the report is due to be lodged on 30 September 1993. [The child] still opposes seeing his father. The father's right to contact shall remain suspended until the hearing that will take place once the expert's report has been lodged.” In their memorial of 2 August 1999, the Government quote the following extract from the psychiatric report lodged on 20 September 1993: On examination, [C.] does not display any organised pathology but signs of anxiety that appear to be related less to the father's absence than to the interiorised image of the father. It would be disturbing for the child for the father's right to contact to be reinstated at this point. We therefore consider it more prudent to maintain the status quo – placement in a foster home without visits from the father – for the coming eighteen months and to review the position at that juncture.” 21. In a judgment of 15 October 1993 the children's judge renewed the order for C.'s placement with the ASE for a period of eighteen months from 15 October 1993 (that is to say, until 15 April 1995). In their memorial of 2 August 1999, the Government quote the following extract from that judgment: “The psychiatric report confirms the need for [C.] to be protected from the invasive presence of his father ... Mr Gnahoré remains impervious to any advice concerning his son, whom he regards as his property and whom he affords no opportunity for independent development; ... these circumstances justify renewing [C.'s] placement with the ASE for eighteen months and suspending contact for that period.” 22. In a judgment of 24 January 1994 the Special Minors' Division of the Lyons Court of Appeal upheld the order renewing the child's placement with the ASE. With regard to the suspension of contact, it appointed an expert to assess whether, and, if appropriate, how, contact between the father and his son could take place and adjourned the hearing of the case “to the first available date after the expert's report is lodged”. The expert's report was lodged on 7 June 1994. The Government quoted the following extracts in their memorial of 2 August 1999: “ It is not desirable for [C.] to return home to the family environment with his father ... Intermittent contact between Mr Gnahoré and his son have a moderate relatively morbid impact on [C.]; the lack of contact is not a source of mental suffering ... Consequently, it is possible to propose a conditional lifting of the ban on contact and brief visits to be allowed every ten days at a neutral location. Allowing Mr Gnahoré to see [C.] will provide no solution unless accompanied by psychotherapeutic treatment for him. Admittedly, it seems highly unlikely that he will accept, but it must be impressed on him that all the experts agree that he is suffering from personality disorders. If this course of action is to have any chance of succeeding, it will be necessary for a committee to be set up composed of certain people in whom he has confidence ..., which will inform him of the prescribed treatment and ask him to follow it for the good of and out of love for [C.].” 23. On 4 July 1994 the Special Minors' Division of the Lyons Court of Appeal once again deferred a decision on contact and adjourned examination of the case to 10 October 1994, the applicant being invited in the meantime to envisage starting therapy, as advised by the expert. The Division added that contact remained suspended until the next hearing, although the applicant was authorised to make arrangements for the reimbursement of his expenses. 24. On 24 October 1994 the Special Minors' Division upheld all the provisions of the judgment of 15 October 1993. It noted that the applicant had failed to attend the hearing before it and had refused to cooperate with the ASE, as he had not responded to appointments he had been given so that arrangements for contact with his son could be made. It also noted that the child was relaxed in his new home. 25. On 18 April 1995 the children's judge renewed the order for C.'s placement with the ASE for two years. The reasoning set out in his judgment was as follows: “The domestic situation has remained largely unaltered over the past two years. Although he has been kept regularly informed by the ASE of his son's progress, Mr Gnahoré has failed to get in touch, despite being offered appointments. He recently went to [C.'s] former school where he made a scene and alarmed those present by his aggressiveness. He has not attended today's hearing but has sent a letter calling for his son's return. [C.] has been making positive progress with his foster parents. It is not possible to envisage [C.'s] returning home at present. Before any meetings between the father and the son can take place, Mr Gnahoré will need to contact the ASE so that the question can be explored.” 26. By an order of 12 July 1996 the children's judge dismissed an application by the applicant for the care order to be lifted and renewed the placement with the ASE for two years from that date. The order stipulated that the applicant's rights to ordinary contact and to residential contact would be conditional on “professional support for both father and child being provided”. The reasons for the order were as follows: “Mr Gnahoré seeks the return of his son, but did not attend the last hearing on 18 April 1995. He has been kept informed by the ASE of his son's progress but says that he has never received any documents and refuses all contact with the social worker responsible for [C.]. He claims that he is able to tend to all his son's needs and perceives the placement as having torn the family apart and as a means of persecuting him and his son's need as an extension of himself. He rejects any idea of treatment or of a third party's intervening between him and his son. [C.] is progressing well in his foster home but clams up when his father is mentioned and refuses to listen. The situation is currently in an impasse and it does not appear possible at present for contact between the father and his son to be envisaged without the presence of a mediator and a third party, and it will be necessary for [C.] to be accompanied and helped to find the strength to broach the subject of relations with his father.” 27. The applicant appealed to the Special Minors' Division of the Lyons Court of Appeal. At his request, the applicant's son was heard by a member of that Division on 2 November 1996. On 9 December 1996 the Court of Appeal delivered the following decision: “[C.] was placed into the care of the ASE after suspected abuse; the placement was also a consequence of the father's inability to tend to his material and educative needs. At the material time, Mr Gnahoré, who had been living on his own since [C.'s] mother's return to Africa in March 1989, was also wholly incapable of bringing up his then adolescent sons, [I.] and [Ch.], who had to be placed in care by the children's judge. The father's violent conduct towards the social workers during visits to his son led the children's judge to arrange for the visits to take place at a neutral location and subsequently to suspend them and to seek an informed opinion on whether contact between the father and the child was possible. The experts found that Mr Gnahoré was suffering from severe personality disorders and was incapable of considering his son as a separate being (Dr [Pe.]) or other than as a narcissistic object (Dr [C.]). In that connection, the appellant confirmed by his remarks at the hearing on 2 December that he was incapable of imagining that [C.] could lead a separate existence (he kept repeating: 'my son is dead'). Mr Gnahoré refuses to acknowledge that [C.] made a firm request at the hearing to be allowed to live with his foster parents 'all the time', though he also seeks contact with a father of whom he is fond. In these circumstances, returning the minor to his father would put his health and safety at risk and would be very damaging to his welfare. The decision to renew his placement will therefore be upheld. Although Mr Gnahoré rejects the whole idea of treatment or meetings with third parties, in order to offer the meetings with [C.], whom he has not seen for three years, 'a chance of success' (Dr [Pe.]), attempts should be made to arrange contact at a neutral location through a specialist counselling service. As it will take some time to make the arrangements, the first visit will be during the Christmas holidays ... The Court of Appeal ... upholds the decision of the court below regarding [C.'s] continued placement; holds that Mr Gnahoré shall be entitled to visit his son, [C.], at a neutral location and that there shall be an initial one-hour visit during the Christmas holidays followed by one-and-a-half-hour visits at fortnightly intervals until 31 March 1997; to that end, orders an inquiry and welfare counselling by a centre for educative action ... whose task will be to determine the arrangements (place, date and time) of the visits; orders that the centre for educative action will report to the Court of Appeal by 15 March 1997 on progress and may, in the event of serious incident, terminate the measure immediately, provided it informs the President of the Minors' Division without delay. ...” 28. On 30 December 1996 Mr Gnahoré lodged a notice of appeal on points of law with the registry of the Lyons Court of Appeal. On 9 January 1997 he made an application for legal aid to the Legal Aid Office of the Court of Cassation. In a decision of 2 October 1997, the Legal Aid Office accepted the applicant's eligibility for legal aid on the means test but dismissed his application on the ground that “no arguable ground of appeal on points of law [could] be made out against the impugned decision”. Mr Gnahoré exercised his right of appeal to the President of the Court of Cassation under section 23 of Law no. 91-647 of 10 July 1991 on legal aid, but his appeal was dismissed by an order of 8 December 1997 on the ground that “it [did] not appear from an examination of the evidence in the file that a ground of appeal on points of law [could] be argued with any real prospect of success”. On 14 May 1998 the President of the Court of Cassation dismissed the appeal as being out of time on the following ground: “The notice of the appeal on points of law does not set out any valid ground of appeal. Furthermore, the appellant has not sent a memorial containing valid grounds of appeal to the registry of the Court of Cassation within the statutory time-limit.” 29. In their memorial of 2 August 1999, the Government alleged that on 21 March 1997 the centre for educative action had sent to the Special Minor's Division of the Lyons Court of Appeal a record of the applicant's three visits to his son, in which it had concluded: “It does not appear desirable for the meetings between father and son to continue in these circumstances, since [C.] remains at risk when with his father, whose pathology makes it impossible for him to consider his son otherwise than as a part of himself, such that there is no room for the independent existence of this small boy.” 30. On 10 July 1998 the children's judge renewed the order placing C. in the care of the ASE for a period of two years starting on 12 July 1998. The judgment contained the following reasons: “... Mr Gnahoré continues to call for [C.'s] return ... He says that he finds their separation painful and regards it as unjustified and unlawful. He is unable to comprehend that renewed contact must take place gradually and does not consider that the children's judge has any right to take decisions concerning [C.]. [C.] is making positive progress in his foster home. He says that he is ready to meet his father once he is better. It is necessary to assess the feasibility of contact between father and son.” On the same day the children's judge ordered a new medical, psychological and psychiatric report on C. According to the Government, the report, which was lodged on 12 November 1998, concluded as follows (extract from the Government's memorial of 2 August 1999): “On medical examination, [C.'s] general health ... was seen to be good and his psychomotor development normal. [C.'s] mental development is normal. He will shortly be reaching adolescence and shows considerable interest in the Ivory Coast, consistent with the construction of his identity and the need to adhere to his biological origins. There is no sign of marked mental illness on examination. ... [C.] does not present any physical or mental disorders or disabilities likely to influence his behaviour. No special protection, assistance or therapeutic measures are required. However, in view of the history of mental suffering that has occurred concurrently with visits from his father and [C.'s] current genuine wish to see his father again, any new contact that takes place should be accompanied by enhanced psychological support to avert and treat new symptoms. There is no need for specialised treatment for the time being. There is no medical reason why contact should not take place. He is receiving a normal education which he is pursuing with success.” 31. The Government added that on 17 May 1999 the children's judge delegated to the ASE by way of a grant of power pursuant to Article 375-7 of the Civil Code such parental authority as would enable it to obtain a national identity card for C., on the ground that “Mr Gnahoré is not in touch with the ASE ...”. 32. On 2 December 1999 the children's judge sent the following letter to the applicant's lawyer: “... I acknowledge receipt of your letter of 18 November 1999 regarding the possibility of Mr Gnahoré visiting his son [C.]. In view of the very difficult background to this case, no visit can be arranged unless Mr Gnahoré first contacts the ASE ... who are responsible for [C.]. [C.] has not asked to see his father recently and may find a visit very perturbing. ...” 33. In January 2000 the Director of the Children's Service of the Villeurbanne Territorial Unit sent the following letter to the applicant: “I acknowledge receipt of your letter of 23 December 1999 and note what you say. I would remind you that [C.'s] file is still being handled by the Children's Service of the Villeurbanne Territorial Unit ... Mr [D.] remains the caseworker responsible for [C.] and I can, if you so wish, send you news of your son by letter. However, I regret to inform you that I am unable to grant your request to see [C.]. This is because it has never been possible to do any preparatory work with you, despite the efforts of members of this service, or to build relations with you without your resorting to violence, or making demands or threats. Furthermore, at the request of the Court of Appeal a review of the father/son relationship has been conducted by the COAE responsible for East Lyons. You saw [C.] in that connection once a month for six months and the same findings were reached, namely that: (i) it is impossible for you to re-establish a relationship with your son in his interest and in liaison with the children's service; (ii) you refuse to accept that you need treatment. Under these circumstances and in [C.'s] interest, I have no alternative but to stand by my decision ...” 34. The relevant provisions of the Civil Code are as follows: “If the health, safety or morals of an unemancipated minor are at risk, or if the conditions in which he or she is being brought up are highly unsatisfactory, a court order may be made for educative assistance measures on application by the father and mother, jointly or severally, the person or authority in whose care the child has been placed, the guardian, the child itself or by a representative of State Counsel's Office. The court may act on its own initiative in exceptional circumstances. ... The duration of the measure shall be determined by the court in its decision but shall not exceed two years if the assistance is to be provided by a service or an institution. The measure may be renewed by a reasoned decision.” “The children's judge shall have jurisdiction for all matters concerning educative assistance. The children's judge shall in all cases endeavour to obtain the family's agreement to the measure envisaged.” “Whenever possible, the minor shall remain in his or her present home. In such cases, the judge shall appoint a qualified person or a service for observation, education or rehabilitation in the home to provide the family with help and advice in order to surmount the material or psychological difficulties encountered. That person or service shall be responsible for monitoring the child's development and periodically reporting to the judge. The judge may also order that the child shall remain at home only if special obligations are complied with, such as regular attendance at an ordinary or specialised health or educational institution, or carrying on an occupational activity.” “Decisions concerning educative assistance may at any time be varied or set aside by the judge who delivered them, either on his or her own initiative or on application by the father and mother, jointly or severally, the person or authority in whose care the child has been placed, the guardian, the child itself or by a representative of State Counsel's Office.” “The father and mother of the child for whose benefit assistance has been ordered shall retain their parental authority over the child and shall be entitled to exercise all attributes of that authority that are not inconsistent with the application of the measure. For so long as an educative assistance measure is in force they shall not be entitled to emancipate the child without permission from the judge. If the child has had to be placed outside the family home, his or her parents shall retain the right to correspond with the child and to have contact. The judge shall decide on the arrangements and may even, if the interest of the child so demands, decide that the exercise of either or both of those rights shall be provisionally suspended. The judge may order that a placement for the child shall be sought in a location that will facilitate so far as possible contact with the parent or parents.” | 0 |
dev | 001-102378 | ENG | SVK | CHAMBER | 2,010 | CASE OF OSVÁTHOVÁ v. SLOVAKIA | 3 | Remainder inadmissible;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1949 and lives in Bratislava. 6. On 17 September 2001 the applicant as seller entered into a contract with A. as buyer concerning some real property essentially comprising arable land. 7. On an unspecified date A. lodged a criminal complaint against the applicant accusing her of having received the purchase price of some 8,600 euros (EUR) only to renege on the contract without returning the price. 8. On 27 May 2005 the applicant was charged with fraud on the basis of A.'s criminal complaint. The decision containing the charge was not served on the applicant until 3 February 2006, when she was questioned by a judge following her arrest (see below). 9. On 19 and 29 September 2005, respectively, a national search for the applicant was launched and the Dunajská Streda District Public Prosecutor's Office (Okresná prokuratúra) asked the Dunajská Streda District Court (Okresný súd) for a warrant for the applicant's arrest. It was argued that it was proving impossible to summon the applicant for questioning because she was not responding to summonses, was not living at her registered address (trvalé bydlisko) and her whereabouts were unknown. 10. On 3 December 2005 the District Court issued the arrest warrant. It indicated as the underlying reason for the warrant that “[the applicant] [was] not living at her registered address; her whereabouts [were] unknown”. 11. From 2 February to 14 March 2006 the applicant was held in pretrial detention (see below). 12. On 14 and 21 March 2006 the applicant challenged the charge by way of an interlocutory appeal (sťažnosť). 13. On 24 March and 12 April 2006, respectively, the investigator interviewed a notary who had drawn up the contract and, following her release from detention, also the applicant. 14. On 25 April 2006 the District Public Prosecutor's Office granted the applicant's interlocutory appeal and dismissed the charge against her on the grounds that the matter was of a civil-law nature and the applicant's actions did not constitute a criminal offence. 15. At 2 p.m. on 2 February 2006, on the basis of the warrant of 3 December 2005, the applicant was arrested by the police and taken into police custody. 16. At 10.30 a.m. on 3 February 2006 the applicant was brought before a single judge of the District Court for questioning. 17. A record of the questioning was made on a pre-printed form. In so far as the pre-printed section of the record was filled out, it indicates that the applicant was questioned as a person charged (obvinený) / suspect (podozrivý), that she was informed of the rights that pertain to a person in that procedural position and that she had been handed (doručené) / read out (prečítané) the decision containing the charge of fraud. 18. The verbatim section which follows the pre-printed section of the record indicates that the applicant acknowledged that she had neither a permanent nor a temporary registered place of residence (trvalé/prechodné bydlisko) and that she mainly stayed in monasteries and pastors' offices. She admitted having received and not returned the purchase price and expressed readiness to return it. She explained that she had health problems and that on 13 January 2006 she had fainted in the street. 19. The verbatim section of the record also indicates that, thereafter, the applicant was handed the decision containing the charge of 27 May 2005. According to the applicant, the decision containing the charges had been handed to her at around 11 a.m. 20. The verbatim section of the record further indicates that the District Court then immediately ordered the applicant to be detained under Article 71 § 1 (a) of the Code of Criminal Procedure (“the CCP” – Law no. 301/2005 Coll., as applicable at the relevant time). That provision allows for the detention of a person if his or her behaviour or other concrete facts give rise to a well-founded concern that he or she would flee or go into hiding in order to avoid prosecution, in particular when the person's identity cannot be immediately established, when the person does not have a fixed abode (stále bydlisko) or if the person faces the risk of a heavy penalty. 21. Immediately after she had been remanded in custody, the applicant orally lodged an interlocutory appeal (sťažnosť) and asked for her lawyer to be informed of her detention. The interview ended at 11.15 a.m. 22. In a two-page written version of the detention order of 3 February 2006 the District Court established, “on the basis of the case file and the applicant's interview”, that there were reasons for detaining her under Article 71 § 1 (a) of the CCP because, “if left at liberty, [the applicant] would seek to frustrate the prosecution by going into hiding”. This was so because the applicant “did not live at her registered permanent address, had no registered temporary address and it was not known where she was currently living”. 23. On 23 February 2006 the applicant submitted her written grounds of appeal. 24. On 7 March 2006 the District Court sent the case file to the Trnava Regional Court (Krajský súd) for determination of the appeal. It arrived there on 9 March 2006. 25. Meanwhile, on 8 March 2006, the investigator attempted to interview the applicant who, however, exercised her right to remain silent. 26. On 9 March 2006 the applicant appointed a new lawyer who inspected the case file on the following day. 27. On 13 March 2006 the applicant's new lawyer submitted in writing further grounds of appeal. He relied on Article 5 of the Convention and advanced four main arguments. First, before the questioning on 3 February 2006, the applicant had not been informed of her rights as a person facing charges. Second, the applicant was deprived of her right to oppose her detention effectively because she was informed of the charge against her only after the questioning of 3 February 2006. Third, the detention order was arbitrary and not susceptible of review owing to the absence of adequate reasoning. Fourth, the District Court had failed to examine whether there was any “reasonable” suspicion against the applicant which would justify her detention. 28. On 14 March 2006 the Regional Court, sitting in private (neverejné zasadnutie), quashed the detention order and ordered the applicant's immediate release. It found that the matter was of a contractual nature and that the applicant's actions could not be qualified as a criminal offence. Moreover, the applicant could not have been in hiding because she had no knowledge that she had been wanted on a criminal charge. The Regional Court concluded that there was no reason for detaining the applicant. 29. Following the decision of 14 March 2006, on the same day, the applicant was released. 30. A written version of the decision of the Regional Court was sent to the applicant's address but returned as she could not be found. It was then sent to her lawyer, who received it on 3 May 2006. 31. On 3 May 2006 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). 32. Relying on Article 5 §§ 1 (c), 2, 3 and 4 of the Convention and on their constitutional counterparts, the applicant made four main complaints. First, after her arrest, the applicant had not been informed promptly of the reasons for it and of the charge against her. Second, in violation of the applicable procedural rules, the applicant had not been informed of her procedural rights as a person charged. Third, the decision of the Regional Court of 14 March 2006 lacked adequate reasoning, in particular, because it only dealt with two of the four arguments that she had put forward. Fourth, a decision regarding the lawfulness of the applicant's detention had not been reached speedily, which was imputable mainly to the District Court. Invoking Article 5 § 5 and Article 13 of the Convention, the applicant claimed the equivalent of some EUR 3,200 in just satisfaction for nonpecuniary damage and the reimbursement of her legal costs. 33. On 13 September 2006 a three-judge bench of the Constitutional Court declared the complaint inadmissible. It found that the Constitutional Court had been prevented from examining the first two arguments by the principle of subsidiarity. As to the third argument, the Constitutional Court acknowledged that the Regional Court had limited its review to two of the applicant's arguments. However, this did not constitute an infringement of the applicant's fundamental rights. 34. As to the remaining complaint, concerning the length of the proceedings to review the lawfulness of the applicant's detention, the Constitutional Court established that it had in total taken thirty-four days (from the detention order of 3 February to 9 March 2006) for the District Court to transmit the case file to the Regional Court for determination of the applicant's appeal. However, it should be taken into account that the applicant had submitted the grounds of her appeal in writing only on 23 February 2006. After that date, the District Court had transmitted the case file to the Regional Court within fourteen days (on 9 March 2006). Although the conduct of the District Court could not be described as “expeditious” (urýchlené), it did not amount to a violation of the applicant's rights under Article 5 § 4 of the Convention. It was true that, after the Regional Court's decision of 14 March 2006, it was not until 3 May 2006 that the written version of the decision was served on the applicant. Nevertheless, this was of no practical consequence because the applicant must have learned of the decision on 14 March 2006, when she was released, and the decision was subject to no further appeal. The bench concluded that, in those circumstances, the remaining complaint was manifestly ill-founded. 35. The presiding judge, however, did not share the majority view and gave a dissenting opinion. According to him, it was “highly debatable” whether the complaint concerning the lack of speediness in the proceedings regarding the applicant's appeal against her detention was manifestly illfounded. The presiding judge pointed out that it had taken thirty-four days for the District Court to transmit the case file to the Court of Appeal. Referring to previous practice and, in particular, to a decision in case file number III. ÚS 126/05, he concluded that the complaint should have been declared admissible. 36. The decision of the Constitutional Court was served on the applicant on 10 November 2006. 37. Under the Act the State bears liability for damage caused by public authorities inter alia by unlawful arrest, detention (zadržanie) or other deprivation of personal liberty (section 3(1)(b)), decisions concerning detention on remand (väzba) (section 3(1)(c)) and wrongful official actions (section 3(1)(d)). 38. The right to compensation for damage caused by a decision on arrest, by detention (zadržanie) or by other deprivation of personal liberty is vested in the person who was subjected to it, provided that the decision was quashed as being unlawful or a wrongful official action had taken place in connection with it (section 7). 39. The right to compensation for damage caused by a decision concerning detention on remand (väzba) is vested in the person who was detained on remand, provided that the criminal proceedings against him or her have been dropped (section 8(5)(a)) or he or she has been acquitted (section 8(5)(b)) or the matter has been referred to another authority (section 8(5)(c)). 40. However, no such right arises when the person concerned himself or herself gave cause for the detention on remand (section 8(6)(a)). 41. The State is also liable for damage caused by wrongful official action, which comprises, inter alia, a public authority's failure to take an action within the time-limit set, inactivity or any other unlawful interference with the rights and legally recognised interests of individuals and legal entities (section 9(1)). 42. The right to compensation for damage caused by wrongful official action is vested in the person who suffered the damage (section 9(2)). 43. Under section 17 the compensation is to cover pecuniary damage, including loss of profit, and, where appropriate and necessary, nonpecuniary damage. 44. In a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno District Court granted an action for damages by two individuals against the State under the State Liability Act 2003 and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal. On 22 November 2007 the Banská Bystrica Regional Court upheld the judgment following the defendant's appeal. 45. On 14 October 2009 the Bratislava Regional Court granted an appeal (case no. 2Co 238/2008) in an action by an individual against the State under the State Liability Act 2003 for damages and awarded him an amount of money in compensation for non-pecuniary damage caused by detention on remand in the context of a criminal trial that had ended with his acquittal. 46. In a judgment of 17 August 2009 (case no. 19C 47/2006) the Bratislava District Court granted an action for damages by an individual against the State under the State Liability Act 2003 and awarded the claimant an amount of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial. The impugned wrongful official action concerned extension of the claimant's detention pending trial. The action was preceded by a judgment of the Constitutional Court of 19 October 2005 (case no. I. ÚS 65/05) in which the Constitutional Court found a violation of the claimant's rights under Article 5 §§ 3 and 4 in connection with the same facts. However, the Constitutional Court was unable to award the claimant damages as he had made no claim for damages. | 1 |
dev | 001-121998 | ENG | DEU | ADMISSIBILITY | 2,013 | PERUZZO AND MARTENS v. GERMANY | 3 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens | 1. The applicant in the first case, Mr Antonio Peruzzo (hereinafter also referred to as “the first applicant”), is an Italian national, who was born in 1957 and lives in Freienbach, Switzerland. He was represented before the Court by the law firm Endriß, Müller, Malek, Phleps & colleagues, Freiburg, Germany. 2. The applicant in the second case, Mr Uwe Martens (hereinafter also referred to as “the second applicant”), is a German national, who was born in 1976 and lives in Nuremberg. 4. The instant applications relate to decisions by the domestic courts ordering the taking of cellular material from the applicants, who had both been convicted of criminal offences in the past. The measures were ordered pursuant to Article 81g of the Code of Criminal Procedure (Strafprozessordnung - see Relevant domestic law below) outside pending criminal proceedings at the prosecution authorities’ request with a view to determining the applicants’ DNA profiles for identification purposes on the occasion of future criminal proceedings. 5. The courts ordered in each case that in the event the applicants should refuse to voluntarily provide cellular material by means of a saliva sample, a blood sample was to be taken from them by a doctor in accordance with Article 81a § 1 of the Code of Criminal Procedure (see Relevant domestic law below). They further specified that any cellular material obtained from the applicants had to be handed over to the expert in charge of its examination without disclosing the applicants’ identity, that the sample was to be used exclusively for the molecular genetic examinations referred to in Article 81g of the Code of Criminal Procedure and that it was to be destroyed without delay once it was no longer required for establishing the applicants’ DNA profiles. 6. In its related decision of 2 February 2007 with respect to Mr Peruzzo the Freiburg District Court noted that the first applicant had been convicted by a judgment of the Karlsruhe Regional Court dated 25 January 2006 of six counts of drug trafficking and been sentenced to an aggregate prison sentence of five years and nine months. On four occasions the crime had been preceded by the offence of illicit importation of drugs and on two occasions the first applicant had in addition instigated the illicit importation of drugs. The District Court further pointed to two previous convictions of Mr Peruzzo in Switzerland for having infringed the Swiss Narcotics Law. It referred in this context to judgments by the Horgen District Court (Bezirksgericht) dated 10 February 1982 and by the Schwyz Canton Criminal Court dated 22 April 2005 imposing a prison sentence of two years and 8 months and a suspended prison sentence of 15 months respectively. 7. In view of the seriousness of the offences committed in the past and the resulting negative criminal prognosis for the first applicant, the Freiburg District Court found that the order to take a DNA sample from him and the execution of such measure were proportionate. 8. By a decision of 25 April 2007 the Freiburg Regional Court, endorsing the Freiburg District Court’s decision, dismissed the first applicant’s related appeal and held that the conditions for the taking of an DNA sample pursuant to Article 81g § 1 of the Code of Criminal Procedure were met in the instant case. In the Regional Court’s opinion the considerable length of the prison sentence imposed on the first applicant by the Karlsruhe Regional Court in 2006 showed that the underlying drug offences constituted serious crimes in the meaning of the said provision. In this connection and in particular in view of the considerable amount of drugs that had been trafficked it was irrelevant that the applicant had “only” dealt with marihuana. The Regional Court further found that there were grounds to assume that criminal proceedings concerning serious offences would have to be conducted against the applicant in the future. The first applicant’s negative criminal prognosis followed in particular from the fact that his conviction in 2006 had not only related to a single spontaneously committed offence of drug trafficking but to a series of offences committed over the period from May 2004 to January 2005. Moreover, he had previously been convicted of similar offences in Switzerland. The fact that his first conviction by the Horgen District Court dated back as long as 1982 did not put into question his negative criminal prognosis. It had been demonstrated by the judgment of the Schwyz Canton Criminal Court dated 22 April 2005 that the applicant had committed further drug-related offences in the period from 2002 to 2003 in Switzerland, i.e. prior to his conviction in Germany in 2006. The Regional Court further specified that the applicant’s potential expulsion to Switzerland did not have an impact on its assessment of the case. Pursuant to German criminal law crimes of the kind at issue were subject to German jurisdiction even when committed abroad. Moreover, the fact that an individual had his place of residence abroad did not prevent him from committing offences in Germany. 9. By written submissions to the Freiburg Regional Court dated 9 May 2007 the first applicant argued that there was nothing to indicate that he would commit further offences similar to the ones that had been at the origin of his previous convictions. He invoked in particular that the crimes referred to by the Freiburg District Court in its decision of 2 February 2007 dated back several years and that he had already served prison sentences of a considerable duration in this respect. Furthermore, since he was supposed to be expelled to Switzerland after having served half of his prison sentence, it was unlikely that he would reoffend in Germany and take the risk of having to serve the residual term of his prison sentence as a consequence. 10. On 11 May 2007 the Freiburg Regional Court held that the first applicant’s submissions did not provide any additional arguments that would require it to deviate from its previous decision of 25 April 2007. 11. By a decision of 14 August 2007 (file no. 2 BvR 1340/07) the Federal Constitutional Court dismissed the applicant’s constitutional complaint without providing reasons. 12. In its decision of 24 May 2012 with respect to Mr Martens the Nuremberg District Court, referring to the latter’s criminal record since 1999, held that the repeated commission of offences by the second applicant in the past had reached a degree of unlawfulness equal to the commission of an offence of considerable significance within the meaning of Article 81g of the Code of Criminal Procedure. In 1999 the second applicant had been convicted by the Nuremberg District Court of having caused bodily harm by dangerous means (gefährliche Körperverletzung) and had been sentenced to a suspended prison sentence of seven months. By a judgment of 18 May 2006 the Erlangen District Court had found him guilty of two counts of attempted coercion (versuchte Nötigung) and had imposed a fine of 900 euros payable in 60 daily instalments. On 19 March 2008 the same court had convicted the second applicant of a further offence of having caused bodily harm by dangerous means and sentenced him to a suspended prison sentence of one year. Finally, by a judgment of the St. Pölten Regional Court (Landgericht), Austria, of 12 May 2011, he had been found guilty of having persistently stalked a woman and had been sentenced to ten months’ imprisonment. As regards the two incidents involving bodily harm in 1999 and 2008 the Nuremberg District Court specified that the second applicant had sprayed tear or pepper gas into his respective victims’ faces from a short distance leaving one victim with painful skin irritations and the other with an eye inflammation. 13. In the Nuremberg District Court’s opinion the manner in which the offences had been committed showed that the second applicant had a tendency to compromise considerably the physical well-being of others and that further serious criminal offences were to be expected from him in the future. The court further found that having regard to the intervals in which the offences had been committed, it could be expected that the second applicant would repeatedly commit further offences similar to the ones that had been at the origin of the criminal proceedings instituted against him in the past. Having regard to the nature of the offences at issue it was conceivable that DNA traces would be left at the scene of a future crime and the measure ordered by the court was thus justified and necessary for the purpose of establishing identity and gender on the occasion of future criminal proceedings. 14. By written submissions dated 26 May 2012 the applicant appealed the District Court’s decision. He maintained in particular that the offences committed by him in the past had not been of a gravity that justified an interference with his personal rights under Article 81g of the Code of Criminal Procedure. He further complained that the District Court had not complied with his request to hear him in person and had not adequately reasoned its decision. 15. By a decision of 5 July 2012 the Nuremberg-Fürth Regional Court dismissed the appeal holding that the conditions for the taking of a DNA sample pursuant to Article 81g of the Code of Criminal Procedure had been clearly met in the instant case and that the District Court’s order had consequently been proportionate. The Regional Court held that, firstly, the two incidents involving bodily harm that had been at the origin of the second applicant’s convictions in 1999 and 2008 constituted serious offences in the meaning of the said provision. On each of these occasions the second applicant had shown aggressive behaviour towards third persons without having been particularly provoked by the latter. Both offences had been committed in a similar way and demonstrated a significant criminal energy on the part of the second applicant and his potential for aggression. The Regional Court further recalled that Article 81g of the Criminal Code put the repeated commission of offences on an equal footing with the commission of a serious crime for the purpose of justifying the taking of a DNA sample. The Regional Court pointed out that the legislator had specified in this context that repeated offences in the context of so-called stalking of the type that had been at the origin of the second applicant’s conviction by judgment of the St. Pölten Regional Court in 2011, constituted an example where the repeated commission of an offence reached a degree of unlawfulness that was equal to the commission of a serious offence. The second applicant’s previous convictions further showed that he had a tenacious and incorrigible character which was also reflected in his partly confused and incomprehensible submissions to the Regional Court in the instant proceedings. Having regard to the second applicant’s numerous past convictions, his personality and the circumstances under which the offences had been committed, the Regional Court found that there clearly remained a risk that criminal proceedings concerning similar offences would have to be conducted against him in the future. 16. On 17 July 2012 the Erlangen District Court, at the prosecution authorities’ request, revoked the suspension of the second applicant’s prison sentence imposed by its judgment dated 19 March 2008 (see paragraph 12 above). With reference to the conviction for stalking by the St. Pölten Regional Court dated 12 May 2011 which had meanwhile become final, the District Court argued that the fact that the second applicant had reoffended in the course of his probationary period demonstrated that a suspended sentence was not sufficient to counter the risk of recidivism. 17. By a decision of 29 August 2012 (file no. 2 BvR 1934/12) the Federal Constitutional Court declined to consider the applicant’s constitutional complaint of 24 August 2012 against the Nuremberg-Fürth Regional Court’s decision of 5 July 2012 without providing reasons. It further held that, as a consequence, there was no need to decide on the applicant’s request for interim measures. 18. While the applicants’ submissions suggest that the court orders were subsequently executed and DNA samples taken from each of them, neither of the applicants has specified on which date the intervention occurred and whether the samples were obtained by means of saliva or blood samples. 19. Article 81a to f of the German Code of Criminal Procedure (Strafprozessordnung) provide for the taking of DNA samples for the purpose of convicting suspects within the scope of pending criminal proceedings. By contrast, Article 81g regulates the taking of cellular material from suspects and convicts with a view to determining their DNA profile for use in future criminal proceedings. Article 81g § 1 in its current version, as also applicable at the time of the proceedings at issue, provides for such measure if a person is suspected of having committed or has been convicted of a criminal offence of considerable significance (Straftat von erheblicher Bedeutung) or of a crime against sexual self-determination and in the event the nature of the offence or the way it was committed, the personality of the concerned person or other information provide grounds for assuming that criminal proceedings will be conducted against him or her in future in respect of a criminal offence of considerable significance. Under these conditions cellular material may be obtained from the person concerned and subjected to molecular and genetic examination with a view to determining his or her DNA profile (DNA-Identifizierungsmuster) or gender for identification purposes in future criminal proceedings. It is further specified in the provision that the repeated commission of criminal offences may reach a degree of unlawfulness (Unrechtsgehalt) that is tantamount to a criminal offence of considerable significance. This alternative ground for the taking of cellular material has been introduced into Article 81g § 1 by the Act on the revision of forensic DNA-analysis dated 12 August 2005 (Gesetz zur Novellierung der forensischen DNAAnalyse, Federal Gazette I, p. 2360). According to the explanatory memorandum to the Act the repeated commission of offences does not automatically reach the same level of significance as a serious crime. An order for the taking of cellular material under this alternative is only admissible in the event the circumstances of a particular case taken together provide evidence that the repeated commission of offences reaches the same degree of unlawfulness as a serious crime in the meaning of the provision. While, for instance, repeated fare evasion for public transport would as a rule not reach such threshold, this could, by contrast, be the case in the event of repeated trespassing in the context of stalking. 20. The second paragraph of Article 81g stipulates that cellular material obtained may be used only for the aforementioned molecular and genetic examination and shall be destroyed without delay once it is no longer required for that purpose. Information other than that required for establishing the DNA profile or the gender may not be ascertained during the examination and tests to establish such information shall be inadmissible. Without the written consent of the person concerned, the taking of cellular material may be ordered only by a court and, in case of imminent danger (Gefahr im Verzug), by the public prosecution authorities including the officials assisting it (section 152 of the Courts Constitution Act). Without the written consent of the person concerned, the molecular and genetic examination of cellular material may be ordered only by a court. The related court order shall specify in each case the determining facts relevant to ascertaining the seriousness of the criminal offence at issue, the information giving rise to the assumption that the accused will be the subject of criminal proceedings in the future, as well as an evaluation of the relevant circumstances. 21. Pursuant to Article 81g read in conjunction with the second paragraph of Article 81f of the Code of Criminal Procedure the courts shall appoint the experts responsible for the examination of the DNA material and determination of DNA profiles. The experts have to meet certain requirements with a view to ensuring their independence from the investigating authority as well as their professional integrity. They shall provide for the technical and organisational safeguards to ensure that inadmissible molecular and genetic examinations and unauthorised access to data are excluded. The cellular material to be examined shall be given to the expert with no indication of the name, address or date or month of birth of the data subject. 22. Article 81g § 5 states that the data obtained may be stored at the Federal Criminal Police Office (Bundeskriminalamt) and be used in accordance with the relevant provisions of the Federal Criminal Police Office Act (Bundeskriminalamtgesetz). Data may only be transmitted for the purpose of criminal proceedings, preventive aversion of dangers (Gefahrenabwehr) or international legal assistance in respect thereof. 23. In the event of the taking of cellular material by means of a blood sample Article 81a of the Code of Criminal Procedure apples mutatis mutandis. The taking of blood samples is to be effected by a physician in accordance with the rules of medical science, provided no detriment to the concerned person’s health is to be expected. Blood samples or other body cells taken may be used only for the purposes set out in the Code of Criminal Procedure and shall be destroyed without delay as soon as they are no longer required for such purposes. 24. Since 1998 the Federal Criminal Office maintains a national DNA database in which DNA profiles obtained in compliance with Articles 81a to g of the Code of Criminal Procedure are stored. The Federal Criminal Police Office Act contains rules on the storage and use of such DNA profiles. According to section 2 of the Federal Criminal Police Office Act, the Federal Criminal Police Office in its capacity as central agency for police information and intelligence in connection with the prevention and prosecution of criminal offences of federal, international or considerable significance, shall collect and analyse all relevant information for carrying out such task. Pursuant to Section 8 § 5 of the Act a convict’s personal data may be saved in files for the use in future criminal proceedings in the event particular circumstances give reason for believing that the person concerned will commit criminal offences of considerable significance. Personal data taken from an individual suspected of having committed a criminal offence have, as a rule, to be deleted in the event the proceedings against the concerned person have been definitely discontinued or once the suspect has been acquitted (section 8 § 3). The data compiled in the national DNA database may be made available to the Federal and Länder police authorities and according to section 11 of the Act the public prosecution authorities may retrieve information from the database for the purpose of administering criminal justice. Section 32 of the Federal Criminal Police Office Act stipulates that personal data saved in files have to be deleted once their storage has become inadmissible or in the event the retention of the data is no longer necessary for the performance of the Federal Criminal Police Office’ 25. By a judgment of 14 December 2000 (2 BvR 1741/99; 2 BvR 276/00 and 2 BvR 2061/00) the Federal Constitutional Court held that the provision of Article 81g of the Code of Criminal Procedure was constitutional. It emphasised that the scope of the provision was limited to the determination of a suspect’s or convict’s DNA profile for the purpose of establishing identity in future criminal proceedings and that the cellular material obtained in this respect had to be destroyed once the DNA profile was determined. The DNA profile as such did not allow for conclusions to be drawn as regards the personal characteristics of a concerned individual such as his or her hereditary dispositions, character traits or diseases and did not enable for an individual’s personal profile to be established. In the Constitutional Court’s opinion the core area of personality (Kernbereich der Persönlichkeit) that enjoyed absolute protection under constitutional law was thus not affected by the measures permitted under Article 81g. The Constitutional Court found, however, that the determination, retention and future use of DNA profiles constituted an interference with the constitutionally guaranteed right to self-determination over personal data (informationelles Selbstbestimmungsrecht). Any restriction of such right was only permitted if prescribed by law and in the event it was justified by an overriding public interest and complied with the principle of proportionality. The Constitutional Court specified in this respect that while Article 81g was not aimed at the prevention of future criminal offences, it did however facilitate the investigation of future crimes of considerable significance and thus served the proper administration of justice. The Constitutional Court further held that the provision was sufficiently precise to qualify as a law from a constitutional point of view. The term “criminal offence of a considerable significance” could be found in a number of provisions of the Code of Criminal Procedure and had been defined in the established case law of the domestic courts as comprising crimes of medium gravity (mittlere Kriminalität) which seriously compromised law and order and were of a nature that could considerably affect the population’s sense of legal certainty (Rechtssicherheit). The court finally held that the precautionary (“vorsorglich”) taking of evidence permitted under Article 81g did not infringe the principle of proportionality. The taking of such evidence could only be ordered in the event the concerned person had previously been convicted of an offence of considerable significance and in the event there were concrete indications that further proceedings concerning criminal offences of considerable significance were to be conducted against him or her in the future. Moreover, by strictly limiting the use of cellular material collected for the purposes defined in the Article and by making its destruction compulsory once the concerned person’s DNA profile was established, the legislator had provided for safeguards to prevent abuse of cellular material obtained. The Constitutional Court specified that when ordering a measure pursuant to Article 81g the domestic courts had to establish and clarify the circumstances of each particular case. In their assessment they had to take into account the available criminal files and records with respect to the person concerned and had to provide plausible reasons for their assumption that it was likely that the latter would commit further crimes of considerable significance in the future. 26. By a subsequent judgment dated 14 August 2007 (2 BvR 1293/07) the Federal Constitutional further held that the possibility of ordering the taking of a DNA sample in the event the repeated commission of criminal offences showed a degree of unlawfulness similar to the commission of a serious criminal offence - an alternative introduced by the Act on the revision of forensic DNA-analysis dated 12 August 2005 - did not give rise to concerns from a constitutional point of view. With reference to the explanatory memorandum to the said Act (see above paragraph 19), the Federal Constitutional Court noted that this alternative did not allow the domestic courts to automatically conclude that the repeated commission of offences justified an order for the taking of cellular material. By contrast, the domestic courts were obliged to have regard to the specific circumstances of the individual case and in particular the personality of the person concerned and the manner in which the offences had been committed. On this basis they had to proceed to an overall assessment of the degree of unlawfulness reflected in the offences committed and to be expected in the future while always observing the principle of proportionality in their decision-making. 27. For a summary of relevant Council of Europe and European Union legal instruments and an overview of relevant national legislation in a selection of Council of Europe member states, reference is made to the Court’s judgment in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 41 to 53, ECHR 2008. | 0 |
dev | 001-23290 | ENG | GBR | ADMISSIBILITY | 2,003 | REILLY v. THE UNITED KINGDOM | 4 | Inadmissible | Georg Ress;Mark Villiger;Nicolas Bratza | The applicant, Mr Martin Reilly, is a United Kingdom national, born in 1958, and he is currently in prison in Kent. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 February 1993 the applicant was convicted on two counts of robbery, one of attempted robbery, one of carrying an imitation firearm and one of using a firearm to resist arrest. He was sentenced to five concurrent sentences amounting to 8 years’ imprisonment. On 4 March 1999 he was convicted of two charges of robbery and two of carrying imitation firearms. He received a life sentence pursuant to section 2 of the Crime Sentencing Act 1997 and his tariff was fixed at 6 years. In sentencing, the judge stated that 12 years would have been the appropriate determinate sentence in his case and referred to the terror experienced by the victims of the robberies and the long-term traumatic effects. The applicant did not seek leave to appeal against sentence. His application for permission to appeal against conviction was refused by the Court of Appeal on 17 October 2000. The 1997 Act came into force on 1 October 1997. Section 2(1) and (2) provide as follows: “(1) This section applies where - (a) a person is convicted of a serious offence committed after the commencement of this section; and (b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence. (2) The court shall impose a life sentence, that is to say - (a) where the person is 21or over, a sentence of imprisonment for life; (b) where he is under 21, a sentence of custody for life under section 8(2) of the Criminal Justice Act 1982, unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so. (3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.” Section 2(5) listed the offences considered “serious” for the purposes of the section. The offences listed in section 2(5) were already punishable by a maximum of life imprisonment and they include rape. In this case, decided after the entry into force of the Human Rights Act 1998, the Court of Appeal adopted a more flexible interpretation of the words “exceptional circumstances” in section 2 of the 1997 Act. The appellants contended that section 2 was incompatible with, inter alia, Articles 3 and 5 of the Convention. The Court of Appeal agreed that the manner of interpreting section 2 to date meant that that section could clearly operate in a disproportionate manner, it not being difficult to find examples of situations where it would be wholly disproportionate to impose a life sentence even for a second serious offence. Noting that in the earlier case of Buckland [2000] 1 WLR 1262 an appeal had already been allowed where on the evidence it could not be concluded that the defendant did not present a serious and continuing danger to the public such as could justify the imposition of a life sentence, it considered that the problem would disappear if the words “exceptional circumstances” in section 2 were construed in a manner which accorded with the policy of Parliament in adopting the section. That policy was to protect the public. Accordingly, a finding that an offender does not constitute a significant risk to the public should be considered to constitute “exceptional circumstances” which approach, the Court of Appeal considered, would accord with parliamentary intent and with the provisions of the Convention. | 0 |
dev | 001-60507 | ENG | POL | CHAMBER | 2,002 | CASE OF WIERZBICKI v. POLAND | 3 | No violation of Art. 6-1 | Elisabeth Palm | 6. In issue No. 4 of a newspaper “Gazeta Polska”, of which the applicant was an editor-in-chief, a list of informants of the communist secret police was published. This list had been submitted to Parliament (Sejm) in June 1992 by the Minister of Internal Affairs, following a resolution of the Parliament. The list was originally meant to remain strictly confidential, but its contents were subsequently immediately leaked to the public. In the same issue of the newspaper, apart from the list, the following text, entitled “Deleted at the Last Minute” (“Wykreśleni w ostatniej chwili”), was published: “[The Minister of Internal Affairs] was until the last minute verifying data which he had to submit to Parliament, pursuant to its resolution. A few hours before the list was submitted to [Parliament] he had deleted several names from the list, for lack of conclusive evidence. It transpires from our information that these names were: [...]”.The names of three well-known politicians followed. 7. In issue No. 5 of the same newspaper, a text entitled “The List of Informants - a Supplement” (“Lista konfidentów - uzupełnienie”) was published, which read as follows: “As a result of a misunderstanding, we did not include the following name in the list of persons deleted at the last minute from the Minister of Interior's document, which was published in issue No. 4 of the Gazeta Polska: S.N, and belonging to a category of TW (an informant), with a pseudonym [...,] who had been recruited [by the secret police] during his stay in prison.” (“Z wydrukowanej w nr 4 Gazety Polskiej listy <Wykreslonych w ostatniej chwili> wypadło nam w wyniku nieporozumienia nazwisko S.N., kategoria TW, kryptonim [...], który został zwerbowany do współpracy w więzieniu.”) 8. On 30 June 1993 S. N., who was also a candidate for Parliament in elections scheduled for September 1993, brought a court action against the applicant before the Warsaw Regional Court in accordance with Article 139 of the Election Act. He submitted that the newspaper of which the applicant was an editor-in-chief had published information that he had been an informant of the secret police of the former communist regime. He contended that this was false. He demanded that the applicant publicly revoke this statement and apologise for it by placing paid announcements in numerous newspapers. 9. On 1 July 1993 the Warsaw Regional Court declared itself incompetent to deal with the matter and transmitted the case to the Łódź Regional Court. 10. On 22 July 1993 the Łódź Regional Court decided that the case should be considered in ordinary contentious proceedings applicable to claims for protection of reputation under Article 24 of the Civil Code and transmitted the case to the Warsaw Regional Court. Upon appeal, the Łódź Court of Appeal on 4 August 1993 quashed this decision as it considered that the case should be dealt with by the Łódź Regional Court in special proceedings governed by Article 139 of the Election Act. 11. On 6 August 1993 the Łódź Regional Court summoned the applicant by fax sent to his work address to attend a court hearing scheduled for 7 August 1993. On the same day the applicant's lawyer sent a letter to the court in which he protested against the despatch of the summons to the applicant's place of work instead of to his private address and informed the court that the applicant should be considered as not having been duly summoned. He requested that the hearing be adjourned. 12. At the hearing on 7 August 1993 the Łódź Regional Court summoned the applicant to adduce evidence to show that the information concerning the plaintiff S. N. and his alleged involvement with the communist secret police was true. 13. On 12 August 1993 the applicant submitted a power of attorney in favour of his representative and requested that the case be pursued by way of ordinary contentious proceedings as the proceedings provided for by Article 139 of the Election Act had not led to a decision on the merits within three-day period stipulated in this Act. He requested the court to call as witnesses the former and current Ministers of Internal Affairs as well as J.K., a well-known politician, and to request the Ministry to submit various documents in evidence. 14. On 24 August 1993 the Łódź Regional Court summoned the applicant and his lawyer by notifications sent by fax to their respective work and office addresses to the hearing fixed for 25 August 1993. 15. At the hearing on 25 August 1993 before the Łódź Regional Court the applicant's lawyer was present, but the applicant was not. The court pronounced its decision on the same day. It upheld the plaintiff's claim and ordered the applicant to publicly revoke his statements by placing relevant announcements in numerous newspapers. 16. In reaching this decision, the Łódź Regional Court considered that in the proceedings in question the time-limits for serving summonses set out in the Code of Civil Procedure did not apply. The applicant's lawyer had been aware that the proceedings had been instituted since 6 August 1993; he had been given a power of attorney on 11 August 1993 and had submitted the request to produce evidence on 16 August 1993. Thus, he had had enough time to prepare his arguments. The court indicated that it had requested the Ministry of Internal Affairs to produce the documents requested by the applicant. On 20 August 1993 the Ministry had refused to do so as those documents were subject to official secrecy and could only be produced in court in criminal proceedings, in accordance with the Bureau of State Security Act. The court further observed that it could not call the witnesses proposed by the applicant; they could only have given evidence as to whether S. N. had been put on the list of informants prepared by the Ministry, but not as to whether S. N had in fact been an informant. Moreover, in view of the serious nature of the allegations advanced against S.N. by the applicant's newspaper, in the absence of any documentary evidence these allegations could not have been considered proved, even if they had been confirmed by the witnesses. Thus, as the applicant had not adduced any other evidence to prove that the information concerning S. N. was true, the court found against him. 17. The applicant appealed against this decision, invoking, inter alia, Article 6 of the Convention. He contended that the proceedings were null and void as neither the applicant nor his lawyer had been summoned to the hearing on 25 August 1993 with at least three-days' notice, as provided for by Article 149 § 3 of the Code of Civil Procedure. Furthermore, the applicant's interests could not be protected properly as he did not have sufficient time to prepare his arguments between the date of receipt of the summons and the date of the hearing. The applicant further argued that, as all his requests to call witnesses and evidence had been refused, he had been denied a reasonable opportunity to prove the facts essential for the merits of the decision. 18. On 31 August 1993 the Łódź Court of Appeal dismissed the appeal. The court considered that the complaint concerning the summons was unfounded. Both the applicant and his lawyer had been summoned one day before the hearing, which was justified, given the special nature of the proceedings under Article 139 of the Election Act. The court recalled that, although this provision provided for such cases to be decided within 48 hours, failure to do so did not oblige the court to deal with the case according to the normal procedures for contentious civil proceedings laid down in the provisions of the Code of Civil Procedure. Moreover, the applicant, being aware of the special nature of the proceedings, should have expected that he might be summoned from one day to the next and should have taken effective measures to ensure that the summons reached him in time. These considerations were especially relevant as the applicant was represented by a lawyer who was under a professional obligation to take appropriate measures to this end. In any event, the lawyer received the summons in time to appear at the hearing, even though he contended, unconvincingly, that he had learned about the date of the hearing from a journalist. As to the merits, the court noted that the lower court had requested the Ministry to submit documents requested by the applicant. However, this request had been refused. In the light of Article 12 of the Bureau of State Security Act, the refusal had to be considered lawful. Moreover, the very fact that an individual's name had been included in the list prepared by the Ministry could not be deemed proof that this person had in fact been an informant. The veracity of information contained in the list had been repeatedly called into question both by interested parties and, more widely, in numerous press articles. It had been emphasised that the list had been prepared and used as a weapon in a political battle, intended to discredit the persons concerned. Therefore, the veracity of a claim that a particular person had been a police informant could not possibly be established solely on the basis of the list itself and without prior verification of the list and, in particular, without some legally established means whereby the rights of persons branded as police informants could be defended. The court accordingly considered that the burden of proof lay with the defendant, who had failed to demonstrate that, at the time of the publication of the information at issue, he had possessed sufficient evidence that S.N. had been an informant as alleged. 19. Article 139 of the Election Law of 28 June 1991 provided that a candidate in parliamentary elections could bring a court action seeking rectification of information published about him/her during the election campaign and claiming compensation. The court was required to decide the case within 48 hours. The court could order the publisher of the information to rectify the information immediately and to apologise publicly to the plaintiff, if the information proved to be false or inaccurate. The court could order the defendant to pay compensation to the plaintiff. The provisions of the Code of Civil Procedure were applicable to proceedings brought before the courts on the basis of this provision. 20. Article 6 of the Civil Code provides that the person who relies on a fact relevant to his or her case bears the burden of proving that fact. Pursuant to Article 232 of the Code of Civil Procedure, the parties to civil proceedings are under an obligation to adduce evidence to establish the facts relevant to their claim. Under Article 227 of the Code of Civil Procedure, evidence can be taken as to the facts which are of relevance for the outcome of the case. 21. As regards the burden of proof, the case-law of the Polish courts in proceedings instituted on the basis of Article 139 of the 1991 Election Law was inconsistent. In certain cases the courts held that an analysis of Article 139 read together with the general principle of Article 6 of the Civil Code led to the conclusion that the burden of proof, in cases in which the information concerning a candidate was harmful to his or her good reputation, lay on the person who had published the information in question. The courts argued that in such cases the approach taken in Article 24 of the Civil Code should be followed, in that there was a presumption that attacks on the personal rights of the plaintiff were unlawful. Consequently, it fell to the defendant to prove their lawfulness, in particular by pointing out that the information published about the plaintiff, and which was deemed to be harmful to him or her, was true. Thus the plaintiff was exempted from the obligation to demonstrate that the allegations against him were untrue (the Kielce Regional Court, I Ns 60/93, Dec. of 11.09.1993; the Krakow Court of Appeal, I Acz 406/93, Dec. of 16.09.1993). In another decision, the Katowice Court of Appeal held that the plaintiff in Article 139 proceedings could not be required to adduce evidence in order to prove that something had not occurred (the Katowice Court of Appeal, I Acz 590/93, Dec. of 30.08.1993). In a further case in which the court ordered the defendant to prove that statements about the candidate were true, the court emphasised that, in conformity with the principle ei incumbit probatio qui dicit, non qui negat, it was not possible to require the plaintiff to produce evidence to prove that certain facts had not occurred (the Gdańsk Court of Appeal, Acz 632/93, Dec. 19.08.1993). 22. On the other hand, in certain decisions given on the basis of Article 139 of the Election Law, the courts held that that provision in conjunction with Article 6 of the Civil Code required the plaintiff to prove that the statements contained in the contested publications were untrue (the Katowice Regional Court, II Ns 88/93, Dec. 10.09.1993; the Katowice Regional Court I Acz 660/93, Dec. 18.09.1993). 23. The applicant lodged his application with the Commission, alleging a violation of Article 6 § 1 of the Convention. 24. The Commission declared the application partly admissible on 26 February 1996. In its report of 21 October 1999 (former Article 31 of the Convention) it expressed the opinion, by thirty votes to one, that there had been no violation of Article 6 § 1 of the Convention on account of the fact that the court refused to take all evidence proposed by the applicant. | 0 |
dev | 001-90198 | ENG | BGR | CHAMBER | 2,008 | CASE OF MANOLOV AND RACHEVA-MANOLOVA v. BULGARIA | 3 | Remainder inadmissible;Violation of P1-1;Pecuniary damage -award;Non-pecuniary damage - award | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych | 6. The applicants are husband and wife. They were born in 1920 and 1930 respectively and live in Sofia. 7. In 1982 the first applicant, who was an artist, purchased from the State through the Union of Bulgarian Artists a workshop of 212 square metres in Sofia. It appears that the second applicant, being the first applicant’s spouse, acquired a share in the property. The price, 17,680 “old” Bulgarian levs (BGL), was determined in accordance with the relevant legislation and paid by the first applicant. At the relevant time this sum was the equivalent of not less than 75 average monthly salaries. 8. In the following years the applicants made substantial alterations to the property. The applicants used the property as a workshop and as their home. 9. The property, located in a building constructed not later than 1946, had originally consisted of three separate premises which had become State property in 1976 and 1978, when a Mr A. and a Ms P., the owners, had each sold their premises to the State, through the Union of Bulgarian Artists. The transaction had been executed pursuant to Council of Ministers Decree no. 60 of 1975, at prices determined by the relevant regulations (see paragraph 19 below). 10. In 1992 the heirs of Mr A. and Mrs P. reimbursed the price their families had received in 1976 and 1978 respectively and, claiming that they had thereby restored their title to the respective parts of the property by virtue of the Restitution of Stores, Workshops and Storage Houses Act 1991 (“the 1991 Act”), filed a rei vindicatio action against the applicants. 11. The proceedings went through three levels of jurisdiction and ended with a final judgment of the Supreme Court of Cassation of 13 May 1997 ordering the applicants to vacate the property. 12. The courts noted that in accordance with the 1991 Act the former owners of real estate sold to the State under Decree no. 60 of 1975 could automatically restore their title by reimbursing the price they had received from the State. The restored owners were entitled to claim their property from any third person, even where the latter had acquired it by means of a valid transaction. The courts found that in the case at hand the plaintiffs had reimbursed the price their families had received in 1976 and 1978 and had restored their title. Under the 1991 Act the applicants were no longer the owners and had to vacate the premises. The fact that they had purchased the property in 1982 by means of a valid transaction was immaterial. 13. The relevant court judgments in the 1992-1997 proceedings, as well as the applicants’ notary deed, described the property as covering approximately 212 square metres on three levels: (i) basement, used as a workshop (75.24 square metres), (ii) art gallery (53.37 square metres) and (iii) upper level (83.24 square metres). 14. On 28 April 1999 the applicants were evicted from the property. They moved into a room of 12 square metres belonging to a friend of theirs, where they lived until 2001. 15. The applicants asked the Sofia municipality to provide them with a municipal flat for rent. The municipality agreed but proposed to the applicants, in April 2000, a squatted flat and later on a flat located below ground level, which the applicants refused as being unsuitable for occupation. Eventually, in December 2002 the applicants were granted the tenancy of a two-room municipal flat at regulated prices. 16. On an unspecified date in 1997 the applicants brought an action under section 2 § 1 of the 1991 Act, seeking compensation for improvements in the property from the heirs of Mr A. and Mrs P. By a judgment of 10 July 2000 the Sofia City Court awarded the applicants 34,462 Bulgarian levs (BGN) (the equivalent of approximately EUR 17,500) apparently on the basis of up-to-date market prices. 17. On 18 March 2003 this judgment was quashed by the Supreme Court of Cassation which referred the case for renewed examination indicating that the compensation should be in the amount of the expenses disbursed by the applicants for the reconstruction of their property, calculated with reference to prices as in force at the relevant time – the 1970s. 18. Thereafter the applicants abandoned the proceedings as it became clear that as a result of the devaluation of the Bulgarian currency, inflation and the Bulgarian courts’ practice of refusing revalorisation they could only hope to obtain a token compensation. The proceedings were terminated on an unspecified date in 2004. 19. By virtue of Council of Ministers Decree no. 60 of 1975, the State or municipal enterprises were authorised to “buy up”, from the individuals who owned them, stores, workshops, storage houses or similar premises. The price was fixed by administrative decision on the basis of legislation. While the Decree provided that the owner should propose that his or her property be purchased, in reality the owners were pressured to sell their property under the Communist Party’s policy of limiting private economic activity (see Supreme Court judgment no. 270 of 14 February 1995 in case no. 4/94, noting, obiter, that the individuals concerned had been forced to sell their shop). This policy had been implemented, among other means, via the Citizens’ Property Act 1973, which limited to a minimum private ownership of premises for economic activity. 20. In December 1991 Parliament adopted the Restitution of Stores, Workshops and Storage Houses Act 1991, which provided that the former owners of real property sold to the State under Decree no. 60 of 1975 could restore their title automatically by reimbursing the price they had received within one year of the Act’s entry into force (section 1 of the Act). The restored owners were entitled to claim their property from any third person, even where the latter had acquired it by means of a valid transaction (see also Supreme Court judgment no.1758 of 2.02.1994 in case no. 430/93). 21. Section 2 § 1 of the 1991 Act entitles persons in the applicants’ position to seek compensation for improvements they have made to the property. They can recover the sums spent for the improvements, not an amount representing the resulting value increase (see Supreme Court judgment no. 945 of 22.10.1993 in case no. 390/93). In practice, however, these claims only lead to recovery of insignificant amounts owing to inflation, which in the 1990s depreciated the national currency by a factor of several hundred, and as a result of the Bulgarian courts’ practice of refusing revalorisation. The 1991 Act does not provide for recovery by persons in the applicants’ position of the price they paid for the property. Theoretically, they could bring proceedings for unjust enrichment under section 55 of the Contracts and Obligations Act against the State or the enterprise or institution which had received reimbursement from the restored owners under section 1 of the Act but there is no reported case-law confirming this possibility. | 0 |
dev | 001-58818 | ENG | ITA | CHAMBER | 2,000 | CASE OF MESSINA v. ITALY (No. 2) | 1 | No violation of Art. 8 on account of restrictions on visits by family;Violation of Art. 8 on account of censorship of correspondence;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient | Christos Rozakis | 8. In a judgment delivered by the Marsala District Court on 21 December 1992 the applicant was sentenced to seven years' imprisonment and to payment of a fine, inter alia for drug trafficking and membership of a Mafia-type organisation. On 23 November 1993 he was extradited from Switzerland in order to serve his sentence. He was subsequently held in Como Prison. In a judgment of 6 March 1995, deposited with the registry on 30 May 1995, the Palermo Court of Appeal acquitted him of two charges and reduced his sentence to five years' imprisonment. The applicant lodged an appeal on points of law on 13 July 1995. That appeal was dismissed in a judgment of 26 January 1996. 9. On 18 January 1995 the judge at Caltanissetta District Court responsible for preliminary inquiries issued a warrant to have the applicant brought before him immediately on suspicion of the murder of an officer of the State legal service; the applicant was served with that warrant on the same day. The applicant was acquitted by the Caltanissetta Assize Court in June 1998. The proceedings are apparently still pending. 10. In further proceedings against the applicant for membership of a Mafia-type organisation and other offences linked with drug trafficking, he was acquitted of the first charge by the Trapani Assize Court in a judgment of 30 January 1999. 11. On 26 May 1995, in another set of proceedings before the Marsala District Court, the applicant was sentenced to seventeen years' imprisonment, inter alia for conspiracy to engage in international drug trafficking. In a judgment of 16 April 1997 the Palermo Court of Appeal acquitted the applicant of one charge and reduced the sentence for the other charges to ten years' imprisonment. An appeal on points of law by the applicant was dismissed in a judgment of 4 December 1998, deposited with the registry on 25 February 1999. 12. The applicant is serving a fourteen-year prison term to which he was sentenced by the Palermo Court of Appeal for false imprisonment, among other offences. 13. By a decree of 26 November 1993 the Minister of Justice ordered that the applicant should be subject to the special prison regime for one year. This decree was grounded on public order and security considerations given the dangerousness of the Mafia and of the applicant in so far as he was presumed, according to police reports, to have maintained links with Mafia circles. Moreover, this decree, in derogation from the Prison Administration Act, imposed the following restrictions: – no access to a telephone; – no conversation or correspondence with other prisoners; – no meetings with third parties; – limits on visits by family members, with a maximum of one visit for one hour per month; – no sums of money above a fixed amount to be received or sent out; – only parcels containing clothing to be sent in from outside prison; – no organisation of cultural, recreational or sports activities; – no right to vote in elections for prisoners' representatives or to be elected as a representative; – no handicrafts; – no food requiring cooking to be purchased; – not more than two hours per day to be spent outdoors. 14. By the terms of Article 2 of this decree, censorship of correspondence by the governor of a prison required previous authorisation by the court having jurisdiction. 15. On 26 November 1993 the governor of Como Prison transmitted to the Trapani Assize Court an application by the applicant for permission for additional visits and telephone calls, if possible on request. The President of the Assize Court allowed this application on 20 December 1993. 16. On 29 November 1993 the governor of Como Prison asked the Trapani Assize Court to authorise censorship of the correspondence of the applicant, who on 28 November 1993 had been served with the Minister of Justice's decree placing him under the special regime. On 30 November 1993 the President of the Trapani Assize Court gave his authorisation. 17. On an unspecified date the applicant challenged the decree of 26 November 1993 before the Ancona court responsible for the execution of sentences. He objected to being placed under the special regime and complained of its vexatious nature. The court rejected the appeal on an unspecified date in 1995. 18. The applicant was subsequently transferred several times to prisons in Trapani, Ascoli Piceno, Termini Imerese, Pianosa, Palermo and Porto Azzurro, often for the sole purpose of allowing him to participate in the hearings of the appeal proceedings taking place in Palermo. 19. On 7 December 1993 the governor of Termini Imerese Prison made an application to the Trapani Assize Court and to the Marsala District Court requesting authorisation to allow the applicant visits by members of his family (the applicant is married and has three daughters). The President of the Assize Court granted his authorisation on 9 December 1993. 20. On an unspecified date an application for censorship of the applicant's correspondence to be authorised was made by the prison to the Macerata court responsible for the execution of sentences. On 22 August 1994 the Macerata court responsible for the execution of sentences allowed that application for a period of six months. 21. On 24 August 1994 the applicant appealed against that decision to the Ancona and Trapani courts responsible for the execution of sentences. The result of those appeals is unknown. 22. In a decree of 29 November 1994 the Minister of Justice ordered that the applicant be placed under the special prison regime again, from 29 November 1994 to 28 May 1995, on the ground that the conditions justifying that measure continued to exist. The restrictions were the same as those imposed by the previous decree. 23. On 6 December 1994 the applicant appealed against this decree to the Ancona court responsible for the execution of sentences. He complained of being placed under the special regime and, in particular, of the restriction on visits by family members. 24. In a decision of 27 March 1995 the Ancona court responsible for the execution of sentences rejected the appeal in part, holding that imposing the special prison regime on the applicant was justified and that the decree complained of was based on adequate grounds. As for the restrictions imposed by that decree, the court found that the list of minimal conditions of detention laid down in section 14 quater of the Prison Administration Act should apply in relation to visits by family members. Consequently, the court struck down the ban on receiving more than one family visit per month and ruled that the applicant would in future be entitled to four. 25. On 30 March 1995 the applicant appealed on points of law against that decision. He argued that the conditions of detention to which he was subjected were inhuman and that the special prison regime had been extended by decrees based on inadequate grounds. The public prosecutor also appealed against the decision. In a judgment of 10 October 1995, deposited with the registry on 31 October 1995, the appeals were declared inadmissible on the ground that the parties no longer had standing, since the decree of 29 November 1994 had expired on 28 May 1995, before the Court of Cassation delivered its judgment. 26. In a decree of 27 May 1995 the Minister of Justice ordered application of the special prison regime to be extended until 26 November 1995, on the ground that the conditions justifying the measure continued to exist. 27. On 5 June 1995 the applicant lodged an appeal against the above decree with the Ministry of Justice, to be transmitted, if necessary, to the Ancona court responsible for the execution of sentences. He complained, inter alia, of the lack of real grounds justifying extension of the special regime and argued that the restrictions placed on visits and time outdoors and the prohibition of the purchase of food requiring cooking were not only contrary to section 14 quater of the Prison Administration Act and incompatible with the aim of rehabilitation, but also vexatious. He asked for application of the special regime to be countermanded and for permission to receive visits from his wife and his daughters without being separated from them by glass partitions and to make telephone calls. The applicant also emphasised that he was being held far from his family and the place where the trial was taking place. The outcome of that appeal is not known. 28. In a decree of 24 November 1995 the Minister of Justice ordered, on similar grounds, that application of the special prison regime be extended to 23 May 1996. On 27 November 1995 the applicant challenged the above order in the Florence court responsible for the execution of sentences. 29. In a decree of 21 May 1996 application of the special regime was once again extended by six months. The grounds for that decree and the restrictions imposed were the same as those of the previous decrees. On 30 May 1996 the applicant challenged the above decree in the Florence court responsible for the execution of sentences. 30. On 2 October 1996 the applicant applied to the Florence court responsible for the execution of sentences for a date to be fixed for hearing his appeals of 27 November 1995 and 30 May 1996. 31. In a decree of 19 November 1996 the Minister of Justice once again extended application of the special regime by six months; that decision was based on grounds similar to those of the previous decrees. On 21 November 1996 the applicant challenged the decree in the Florence court responsible for the execution of sentences. The court dismissed the applicant's appeal in a decision of 11 February 1997. Basing its decision on the Constitutional Court's judgment no. 351/1996, the court held that extension of the application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities. However, it struck down some of the restrictions previously placed on the applicant, namely suspension of the rehabilitation programme; restrictions on visits by family members; the prohibition of parcels containing anything other than clothing; the ban on the purchase of food requiring cooking and the restriction of time spent outdoors to two hours per day. The applicant appealed on points of law against the above decision. The hearing in private was set down for 30 September 1997. On that date the appeal was declared inadmissible as being devoid of purpose, the decree's period of validity having in the meantime expired. 32. On 4 February 1997 the Minister of Justice ordered that the applicant be permitted to replace the monthly visit by his family with a telephone call, to receive one additional parcel per month and two special parcels per year, and to use the kitchens. 33. In a decree of 19 May 1997 the Minister of Justice once again extended application of the special prison regime by six months. That decision was based on grounds similar to those of the previous ones. The applicant challenged the above decree in the Florence court responsible for the execution of sentences, which dismissed his appeal in a decision of 7 August 1997, ruling that extension of application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities. However, it struck down some restrictions previously imposed, namely suspension of the rehabilitation programme, restrictions on visits by family members, the prohibition of parcels containing anything other than clothing, the ban on the purchase of food requiring cooking, and the restriction of outdoor exercise to two hours per day. The applicant appealed on points of law against the above decision but in a judgment of 19 January 1998 his appeal was ruled inadmissible as being devoid of purpose, since the decree's period of validity had expired in the interim. 34. On 29 August 1997 the applicant applied to the Macerata judge responsible for the execution of sentences, complaining of the regime under which he had been placed. The judge dismissed that appeal in a decision of 15 October 1997, deposited with the registry on the following day. He noted that the restrictions the applicant had complained of had been imposed by the prison authorities by means of departmental orders which, without exception, implemented the Minister of Justice's decrees and were therefore lawful; he further emphasised that defendants – unlike convicted persons – were not required to participate in the rehabilitation programme on account of the principles of the presumption of innocence and the freedom to defend oneself. 35. In a decree of 21 November 1997 the Minister of Justice extended the special regime for six months and ordered the governor of the prison to apply to the competent court for authorisation to censor all the applicant's correspondence. On 23 November 1997 the governor of Trapani Prison applied for authorisation to the Livorno judge responsible for the execution of sentences, who informed the judge who had jurisdiction, namely the Trapani judge responsible for the execution of sentences. The latter ordered censorship of the applicant's correspondence for six months, starting on 21 November 1997. 36. On 28 November 1997 the applicant appealed against the decree of 21 November 1997 to the Ancona court responsible for the execution of sentences, which transmitted his appeal on 1 December 1997 to the Palermo District Court. The Palermo District Court returned it to the Ancona court on 2 May 1998 as jurisdiction over the matter had changed in the interim (see paragraph 46 below in fine). By a decision of 7 May 1998, deposited with the registry on 11 May 1998, the Ancona court responsible for the execution of sentences dismissed the appeal. 37. In a decision of 4 February 1998 the Minister of Justice revoked the restriction on outdoor exercise. 38. In a decision of 21 May 1998 the Minister of Justice ordered that the applicant should cease to be subject to the special regime. 39. A number of letters and the observations sent by the applicant to the Secretariat of the European Commission of Human Rights through his wife arrived with censors' stamps from the prisons of Pianosa, Palermo, Porto Azzurro, Ascoli Piceno and Trapani. Censorship continued until June 1998. 40. Letters sent by the applicant to his wife, in particular those of 19 and 21 October 1997 were censored; the applicant was informed of this on 21 and 28 October 1997. 41. The appeals by the applicant to the courts responsible for the execution of sentences were censored by the prison authorities. 42. Section 41 bis of the Prison Administration Act (Law no. 354 of 26 July 1975), as amended by Law no. 356 of 7 August 1992, gives the Minister of Justice the power to suspend application of the ordinary prison regime as laid down in Law no. 354 of 1975 in whole or in part, by means of a decision stating grounds which is subject to judicial review, for reasons of public order and security in cases where the ordinary prison regime would be inadequate to meet these requirements. 43. Such a measure can be applied only to prisoners charged with or sentenced for the offences mentioned in section 4 bis of the Act, which includes offences relating to Mafia activities. 44. Under the terms of section 6 of Law no. 11 of 7 January 1998, application of the section 41 bis special regime was extended until 31 December 2000. 45. The measures which may result from application of section 41 bis are the following: – a ban on participating in the preparation of food and organising prisoners' recreational activities; – a ban on visits by persons other than family members, a cohabitant or a lawyer; – a maximum of two visits and one telephone call per month; – censorship of all the prisoner's correspondence except for that with his lawyer; – not more than two hours per day to be spent outdoors; – no extra visits allowed for good conduct; – restrictions on acquiring or receiving from outside prison personal possessions authorised by the prison's internal rules; – no more than two parcels per month; – no sums of money to be received from outside prison or sent out; – no handicrafts involving the use of dangerous tools. 46. Section 14 ter of the Prison Administration Act provides for an appeal (reclamo) to the court responsible for the execution of sentences (tribunale di sorveglianza) against a decree of the Minister of Justice imposing the special regime within ten days from the date on which the person concerned receives a copy of the decree. Such an appeal does not have suspensive effect. The court must take a decision within ten days. Section 4 of Law no. 11 of 7 January 1998 requires an appeal to be lodged with the court responsible for the execution of sentences which has geographical jurisdiction over the prison where an appellant is serving his sentence. An appeal to the Court of Cassation lies against the decision of the court responsible for the execution of sentences. 47. The Italian Constitutional Court, having been asked to rule on whether such a system complied with the principle of non-encroachment on matters reserved for the legislature, held (in judgments nos. 349 and 410 of 1993) that section 41 bis was compatible with the Constitution. It observed that while the special prison regime within the meaning of the provision in question was in practice laid down by the Minister, an appeal lay against a ministerial decree to the courts responsible for the execution of sentences, which had the power to review both the need for such a measure and the actual measures to be applied to the prisoner concerned, which in any event ought never to entail inhuman treatment. 48. Nevertheless, the Constitutional Court held, on the basis of Article 15 of the Constitution, which provides, inter alia, that restrictions on correspondence may be imposed only by means of a court decision whose grounds are stated, that the power to order censorship of a prisoner's correspondence belonged to the courts alone. As a result, section 41 bis could not be interpreted to include a power on the Minister of Justice's part to take measures relating to prisoners' correspondence. 49. However, the Court of Cassation has held that the courts responsible for the execution of sentences should confine themselves to reviewing the lawfulness of a ministerial decree as such, and could not usurp the role of the administrative authorities in the choice of the actual measures to be taken. On the other hand, the courts responsible for the execution of sentences have in practice gone so far as to review whether each specific measure is in accordance with the aim pursued by the administrative authorities. The result of this had been that decisions of the courts responsible for the execution of sentences had often remained unexecuted, and this had given rise to conflicts between those courts and the administrative authorities. 50. In judgment no. 351 of 14-18 October 1996 the Constitutional Court established the principle that the power of judicial review by the courts responsible for the execution of sentences extended to the practical arrangements for implementation of a measure, regard being had both to the aim pursued and to the fundamental rights guaranteed by the Constitution. The Court of Cassation, moreover, changed the line of its case-law on the question even before the Constitutional Court's judgment, by allowing the court responsible for the execution of sentences to strike down, in whole or in part, the application of unlawful measures (see judgments nos. 6873 of 12 February 1996 and 684 of 1 March 1996). 51. On 7 February 1997, applying the principles laid down by the Constitutional Court in the above-mentioned judgment, the Prison Administration Department of the Ministry of Justice sent a circular letter to the governors of prisons regarding organisation of the wings where prisoners subject to the special regime are held. This circular contained, inter alia, the following instructions: prisoners would from then on be allowed to use the kitchens; they would have access to rooms equipped for sporting activities and to a library; visits by family members could be replaced by telephone calls; the use of glass partitions would continue but, as a result, the searching of visitors need not be so strict. 52. In judgment no. 376 of 26 November-5 December 1997 the Constitutional Court reaffirmed that section 41 bis was compatible with the Constitution, while changing and clarifying the interpretation to be given to it. It held, inter alia, that decrees imposing the special regime had to be based on genuine public-order and security grounds, and that decisions to extend application of the regime also had to be based on sufficient grounds which were independent of those which had justified the imposition of the rules in the first place. The Constitutional Court held that the special regime should not amount to inhuman treatment or hinder the prisoner's rehabilitation, which would be contrary to Article 27 of the Constitution. It nevertheless stated that at no time did section 13 of the Prison Administration Act cease to apply, under which the treatment to which a prisoner is subjected must respect his personality, and a rehabilitation programme must be prepared and adapted on the basis of scientific observation of the prisoner's personality and with his cooperation. 53. Section 27 of the Act also remained applicable. This provided that cultural, sporting and recreational activities should be promoted and organised in prisons – as should any other activity allowing the expression of the prisoners' personalities within the rehabilitation programme. These activities had to be organised, of course, in such a way as to prevent any contact between the person concerned and the Mafia or criminal environment from which he came. Emphasising that the special regime had to respect the aim of returning the prisoner to normal society, the Constitutional Court held that the principle of the presumption of innocence was not infringed by the fact that the special regime could be imposed on suspects before a final conviction. In fact, application of the special regime did not stand in the way of early release (see the Constitutional Court's judgment no. 349 of 1993), which presupposed the prisoner's previous participation in the cultural, sporting and recreational activities provided for in section 27 of the Prison Administration Act. 54. On 6 February 1998, in accordance with the principles laid down by the Constitutional Court in the above-mentioned judgment, the Prison Administration Department of the Ministry of Justice sent a circular letter to prison governors concerning the organisation of the wings where prisoners subject to the special regime are held. This circular included, inter alia, the following instructions: – outdoor exercise time was to be increased to four hours per day, but care was to be taken to ensure that outdoor exercise did not become an opportunity for meeting or making contact with other persons presumed to be associated with the Mafia; – the outdoor exercise yards in Secondigliano and Pisa Prisons were to be equipped for physical exercise and sport; – one or more rooms for social, cultural or recreational activities were to be provided in each wing to which prisoners subject to the special regime were permanently assigned or which were occupied by them for medical reasons; – on the question of work, the circular stated that where it was not possible to equip a prison appropriately prisoners should have access to premises equipped for this purpose in other prisons, with measures in place to exclude any opportunity of meeting or making contact with other persons presumed to be associated with the Mafia; – visits by children under 16 years of age could take place without a glass partition; if the visit took place in the presence of other persons, partition-free access was to be authorised for the children only and was not to exceed one-sixth of the total duration of the visit in length; – prisoners subject to the special regime could receive parcels containing foodstuffs apart from those requiring cooking, because they were not to be allowed to use the kitchens except for the purpose of making hot drinks or heating up pre-cooked food. 55. Section 18 of Law no. 354 of 26 July 1975, as amended by section 2 of Law no. 1 of 12 January 1977, provides that the authority empowered to order the censorship of prisoners' correspondence is the court before which proceedings are pending (whether the investigating court or the trial court) until the delivery of the first-instance judgment, and the court responsible for the execution of sentences during any subsequent proceedings. Section 18 also provides that the court with jurisdiction may order the monitoring of a prisoner's correspondence in a decision stating reasons, but it does not set out the cases in which such a decision may be made. 56. In practice, the censorship concerned means interception of all the correspondence of the prisoner subject to the order, which is then read by the judicial authority which ordered it, by the governor of the prison or by prison staff designated by the governor. The letters are then marked with the censor's stamp, which serves as proof that they have been read (see also Article 36 of Presidential Decree no. 431 of 29 April 1976, implementing the above-mentioned Law no. 354). This supervisory measure cannot lead to the erasing of words or sentences, but the judicial authority may order that one or more letters should not be delivered. In such cases, the prisoner must be immediately informed of this. Such an order may also be made provisionally by the governor of the prison, who must, however, inform the judicial authority. 57. Lastly, with regard to the remedies available against censorship of correspondence, the Court of Cassation has stated in several decisions that it constitutes an administrative act. Moreover, the Court of Cassation has affirmed in its settled case-law that Italian law does not provide remedies in this respect; nor can censorship form the subject of an appeal on points of law since it does not concern the prisoner's personal liberty (Court of Cassation judgments nos. 3141 of 14 February 1990 and 4687 of 4 February 1992). 58. Section 35 of the Prison Administration Act provides that prisoners may make sealed applications or complaints to the following authorities : – the governor of the prison, prison inspectors, the Director-General of Prisons and the Minister of Justice; – the judge responsible for the execution of sentences; – the judicial and health authorities which inspect the prison; – the President of the Regional Council; and – the President of the Republic. | 1 |
dev | 001-23918 | ENG | DNK | ADMISSIBILITY | 2,004 | PETERSEN v. DENMARK | 4 | Inadmissible | Giovanni Bonello | The applicant, Mr Troels Petersen, is a Danish national, who was born in 1964 and lives in Kokkedal. He is represented before the Court by Mr Søren Beck, a lawyer practising in Copenhagen. The Goverrnment are represented by their Agent, Ms Nina Holst-Christensen of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In the beginning of the 1990s a new concept called “tax asset stripping cases” (selskabstømmersager) came into existence in Denmark. It covered a criminal activity by which the persons involved committed aggravating debtor fraud by buying up and selling numerous private limited companies within a short period, and for the sake of their own profit, “stripping” the companies for assets, including deposits earmarked for payment of corporation tax. The persons involved were usually intricately interconnected and collaborated about their economic criminal activities, which concerned very large amounts. I. On 15 April 1994 the Tax Authorities reported to the Public Prosecutor for Serious Economic Crime (Statsadvokaten for Særlig Økonomisk Kriminalitet) that allegedly, a person henceforth called JM, and three other persons had participated in the acquisition and stripping of seventy private limited companies (the Centra Finans case). The Tax Authorities made a reservation to increase the number of persons involved and submitted at the same time a note in which the applicant's name figured and his role as vendor of private limited companies was described. In December 1994 the Copenhagen City Court (Københavns Byret) issued a warrant of arrest against JM, who was staying abroad. On 11 May 1995 the Copenhagen City Court issued a search warrant for the premises of the applicant, who was neither provisionally charged (sigtet) nor charged (tiltalt). The search was carried out on 23 May 1995 and the applicant was interviewed by the police without being charged. On 10 August 1995 JM was remanded in custody, from which he escaped on 3 October 1995. He was arrested in France in April 1996, and served a sentence there before he was surrendered to the Danish police on 29 May 1997. In the meantime the Copenhagen Police had questioned the applicant on 5 October 1995. An order for surrender of details on bank accounts in Britain was issued on 23 February 1996. Another search warrant against the applicant was issued by the Copenhagen City Court on 18 October 1996. It was carried out on 24 October 1996, and the applicant was formally charged with tax asset stripping allegedly having been committed in six cases during the spring of 1993 with a risk of loss to the Treasury of approximately thirty million Danish kroner (DKK). JM was charged with tax asset stripping in twenty-seven cases. The police also investigated other persons in connection with the case, but their criminal cases were conducted separately. In the spring of 1997 the applicant gave permission that the police obtain details from his accounts with his bank in Switzerland. The latter and account details from the bank in Britain were submitted to the police in June 1997. On the prosecutions' request a hearing was held before the Copenhagen City Court on 18 August 1997 in order to plan the course of the proceedings. Dates for the trial were agreed on. It appears from the court records that the judge asked counsel whether shorter interval between the dates of the hearings could be fixed so that the trial could be concluded faster. Counsel stated that this was not possible since they were occupied by other matters, including hearings already scheduled in other proceedings. An indictment was issued by the prosecution on 11 September 1997 and the trial before the City Court commenced on 23 October 1997. Fifty-eight hearings were held altogether. The applicant, JM and forty-five witnesses were heard, including a state-authorised public accountant, who gave evidence over two court days in which he elaborated the audit reports, etc. In addition, a considerable amount of other documentary evidence was presented e.g. about questions such as constructions with Danish and foreign companies and money transaction in Danish and foreign banks (in Britain, Switzerland and the United States). Each set of exhibits for the case took up fifty-three A4 binders, which included four audit reports, two supplementary reports and two statements of transaction prepared for the case by the state-authorised public accountant. The closing speech of the applicant's counsel took about two and a half day, that of the JM's counsel a little more than two days, and that of the prosecutor about three days. The City Court, sitting with six lay judges, met six times and deliberated for altogether three and a half days. By judgment of 9 March 1999, which ran to one hundred and thirty-five pages, the City Court convicted the applicant of participation in tax assets stripping as to DKK 29,748,769. He was sentenced to three years' imprisonment; an amount of DKK 3,800,000 was seized; and in addition for an indefinite period, he was deprived of his right to establish or to become manager and/or member of a director's board in a private limited company, or in a company or an association which would require public approval. JM was convicted by the same judgment. The City Court rejected the applicant's complaint that the length of the proceeding had exceeded a reasonable time, stating among other things: “...on the material before it the court cannot find it established that the investigation laid unnecessary idle during the periods, on which [the applicant] specifically has relied [i.e. de facto from April 1994 until October 1996]. Furthermore, the court notes that the nature and scope of the offences must be taken into account when assessing the total length of the proceedings ... In this connection it should be taken into consideration that the proceedings ...have shown, inter alia, that it has been time-consuming and difficult to procure various details for the case from foreign authorities and banks in general, i.e. also during the investigation, not least concerning [the applicant]. The length of the proceedings is not due only to the affairs of [JM], but also due to the need [during the investigation and the trial] of illuminating the role of [the applicant] Moreover, the investigation concerning both [JM and the applicant] was rendered difficult by the fact that [JM] had left Denmark and stayed abroad without notifying the Danish authorities of his residence in the period from June 1993 until 9 August 1995 and later escaped from custody and fled abroad in the period from 3 October 1995 until 11 April 1996, whereupon he was furthermore remanded in custody and served a sentence in France from 11 April 1996 until 29 May 1997.” On 14 April 1999 the applicant lodged an appeal against the judgment to the High Court (Østre Landsret), before which 20 hearings were held. By judgment of 27 September 2000 the High Court upheld the City Court's judgment. The appeal court also rejected the applicant's complaint that the length of the proceeding had exceeded a reasonable time. It stated inter alia: “The High Court finds that there are no major periods of time during the proceedings with the police, the prosecutor, the City Court or the High Court when the case has not been duly expedited. It should be noted that it is solely due to the circumstances of [the applicant] and his counsel that the case could not be tried by the High Court in the autumn of 1999. Accordingly, and in view of the nature and the scope of the crime, which has necessitated comprehensive investigation, the total length of the proceedings does not involve any violation of Article 6 § 1 of the Convention.” On 15 February 2001 the applicant requested leave to appeal against the High Court judgment to the Supreme Court (Højesteret). His request was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 3 April 2001. II. In the early 1990s the Police in Frederikssund with the assistance from a special crime squad carried out investigation of several tax assets stripping cases, which resulted inter alia in eight persons being indicted in July 1996. As part of the investigations accountants had been asked to draw up statements of accounts. Those were submitted on 7 July 1997 and led the police's attention to other persons involved. On 7 November 1997 the applicant was provisionally charged with participation in tax assets stripping having been committed in 1992-1993 and by indictment of 17 December 1997 prosecution was initiated against him and five coaccused (the Lacewood case). On the same date the indictment was forwarded to the City Court of Frederikssund (Retten i Frederikssund) although the investigation had not been completed. It emerges from the court records of 29 April 1998 that the parties discussed the scheduling of the trial. The applicant's counsel was not able to attend the trial until after November 1998 and some of the other counsel were unable to appear until after April 1999. By request of counsel for two co-accused, on 12 May 1998 the City Court of Frederikssund decided to transfer the case to Copenhagen City Court being the proper venue. The public prosecution appealed in vain against this decision. Thus, the High Court found against the public prosecution on 3 June 1998, and the latter's request for leave to appeal to the Supreme Court was refused by the Leave to Appeal Board on 7 August 1998. The Copenhagen City Court received the case on 4 September 1998. On 1 October 1998 an audit “liquidity statement” requested by the prosecution was completed and included in the case file. At a court session held on 2 December 1998 the trial was scheduled to commence in the spring of 1999. From the court records of 17 February 1999 it emerges that the trial was to take place in another building rented for the purpose of trying a number of major cases before the Copenhagen City Court, and that therefore the trial could not start until 9 August 1999. Five hearings already scheduled for April and June 1999 were maintained and reserved for various requests made by counsel. It appears, however, that the said five hearings were subsequently cancelled. A supplementary indictment was issued on 20 July 1999. In the period between 9 August 1999 and 1 December 2000 altogether one hundred and five court sessions were held before the Copenhagen City Court. The applicant, the co-accused, and more than one hundred witnesses were heard. In addition, the above “liquidity statement” and a considerable amount of other documentary evidence were presented, thus about thirty A4 binders were read out during the trial. On 18 December 2000 the case was set down for judgment, which was pronounced on 2 March 2001 and ran to two hundred and twenty-two pages, and by which the applicant and the co-accused were convicted. As to the metering out the applicant's sentence, the court found that the sentence previously imposed on the applicant, upheld by the High Court on 27 September 2000 (see under I.), would not have been increased, had the two trials against him been joined. Thus, no additional sentence was imposed on the applicant. He was, however, deprived of his right to establish or to become manager and/or member of a director's board in a private limited company, or in a company or an association which would require public approval. The City Court rejected the applicant's complaint that the length of the proceeding had exceeded a reasonable time, stating among other things: “The [crimes] were committed in the period from 1991 until 1994. Prosecution was initiated by the indictment of 17 December 1997 and the supplementary indictment of 20 July 1999. The defendants were originally indicted before the City Court of Frederikssund, but the case was referred to the Copenhagen City Court by order of 12 May 1998 passed by the City Court of Frederikssund. This order was appealed against to the High Court, which dismissed the appeal by order of 3 June 1998. On 7 August 1998 the Leave to Appeal Board refused to grant the prosecutor leave to appeal to the Supreme Court. The Copenhagen City Court received the case on 4 September 1998, and during a court session held on 2 December 1998 dates were fixed for the trial. [The court sessions scheduled to take place in the spring of 1999] were later cancelled, and the trial took place as from 9 August 1999 and onwards. According to the information available, the time spent on investigation and initiation of prosecution by the prosecutor cannot be blamed the latter. In this connection, importance has been attached to the not uncomplicated nature of the case and to the need for investigation abroad. Accordingly, Article 6 of the Convention has not been breached” The applicant did not appeal against the judgment. | 0 |
dev | 001-5133 | ENG | LIE | ADMISSIBILITY | 2,000 | WALDEN v. LIECHTENSTEIN | 3 | Inadmissible | Matti Pellonpää | The applicant is a German citizen born in 1928 and residing in Liechtenstein since 1967. In the proceedings before the Court he is represented by Mr G. Marxer, a lawyer practising in Vaduz. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's wife retired in 1985 and received a single old age pension (einfache Altersrente). Since 1 January 1991, the monthly allocation amounted to 1,880 Swiss Francs (SFR). The applicant retired in 1993. On 7 December 1993 the Liechtenstein Old Age Pension Insurance Institution (Alters und Hinterlassenenversicherung) fixed a common married couple's pension (Ehepaar-Altersrente) for the applicant and his wife in the amount of SFR 1,880 per month. In accordance with the relevant legislation, the husband is entitled to receive the married couple's pension, while the wife's former claim to a single old age pension ceases and is replaced by a derived right to payment of half of the common pension. Further, the married couple's pension is calculated on the basis of the husband's contribution years. It is 150% of the husband's single pension. As the applicant's insurance period was shorter than his wife's, the resulting amount was lower than his wife's single pension. According to the relevant provisions a compensation was added to arrive at the amount of his wife's former pension. On 13 December 1993 the applicant filed an objection (Vorstellung) against the above decision. He argued that the method of calculation applied rendered his own contributions null and void as the married couple's pension was no higher than his wife's single pension. Further, he held that he and his wife were discriminated against in relation to other married couples. He requested two separate pensions to be paid instead of the common pension. On 20 January 1994 the Liechtenstein Old Age Pension Insurance Institution dismissed the applicant's objection. As to the applicant's first argument it observed that the Liechtenstein pension scheme was based on the principle of social solidarity. Thus, it did not grant pension claims in direct relation to the contributions paid. As to the applicant's second argument, the Insurance Institution agreed that there was unequal treatment of men and women as only the husband was entitled to the married couple's pension, which was calculated solely on the basis of the husband's contribution years. Moreover, in a case like the applicant's where the husband had an incomplete insurance career while his wife's was complete, a lower married couple's pension was paid than in the opposite case. However, the legal provisions were clear and precise and did not permit any other interpretation. The question could, thus, only be resolved by an amendment of the law. Such an amendment was envisaged for December 1996. On 21 September 1994 the Liechtenstein Court of Appeal (Obergericht), upon the applicant's appeal, confirmed the Insurance Institution's decision as being in conformity with existing legislation even if it was contrary to the principle of non-discrimination. It also refused the applicant's motion to interrupt the proceedings and to request the State Court (Staatsgerichshof) to examine the constitutionality of the contested provisions of the Old Age Pension Act. It found that in the event of an abrogation of these provisions the applicant's claims would not find any other legal basis without further initiative of the legislator. On 15 May 1995 the Liechtenstein Supreme Court (Oberster Gerichtshof) dismissed the applicant's appeal on points of law. It stated that the unequal treatment of husband and wife in the current pension scheme could not be remedied by the courts, but required an amendment of the relevant law by the legislator. On 23 October 1995 the applicant, after having lodged a complaint with the State Court, challenged State Court judge Hoch for bias on the ground that the latter had written a dissertation on social security law, which had been partly financed and distributed by the Old Age Pension Insurance Institution. On 24 May 1996 the Liechtenstein State Court, sitting as a Constitutional Court (Verfassungsgerichtshof), rejected the applicant's challenge for bias and partly granted his constitutional complaint. As to the applicant's challenge for bias, the State Court found that the past financial support and distribution of a dissertation by a public law institution did not create such a personal link as to affect a judge's impartiality. As to the applicant's complaint, the State Court found that the applicant's constitutional rights were violated by the Supreme Court's decision. The married couples' pension system, based on a traditional view of marriage, was unconstitutional as being contrary to the principle of non-discrimination on the basis of gender, in particular as only the husband's contribution years were decisive for the calculation of the married couple's pension. Moreover, it was unconstitutional as being contrary to the general principle of equal treatment, in that married and unmarried couples were treated differently with regard to their pension benefits. However, the State Court rejected the applicant's request to quash the contested judgment and to set aside the relevant provisions in the Old Age Pension Act. It noted that it would, technically speaking, be possible to set aside a number of provisions with the result that the applicant and his wife would each be entitled to a single old age pension. However, this would cause massive disadvantages to others, in particular to married couples where the wife did not have an own insurance career. The situation was even more complex in view of the Social Security Agreement between Liechtenstein and Switzerland which could only operate if the requirements for pension claims were more or less identical in both States. In conclusion, the State Court did not see itself in a position to set aside the contested provisions, given the complexity of social security law and the statutory time-limit of a maximum of six months for suspending an abrogation. The State Court went on to say that despite these considerations the continuing application of unconstitutional legislation for a protracted period would be unacceptable. However, a comprehensive legal reform with the explicit aim of guaranteeing gender equality in social security law was already being prepared and Parliament had requested the Government to submit all necessary amendments of social security law before the end of 1996. Moreover, the draft amendment of the Old Age Pension Act included provisions according to which couples in the position of the applicant and his wife would be entitled to two single pensions. Having regard to the time-table for the pending reform, the above-mentioned maximum time-limit of six months for enacting new legislation could possibly be complied with. Nevertheless, it was not justified to annul the unconstitutional provisions with a six-months suspension as the envisaged date of entry into force, namely 1 January 1997, would become illusory if for instance a referendum was requested. In this case, the annulment would become effective and would entail all the negative consequences described above. In fact, the amendment to the Old Age Pension Act was adopted in September 1996 (see below). According to its provisions the applicant and his wife each receive a single pension of SFR 1,086 and 1,990, respectively, as of 1 January 1997. B. Relevant Domestic Law The Liechtenstein Old Age Pension Act (Gesetz über die Alters- und Hinterlassenenversicherung) of 14 December 1952, Law Gazette (LGBl) 1952/29, before its amendment, provided for common married couple's pensions which were to be paid as soon as both spouses reached the retirement age. When a common pension was paid the wife's claim for pension payments expired. Only the husband's contribution years were decisive for the calculation of the married couple's pension. By amendment of 18 September 1996, Law Gazette 1996/192, to the Old Age Pension Act, the married couple's pension system was replaced by a scheme providing single pensions for both spouses. Married couple's pensions existing at the time of the amendment were transformed into two single pensions as of 1 January 1997, subject to the clause that the total amount of both pensions was not to be lower that the previous married couple's pension. | 0 |
dev | 001-89161 | ENG | UKR | CHAMBER | 2,008 | CASE OF SOLDATENKO v. UKRAINE | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objections dismissed;Remainder inadmissible;Violation of Art. 3 (in case of extradition to Turkmenistan);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-4 | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych | 5. The applicant was born in 1961 and is currently detained in a penitentiary institution in the Kherson region, awaiting his extradition to Turkmenistan. The applicant’s lawyer claims that the applicant is a stateless person. According to the Government, the applicant is a Turkmen national. The applicant himself does not deny his Turkmen nationality and has not raised the issue of his allegedly stateless status before the Ukrainian authorities. 6. On 7 July 1999 the Turkmen law-enforcement authorities issued a bill of indictment against the applicant for inflicting light and grievous bodily harm on two individuals on 4 June 1999 (the latter, more serious crime is punishable by five to ten years’ imprisonment under the Criminal Code of Turkmenistan). The same day the Turkmen police ordered the applicant’s arrest. This latter decision was approved by the Ashgabat Azatlyksky District Prosecutor on 8 July 1999. 7. On 12 July 1999 a search for the applicant was announced by the police. 8. The applicant left Turkmenistan in October 1999 because of his alleged persecution on ethnic grounds. Since then he has resided in Ukraine. 9. On 4 January 2007 the applicant was apprehended by the police. According to the applicant his relatives were informed that he had been arrested for hooliganism and later they were informed he had been arrested under Article 106 of the Code of Criminal Procedure under an international search warrant. 10. The same day the applicant was informed that he was wanted by the law-enforcement authorities of Turkmenistan. According to the applicant, the police officers persuaded him to refrain from asking for legal assistance under the pretext that all procedural steps in his criminal case would be conducted in the territory of Turkmenistan. 11. The same day the Kherson Police Department received an official request from the Turkmen authorities for the applicant’s provisional arrest under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, 1993. 12. On 8 January 2007 the applicant was allowed to see a lawyer. 13. On 10 January 2007 the applicant was brought by the police before a judge of the Kakhovsky District Court of the Kherson Region, who ordered his detention pending the extradition proceedings against him. The decision, which stated that an appeal could be made under Article 165-2 of the Code of Criminal Procedure, was served immediately. No time-limit was set for his detention. 14. The same day the applicant was questioned by the Gornostaevsky District Prosecutor, to whom he explained, inter alia, that prior to his arrest he had not been aware that he had been wanted by the Turkmen law-enforcement authorities. He further explained that he had signed a waiver of assistance from a lawyer since the police had explained to him that he would not face a trial in Ukraine. 15. On 15 January 2007 the applicant requested the Court to apply Rule 39 of the Rules of Court in his case. On 16 January 2007 the President of the Chamber decided to apply Rule 39, indicating to the Government that it would be desirable in the interests of the parties and the proper conduct of the proceedings not to extradite the applicant to Turkmenistan pending the Court’s decision. 16. On 19 January 2007 the General Prosecutor’s Office of Turkmenistan requested the applicant’s extradition with a view to criminal prosecution for the crimes of inflicting light and grievous bodily harm on two individuals. It further gave assurances that the applicant would be prosecuted only for the crimes indicated in the request, that he would be allowed to leave Turkmenistan after serving his sentence, and that he would not be handed over to a third country without the consent of the Ukrainian authorities. It added that he had never been and would never be discriminated against on the grounds of social status, race, ethnic origin or religious beliefs. This request was received by the General Prosecutor’s Office of Ukraine on 30 January 2007. It appears that the applicant learned about this document only in the framework of the Convention proceedings. 17. On 31 January 2007 the General Prosecutor’s Office of Ukraine informed the General Prosecutor’s Office of Turkmenistan of the suspension of the extradition proceedings pursuant to the interim measure indicated by the Court. 18. On 5 February 2007 the Gornostaevsky Prosecutor’s Office sent a petition to the head of the Gornostaevsky Police Department, stating that the applicant’s detention had breached criminal procedural law. According to the petition, the applicant had been arrested on 4 January 2007 and placed in a cell at the police station in accordance with the arrest warrant issued by the Ashgabat Azatlyksky District Prosecutor’s Office of Turkmenistan. The prosecutor noted that from 4 to 10 January 2007 the police had not brought the applicant before a court to decide on his detention and had not informed the prosecutor about his detention. The prosecutor considered that the situation had arisen because of the police officers’ negligent performance of their duties and called for disciplinary action to be taken against them. 19. By orders of 20 February and 15 March 2007 the police officers responsible for the applicant’s detention in violation of the law were punished by an oral warning, a formal reprimand and deprivation of bonus payments for one month. 20. In a letter of 19 April 2007 the First Deputy Prosecutor General of Turkmenistan, in reply to the request from the Ukrainian General Prosecutor’s Office, informed it that the observance of the applicant’s rights and legitimate interests would be guaranteed, in particular: “- the requirements of Article 3 of the Convention on Human Rights and Fundamental Freedoms will be fulfilled in respect of N.I. Soldatenko, he will not be subjected to torture, inhuman or degrading treatment or punishment after extradition; - in case of necessity he will be provided with appropriate medical treatment and medical assistance; - the right to fair judicial consideration of his criminal case will be secured to him.” He further pointed out that the death penalty had been abolished in Turkmenistan. 21. The relevant provisions of the Constitution read as follows: “International treaties that are in force and are agreed to be binding by the Verkhovna Rada of Ukraine are part of the national legislation of Ukraine.” “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” “Human and citizens’ rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies exercising State power, local self-government bodies, officials and officers... ... After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant...” “The following are determined exclusively by the laws of Ukraine: (1) human and citizens’ rights and freedoms, the guarantees of these rights and freedoms; the main duties of the citizen; .. (14) the judicial system, judicial proceedings, the status of judges, the principles of judicial expertise, the organisation and operation of the prosecution service, the bodies of inquiry and investigation, the notary, the bodies and institutions for the execution of punishments; the fundamentals of the organisation and activity of the advocacy; ...” 22. The Convention was ratified by the Ukrainian Parliament on 10 November 1994. It entered into force in respect of Ukraine on 14 April 1995 and in respect of Turkmenistan on 19 February 1998. The text of the Convention was published on 16 November 2005 in the Official Gazette of Ukraine (no. 44, 2005). The relevant provisions of the Convention read as follows: “1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax. 2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. 3. In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.” “1. A person arrested pursuant to Article 61 § 1 shall be released if no request for extradition is received within a month of the arrest. 2. A person arrested pursuant to Article 61 § 2 shall be released if no request for extradition is received within the time established by the law concerning arrest.” 23. Chapter 31-a of the Code lay down the procedure for considering complaints by citizens about decisions, acts and omissions of State bodies, legal persons and officials in the sphere of administration. 24. Article 2 of the Code provides that the task of the administrative judiciary is the protection of the rights, freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public-law relations from violations by State bodies, bodies of local self-government, their officials and other persons in the exercise of their powers. Under the second paragraph of this Article, any decisions, actions or omissions of the authorities may be challenged before the administrative courts. 25. According to paragraph 7 of Chapter VII of the Transitional Provisions of the Code, after its entry into force any applications and complaints arising from administrative-law relations (Chapters 29-32 of the Code of Civil Procedure 1963) that had been lodged but not yet considered were to be examined under the procedure set out in the Code of Administrative Justice. 26. Article 106 of the Code governs the arrest and detention of persons suspected of committing a criminal offence. It provides: “The investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: 1. if the person is discovered whilst or immediately after committing an offence; 2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home. For each case of detention of a criminal suspect, the investigating body shall be required to draw up a record mentioning the grounds, the motives, the day, time, year and month, the place of detention, the explanations of the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before his first questioning, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee. A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for detention shall be sent to him as well. The investigating body shall immediately inform one of the suspect’s relatives of his detention... Within seventy-two hours after the arrest the investigating body shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. If the detention is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it. The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful. The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling. Detention of a criminal suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform accordingly the official or body that carried out the arrest.” 27. Article 148 of the Code provides that preventive measures shall be imposed on a suspect, accused, defendant, or convicted person. 28. Article 165-2 of the Code concerns the selection of a preventive measure in criminal proceedings. It reads as follows: “At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the investigating body, investigator or prosecutor. In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor’s consent he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person. The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained. In the event that the application concerns the detention of a person who is currently not deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality. Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order: (1) refusing to select the preventive measure if there are no grounds for doing so; (2) selecting a preventive measure in the form of taking of a suspect or accused into custody. The court shall be entitled to select for the suspect or accused a non-custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her. The judge’s order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge’s order.” 29. Article 382 of the Code lays down the procedure of appeal against first-instance court rulings and decisions, including those given under Article 165-2 of the Code. 30. The recommendation calls for the following procedural requirements in the case of removal of asylum seekers: “The Committee of Ministers ... Recommends that governments of member states, while applying their own procedural rules, ensure that the following guarantees are complied with in their legislation or practice: 1. An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment. 2. In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when: 2.1. that authority is judicial; or, if it is a quasi-judicial or administrative authority, it is clearly identified and composed of members who are impartial and who enjoy safeguards of independence; 2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief; 2.3 the remedy is accessible for the rejected asylum seeker; and 2.4 the execution of the expulsion order is suspended until a decision under 2.2 is taken.” 31. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “The Constitution of Ukraine provides that no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law (Article 29). In accordance with the first paragraph of Article 9 of the Constitution, international agreements in force ratified by the Verkhovna Rada form part of the national legislation. Under the second paragraph of section 19 of the International Treaties Act of 29 June 2004, if an international treaty to which Ukraine is a party and which has been ratified in accordance with a procedure prescribed by law establishes rules which differ from those laid down by the Ukrainian legislation, the rules of the international treaty shall apply. Issues relating to inviolability and freedom of movement (detention, arrest, apprehension and so forth) are therefore regulated not only by the norms of the Code of Criminal Procedure (‘the CCP’) and Article 10 of the Criminal Code (‘the CC’), but also by international treaties to which Ukraine is a party, and in particular by the 1957 European Convention on Extradition and its Additional Protocols of 1975 and 1978, ratified on 16 January 1998 by Law no. 43/98-ВР, ... the CIS Convention on Legal Assistance of 22 January 1993, concluded in Minsk and ratified on 10 November 1994 by Law no. 240/94-ВР, bilateral treaties between Ukraine and other States, multilateral specialised treaties ... ... An examination of the practice of the courts of Ukraine in deciding issues relating to the extradition of persons to other States demonstrates that they have applied the relevant legislation differently. In particular, some courts initiate proceedings on applications by the competent authorities concerning the application of a preventive measure in the form of detention of the persons to be extradited, while others refuse to institute proceedings on such applications. For the purposes of the uniform application of the legislation governing extradition to other States and the protection of fundamental human rights and freedoms, the Plenary Supreme Court resolves: 1. ... in deciding whether an issue relating to extradition to another State is within the courts’ jurisdiction, the courts must refer to the provisions of the Constitution of Ukraine, other national legislation, including the [1957] European Convention or other international treaties to which Ukraine is a party and by which it has agreed to be bound, or the former USSR’s treaties applied by Ukraine pursuant to Law no. 1543XII of 12 September 1991 on the succession of Ukraine. The courts should therefore decide what treaties have been concluded between Ukraine and the requesting State and what procedure such treaties lay down for resolving extradition issues... 2. Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated solely by the law of the requested State the courts are not empowered to decide on this issue. They [the courts] cannot on their own initiative decide on preventive measures applicable to persons subject to rendition or transfer, including their detention, as these issues are to be decided by the competent Ukrainian authorities. 3. Bearing in mind that in Ukraine a person can be held in detention for more than three days only on the basis of a reasoned court decision, and taking into account the fact that, pursuant to the second paragraph of Article 29 of the Constitution, such a decision can only be taken by a competent Ukrainian court, courts must accept jurisdiction and examine the merits of prosecutors’ requests and requests, approved by the prosecuting authorities, from the bodies acting upon extradition requests from other States [concerning individuals’ extradition], for detention and rendition under guard to the competent State bodies of the requesting State. 4. Pursuant to Article 16 of the European Convention on Extradition and other similar provisions of international treaties to which Ukraine is a party, the competent State bodies of the requesting State may in some cases request that a wanted person be temporarily detained. The competent State bodies dealing with the request shall take a decision in accordance with their country’s legislation. In this way, local courts decide on and examine the merits of requests made by prosecutors or other bodies approved by them which are acting upon requests from other States relating to the extradition or temporary arrest of a person for the purposes of his or her transfer under guard to the competent body of the requesting State, for a period established by the European Convention on Extradition or another international treaty. 5. The courts must decide whether an individual’s detention or temporary arrest is in accordance with the rules laid down in Article 165-2 of the Code of Criminal Procedure. The courts have the right to apply paragraph 4 of Article 165-2 of the Code of Criminal Procedure in a situation where a person is handed over to the court with a view to a decision on his apprehension (temporary arrest) for the purposes of extradition or transfer. The court shall review the existence of a request and of the relevant documents, established by treaty, forming the basis for extradition, and the absence of any grounds prohibiting extradition or transfer (Articles 2, 3, 6, 10 and 11 of the European Convention on Extradition and the 1975 and 1978 Additional Protocols thereto and Article 57 of the 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters). In particular, detainees may not be extradited for political and military offences; in the event of expiry of the limitation period; when, in the territory of the party to which the extradition request has been made, a court has already delivered a judgment or resolution closing the proceedings concerning a charge similar to the one mentioned in the extradition request; when issues relating to the extradition of a citizen of Ukraine or stateless persons permanently residing on the territory of Ukraine are being considered; in respect of persons enjoying refugee status in Ukraine; if the requesting party fails to provide Ukraine with sufficient guarantees that a sentence of capital punishment will not be enforced for the offence for which extradition has been requested, [if the offence in issue] is punishable by the death sentence in accordance with the law of the requesting State; if the offence, in accordance with the law of the party requesting extradition, or Ukrainian law, can be prosecuted by means of a private prosecution; if the offence which forms the basis for extradition is punishable by a maximum [sentence] of less than one year’s imprisonment or a less severe penalty. The courts shall also take into account other provisions of the European Convention on Extradition or other international treaties with regard to legal assistance which give the party to which the extradition request is addressed the right to refuse extradition. The courts should also make due reference to the fact that, under Article 28 of the European Convention, its provisions replace any other bilateral international treaties, conventions or agreements regulating extradition issues between any two Contracting Parties. Therefore, if a requesting State is a party to the European Convention, the provisions of bilateral or multilateral international treaties concerning extradition shall be applied in part, where they amend the provisions of that Convention. 6. In accordance with the third paragraph of Article 29 of the Constitution, the courts shall take into account and examine the merits of complaints by the individuals concerned and their lawyers and legal representatives alleging unlawful detention on the basis of an extradition request from another State. Such requests shall be examined on the basis of Article 106 (7) and (8) of the Code of Criminal Procedure. In deciding whether a person is being detained lawfully, the judge shall refer to the relevant provisions of Article 106 of the CCP with regard to detention procedures and compliance with procedural formalities and the provisions of the relevant international treaty on the basis of which the person has been detained, and also to the presence of the necessary documents on which the extradition is based (in particular, the request for extradition, the decisions of the competent bodies of the requesting party with regard to detention or arrest of the person, and so forth).” 32. The third party, commenting on the lack of a relevant procedure for reviewing decisions on extradition in Ukrainian law, submitted an example of the relevant domestic practice, which at the time had received considerable attention from the international community. 33. The 2006 Country Reports on Human Rights Practices, released by the United States Department of State on 6 March 2007, described this example of administrative practice in the following way in its report on Ukraine: “On February 16, UNHCR and the international community strongly condemned the forcible deportation of 10 Uzbek asylum seekers. The SBU [Security Service of Ukraine] detained eleven men in Crimea based on extradition warrants issued by the Uzbekistani authorities on the grounds that they allegedly participated in the Andijan mass protests in Uzbekistan in May 2005. They were transferred to a Ministry of Interior detention facility in Simferopol. The UNHCR asked authorities for assurances that no asylum-seekers would be forcibly returned unless they had been determined not to be refugees and had completed asylum procedures, including any appeal. The Migration Service in Crimea rejected the asylum applications on the basis that they were ‘manifestly unfounded’. On February 14, 10 of the men were forcibly returned to Uzbekistan. (The remaining man was reportedly allowed to stay because he had relatives in the country.) Twenty-one Ukrainian regional human rights organizations issued a statement protesting the incident. On May 3, the Ministry of Justice issued a legal opinion saying that deportation was illegal. The president’s chief of staff stated that the deportation was a violation of procedure because the refugees were not granted ten days to appeal the deportation, but added that the extradition was acceptable as they ‘belonged to a radical Islamic group’.” 34. The Country Reports on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2003, released on 25 February 2004, noted with respect to Turkmenistan: “c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ... there were widespread credible reports that security officials tortured, routinely beat, and used force against criminal suspects and prisoners to obtain confessions... ... There were reports that prisoners needing medical treatment were beaten on their way to and from the hospital. Security forces also used denial of medical treatment and food, verbal intimidation, and placement in unsanitary conditions to coerce confessions... ... Conditions were poor in prisons, which were unsanitary, overcrowded, and unsafe. Disease, particularly tuberculosis, was rampant, in part because prisoners who were ill were often not removed from the general prison population. Food was poor and prisoners depended on relatives to supplement inadequate food supplies. Facilities for prisoner rehabilitation and recreation were extremely limited. Most prisoners could receive food and sundries once per month from relatives; those who did not suffered greatly. Prisoners held under the ‘Betrayers of the Motherland’ law were unable to receive food, sundries, or visits by relatives. Most were held in the newly constructed maximum security prison at Ovadan Depe, where access to prisoners was extremely limited... There were three types of prisons throughout the country: educational-labor colonies; correctional-labor colonies; and prisons. Some prisoners, usually former government officials, were sent into internal exile. In the correctional-labor colonies, there were reports of excessive periods of isolation of prisoners in cells and ‘chambers’. A new prison for hardened criminals and political prisoners at Ovadan Depe, near Ashgabat, was completed in June. Authorities allegedly threatened, harassed, and abused prisoners in an attempt to force some prisoners to renounce their faiths. In Gyzylgaya prison, located in the Karakum Desert, prisoners were forced to work in a kaolin mine under hazardous and unhealthy conditions... ... Some prisoners died due to the combination of overcrowding, untreated illnesses, and lack of adequate protection from the severe summer heat... ... Prison officials refused to respond to inquiries from family members and foreign diplomats about prisoners’ whereabouts or physical condition, or to allow family members, foreign diplomats or international observers, including the International Committee of the Red Cross (ICRC), to visit detainees or prisoners, including political prisoners, by year’s end. The Government claimed that granting access to prisoners would be an admission that there were problems with the country’s penal system... Detainees are entitled to immediate access to an attorney once a bill of indictment has been issued; however, in practice they were not allowed prompt or regular access to legal counsel. Incommunicado detention was a problem. Authorities regularly denied prisoners visits by family members, who often did not know their whereabouts... d. Arbitrary Arrest, Detention, or Exile ... In February, President Niyazov signed the ‘Betrayers of the Motherland’ law, which characterizes any opposition to the government as an act of treason. Those convicted under the law face life imprisonment, are ineligible for amnesty or reduction of sentence, and may not receive visitors or food from outside sources... By year’s end, approximately 50 to 60 persons were arrested or convicted under the law... The law provides that a person accused of a crime may be held in pretrial detention for no more than 2 months, which in exceptional cases may be extended to 1 year. In practice, authorities often exceeded these limits ... e. Denial of Fair Public Trial The Constitution provides for an independent judiciary; however, in practice the judiciary was not independent. The President’s power to select and dismiss judges subordinated the judiciary to the Presidency. The President appointed all judges for a term of 5 years. There was no legislative review of these appointments, except for the Chairman (Chief Justice) of the Supreme Court, and the President had the sole authority to dismiss all appointees before the completion of their terms... The law provides for the rights of due process for defendants, including a public trial, access to accusatory material, the right to call witnesses to testify on their behalf, a defense attorney, a court-appointed lawyer if they could not afford one, and the right to represent themselves in court. In practice, authorities often denied these rights, and there were few independent lawyers available to represent defendants... In January, summary trials of those accused in the November 2002 attack began without public notice. Suspects were not afforded regular access to their attorneys, and their attorneys were not allowed to cross-examine other defendants in the case during the pretrial investigation. Attorneys for some defendants received notice that proceedings against their clients were beginning only 15 minutes before the trials (the norm is 1 week). Some defendants did not receive adequate legal counsel. Attorneys for a number of defendants expressed regret for defending their clients in their opening statements, which were broadcast on state-owned television, even though the trials themselves were not public. The Government refused to allow family members or foreign diplomats to observe the proceedings. AI reported that none of the defendants had an independent lawyer representing them during their trial. Defendants were not allowed to confront or question witnesses against them. Defendants and their attorneys were denied access to government evidence against them; the General Prosecutor’s Office stated the evidence consisted of ‘state secrets’. The defendants did not enjoy a presumption of innocence. Before the trials began, the Government publicly announced that the principal defendants were guilty and sentenced them to life imprisonment under the new ‘Betrayers of the Motherland’ law. Sentences for those convicted of involvement in the November 2002 attack ranged from life imprisonment to forced resettlement. The systemic failure to observe due process in investigating and prosecuting prisoners implicated in the attack made it difficult to distinguish between those actually complicit in the attack and some who may be political prisoners convicted for their perceived political opposition views. An OSCE Rapporteur described the trials as ‘in breach of all the most elementary principles of the rule of law’. Courts allegedly ignored allegations of torture that defendants raised in trial... In practice, adherence to due process in other cases was not uniform, particularly in the lower courts in rural areas. Even when due process rights were observed, the authority of the government prosecutor was so much greater than that of the defense attorney that it was very difficult for the defendant to receive a fair trial. In an October 2002 case against two former senior officials, the Ashgabat City Court refused to admit evidence critical to the defense, despite the fact that it appeared to be admissible under the law. In general, observers were not permitted access to ostensibly open court proceedings. The Government physically prevented foreign diplomats from attending the trials of accused November 2002 attackers and of a civil society activist in March; however, foreign diplomats attended the trial of two former officials in October 2002 and of a member of Jehovah’s Witnesses in May...” 35. The 2006 Reports, released on 6 March 2007, showed no improvements in the situation: “c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The constitution and law prohibits such practices; however, security officials tortured, routinely beat, and used excessive force against criminal suspects, prisoners, and individuals critical of the government, particularly in detention while seeking a confession... Prison and Detention Center Conditions Prison conditions were poor; prisons were unsanitary, overcrowded, unsafe, and posed a threat to life. Disease, particularly tuberculosis (TB), was rampant. There continued to be concerns that prisoners with TB were released untested and untreated into the general population, although the government reportedly began screening prisoners for TB, among other diseases, upon their release and provided some treatment in some cases. Prisoners diagnosed with TB were transferred to a special Ministry of Interior hospital in Mary Welayat for treatment. Government officials protested foreign diplomatic missions’ allegations of poor prison conditions, but they did not respond to direct inquiries. Nutrition was poor, and prisoners depended on relatives to supplement inadequate food supplies, although prisoners convicted for treason were unable to receive supplies from relatives. The government defined treason as any opposition to the government... Family members and international publications claimed some prisoners died due to the combination of overcrowding, untreated illnesses, and lack of adequate protection from the summer heat... There were three types of incarceration facilities throughout the country: educational-labor colonies, correctional-labor colonies, and prisons. Some prisoners, usually former government officials, were sent into internal exile. In the correctional-labor colonies, relatives of prisoners reported excessive periods of prisoner isolation. There were reports that prisoners were forced to work under hazardous and unhealthy conditions in a kaolin mine in Gyzylgaya Prison, near Dashoguz... d. Arbitrary Arrest or Detention The law prohibits arbitrary arrest and detention; however, arbitrary arrest and detention were serious problems... Arrest and Detention ... Detainees are entitled to immediate access to an attorney once a bill of indictment is issued, and they were able to choose their counsel; however, in practice they did not have prompt or regular access to legal counsel. In some cases legal counsel ceased advising their clients after government officials altered the charges or case details initially provided to defendants. Incommunicado detention was a problem. By law detainees are to be charged within 72 hours; authorities did not respect this right in practice. There was no bail system. Authorities denied some prisoners visits by family members during the year. Families sometimes did not know the whereabouts of imprisoned relatives... The law characterizes any opposition to the government as an act of treason. Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence. Unlike in previous years, there were no known treason convictions during the year. Those expressing views critical of or different from those of the government were arrested on charges of economic crimes against the state and various common crimes... e. Denial of Fair Public Trial The law provides for an independent judiciary; however, in practice the judiciary was subordinate to the president. There was no legislative review of the president’s judicial appointments, except for the chairman (chief justice) of the Supreme Court, who was reviewed by the rubber-stamp parliament. The president has the sole authority to dismiss all judges before the completion of their terms and has done so frequently down to the city level... Trial Procedures The draft revised criminal procedure code released in 2004 remained pending at year’s end. The code could significantly alter the 1961 Soviet code, which was still in force. The proposal incorporated rights of the accused, including the introduction of the presumption of innocence, restraints on police searches, establishment of a bail mechanism, and limits on pretrial detention. The law provides due process for defendants, including a public trial, access to accusatory material, the right to call witnesses to testify on their behalf, a defense attorney, a court-appointed lawyer if the defendant cannot afford one, and the right to represent oneself in court. In practice authorities often denied these rights, and there were few independent lawyers available to represent defendants. There is no jury system. At times defendants were not allowed to confront or question witnesses against them, defendants and their attorneys were denied access to government evidence against them, and defendants frequently did not enjoy a presumption of innocence. In some cases, courts refused to accept exculpatory evidence provided by defense attorneys, even if that evidence would have changed the outcome of the trial. Even when due process rights were observed, the authority of the government prosecutor far exceeded that of the defense attorney, and it was very difficult for the defendant to receive a fair trial. Court transcripts were frequently flawed or incomplete, especially in cases in which defendants’ testimony needed to be translated from Russian to Turkmen. Lower courts’ decisions could be appealed, and the defendant could petition the president for clemency. However, in most cases, courts allegedly ignored allegations of torture that defendants raised in trial. Foreign observers were permitted at some trials. However, many more trials, especially those considered to be politically sensitive, including the trial of Helsinki Foundation affiliate and RFE/RL correspondent Ogulsapar Myradova, were closed to observers... Political Prisoners and Detainees The law characterizes any opposition to the government as an act of treason. Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence. Opposition groups and international organizations claimed the government held many political detainees, although the precise number was unknown. Detainees may include several hundred relatives and associates of those implicated in the November 2002 attack being held without charge for their perceived political opinions and possible involvement in the attack. Government officials refused to respond to inquiries from family members and diplomats about political prisoners’ location or condition. Government officials also refused to permit family members, foreign diplomats, or international observers, including the ICRC, access to detainees or prisoners associated with the November 2002 attack.” 36. Referring to the continuation of gross and systematic violations of human rights in the country, the UN Secretary-General’s report highlighted among the main areas of concern the use of torture and the absence of an independent judiciary in Turkmenistan. In his report the Secretary-General further noted, in particular: “14. While welcoming the submission of the reports, the committees generally expressed the need for more information on the practical implementation of the provisions of the conventions, including statistical data, in accordance with the guidelines for preparation of reports. The Committee on the Elimination of Racial Discrimination ‘noted with deep concern the major contradictions between, on the one hand, consistent information from both intergovernmental and nongovernmental sources relating to the existence of grave violations of the Convention in Turkmenistan, and, on the other hand, the sometimes categorical denials by the State party’ (CERD/C/TKM/CO/5). The Committee also encouraged the State party to increase its efforts to institute a constructive and sincere dialogue. ... E. Developments concerning the full respect for all human rights and fundamental freedoms Prison conditions and torture 23. The following sections are based on information obtained by OHCHR, the special procedures of the Human Rights Council and the United Nations treaty bodies. Due to the limited access to information in Turkmenistan by international human rights bodies, further details on the human rights situation in the country were not available for the preparation of the present report. ... 38. The Special Rapporteur on the question of torture referred to the situation of a number of individuals convicted in December 2002 and January 2003 to prison terms ranging between five years and life for their alleged involvement in what the authorities described as an assassination attempt on the President in November 2002 (E/CN.4/2006/6/Add.1). All these prisoners continue to be held incommunicado, without access to families, lawyers, or independent bodies such as the International Committee of the Red Cross. The Special Rapporteur on the question of torture also mentioned Turkmenistan as one of 33 Governments that have never responded to urgent appeals sent under his mandate (A/60/316), although having received a significant number of urgent appeals. 39. The death in custody of a Radio Free Europe/Radio Liberty journalist, Ogulsapar Muradova, whose body allegedly bore signs of torture, raises particular concern. 40. The Committee on the Rights of the Child expressed its deep concern at the information that torture and ill-treatment of detainees, including children, is widespread (CRC/C/TKM/CO/1), especially at the moment of apprehension and during pre-trial detention, and used both to extract confessions or information and as an additional punishment after the confession...” 37. The International Helsinki Federation for Human Rights in its 2007 Report on Human Rights in the OSCE Region noted the widespread use of torture and ill-treatment in custody in Turkmenistan and poor prison conditions there. The same problems in Turkmenistan are mentioned by Human Rights Watch in its World Report 2007. | 1 |
dev | 001-91950 | ENG | DEU | ADMISSIBILITY | 2,009 | EULE v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Thomas Eule, is a German national who was born in 1943 and lives in München. The applicant is a retired military officer who underwent psychotherapeutic and psychoanalytical treatment from 1987 onwards. He was discharged in 1988 on grounds of his medical condition. The therapy was discontinued in March 1991 in view of the applicant having fallen in love with the therapist, who initially treated the applicant's feelings as “transference of affection” (Übertragungsliebe) and personally sought supervision. In October 1991 the applicant and the therapist commenced an intimate relationship that ended in May 1992. On 5 June 1997 the applicant sued the therapist for damages of German marks 156,238.50 (DEM) (euros 79,883.48 (EUR)). He argued that the therapist had discontinued the therapy in view of the commencing of an intimate relationship and had thereby violated her duties from the contract governing the therapeutic treatment as well as her professional duty to remain sexually uninvolved with a client; because of the therapeutic malpractice he had suffered from a mental breakdown that had required further therapeutic treatment for which he had incurred the damage complained of. On 2 April 1998 the Munich Regional Court ordered a first expert opinion. The expert witness submitted that the therapist had seriously breached her professional duties. The court held that the expert opinion was not satisfactory as it was incoherent, not fully reasoned and did not differentiate between professional, therapeutic and ethical standards. In response to the opinion of the first expert witness, the defendant therapist submitted a private expert opinion that found no violation of therapeutic and professional standards and denied that the therapist's actions were causally linked to the damage complained of. The court noted that the private expert opinion had come to different conclusions from the first expert opinion but was not in itself fully satisfactory; the court therefore ordered another expert opinion on 17 August 1999. The second expert witness criticised the previous expert opinions for their reliance on psychoanalytical tools and denied any wrongdoing on the part of the therapist as she had conscientiously transferred the therapeutic relationship into an intimate one between consenting adults. The court noted that the second expert witness' opinion was unsatisfactory because the parties had engaged in – among other therapeutic techniques – psychoanalysis and the expert witness had displayed an overly critical and biased assessment of psychoanalysis. On 16 February 2001 the court ordered a third expert opinion pursuant to Article 412(1) of the Code of Civil Procedure (see “Relevant domestic law” below). The expert witness delivered his opinion on 10 December 2002; at the applicant's instigation, the expert witness submitted a clarification of his opinion on 9 April 2003. He stated no discernable professional standards for the gentle cancellation of a therapeutic relationship could be verified; there were no professional standards concerning the period between the discontinuation of a therapeutic and the beginning of an intimate relationship between therapist and patient; the only possible link between the intimate relationship and the damage complained of was the applicant's realisation that he had not found what he had been looking for. On 30 April 2003 the applicant challenged the third expert witness on grounds of bias; on 10 June 2003 the court rejected the challenge as ill-founded. On 9 July 2003 the court dismissed the applicant's claim at the end of an oral hearing. It held that the therapist had not violated therapeutic and professional standards and based its decision mainly on the third expert witness's opinion, which it held to be convincing, methodically sound and precise. On 12 November 2003 the Munich Court of Appeal informed the parties of its intention to dismiss an appeal lodged by the applicant as ill-founded pursuant to Article 522(2) of the Code of Civil Procedure (see “relevant domestic law” below) on the grounds that the first expert witness' opinion had been rightly rejected by the Regional Court. The Court of Appeal noted that the therapist had acted responsibly, had not violated the therapist's duty to remain sexually uninvolved and that there were no strict professional rules concerning the minimum period between the ending of a therapeutic and the beginning of an intimate relationship between a former therapist and patient. On 11 March 2004 counsel for the applicant submitted further observations. On 15 March 2004 the Court of Appeal dismissed the applicant's appeal. On 16 April 2004 counsel for the applicant lodged a constitutional complaint with the Federal Constitutional Court arguing that the Court of Appeal had not taken into account the applicant's further submissions of 11 March 2004 and had treated the applicant as a perpetrator rather than a victim of sexual abuse. On 4 October 2005 the Federal Constitutional Court, relying on the relevant provisions of its Rules of Procedure, refused to accept the applicant's constitutional complaint for examination without giving further reasons (no. 1 BvR 878/04). Under Article 412(1) of the Code of Civil Procedure the court may order a new expert opinion by the same or another expert witness if it considers the expert opinion to be unsatisfactory. Under Article 522(2) of the Code of Civil Procedure, the Court of Appeal may reject an appeal by unanimous decision if it is convinced that the appeal has no prospect of success, the legal matter is not of fundamental importance and the development of the law or the safeguarding of consistent jurisprudence do not necessitate that a decision be given by the Court of Appeal. The Court of Appeal or its presiding judge have to inform the parties of their intention to reject the appeal and the reasons thereof and have to give the appellant the opportunity to submit observations within a set time-limit. The decision under Article 522(2) of the Code of Civil Procedure is not subject to an appeal and the Court of Appeal cannot grant leave to appeal on points of law. | 0 |
dev | 001-100485 | ENG | RUS | CHAMBER | 2,010 | CASE OF ISKANDAROV v. RUSSIA | 2 | Violation of Art. 3;Violation of Art. 5-1;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 4. The applicant was born in 1954 and lives in Dushanbe. 5. In May 1992 a civil war erupted in Tajikistan when ethnic groups under-represented in the ruling elite rose up against the national government of President Nabiyev. Politically, the discontented groups were represented by liberal democratic reformists and Islamists, who fought together and later organised themselves under the banner of the United Tajik Opposition (“UTO”). By June 1997 fifty to one hundred thousand people had been killed. 6. During the civil war in Tajikistan, the applicant was one of the leaders of the UTO. 7. On 27 June 1997 a peace agreement was signed by President Rakhmonov and the UTO leader. The applicant was appointed as the head of the State Committee for Extraordinary Situations and Civic Defence of Tajikistan. While in office, he was awarded the rank of Major-General. 8. In 1999 the President of Tajikistan appointed the applicant as the director of the unitary enterprise Tajikkommunservis. 9. On 13 September 1999 the applicant was elected chairman of the Democratic Party of Tajikistan. 10. On 4 June 2001 the applicant was appointed as the director of the unitary enterprise Tajikgaz. 11. At some point the applicant openly criticised the President of Tajikistan. 12. On 1 December 2004 the applicant moved to Russia. 13. On 25 November 2004 the Tajik Prosecutor General's Office charged the applicant in his absence with terrorism, gangsterism, unlawful possession of firearms and embezzlement. 14. On 26 November 2004 the Tajik authorities chose placement in custody as a preventive measure to be imposed on the applicant. 15. On 29 November 2004 the applicant was put on an international “wanted” list. 16. On 1 December 2004 the Russian Prosecutor General's Office received a request for the applicant's extradition from the Tajik Prosecutor General's Office. 17. On 9 December 2004 the Russian authorities arrested the applicant on the basis of the request for his extradition. 18. On an unspecified date the applicant was placed in remand prison no. IZ-77/4 in Moscow. 19. On 23 December 2004 the Babushkinskiy District Court of Moscow authorised the applicant's detention pending extradition. 20. On 24 December 2004 the applicant appealed against the firstinstance decision. On an unspecified date the Moscow City Court dismissed the appeal. 21. On 29 December 2004 and 18 January 2005 the applicant requested the Russian Prosecutor General's Office not to extradite him, arguing that the request for his extradition had been filed for purely political reasons. 22. In January 2005 the applicant requested the Department for Migration Affairs of the Moscow Department of the Interior to grant him political asylum. 23. On 1 April 2005 the Russian Prosecutor General's Office dismissed the extradition request by the Tajik authorities for the reason that the applicant had filed an asylum application. 24. On 4 April 2005 the prosecutor's office of the Babushkinskiy District of Moscow ordered the applicant's release from custody. 25. Upon his release on 4 April 2005 the applicant stayed at his friend's flat in the town of Korolev, in the Moscow Region, awaiting examination of his asylum application. 26. In the evening of 15 April 2005 the applicant and his friend, Mr L., were walking a dog. At some point the applicant saw two persons wearing uniforms of the Russian State Inspectorate for Road Safety («ГИБДД», “GIBDD”). He assumed that those men intended to arrest him and told his friend to go home. Then the applicant noticed that the area had been surrounded by twenty-five or thirty men with Slavic features wearing civilian clothes. 27. Without identifying themselves or giving any explanations, the two men in GIBDD uniforms, assisted by several men in civilian clothes, handcuffed the applicant. One of the men hit the applicant on the head and placed him in a car; it drove off. After 400 or 500 metres the car stopped; the men in the GIBDD uniforms took the applicant out and placed him in a minivan. 28. They drove for a while. Eventually the minivan stopped and the applicant was taken outside. The surroundings were unknown to him. The applicant was escorted to a sauna and detained there. The guards beat the applicant. He asked for a lawyer, but in vain. 29. On 16 April 2005 the applicant was taken to a forest. The men who had apprehended him met a group of people and conversed with them there. Having listened to them talking, the applicant assumed that the newly arrived people were servicemen of the Russian law-enforcement agencies. 30. At some point the servicemen put a mask on the applicant's face. They did not identify themselves, nor did they give any explanations of their actions. They spoke unaccented Russian. 31. Later they took the applicant with them and escorted him to an airport. The applicant's identity papers were not checked. While boarding the plane, the applicant heard the servicemen talking to a woman who apparently knew them. During the flight the applicant, still blindfolded, heard no instructions or other information usually conveyed in a civil aircraft. 32. On the morning of 17 April 2005 the aircraft landed at Dushanbe Airport and the applicant was handed over to the Tajik law-enforcement agencies. 33. On 17 April 2005 the applicant was placed in the remand prison of the Tajik Ministry of Security. He was kept in a cell measuring 2.3 x 2 metres. There was an iron bed with dirty bedding. 34. For the first ten days of his detention the applicant was registered under a false last name, “Sobirov”. During that period officers of the remand prison regularly beat the applicant. He had no food except for two pieces of bread per day and some water. He was allowed to use the lavatory only once a day. The applicant was not permitted to go for a walk or to wash himself. 35. On the tenth day of the applicant's detention, officers of the Tajik Prosecutor General's Office told him that he would be killed unless he confessed. The applicant made a self-incriminating statement under pressure. He was given some pills, allegedly of a psychotropic nature. 36. On 25 April 2005 the Tajik Prosecutor General gave a press conference and announced that the applicant had been arrested in Tajikistan on 22 April 2005. 37. On 30 April 2005 the applicant was allowed to see his lawyers for the first time since his arrest. He explained them that for thirteen days he had been kept incommunicado and had lived on bread and water. The lawyers' visits took place in the presence of the prison officials. Unsupervised visits were not permitted. 38. On 5 October 2005 the Supreme Court of Tajikistan convicted the applicant and sentenced him to twenty-three years' imprisonment. 39. On 18 January 2006 the Appeals Board of the Supreme Court of Tajikistan upheld the judgment of 5 October 2005. 40. On 2 May 2005 the Presidium of the Democratic Party of Tajikistan requested the President of Russia, the Russian Prosecutor General's Office and the Russian Ombudsman to clarify the circumstances of the applicant's unlawful extradition. 41. On 3 May 2005 the applicant's relatives requested the Russian Prosecutor General's Office to explain how the applicant had been transferred to Tajikistan. No reply was given. 42. On 30 May 2005 the applicant's lawyers enquired of the Russian Prosecutor General's Office whether any measures had been taken in relation to the letter of 3 May 2005. 43. On 14 June 2005 the applicant's lawyers complained to the Russian Prosecutor General's Office that the applicant's abduction and extradition had been unlawful. 44. On 22 June 2005 the applicant's lawyers complained to the Tverskoy District Court of Moscow about the inaction of the Russian Prosecutor General's Office. The court left the complaint unexamined. 45. On 15 June 2005 the applicant's lawyers complained to the Russian Prosecutor General's Office about the allegedly ineffective investigation into the circumstances of the applicant's unlawful extradition. 46. On 20 June 2005 the Korolev town prosecutor's office refused to institute criminal proceedings in relation to the applicant's kidnapping. 47. On 6 July 2005 the Korolev town prosecutor's office quashed the decision of 20 June 2005 and instituted an investigation under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). 48. On 8 September 2005 the applicant's representatives lodged a second complaint with the Tverskoy District Court of Moscow. The complaint was dismissed on 28 September 2005. 49. On 16 September 2005 the applicant's lawyer requested the Korolev town prosecutor's office to demand the Tajik authorities to transfer the applicant to Russia for questioning. On 19 September 2005 the request was dismissed. The applicant's lawyers challenged the prosecutor's decision before the prosecutor's office of the Moscow Region, but to no avail. 50. The applicant himself requested the Korolev town prosecutor's office to question him as a victim in Russian territory. 51. On 6 October 2005 the Korolev town prosecutor's office dismissed the applicant's request. The applicant's lawyers challenged the refusal before a court. 52. On 24 April 2006 the Korolev Town Court dismissed the complaint on the ground that the applicant had not been permitted to join the proceedings as a victim. That decision was quashed. On 25 September 2006 the Moscow Regional Court dismissed the complaint at final instance on the ground that the applicant's rights had not been breached. 53. On 12 December 2005 the Moscow City Court dismissed at final instance the complaint about the Russian Prosecutor General's inaction. 54. On 27 March 2006 the Tverskoy District Court of Moscow dismissed at first instance the applicant's complaint about the Russian Prosecutor General's Office's inaction. On 23 May 2006 the Moscow City Court upheld the decision. 55. On 6 April 2006 the applicant's lawyers challenged in court the investigators' decision. On 25 September 2006 their complaint was dismissed at final instance by the Moscow Regional Court. 56. In November 2004 two Tajik lawyers filed a complaint with the United Nations High Commissioner for Human Rights (UNHCHR) concerning alleged violations of the applicant's rights in the course of the criminal proceedings against him in Tajikistan. 57. On 20 October 2005 the Working Group on Arbitrary Detention of the Office of the UNHCHR put questions on the applicant's detention to the Tajik Government. 58. On 24 November 2005 the Tajik Ministry of Foreign Affairs, in reply to the request by the Office of the UNHCHR, submitted a seventeenpage document in Russian describing the charges against the applicant and the proceedings against him. The document read, in so far as relevant, as follows: “...[i]n accordance with the Minsk Convention, Mr Iskandarov was arrested by the Russian law-enforcement agencies in Moscow in December 2004. In reply to the Russian Prosecutor General's Office's requests, the Tajik Prosecutor General's Office produced the necessary documents concerning Iskandarov's extradition to the Tajik authorities within the time-limits laid down by the Minsk Convention, as well as comprehensive proof of Iskandarov's guilt in respect of the crimes he had been charged with. After that, the Russian Prosecutor General's Office informed the Tajik authorities that a favourable solution would be found to the question of Iskandarov's extradition. It is noteworthy that on 4 April 2005 the Russian law-enforcement agencies released Mr Iskandarov from custody prior to deciding on his extradition but did not officially notify the Tajik Prosecutor General's Office of the grounds and reasons for the release under the Minsk Convention. Mr Iskandarov was officially extradited to the Tajik authorities by the Russian lawenforcement agencies and on 17 April 2005 he was placed in the remand prison of the Tajik Ministry of Security.” 59. On 29 September 2006 the Office of the UNHCHR forwarded the letter from the Tajik Ministry of Foreign Affairs to the applicant's Tajik counsel and notified her that, in order to consider the applicant's case during its 47th session, its Working Group expected to receive her comments on it. 60. It appears that the proceedings before the UNHCHR concerning the alleged violations of the applicant's rights in Tajikistan are still pending. 61. On 1 December 2004 the Russian Prosecutor General's Office received a petition for the applicant's extradition from the Tajik Prosecutor General's Office. 62. On 9 December 2004 the applicant was arrested in Moscow. 63. On 17 December 2004 the Russian Prosecutor General's Office received an official request for the applicant's extradition, citing the charges of terrorism, gangsterism, unlawful possession of arms, embezzlement and unlawful hiring of bodyguards. 64. On 1 April 2005 the Russian Prosecutor General's Office refused to extradite the applicant on the basis of Article 19 of the Minsk Convention owing to the fact that he had applied for asylum. 65. On 4 April 2005 the applicant was released from custody. 66. On 6 July 2005 the Korolev town prosecutor's office instituted criminal proceedings in relation to the applicant's abduction under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”). The case was assigned number 27807. 67. The investigation established that at about 11 p.m. on 15 April 2005 the applicant had been walking along a street in the vicinity of the house at 14 Sovetskaya Street, Korolev, and had presumably been kidnapped by unidentified persons. 68. Later it became known that the applicant had been arrested in Dushanbe by the Tajik authorities. 69. The investigators questioned Mr L. and his son and daughter, as well as police officers who had been on duty on the night of 15 April 2005 in the vicinity of Sovetskaya Street and the applicant's son. 70. On 8 July 2005 Mr L. stated that the applicant, a friend of his daughter, had been staying in their home since 12 April 2005. On 15 April 2005 Mr L. had gone outside to walk his dog; the applicant had accompanied him to have a cigarette. Mr L., a non-smoker, had walked in the opposite direction to the applicant. At some point he had stumbled upon two men wearing police uniforms and talked to them for some fifteen minutes. Then he had returned home; the applicant was not there. Mr L. and his daughter, Ms L., had searched for the applicant and checked with police stations but in vain. After a while Ms L. had read on the Internet that the applicant had been arrested in Tajikistan. 71. Ms L. and Mr L.'s son made identical depositions. 72. The investigators checked whether the applicant had been taken away by plane from Chkalovskiy Airport. No proof of this hypothesis was found. 73. On 20 June 2005 the Korolev prosecutor's office granted the applicant victim status in criminal case no. 27807. 74. On 18 July 2005 the Korolev prosecutor's office, pursuant to Articles 4, 5, 7 and 8 of the Minsk Convention, requested the Tajik Prosecutor General's Office to establish the applicant's whereabouts and to question him about his abduction and transfer from Russia. 75. On 24 August 2005 the Russian authorities requested the Tajik Prosecutor General's Office to question the applicant and to allow him to study the decision to grant him victim status. On 29 December 2005 Mr Kh., an investigator of the Tajik Prosecutor General's Office, replied that on several occasions he had visited the applicant in the remand prison of the Tajik Ministry of Security in connection with criminal case no. 27807 but that the applicant had refused to make any statements or to study the decision to grant him victim status. 76. The investigation did not establish that any officers of the Russian law-enforcement agencies had been involved in the applicant's kidnapping. 77. On 3 October 2008 the investigation was suspended for failure to identify those responsible. 78. Everyone has the right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order cannot exceed forty-eight hours (Article 22 § 2). 79. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to decide on the preventive measure in respect of the person whose extradition is sought. The preventive measure is to be applied in accordance with the established procedure (Article 466 § 1). 80. Recommendation No. R (98) 13 of the Council of Europe Committee of Ministers to Member States on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights reads as follows: “... Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request, as recommended, among others, in Council of Europe Recommendation No. R (81) 16 of the Committee of Ministers... 1. An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment. 2. In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when: ... 2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief; ... 2.4. the execution of the expulsion order is suspended until a decision under 2.2 is taken.” 81. The Council of Europe Commissioner for Human Rights issued a Recommendation (CommDH(2001)19) on 19 September 2001 concerning the rights of aliens wishing to enter a Council of Europe Member State and the enforcement of expulsion orders, part of which reads as follows: “11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.” 82. For other relevant documents, see the Court's judgment in the case of Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 36-38, ECHR 2007V. 83. When performing actions requested under the Minsk Convention, to which Russia and Tajikistan are parties, a requested official body applies its country's domestic laws (Article 8 § 1). 84. Upon receipt of a request for extradition, the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60). 85. The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 86. A person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days from the date of placement in custody (Article 62 § 1). 87. Amnesty International, in its document “Tajikistan – Impunity; Fear for Safety” describing alleged ill-treatment of three Tajikistani residents and released on 4 November 2004, stated as follows: “Amnesty International receives reports about torture and ill-treatment by police in Tajikistan on a regular basis. Those targeted have included alleged Islamists as well as suspects charged with ordinary crimes. Allegations persisted that in the large majority of cases no thorough and impartial investigations were conducted and the perpetrators enjoyed impunity.” 88. The US Department of State 2004 Country Report on Human Rights Practices: Tajikistan, released on 28 February 2005, reads as follows: “The [Tajik] Government's human rights record remained poor; although there were some improvements in a few areas, serious problems remained. ... Security forces tortured, beat, and abused detainees and other persons and were also responsible for threats, extortion, and abuse of civilians. Prison conditions remained harsh and life threatening. A few prisoners died of hunger. Impunity and lengthy pre-trial detention remained problems. Authorities used torture to obtain confessions, which were routinely accepted as evidence in trials without qualification. The law prohibits such practices; however, there were reports that government security officials employed them. Torture occurred during the year, though to a lesser extent than in 2003. Security officials, particularly from the Ministry of Interior (MOI), continued to use systematic beatings to extort confessions, torture, sexual abuse, and electric shock during interrogations. Beatings and mistreatment were also common in pre-trial detention facilities, and the Government took minimal action against those responsible for the abuses Prison conditions remained harsh and life threatening for an estimated 7,000 to 10,000 incarcerated persons. Prisons were generally overcrowded, unsanitary, and disease-ridden. The spread of tuberculosis was a serious problem, and there were reports that a few prisoners died of hunger. ... Arbitrary arrest and detention remained serious problems. The law, which is an amended holdover from the Soviet era, allows for lengthy pre-trial detention, and there are few checks on the power of prosecutors and police to make arrests. Impunity remained a serious problem, and officers who committed abuses were rarely prosecuted. The Government acknowledged that police and security forces were corrupt and that most citizens who were abused chose to remain silent rather than risk retaliation by authorities. ... The Constitution provides for an independent judiciary; however, courts and judges were subject to political pressure from the executive branch and criminal networks, and corruption and inefficiency were problems. There was little official information about criminal court procedures and the number of political prisoners; however, credible international and local sources estimated that approximately 100 former opposition fighters of the United Tajik Opposition remained in prison after the civil war despite two general amnesties in 1998. Controversy over which crimes the amnesties covered delayed resolution of the cases. However, following a government review of the cases, most were determined to be appropriately jailed for grave crimes; others were released. In January, following a partially closed trial, a closed session of the Military Board of the Supreme Court sentenced Shamsiddin Shamsiddinov, a deputy chair of the opposition IRP, to 16 years in prison for organizing an armed group and illegally crossing the border. Both crimes were covered under the 1998 post-war amnesties. While in pre-trial detention, he was allegedly abused and denied access to counsel (see Section 1.c.). The IRP maintained that the trial and sentencing were politically motivated to discredit the party.” 89. The Human Rights Watch World Report 2005 – Tajikistan, issued on 12 January 2005, reads as follows: “The human rights situation in Tajikistan is fragile. Despite reforms on paper – including a new election law and a moratorium on capital punishment – the government continues to put pressure on political opposition, independent media, and independent religious groups. The political climate has deteriorated as President Emomali Rakhmonov attempts to consolidate power in advance of 2005 parliamentary and presidential elections. Hizbi Demokrati-Khalkii Tojikston (the People's Democratic Party of Tajikistan), led by President Rakhmonov, dominates political life. Under 1997's power-sharing arrangement, opposition parties are guaranteed 30 percent of top government posts. In January 2004, Rakhmonov replaced senior government officials from other political parties with members of his own party, reducing the other parties' share of top posts to 5 percent. Rakhmonov's opponents are vulnerable to prosecution on politically-motivated charges. In January 2004, the Supreme Court sentenced Shamsuddin Shamsuddinov, deputy chairman of Nahzati Islomi Tojikiston (the Islamic Renaissance Party, IRP) – which participates in the power-sharing government - to sixteen years in prison on charges of polygamy, organizing an armed criminal group during the civil war, and illegally crossing the border. Three other IRP members were given lengthy prison terms for alleged complicity in Shamsuddinov's armed group. Shamsuddinov, who has maintained his innocence since his arrest in May 2003, alleges he was beaten and tortured with electric shocks while awaiting trial.” 90. The Ambassador of the United States to the Permanent Council of the OSCE delivered on 16 June 2005 a statement on the detention of Mahmadruzi Iskandarov in Dushanbe, which reads as follows: “The United States wishes to express its concern regarding the case of Mahmadruzi Iskandarov, the Chairman of the Democratic Party of Tajikistan, who was involuntarily returned to Dushanbe from Moscow on April 17, and who has been held in detention by Tajikistan's Ministry of Security since that date. We further note that Mr. Iskandarov has been denied regular and unobserved access to his legal counsel, and that his family has been unable to meet with him. The United States calls on the Tajik authorities to permit Mr. Iskandarov access to his legal counsel in accordance with Tajikistan's own laws and with international standards, and to pursue any court process in accordance with international law. Both local and international observers should be allowed to witness those proceedings. Once again, [the United States] urge[s] the Government of Tajikistan to demonstrate its commitment to comply with OSCE principles and with international law. The United States stands ready to provide whatever assistance might be required in helping Tajikistan to meet its obligations in that regard.” 91. The Human Rights Watch World Report 2006 – Tajikistan, issued on 18 January 2006, reads as follows: “In December 2004, Russian police arrested Mahmudi Iskandarov in Moscow at the request of Tajik authorities. The government had implicated Iskandarov – a vociferous critic of President Rakhmonov, presidential hopeful, and leader of the Tajik Democratic Party – in an attack on two government offices in Tojikobod in August 2004. Russian authorities released him on April 3, 2005, but he disappeared just two days later and eventually turned up in custody in Tajikistan. Iskandarov claimed that he had applied for refugee status after his initial release from Russian custody, but said that Russian police had kidnapped him off the street and transferred him to agents who flew him to Dushanbe. On October 5, 2005, after a trial that lasted more than two months, Iskandarov was found guilty on six counts, including terrorism and illegal possession of weapons. He was sentenced to twenty-three years in prison and fined 1.5 million soms (approximately U.S.$ 470,000).” 92. The US Department of State 2005 Country Report on Human Rights Practices: Tajikistan, released on 8 March 2006, reads as follows: “Beatings and mistreatment were also common in pre-trial detention facilities, and the government took minimal action against those responsible for the abuses (see Section 1.d.). Yoribek Ibrohimov 'Shaykh' and Muhammadruzi Iskandarov both stated police beat them and subjected them to electric shocks while they were in custody. The International Committee of the Red Cross (ICRC) monitors were unable to investigate claims of torture against them and their associates and the government did not launch an official investigation. ... Muhammadruzi Iskandarov, head of the Democratic Party of Tajikistan and former chairman of Tajikgaz, was returned to the country in April after his December 2004 detention in Moscow, under circumstances that appeared to be an extrajudicial rendition; Iskandarov was charged with violating eight articles of the criminal code including: banditry, terrorism, illegal possession of weapons, having an unauthorized bodyguard, and embezzlement. At the request of the Tajikistan General Prosecutor's Office, Russian authorities had taken Iskandarov into custody on an international arrest warrant, but found insufficient evidence to extradite him. On April 3, the Russian general prosecutor turned down an extradition request and released Iskandarov. He was subsequently kidnapped by unknown forces and on April 26, the Tajik prosecutor general announced Iskandarov was in pre-trial detention in Dushanbe. Iskandarov was denied immediate access to his family and an attorney (see section 1.e.). Iskandarov reported that he was tortured, injected with drugs, and electrocuted while in detention. He was sentenced to 23 years in prison. He is appealing to the Supreme Court. No date was set for the appeal trial by year's end.” 93. The Declaration by the Presidency of the Council of the European Union on behalf of the European Union on the case of Mr Iskandarov in Tajikistan, done in Brussels on 22 March 2006 (7656/06 (Presse 86) P 050), reads as follows: “The EU has closely followed the legal proceedings against Mr Mahmadruzi Iskandarov, leader of the opposition Democratic Party of Tajikistan, since his arrest in Moscow in December 2004. The EU has taken note of his conviction and sentence to 23 years in prison on multiple charges by Tajikistan's Supreme Court on 5 October 2005, and the rejection of his appeal by the Collegium on Criminal Cases on 18 January 2006. The EU is particularly concerned about the circumstances of Mr Iskandarov's transfer to and arrest in Tajikistan in April 2005, which remain unclear, and about the treatment Mr Iskandarov received during his pre-trial detention. Concerns were also raised by Mr Iskandarov's defence team about some aspects of the court proceedings themselves, and about the fact that the recent appeal procedure was not open to the press. The EU wishes to receive further information on these matters. The EU asks the Tajik authorities to ensure regular access of Mr Iskandarov's family and lawyers in accordance with Tajik law. The unclear circumstances of Mr Iskandarov's arrest and some aspects of his detention and trial send a mixed message about democratic reform and the respect of Human Rights in Tajikistan with respect to its OSCE and other international commitments.” 94. The US Department of State 2006 Country Report on Human Rights Practices: Tajikistan, released on 6 March 2007, reads as follows: “There was no official investigation into the 2005 beating and electric shocks police allegedly administered to Yoribek Ibrohimov 'Shaykh' and Muhammadruzi Iskandarov while they were in custody. ... Muhammadruzi Iskandarov, head of the Democratic Party of Tajikistan and former chairman of Tojikgaz, the country's state-run gas monopoly, remained in detention following his April 2005 kidnapping and return to the country from Moscow by unknown forces. In October 2005 the Supreme Court sentenced Iskandarov to 23 years in prison as well as other penalties, including restitution of $434,782 (1.5 million somoni) allegedly embezzled from Tojikgaz. While most observers believed allegations of corruption and embezzlement were well-founded, local observers, human rights activists, and the political opposition charged that Iskandarov's arrest, trial, and verdict were politically motivated to intimidate future political challengers. Although Iskandarov was convicted, he remained in a pre-trial detention facility at year's end.” 95. Amnesty International, in a document entitled “Central Asia: Summary of Human Rights Concerns, January 2006-March 2007”, released on 26 March 2007, described the applicant's situation as follows: “In June 2006, the opposition Democratic Party of Tajikistan (DPT) expressed concern that its leader, Mamadruzi Iskandarov, continued to be held in incommunicado detention in the Ministry of National Security. In 2005, Mamadruzi Iskandarov was abducted from Moscow, Russia, where he lived in exile, after the Russian authorities refused to extradite him to Tajikistan. He was sentenced to 23 years' imprisonment by the Supreme Court in October 2005 on charges of terrorism and corruption, which he denied. He should have been moved to a prison camp shortly after the verdict but this did not happen. Supporters claimed that he was not allowed to receive parcels or newspapers and that visits of relatives and his lawyers had been obstructed. An appeal against his sentence had been turned down in a closed hearing in January 2006. At the beginning of February 2007, Mamadruzi Iskandarov was finally moved to a high security prison camp to serve the remainder of his sentence.” 96. The US Department of State 2009 Country Report on Human Rights Practices: Tajikistan, released on 11 March 2010, reads as follows: “... Muhammadruzi Iskandarov, head of the Democratic Party of Tajikistan and former chairman of Tojikgaz, the country's state-run gas monopoly, remained in prison following his unlawful extradition from Russia and 2005 conviction for corruption.” | 1 |
dev | 001-79955 | ENG | RUS | CHAMBER | 2,007 | CASE OF ANDREY FROLOV v. RUSSIA | 4 | Violation of Art. 3 (substantive aspect) | Christos Rozakis | 5. The applicant was born in 1967 and lived until his arrest in St. Petersburg. He is now serving a prison sentence in the Leningrad Region. 6. On 18 November 1998 the applicant was arrested by police officers, taken to a police station and allegedly beaten up. He was released on the same day. The applicant says that he complained to a prosecutor about the beatings on 7 December 1998. 7. On 14 January 1999 the applicant was arrested on suspicion of robbery and taken to police station no. 43 in St. Petersburg, where he alleges he was seriously assaulted by police officers. 8. From 14 to 21 January 1999 the applicant was detained in a cell in police station no. 43. On 21 January 1999 he was transferred to detention facility no. IZ-47/1 in St. Petersburg, known as “Kresty”. 9. In June 2001 the applicant asked the St. Petersburg City Court to grant him an amnesty and discontinue the criminal proceedings. On 4 July 2001 the City Court refused his request, holding that it was for the trial court to examine whether the applicant qualified for an amnesty. 10. On 4 June 2001 the St. Petersburg City Court appointed the applicant's mother to represent him. Following her appointment, she had several meetings with the applicant in the detention facility. Prison warders were always present at the meetings. 11. At the trial the applicant was represented by his mother and Ms S., of counsel. They submitted evidence and made a successful application to the St. Petersburg City Court to call additional witnesses and exclude certain items of evidence presented by the prosecution. 12. On 20 September 2001 the St. Petersburg City Court found the applicant guilty of several counts of robbery, establishing a criminal enterprise and the aggravated offence of selling criminally acquired property and sentenced him to sixteen years' imprisonment. It based its judgment on the applicant's partial confession in open court, the oral evidence of the co-defendants, victims and witnesses at the trial, expert opinions and real evidence. In determining the sentence, the City Court took into consideration the assistance the applicant had given to the investigating authorities in solving the case and identifying other participants in the criminal enterprise. 13. The applicant appealed against the judgment of 20 September 2001, complaining, in particular, that the City Court had not applied an amnesty law. 14. On 9 December 2002 the Supreme Court of the Russian Federation upheld the judgment of 20 September 2001, endorsing the reasons given by the City Court. It also held that the St. Petersburg City Court had lawfully refused to apply the amnesty law of 28 June 2002 to the applicant because of the especially serious nature of his offences. 15. From 21 January 1999 to 16 February 2003 the applicant was held in detention facility no. IZ-47/1 in St. Petersburg. 16. According to a certificate issued on 11 November 2005 by the facility governor, and produced by the Government, the applicant was held in eleven different cells during the reference period. Each cell measured 8 square metres and had 6 bunks. According to the Government, no information on the number of inmates in the cells was available as the documents had been destroyed. They further submitted that the applicant had at all times had eight hours' sleep. 17. The applicant did not dispute the cell measurements or the number of bunks. However, he alleged that he had usually shared the cells with 12 to 14 detainees. Given the lack of beds, inmates slept in shifts. 18. The Government, relying on further certificates issued on 11 November 2005 by the facility governor, submitted that all cells were equipped with a lavatory pan and sink. The pan was separated from the living area by a curtain. According to the Government, the pan was “in a satisfactory sanitary condition”. The cells were disinfected once a week. Inmates were allowed to take a shower once a week. They were provided with bedding at the same interval. The cells were naturally ventilated through the windows which were not covered with metal shutters. Each cell also had a ventilating shaft. The Government further stated that the temperature in the cells was “normal”. Additional window-frames with glass were inserted in winter. Central heating devices were installed in the cells, which were also equipped with lamps which functioned day and night. 19. The applicant disagreed with the Government's description and submitted that the sanitary conditions were unsatisfactory. Inmates had to dry their laundry indoors, creating excessive humidity in the cells. The cells were dimly lit. Relatives provided inmates with lamps. Windows were not glazed and were covered with thick metal bars that blocked access to natural light and fresh air. It was cold in winter and in summer it was hot, stuffy and excessively damp inside. The artificial ventilation system was blocked with stones and garbage and was never cleared up. 20. The applicant also contested the Government's description of the toilet facilities. According to him, inmates had to make curtains to separate the lavatory pan from the rest of the cell. The curtains were frequently removed by warders. Inmates were allowed to take a shower once a week but no toiletries were distributed. The entire cell was afforded six minutes to shower, although there was only six shower heads. The applicant added that he had been provided with bedding when he had entered the facility on 21 January 1999, but it had not been changed since. The applicant's mother had provided him with replacement bedding when it had worn out. 21. The Government asserted that “the applicant was fed in accordance with the established legal norms”. Medical personnel at the facility checked the quality of the food three times a day and made entries in registration logs. 22. The applicant submitted that the food was of an extremely low quality and in scarce supply. Meat and eggs were not provided despite the fact that they had been included in the detainees' daily diet under Government regulations. 23. The Government submitted that the applicant had at least a one-hour walk daily. 24. The applicant did not comment on this. 25. On his admission to the detention facility the applicant was given an X-ray examination. In the course of a check-up, tuberculosis changes in the right lung were detected. The applicant was placed in a special cell for further examinations and treatment and then, after being diagnosed with infiltrative tuberculosis of the upper lobe of the right lung, was transferred to the tuberculosis division. 26. The parties disputed the treatment that the applicant had received in the facility. According to a certificate of 11 November 2005 issued by the facility governor and submitted by the Government, the applicant was examined by a doctor at ten-day intervals and had chest X-rays every three months. The Government gave a detailed description of the treatment the applicant had been provided with, including the type of medicine, dose and frequency. They also furnished a copy of the applicant's medical record and medical certificates. The medical certificates indicate that the applicant is now considered to have clinically recovered from the tuberculosis. 27. The applicant argued that he was not adequately treated after he was discovered to be suffering from tuberculosis. His mother provided the necessary medicines because they had not been available in the facility. Following several complaints to various officials, the applicant started to receive treatment and his health improved. 28. On 19 June 2001 the applicant complained to the Constitutional Court of the Russian Federation about the inadequate conditions of his detention, his poor state of health and the authorities' failure to grant him an amnesty. The Constitutional Court sent the applicant's complaint to the Ministry of Justice. 29. On 22 April 2002 the Main Department of the Ministry of Justice for Execution of Sentences sent a letter to the applicant informing him that his complaints had been examined and found to be unsubstantiated. 30. On 22 May 2002 the applicant complained to the St. Petersburg Department of the Ministry of Justice that he was being held in appalling conditions. The outcome of those proceedings is unclear. 31. Article 161 § 1 of the Russian Criminal Code establishes the offence of robbery. Article 161 § 3 makes it an aggravating factor for the robbery to be committed by a criminal enterprise or a person who has already been convicted of theft or extortion. Robbery under Article 161 § 3 is punishable by a maximum sentence of twelve years' imprisonment and confiscation of property. Article 162 § 1 establishes criminal liability for the use of actual or threatened force against another in order to commit a theft. Under Article 162 § 3 such an offence committed by a criminal enterprise or a person who has been convicted of extortion or theft is punishable by a maximum sentence of fifteen years' imprisonment. Under Article 175 § 2 the unlawful sale of criminally acquired property by a group of individuals or a person who has been convicted of a theft, extortion or the sale of criminally acquired property is punishable by up to five years' imprisonment. Establishing a criminal enterprise is punishable under Article 209 § 1 by a maximum of fifteen years' imprisonment. 32. Under Article 69 § 1 of the Russian Criminal Code consecutive sentences are imposed upon a defendant who is convicted at the same time of several distinct offences (cumulative offences). Article 69 § 3 provides that the final sentence for cumulative offences, should not exceed twenty-five years' imprisonment. 33. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than 4 square metres of personal space in his or her cell. 34. Under Article 17 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) detainees are entitled to lodge, inter alia, with a court, petitions and complaints concerning violations of their rights. Article 21 provides that such complaints addressed to various State and municipal bodies and NGOs must be sent through the detention facility authorities. Complaints addressed to a prosecutor, a court or any other State body supervising the detention facility are not subjected to censorship and are sent to the addressee in a closed envelope. 35. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in remand establishments and the complaints procedure read as follows: 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony's administration”. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.” | 1 |
dev | 001-4757 | ENG | LTU | ADMISSIBILITY | 1,999 | GANUSAUSKAS v. LITHUANIA | 4 | Inadmissible | Nicolas Bratza | The applicant is a Lithuanian national, born in 1967. At present he is detained at the Ulonų Prison in the Alytus Region. He is represented before the Court by Mr R. Girdziušas, a lawyer practising in Kaunas. A. On 16 July 1995 the applicant was detained on remand in the context of proceedings for cheating. On 13 September 1996 the Kaunas City District Court convicted the applicant of obtaining property by deception. He was sentenced to six years’ imprisonment and ordered to pay compensation. On 4 March 1997 the Kaunas Regional Court dismissed the applicant’s appeal against the first instance judgment. On 11 September 1997 the Court of Appeal rejected the applicant’s cassation appeal. By 16 July 1998 the applicant had completed half of his sentence in the Ulonų Prison. As he had been afforded better treatment due to his model behaviour in prison, he requested his conditional release. This was refused, whereupon the applicant brought a successful civil action against the prison administration before the Alytus District Court for a breach of his rights under Article 54-2 of the Criminal Code. On 25 September 1998 the court “required” the prison administration to request a criminal court to order the applicant’s conditional release. This was done on 28 September 1998 and on 23 October 1998 the Alytus District Court ordered the applicant’s conditional release because of his model behaviour in prison. A prosecutor and a prison representative took part at the hearing of 23 October 1998. The District Court stated that the order for conditional release could be appealed within five days. On 26 October 1998 the applicant was released from the prison. From 30 October 1998, several major newspapers printed articles criticising the law enforcement authorities for releasing the applicant on licence. The media alleged inter alia that the applicant had not paid the compensation ordered by the trial courts. On 2 November 1998 the Chief Prosecutor of the Kaunas Region applied to the Alytus District Court for leave to appeal out of time against the applicant’s conditional release. The prosecutor asserted that the five-day time-limit had not been observed for important reasons. He stated that the prosecutor who had been present before the court on 23 October 1998 had not informed the Regional Prosecutor’s Office about the applicant’s conditional release, and that on 28 October 1998 the Chief Prosecutor of the Alytus District had been in Vilnius on mission; therefore no appeal could be lodged in time. On 2 November 1998 the Alytus District Court reinstated the time-limit by reference to Article 120 of the Code of Criminal Procedure, finding that the prosecution had missed the time-limit for “important reasons”. The court also stressed that the reinstatement of the time-limit “was not contrary to the law”. On the same date the Chief Prosecutor of the Kaunas Region lodged with the Kaunas Regional Court an appeal against the applicant’s conditional release, asserting inter alia that he had not paid the 1,944,000 Lithuanian litai (LTL) in compensation following his conviction, and that he belonged to a Kaunas criminal organisation. On 3 November 1998 the prosecutor requested the court to suspend the execution of the order for conditional release. On the same date the Kaunas Regional Court, pursuant to Article 415-1 § 4 of the Code of Criminal Procedure, accepted the prosecutor’s request without hearing the parties. The applicant was arrested in the evening of 3 November 1998. On 4 November 1998 the Kaunas Regional Court held a hearing on the prosecution’s appeal against the applicant’s conditional release in the presence of the applicant and his counsel. The applicant requested the court to adjourn the hearing and release him. He also challenged the participation of two of the appeal judges. The court dismissed his applications. On the same date the Kaunas Regional Court upheld the prosecution’s appeal and quashed the conditional release order on the basis of Article 415-1 of the Code of Criminal Procedure. The Regional Court found inter alia that the applicant had not paid the 1,944,000 LTL in damages ordered at his trial. The court noted that the prosecutor, who had been present before the District Court on 23 October 1998, had not submitted this information, thereby misleading the first instance court. The appellate court held that domestic law did not oblige the prison administration to recommend the conditional release of a detainee. The decision of 4 November 1998 was final. On 12 November 1998 a civil chamber of the Kaunas Regional Court, upon a cassation petition of the Acting President of the Supreme Court, quashed the decision of 25 September 1998, finding that the District Court could not “require” the prison administration to request the applicant’s release on licence. The Regional Court held in this connection that Article 54-2 of the Criminal Code gave a discretionary power to the prison administration as to whether or not to request the conditional release of a detainee. B. Relevant domestic law Article 54-2 of the Criminal Code and Article 67 of the Prison Code allows the release on licence of a convicted person before the expiry of the term of imprisonment. The right to order conditional release rests with a court, upon the request of the prison administration. Release on licence of a person sentenced to up to ten years’ imprisonment can be ordered after completion of half of the sentence. Article 415-1 § 3 of the Code of Criminal Procedure lays down a period of five days to appeal against a court order granting or refusing conditional release. Paragraph 4 of this provision provides for the suspension of that order should such an appeal be lodged. Paragraph 9 of the provision permits no further appeal against the decision of the appellate court. Pursuant to Article 120 § 1 of the Code of Criminal Procedure, a time-limit that was missed for an important reason can be reinstated by a court. Paragraph 2 of this provision provides that, in cases where a decision was appealed out of time, a court on the request of the person lodging the appeal can suspend its execution. | 0 |
dev | 001-88770 | ENG | RUS | CHAMBER | 2,008 | CASE OF ALBEKOV AND OTHERS v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicants were born in 1948, 1980 and 1944 respectively. The first applicant lives in the village of Kurchaloy and the second and third applicants live in the village of Akhkinchu-Barzoy, Kurchaloy district, in the Chechen Republic. The first applicant is a brother of Mr Vakhazhi Albekov, the second applicant is a brother of Mr Khasayn Minkailov and the third applicant is the mother of Mr Nokha Uspanov. 7. The facts of the case are partially disputed by the parties. The principal discrepancies may be summarised as follows. 8. Between March 2000 and February 2001 military unit no. 73881-2 was stationed near Akhkinchu-Barzoy, a village of about 1,000 residents. 9. According to the applicants, the military unit occupied land used by the residents for tillage and pasture, and soldiers mined the area around the unit and in the adjacent parts of the communal forest using anti-personnel mines and, specifically, mines with a trip wire. 10. According to the Government, the mines in the forest were planted by illegal armed gangs. 11. In statements submitted by the applicants, the head of the local administration and other residents alleged that there had been several incidents since March 2000 in which cattle and people had been injured by mines. The head of the administration stated that he had asked the military to remove the mines from the land used by the villagers but that the incidents had continued. 12. According to the Government, the population of Akhkinchu-Barzoy was regularly warned by the military that mines had been laid by armed gangs in the forest. They said that the minefield around the military unit was marked. 13. On 23 October 2000 at about 2 p.m. the first applicant’s brother, Mr Vakhazhi Albekov, born in 1969, went to the meadow to collect the family’s cattle from a field situated about 500 metres from the village. He was wearing a black jacket with a hood, a black sweater, blue sports trousers and black rubber boots. At about 3 p.m. another villager, Mr B., met Mr Vakhazhi Albekov in the meadow and the latter told him that he was going north to collect the calves. As a rule it took very little time to collect the cattle and return, and at 4 p.m. his family became concerned. 14. At about the same time another resident of the village, Mr M., was in the southern part of the pasture and heard an explosion somewhere to the north. He was scared and decided to return home along the road. On the road he was fired at by soldiers returning to the military unit, but escaped unharmed. 15. After 4 p.m. Mr Vakhazhi Albekov’s relatives and neighbours decided to search for him. They broke up into small groups and searched the pasture land and a short way into the forest, shouting his name. At about 10 p.m. they decided to report his disappearance to the military unit and ask for assistance. The first applicant’s sister, along with the head of the village administration, Mr E., and two other neighbours, went to the location of the military unit. Only Mr E. was allowed to enter and a serviceman informed him that they had no news of Mr Albekov and that they had not detained anyone. 16. On the morning on 24 October 2000 Mr E. went to the district centre of Kurchaloy and reported Mr. Albekov’s disappearance to the district authorities, namely the police station, the military commander and the head of the administration. 17. At the same time villagers continued to search for Mr Vakhazhi Albekov in the pasture land and forest. At about 2 p.m. the second applicant and Mr G. found Mr Albekov’s body in a pit in the forest, about 30 metres from the road and about 300 metres from the military unit. The body was lying face down, and the upper part of the body had been disfigured by an explosion. The two men noticed the remains of tape on the body and recognised the clothes he had been wearing. Nearby they found his passport, which was intact. They also noted footprints on the ground, allegedly made by military boots, leading towards the military unit. They did not touch the body as they were afraid that it was mined. 18. At about 3 p.m. on the same day the first applicant’s brother, Umar Albekov, and another villager went to the military unit with a request for sappers who could check if the body had been mined. The military refused and suggested that they should seek help in Kurchaloy. While waiting at the barrier of the military unit for an answer, Umar Albekov heard an explosion from the north-eastern part of the forest. Later they learnt that this was an explosion, which had injured Mr I. and Mr Khasayn Minkailov. 19. After the refusal by the military to help retrieve Mr Albekov’s body, the residents decided to recover it themselves. They tied a long rope to one of his legs and pulled the body from a distance of 30-40 metres. Mr Vakhazhi Albekov was buried on 25 October 2000 in the village cemetery. His relatives did not seek medical or other professional examination of the body before burial. 20. The villagers searching for Mr Vakhazhi Albekov on 24 October 2000 divided up into several small groups. At about 3.30 p.m. one such group, consisting of Mr Khasayn Minkailov, born in 1982, the second applicant’s brother, and Mr I., were blown up by a booby-trap mine in the forest. The sound of that explosion was heard by Umar Albekov, who was at the gate of the military unit. 21. Mr I., who was injured on the right side of his body and in both legs, managed to reach a roadblock near the village of Dzhugurta, which is about three kilometres from Akhkinchu-Barzoy. The soldiers stopped a passing car, and the driver, who happened to be a resident of Akhkinchu-Barzoy, took Mr I. home. Mr I. told the other villagers that they had been blown up by a mine and that Mr Khasayn Minkailov had been seriously injured in the same blast and had lost a leg. The head of the local administration again appealed to the military unit, asking them for sappers and for medical assistance. The military refused to send sappers, but a military doctor attended Mr I. at his home at about 4 p.m. and gave him first aid. He did not issue any medical documents in respect of Mr I.’s injuries. 22. When the residents of the village were informed by Mr I. that Mr Khasayn Minkailov was seriously injured, they immediately went to look for him. They again broke up into small groups and entered the forest. Two of Mr Khasayn Minkailov’s cousins, namely Mr Nokha Uspanov, born in 1973, the third applicant’s son, and Mr Sh. M., volunteered to check the most dangerous sites, such as ravines, pits and abandoned dugouts. While checking a dugout in the north-eastern part of the forest, Mr Nokha Uspanov was blown up by a mine. Mr Sh. M. rushed to his aid and was also blown up. As a result each received serious injuries to their right legs, which were later amputated in hospital. Two of Mr Nokha Uspanov’s fingers were also seriously injured and later had to be amputated. His left leg was fractured. Other residents brought the men to the village, where they were attended to by the first applicant. 23. On the morning of 25 October 2000 Mr Nokha Uspanov and Mr Sh. M. were taken by their relatives to a hospital in Kurchaloy, where they were operated on the same day. Mr Uspanov’s right leg was amputated at shin level and two fingers on his right hand were also amputated; Mr Sh. M.’s right leg was amputated at ankle level. They remained in hospital until 21 November 2000. 24. On the morning of 25 October 2000 the head of the village administration, together with residents of Akhkinchu-Barzoy and Dzhugurty, again went to the military unit and asked for sappers in order to find Mr Khasayn Minkailov and to prevent further casualties. This time the commander of the military unit ordered an armoured personnel carrier (APC) and about ten sappers to assist the villagers. The sappers had a map of the area, presumably indicating minefields. They used it to reach the body of Mr Khasayn Minkailov, who had died in the meantime. His left leg had been torn away by the blast and he had other injuries. The body was brought to his home in Akhkinchu-Barzoy with the help of the military. He was buried on 26 October 2000 in the village cemetery. His relatives did not contact any medical personnel or authorities before the burial. 25. According to the applicants, on 25 October 2000 a group of officials arrived at Akhkinchu-Barzoy. They included individuals from the Kurchaloy district police, the military commander’s office and the prosecutor’s office. Accompanied by local residents, they filmed the site where Mr Vakhazhi Albekov’s body had been found. They also visited Mr Albekov’s home, where they took photographs and filmed the body. They also questioned a number of witnesses who had participated in the search and retrieval of the body. The officers drew up a report on Mr Vakhazhi Albekov’s sweater and an axe he had been carrying to protect himself in case of attack by wild animals. None of the witnesses recalled signing any papers or statements. 26. The officers assured the first applicant that a criminal investigation would be conducted into the circumstances of the deaths. They gave him the name of the prosecutor responsible for the case in the district prosecutor’s office. After his brother’s funeral, the first applicant, who worked in Kurchaloy Hospital, tried to meet the prosecutor on eight occasions but was denied access to the building on each occasion on the ground that the prosecutor was absent. 27. The first applicant’s sister, Petimat Albekova, also tried at some stage to inquire about the investigation into her brother’s death. She submitted that a prosecutor had shouted at her and turned her out of his office. The first applicant’s family made no further attempts to inquire about the investigation. 28. On 10 December 2000 an official from military unit no. 73888-2 issued a certificate to Mr Nokha Uspanov, confirming that he had received a blast injury while looking for cattle near the village of Akhkinchu-Barzoy. 29. On 11 December 2000 the head of the village administration issued a note which contained the following account of the events of 22-25 October 2000: “At about 2 p.m. on 22 October 2000 a resident of Akhkinchu-Barzoy, Vakhazhi Albekov, born in 1969, went to look for his cattle and did not return. The whole village went out to look for him. By 7 p.m. the search had produced no results and we applied to the headquarters of the federal forces, who denied any knowledge of him. The following day in the morning we applied to them again, because the pasture land and surrounding forest are mined. By 11 a.m. on 23 October we were told that Albekov had been found dead at the edge of the village, blown up by a TNT block. On 24 October we notified the district police authorities, who came and started a criminal investigation. Khasayn Minkailov, born in 1982, who went to search for Albekov on 23 October, did not come back to the village. Another man who was with him, [I.], informed the villagers that [Minkailov] was seriously wounded; meanwhile [I.], also seriously wounded, reached the road near the village of Dzhugurty, from where he was brought back by another resident. Another group of villagers went to look for Minkailov, knowing that he had been seriously injured and needed help. Nokha Uspanov and [Sh. M.] went by a separate path, hoping to be the first [ones] to reach him. They stated later that first Nokha Uspanov was blown up by a mine, and then [Sh. M.], trying to reach him. Another group took them home, where they were given first aid by the village doctor. For the third time I asked the federal forces for help, but at the roadblock they told me that they could not send sappers and reconnaissance groups, as they were busy. On 25 October I asked them again, and finally they provided an APC and a group of sappers, who found Minkailov already dead and brought his body home.” 30. According to the second applicant, he was not questioned by any investigators about the circumstances of his brother’s death. However, in January 2001, during a “sweeping” operation in Akhkinchu-Barzoy, he and several other men from the village, including Mr Nokha Uspanov, were detained by Russian soldiers, beaten up and questioned about the circumstances of his brother’s death. The second applicant was also asked if he had complained anywhere about the incident, and replied in the negative. He was released a day later, and was too scared to apply to any other officials. 31. The third applicant submitted that her son, Mr Nokha Uspanov, had remained in hospital for a month after the injury sustained on 24 October 2000. His right leg was operated on twice, because his wound had become infected after the first amputation. After being discharged from hospital her son remained at home, suffering from severe pain and requiring constant care for several weeks. On 11 January 2001 Mr Nokha Uspanov, along with a few other men from the village, was detained by soldiers during a “sweeping” operation. The applicant had no news of her son for several weeks, despite having personally visited the military commander’s office, the local administration and other authorities. At the end of January 2001 her son’s body was discovered on the outskirts of the village of Bachi-Yurt. The third applicant submitted that her other son, Ruslan Uspanov, born in 1964, had been killed in the summer of 2001. She further submitted that after January 2001 she had not applied to any authorities in relation to the events of October 2000, because she had been afraid and had not trusted any officials. 32. On 29 January 2002 the Kurchaloy district civil registry office issued death certificate no. 23 in respect of Mr Vakhazhi Albekov, stating that he had died in Akhkinchu-Barzoy on 22 October 2000. 33. According to the Government, until July 2004 no applications for institution of criminal proceedings were submitted by relatives of the deceased persons to the prosecutor’s offices of the Chechen Republic. After the receipt on 12 July 2004 of unspecified materials concerning the explosions, the Kurchaloy District Prosecutor’s Office conducted an inspection. On 22 July 2004, having regard to the results of the inspection, the district prosecutor’s office refused to institute criminal proceedings on the ground that there was no indication that a crime had been committed. 34. On 24 July 2004 a lawyer from the NGO Memorial wrote to the Kurchaloy District Prosecutor’s Office and asked for an update on the criminal investigation into the death of Mr Vakhazhi Albekov. No reply was received. In August 2004 the head of the village administration was visited by various officers from the district police station. He was questioned about the circumstances of the events of 23-25 October 2000, but was not asked to sign any papers. 35. The Government submitted the following information on the subsequent progress of the investigation. 36. On 5 March 2005 the decision of 22 July 2004, refusing to institute criminal proceedings, was quashed by the district prosecutor. However, on 9 March 2005, following the results of an additional inspection, another decision was given refusing the institution of criminal proceedings. 37. On 10 March 2005 the Prosecutor’s Office of the Chechen Republic quashed the decision of 9 March 2005 refusing the institution of criminal proceedings. On the same date criminal investigation no. 54007 was instituted into the death of Mr Vakhazhi Albekov. On 11 March 2005 criminal investigation no. 54008 was instituted into the death of Mr Khasayn Minkailov and the injuries sustained by Mr Nokha Uspanov, Mr Sh. M. and Mr I. The Kurchaloy District Prosecutor’s Office was responsible for the investigations. 38. On 12 March 2005 an inspection of the crime scene was carried out. In the course of the inspection an unspecified metal fragment was seized. It was later examined with unspecified explosives. In addition, at the prosecutor’s request, the Shalinskiy District Court ordered the exhumation of the corpses of Mr Vakhazhi Albekov, Mr Khasayn Minkailov and Mr Nokha Uspanov. However, that order could not be enforced because the relatives of the deceased persons objected to the exhumation. A forensic examination was then conducted on the basis of the medical documents available. According to the results of the examination, the injuries sustained by Mr Nokha Uspanov and Mr Sh. M. were described as serious. 39. On the same date Ms Kh. A., the sister of Mr Vakhazhi Albekov, was granted the status of victim in the criminal proceedings and questioned. She confirmed that on 23 October 2000 her brother had gone to the meadow to collect the cattle from the field and had been killed by an explosion not far from the village. In the course of the search for him other villagers had been injured in similar circumstances. Ms Kh. A. submitted that neither she nor her relatives had lodged any complaints with the law-enforcement bodies in connection with the events and she did not consider her rights to have been breached. 40. Also on 12 March 2005 the father of Mr Nokha Uspanov and the brother of Mr I. were granted the status of victims in the criminal proceedings. Mr Uspanov’s father stated that on 23 October 2000 his son had gone to search for Mr Vakhazhi Albekov and had been injured by an explosive device. He had not filed any complaints with the law-enforcement agencies in this respect. Mr R. I., Mr I.’s brother, stated that the military unit stationed near the village had provided transport and sappers who had found Mr Khasayn Minkailov and had brought his body to the village of Dzhigurty. The villagers then had taken his body to Akhkinchu-Barzoy and had buried him on the same day. Neither Mr R. I. nor his relatives had filed any complaints with the law-enforcement agencies in connection with the incidents. 41. Mr S. U., Mr Nokha Uspanov’s cousin who was questioned on the same date, submitted that in October 2000 Mr Vakhazhi Albekov had disappeared after going to collect cattle. His body had been found in a dugout in the forest. His body had been lying face down and there had been a wound on his right side. There had been no injuries on other parts of the body. Later he had learned that Mr Khasayn Minkailov, Mr Nokha Uspanov and Mr M. Sh. had also been blown up by mines. 42. The third applicant, who was questioned on the same date, submitted that in October 2000 her son, Mr Nokha Uspanov, had gone to search for Mr Vakhazhi Albekov. He had returned home to have lunch and then had gone out again. Later her brother-in-law had come to tell her that Mr Nokha Uspanov and Mr Sh. M. had been injured. They had stayed in the Kurchaloy hospital for a month and then had continued treatment at home. Mr Nokha Uspanov had never told her what exactly had happened to him and Mr Sh. M.; however, she knew that they had been blown up by a mine while searching for Mr Vakhazhi Albekov. Neither she nor her husband had applied to police, or to the prosecuting or other authorities in this respect. 43. Ms P. A., another sister of Mr Vakhazhi Albekov, was questioned on the same date. 44. On 14 March 2005 Mr Khasayn Minkailov’s cousin, Mr A. M., was granted the status of victim in the criminal proceedings and questioned. He submitted that in October 2000 he came from Gudermes to visit his parents in Akhkinchu-Barzoy. On his arrival he had learned that his cousin Khasayn Minkailov had had been blown up by a mine earlier that day. In the evening of that day servicemen from the military unit located next to the village brought Khasayn Minkailov’s body in an APC. 45. On 13 March 2005 Mr T., head of the village administration, was questioned. He submitted that in 1994-1996 some young men from the area, under the command of a certain Geriskhanov from the Gudermes district, had obtained weapons and set up watch at the village’s entrance. He did not know what exactly they had been doing. According to rumours, Geriskhanov had been under the command of Shamil Basayev. Salman Raduyev had also passed through the village with his brigade of twenty-thirty men. They had stayed in Akhkinchu-Barzoy for a while. Sometimes convoys with military vehicles from the federal troops had passed through the villages. However, the federal troops had never stayed in the village. Between 1996 and 2000 a lot of cattle had died on account of the explosives, which could have been planted by members of illegal armed gangs headed by Geriskhanov or Salman Raduyev. Since 2000 a military unit, “the fifteenth regiment” as it was called by the servicemen, was located near the village. In the course of time the servicemen and the villagers established good relations. The military doctor provided medical assistance to the villagers, and the servicemen assisted them with transportation and other matters. 46. With regard to the explosions of October 2000, Mr T. submitted that he had been permanently resident in Gudermes at that time. However, he had heard about the events from the villagers. After being appointed head of the Kurchaloy District administration in 2003, he had met with the commanders of the military unit located within two kilometres of the village. The commanders had told him that they had information concerning the minefields set up by rebel fighters in that district and had asked him to tell the villages not to walk there. The sites in question had been marked with notices containing warnings about the mines. Furthermore, the commanders had warned him that there could be mines laid by rebel fighters near the village; however, they had not known their precise location, since the rebel fighters had planted them up chaotically. In January 2005 servicemen from the unit had been blown up on such mines themselves and had been badly injured. 47. On 15 March 2005 Mr L., the village’s imam, was questioned. He submitted that in 2000 he had washed the dead bodies of Mr Vakhazhi Albekov and Mr Khasayn Minkailov. He had not participated in the search for Mr Vakhazhi Albekov. However, when his body had been found, his relatives had invited Mr L. for ablution, which he had performed on the next day at around 9 a.m. He had observed the following injuries on Mr Vakhazhi Albekov’s body: the left side of the chest and the front abdominal walls had been missing, apparently as a result of an explosion, and internal organs had been visible through the opening. The edges of the opening had been burnt and uneven and smelled of explosives. The hands had been seriously injured. A hand (he could not remember which) and the left leg had been almost torn apart, and had remained attached to the body only by the skin and remains of the muscles. There had been blood on Mr Vakhazhi Albekov’s head, which had been washed off. He had not seen any bullet wounds. Mr Vakhazhi Albekov had been buried in the village cemetery. 48. Mr L. did know the exact place where Mr Khasayn Minkailov was blown up. From Mr I. he had learned that Khasayn had participated in the search for Mr Vakhazhi Albekov and had stepped on a mine. Mr I. had shown the place of the explosion to the servicemen who brought Mr Khasayn Minkailov’s body to the village. He and Mr G. performed the ablution. Mr L. had observed the following injuries on his body: traumatic amputation up to the knee of a leg (he could not remember which one), and minor wounds on other parts of the body. It had been obvious that Mr Khasayn Minkailov’s death had been the result of the traumatic amputation of the leg, pain, shock and blood loss. Mr Khasayn Minkailov had been buried in the village cemetery on the same day. 49. Mr L. had learned about the injuries sustained by Mr Nokha Uspanov and Mr Sh. M. from the villagers. He had not talked to them personally and therefore did not know any details of the explosions. 50. On 21 March 2005 Mr G., the village imam’s assistant, was questioned. He submitted that since 1994 rebel fighters had repeatedly passed through the village. They had used different vehicles and weapons. Federal troops had never permanently stayed in the village or its vicinity. In the autumn of 1999 rebel fighters had passed through their village in motor vehicles. One morning in October 2000 somebody told him that the whole village had gone to search for Mr Vakhazhi Albekov. Then he heard that his body had been found, and he had gone to the spot together with other villagers. Within approximately one kilometre of the village they reached a dugout, surrounded by villagers. He had never seen this dugout before. It was a log-covered pit in the ground. The entrance to the dugout had no stairs. Having consulted the villagers, he concluded that the dugout had been left by rebel fighters, since it did not resemble the buildings usually left by the federal troops. He had looked into the dugout and had seen a corpse. Mr Vakhazhi Albekov’s relatives who were present said that they recognised him by his clothes. Mr G. had not entered the dugout. He had said that the body could have been mined and asked for a long rope. Then someone attached the rope to a leg. Everybody had stepped back for 15-20 metres so as to avoid the consequences of a possible explosion, and had pulled the body out. Mr G. had put a blanket on the ground and had placed the body on the blanket. There had been no skin or muscles on the left side of the body. There had been no other injuries. Then Mr Vakhazhi Albekov’s relatives had taken his body home. During the ablution Mr G. had not seen any gunshot wounds on Mr Vakhazhi Albekov’s body. 51. Mr G. further submitted that Mr I. and Mr Khasayn Minkailov had been blown up by a mine while searching for Mr Vakhazhi Albekov to the north-east of the village. Mr Khasayn Minkailov had died and Mr I. had only been frightened. Mr G. had been invited to Mr Khasayn Minkailov’s ablution. His body had smelled of burnt meat. He had taken the clothes from the body and had laid them out on the table. In the process of ablution he had observed the following injuries: the left leg had been injured, the left foot had been smashed and had no toes, and its lower part was missing. In the inguinal region there was a hole of approximately ten centimetres in diameter. The buttocks were scratched. There had had been no injuries on other parts of the body. Later Mr Khasayn Minkailov’s father had objected to having his son’s dead body examined and photographed. On the same day Mr Nokha Uspanov and Mr M. Sh. had also been blown up on a mine. Each of them had a leg torn off. They had both survived and walked with crutches. He had not talked to them and did not know any details of the explosion. 52. On an unspecified date several residents of the village of Akhkinchu-Barzoy and other witnesses were questioned. In particular, Mr D. submitted that in 1994-1996 an armed group, under the command of Geriskhanov, had conducted military actions in the whole mountain district and had stayed in Akhkinchu-Barzoy. Their headquarters had been in the school. The rebel fighters’ dugout had been placed in the forest between the villages of Dzhugurty and Akhkinchu-Barzoy. Russian troops had never stayed there permanently; their convoys had merely passed through the village sometimes. Between 1996 and 2000 cattle had been regularly blown up on mines around the village, including the sites of the rebel fighters’ dugouts. All the villagers had been aware that there were mines in the forest. He did not know who had laid them. However, judging from the fact that in 1994-1996 rebel fighters rather than Russian troops had stayed in the forest, it was more likely that the former had mined the land so as to prevent attacks from the federal forces. Mr D. described the circumstances of the explosions in which Mr Vakhazhi Albekov, Mr Khasayn Minkailov and Mr Nokha Uspanov had been killed and injured as he had learned them from other villagers. He considered it unlikely that Mr Vakhazhi Albekov had been intentionally killed and considered it most probable that he had been blown up accidentally on a mine. 53. Mr S. submitted that military actions between members of illegal armed groups and the federal forces had been conducted in the Kurchaloy District until the end of 1999. At the time approximately 800 members of illegal armed groups had been present in the district. In the forest, approximately 1,5 kilometres to the north of Akhkinchu-Barzoy, there were dugouts from the camp of the former field commander Salman Raduyev. He and other villagers had known that, when leaving the district, the rebel fighters had mined their camps so as to annihilate any servicemen of the federal troops who might come to inspect the place. Near the military unit there were notices stating that the land had been mined. He did not have any precise information concerning the deaths of the villagers. It is not clear who Mr S. was. 54. Mr S. I. submitted that in 2000 there had been numerous instances of explosions in the forest. However, he did not have any information concerning the events in Akhkinchu-Barzoy. It is not clear who Mr S. I. was. 55. Mr Dzh. made a statement similar to that of Mr S. I. It is not clear who Mr Dzh. was. 56. Mr A. G. and Mr N. G. made statements similar to that of Mr G., the village imam’s assistant. It is not clear who Mr A. G. and Mr N. G. were. 57. Mr Razh. and Mr O. did not have any information concerning the events in question. It is not clear who they were. 58. Mr M., who was questioned on an unspecified date, submitted that since 1963 he had been working as a medical assistant at the medical station in Akhkinchu-Barzoy. In 1994-1996 rebel fighters, in particular, one of Salman Raduyev’s groups, had stayed in the village. The federal troops had not stayed in the village. Their convoys had sometimes passed by but had not stopped. He knew that between 1996 and 2000 a lot of cows had been blown up on mines around the village. 59. Mr M. had seen Mr I. after he had been blown up but he had not noticed any injuries. Mr I. had told him that he and Mr Khasayn Minkailov had been searching for Mr Vakhazhi Albekov and that Khasayn had been blown up on a mine. On the next day the villagers and servicemen from the 15th regiment had gone to search for Mr Khasayn Minkailov, and later the servicemen had brought his dead body to the village. Mr Nokha Uspanov and Mr Sh. M. had been among the villagers that had participated in the search and they had both been blown up on mines. Other villagers had brought them on stretchers to the house of the S-vs. family on the outskirts of the village. Somebody had called Mr M. and the first applicant, who was in the village that day, for medical assistance. The villagers had told Mr M. and the first applicant that they had gone with Mr Nokha Uspanov and Mr Sh. M. to search for Mr Khasayn Minkailov. In the forest Mr Sh. M. had noticed a dugout and had approached it in order to look inside. At the entrance of the dugout he had been blown up. Mr Nokha Uspanov had run over to help him and had been blown up too. In the S-vs.’ house Mr M. and the first applicant had provided the two men with the first medical aid. They had been given styptic and anti-tetanus injections; the first applicant had cleansed the wounds and removed the injured parts of the muscles and skin. Mr Sh. M.’ right leg had been torn off up to the middle of the ankle. Mr M. did not remember him having other injuries. Mr Nokha Uspanov had a similar injury. Mr M. had not seen the bodies of either Mr Vakhazhi Albekov or Mr Khasayn Minkailov. 60. Mr R-v., who was questioned on an unspecified date, submitted that from August 2000 to February 2001 he had been seconded to military unit no. 73881. In October 2000 the military unit had been located on the outskirts of Akhkinchu-Barzoy. At the time the situation in the village had been tense; members of illegal armed groups had opened fire on several occasions. The military unit had not mined the area. In the forest near the military unit’s location there had been a lot of mines, including trip-wire mines. There had been instances where servicemen or military vehicles had been blown up. The mines had most probably been laid by members of illegal armed groups. When explosive devices had been found by servicemen of the military unit, they had been destroyed on the spot by sappers. The administration of Akhkinchu-Barzoy had always been informed of the discovery of explosive devices. 61. Other unspecified servicemen from military unit no. 73881, questioned on unspecified dates, also submitted that the military unit had not laid any mines while located in the Kurchaloy District. When mines or other explosive devices were found, they had been destroyed by sappers. The command of military unit no. 73881 had always informed the residents and the administration of Akhkinchu-Barzoy of the discovery of mines. 62. According to the Government, it had not been possible to question either Mr Nokha Uspanov, because of his subsequent death, or Mr I., because he had moved to Germany permanently, although the Prosecutor’s Office of the Chechen Republic had requested the German authorities to take certain investigative measures in respect of Mr I. Nor had it been possible to question Mr M. Sh., as he and his relatives had left the Chechen Republic. However, certain steps to establish his whereabouts had been taken. 63. The investigative authorities had requested the competent bodies to provide information concerning the laying of mines near the village of Akhkinchu-Barzoy. According to the military commander’s office, there was no information to support the assumption that the mines had been laid by the federal forces. The involvement of representatives of the federal forces in the incident was therefore not established. Mr Vakhazhi Albekov had been blown up on land occupied by the military unit and which had previously been “abandoned by members of illegal armed formations”. Mr Khasayn Minkailov, Mr Nokha Uspanov, Mr Sh. M. and Mr I. had been blown up while they had been searching for Mr Albekov in the forest where members of illegal armed gangs had laid mines. 64. The investigation was being conducted under the supervision of the Prosecutor General’s Office and the persons granted the status of victim were being informed of all the decisions taken. 65. Despite specific requests made by the Court on several occasions, the Government did not submit copies of the investigation files concerning the deaths of Mr Vakhazhi Albekov and Mr Khasayn Minkailov and the injuries sustained by Mr Nokha Uspanov, except for 31 pages of documents containing decisions to open, suspend and resume the investigation and to grant victim status. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure. 66. Article 20 of the Constitution safeguards the right to life. Russia is not a party to the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. 67. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (the new CCP). 68. Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 69. Article 161 of the new CCP stipulates that evidence from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator, but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission. | 1 |
dev | 001-58825 | ENG | AUT | CHAMBER | 2,000 | CASE OF POBORNIKOFF v. AUSTRIA | 3 | No violation of Art. 6-1 as regards the plea of nullity;Violation of Art. 6-1 as regards the appeal against sentence | null | 6. On 8 March 1993 the Public Prosecutor's Office at the Feldkirch Regional Court (Landesgericht) filed an indictment charging the applicant with murder. It was alleged that the applicant, in December 1991, had killed his wife and had then buried her decapitated corpse in a field where it had been discovered in May 1992. It was further alleged that he had had a mistress, and had run into financial difficulties as he had rented and furnished an apartment for her and had maintained her, whereas his wife, who had opposed a divorce, had owned the spouses' house and a collection of jewellery of considerable value. In these and the trial proceedings the applicant was represented by official counsel, Mr. A. 7. On 1 October 1993 the Feldkirch Regional Court, sitting as a Court of Assizes (Geschworenengericht), gave judgment. The jury found the applicant guilty of murder. The court, sitting with the jury, sentenced him to life imprisonment. It considered as aggravating circumstances that the applicant had acted for particularly base motives and had acted cruelly. It found that there were no mitigating circumstances. 8. On 2 November 1993 the applicant, still represented by Mr. A., filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung). In his plea of nullity he complained about the composition of the court, the court's failure to put alternative questions to the jury and about the lack of reasons for the jury's verdict. He also submitted that there was no factual basis for finding him guilty. In his appeal he complained in particular that the Regional Court's judgment did not give sufficient reasons for the sentence. As to the aggravating circumstances, it was not clear which motives had been established and deemed particularly base. Nor did the judgment mention any facts which would allow the conclusion that he had acted in a cruel manner. As to possible mitigating circumstances, the applicant complained that the Regional Court had failed to take his advanced age and lack of prior convictions into account. The applicant did not request to attend the hearing before the Supreme Court. 9. On 21 December 1993 the Supreme Court (Oberster Gerichtshof) fixed the hearing date for the applicant's plea of nullity and his appeal for 27 January 1994. The applicant received a notification, which stated that his counsel would be summoned to the hearing. As to the hearing of the plea of nullity, the notification informed him that he, being detained, could only appear through his counsel. As to the hearing of the appeal, he would not be brought to the court as the conditions of S. 296 § 3 of the Code of Criminal Procedure (Strafprozeßordung) were not fulfilled. At an unspecified date in the middle of January 1994, the applicant was informed by the Vienna Bar Association that for the purpose of his representation at the hearing before the Supreme Court a new official defence counsel, Mr K., had been appointed as Mr A. would be unable to attend. 10. On 27 January 1994 the Supreme Court, after having held a hearing in the absence of the applicant but in the presence of his new official defence counsel, Mr. K., rejected his plea of nullity as well as his appeal. As regards the appeal, the Court found that the applicant had rightly claimed as a mitigating circumstance that he had no prior convictions. Furthermore, cruelty had not been factually established as an aggravating circumstance. However, there was evidential support for the conclusion that the applicant had acted for particularly base motives. Attaching particular weight to this aggravating circumstance, the Supreme Court found that - notwithstanding the aforementioned deficiencies - the sentence of life imprisonment was commensurate with the applicant's guilt. 11. The first-instance judgment of an assize court may be challenged by a plea of nullity to the Supreme Court on the specific grounds enumerated in section 345 § 1 of the Code of Criminal Procedure. The Supreme Court's task is mainly to control the acts of the bench and the presiding judge of the assize court. Its examination includes whether the trial has been conducted in a manner which complies with fundamental procedural principles, whether the right questions have been put and the correct directions given to the jury. The Supreme Court may only verify whether the jury has provided unclear, incomplete or contradictory answers to the questions put to it. The Supreme Court supervises the correct application of the criminal law, but in so doing is bound by the jury's findings of fact. 11. In certain cases the Supreme Court may reject a plea of nullity without a public hearing (section 285 (c) of the Code of Criminal Procedure). In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on an appeal against sentence. 12. As regards the hearing on a plea of nullity, section 286 of the Code of Criminal Procedure provides: “1. When the date of the public hearing is being fixed, the accused ... shall be summoned ... 2. If the accused is under arrest, the notice of the hearing given to him shall mention that he may only appear through counsel. ...” 13. Section 344 of the Code of Criminal Procedure extends these rules to nullity pleas arising out of jury trials. However, if the hearing is a combined one on a plea of nullity and an appeal against sentence, an accused who is present for the latter purpose may also exercise his rights concerning the nullity plea. 14. The sentence as such may be challenged by way of an appeal against sentence. It may concern both points of law (in particular whether mitigating or aggravating circumstances have been correctly taken into account) and factors relating to the assessment of the sentence. Where the substance of an appeal is examined, a public hearing must normally be held. 15. As regards the personal appearance of the accused at a public appeal hearing, section 296 § 3, second sentence, of the Code of Criminal Procedure provides: “An accused who is detained shall always be summoned and an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter-statement or otherwise if his personal presence appears necessary in the interests of justice.” | 1 |
dev | 001-75480 | ENG | RUS | CHAMBER | 2,006 | CASE OF SHATUNOV v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - State to secure enforcement of judgment debt;Non-pecuniary damage - financial award | Christos Rozakis | 7. The applicant was born in 1954 and lives in Kursk. 8. The applicant worked as a forwarding agent for a catering enterprise. In January 1999 the enterprise’s director instructed him to sell 10 tonnes of flour. The applicant sold the flour, purchased certain foodstuffs with the money thus raised and paid the transportation expenses. The director refused to accept the foodstuffs and asked the applicant to remit the value of the flour. The applicant sold the foodstuffs but the amount raised was insufficient to cover that value. The applicant offered various other goods in payment of the outstanding amount. The director refused to accept them. It appears that the applicant was subsequently dismissed. In January 2000 criminal proceedings for embezzlement were brought against the applicant. From 25 January 2000 to 4 February 2000 he was held in pre-trial detention. 9. On an unspecified date the applicant fully reimbursed the value of the flour. 10. On 17 May 2000 the Leninskiy District Court of Kursk convicted the applicant of embezzlement. He was given a two-year suspended prison sentence and fined 2,087.25 Russian roubles (RUR), which he paid. 11. The Kursk Regional Court upheld the judgment on 20 June 2000. 12. On 18 July 2001, following an application for supervisory review lodged by the Deputy President of the Supreme Court of Russia, the Presidium of the Kursk Regional Court quashed the sentence and terminated the criminal proceedings against the applicant on the basis that there was no indication that an offence had been committed. 13. On 17 August 2001 the applicant brought proceedings against the Ministry of Finance seeking compensation for pecuniary and non-pecuniary damage caused by the criminal proceedings against him, in particular as a result of his detention between 25 January 2000 and 4 February 2000 and his conviction of 17 May 2000. 14. The Leninskiy District Court of Kursk partially granted the claim for damages on 12 November 2001. 15. On 18 December 2001 the Kursk Regional Court quashed the judgment and remitted the case for a fresh examination. 16. The Leninskiy District Court of Kursk partially granted the claim for damages on 10 January 2002. 17. On 14 March 2002 the Kursk Regional Court once more quashed the judgment and remitted the case for a fresh examination. 18. On 16 April 2002 the Leninskiy District Court of Kursk partially granted the claim for damages. The court awarded the applicant RUR 15,000 in damages and RUR 3,700 for costs. The judgment stated: “Under Article 1070 of the Civil Code, damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, unlawful application of detention as a preventive measure ... shall be compensated at the expense of the Treasury of the Russian Federation. ... Under Article 1100 compensation for non-pecuniary damage shall be effectuated irrespective of the fault of the causer of the damage where the damage is caused as a result of unlawful conviction, unlawful criminal prosecution. ... On the foregoing grounds ... the court has decided to award [damages] against the Ministry of Finance in favour of [Mr] Shatunov...” 19. By a final decision of 14 May 2002 the Kursk Regional Court varied the judgment and awarded the applicant RUR 25,000 in damages and RUR 4,700 for costs. 20. On 23 April 2002 the applicant brought proceedings seeking compensation for the fine he had been ordered to pay in the judgment of 17 May 2000. 21. By a final decision of 17 June 2002 the Leninskiy District Court of Kursk granted the claim and ordered the Ministry of Finance to pay the applicant RUR 2,087. 22. On 28 May 2002 the Leninskiy District Court of Kursk issued a writ of execution for recovery of RUR 29,700 from the Ministry of Finance, pursuant to the judgment of 16 April 2002, which had been varied on appeal on 14 May 2002. 23. On an unspecified date the same court issued a writ of execution for recovery of RUR 2,087 from the Ministry of Finance, pursuant to the ruling of 17 June 2002. 24. It appears that the applicant initially sent the writs to the First Department of the Bailiffs’ Service for the Central District of Moscow. In a letter of 5 September 2002 the Ministry of Justice informed the applicant that a writ of execution had been transferred to the Second Department of the Bailiffs’ Service for the Central District of Moscow. It is not clear which of the two writs was referred to in the letter. Nevertheless, it appears that both writs either remained in, or were subsequently returned to, the First Department of the Bailiffs’ Service. 25. The First Department of the Bailiffs’ Service transferred both writs to the Second Department of the Bailiffs’ Service on 22 April 2004. 26. On 1 June 2004 the Second Department of the Bailiffs’ Service returned the writ for recovery of RUR 29,700 to the applicant because it did not meet the statutory requirements. In particular, the date of issue of the writ and the time-limit for its submission for execution had not been indicated. The applicant was also advised that, pursuant to a Government Decree of 9 September 2002, writs against the Treasury of the Russian Federation were to be sent for execution to the Ministry of Finance. It appears that the applicant applied to the Leninskiy District Court of Kursk to have the writ amended. 27. On 5 July 2004 the Second Department of the Bailiffs’ Service transferred the writ for recovery of RUR 2,087 to the Leninskiy District Court of Kursk, apparently because it too failed to meet the statutory requirements. 28. On an unspecified date the Leninskiy District Court of Kursk returned the writ for recovery of RUR 2,087 to the applicant and advised him that it should be sent to the Ministry of Finance. 29. The Leninskiy District Court of Kursk sent the writ for recovery of RUR 29,700 to the applicant on 26 July 2004. 30. In July and August 2004 the applicant sent both writs to the Ministry of Finance. 31. According to the Government, on 27 July 2004 the Ministry of Finance had received the writ of execution for recovery of RUR 2,087. On 6 October 2004 the Ministry of Finance had returned the writ of execution to the applicant, stating that it did not meet the statutory requirements in that the time-limit for its submission for execution had not been indicated and the operative part of the judgment had been cited incorrectly. 32. According to the Government, on 24 August 2004 the Ministry of Finance had received the writ of execution for recovery of RUR 29,700. On 27 May 2005 the writ had been returned to the applicant because it did not meet the statutory requirements. In particular, the time-limit for its submission for execution had not been indicated. Furthermore, the decision of the Kursk Regional Court of 14 May 2002 had not specified that the amount was to be recovered from the Treasury of the Russian Federation. 33. On 2 November 2004 the applicant applied to the Leninskiy District Court of Kursk to have the writ for recovery of RUR 2,087 amended. On 1 December 2004 the writ was again received by the Ministry of Finance. According to the Government, the payment pursuant to the writ had been made by the Ministry of Finance on 5 May 2005. According to the applicant, the writ had never been executed. 34. According to the Government, on 4 July 2005 the writ of execution for recovery of RUR 29,700 had again been received by the Ministry of Finance. However, its defects had not been rectified. For these reasons it had again been returned to the applicant. 35. According to the applicant, neither writ has been executed. 36. Section 9 of the Enforcement Proceedings Act of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow should the defendant fail to comply with the time-limit. 37. Under section 13 of the Act, enforcement proceedings must be completed within two months of the receipt of the writ of execution by the bailiff. 38. The Rules on execution by the Ministry of Finance of the Russian Federation of judicial acts concerning claims against the Treasury of the Russian Federation in respect of damage caused by the unlawful acts (omissions) of agencies of State authority or officials of the agencies of State authority, approved by Government Decree No. 666 of 9 September 2002, provide that a writ of execution should be sent to the Ministry of Finance together with a copy of the judicial act and the claimant’s bank-account details (Rule 2). Within five days from the receipt of the above documents the Ministry of Finance sends them to the debtor State agency in order to find out whether the underlying judicial decision is being appealed against. The time-limit for execution of the writ by the Ministry of Finance is two months (Rule 5). The writ of execution may be returned without execution in the following situations: if the time-limit for its submission has expired, if the documents submitted do not meet the statutory requirements or some of the documents are missing, or if the execution of the underlying judicial decision has been stayed or discontinued (Rule 6). 39. On 20 May 2003 the Supreme Court of the Russian Federation in its decision no. KAC 03-205 held that the Rules adopted by Decree No. 666 concerned the voluntary execution of court decisions against the Federal Treasury and did not prevent the creditor from seeking enforcement through the court bailiffs. 40. On 14 July 2005 the Constitutional Court of the Russian Federation in its decision no. 8-П held, inter alia, that Rules 3, 5 and 6 of the Rules adopted under Decree No. 666 were unconstitutional and were to become invalid from 1 January 2006. | 1 |
dev | 001-104905 | ENG | DEU | CHAMBER | 2,011 | CASE OF SCHMITZ v. GERMANY | 3 | Remainder inadmissible;No violation of Art. 5-1 | Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1959 and is currently detained in Aachen Prison. 6. Between 1974 and 1990 the applicant was convicted of sexual offences including attempted rape, sexual abuse of children, sexual assault, attempted sexual assault and dangerous assault in six judgments and spent some eleven years in prison. 7. On 14 February 1990 the Cologne Regional Court convicted the applicant of two counts of sexual assault. It sentenced him to five years and six months’ imprisonment and ordered his (first) preventive detention under Article 66 § 1 of the Criminal Code (see paragraphs 20-21 below). It found that in June and July 1989 the applicant, acting with full criminal responsibility, had sexually assaulted two hitchhikers whom he had taken with him in his car. Having consulted a neurological expert, it further found that owing to his criminal tendencies, it was very likely that the applicant would commit further serious sexual offences comparable to those he was found guilty of on release and was dangerous to the public. Therefore, his preventive detention was necessary. 8. The applicant served his prison sentence until 17 January 1995 and was then held in preventive detention until 29 March 1995, when the preventive detention order was suspended on probation and the applicant released. 9. On 11 November 1996 the Cologne Regional Court convicted the applicant of attempted sexual assault and falsification of a driving licence. It sentenced him to four years and nine months’ imprisonment and ordered his (second) preventive detention under Article 66 § 1 of the Criminal Code. The Regional Court found that in August 1995 the applicant, acting with full criminal responsibility, had again attempted to sexually assault a hitchhiker. He had threatened her with a gas pistol, but she had succeeded in wresting the pistol from him and making good her escape. Having regard to the facts that the applicant had begun to reoffend almost immediately after spending some seventeen years in detention and that, according to the convincing view expressed by an expert, it would take many years to rehabilitate the applicant, if ever, the court further considered its second order of preventive detention to be proportionate. 10. On 20 June 1997 the Bonn Regional Court revoked the suspension on probation of the applicant’s first preventive detention, ordered in the Cologne Regional Court’s judgment of 14 February 1990, as the applicant had reoffended and had not diligently continued his therapy. 11. The applicant served his full prison sentence imposed in the judgment of 11 November 1996 until 25 May 2000. Since 26 May 2000 the applicant has been in preventive detention in Aachen Prison as ordered both in the judgment of the Cologne Regional Court of 14 February 1990 and in the judgment of that same court of 11 November 1996. 12. On 5 June 2002 the Aachen Regional Court, reviewing the applicant’s preventive detention, refused to suspend his preventive detention on probation. 13. On 11 June 2003 the applicant requested the Aachen Regional Court to order his release from preventive detention, arguing that preventive detention violated Article 5 § 1 of the Convention. 14. On 23 July 2003 the Aachen Regional Court, examining the applicant’s request under Article 458 § 1 of the Code of Criminal Procedure (see paragraph 24 below), decided that his objections against the admissibility of the execution of his preventive detention were ill-founded. The applicant’s preventive detention, ordered by the Cologne Regional Court in 1996 under Article 66 of the Criminal Code, constituted lawful detention after conviction by a competent court within the meaning of Article 5 § 1 (a) of the Convention. 15. On 10 September 2003 the Cologne Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. It added that preventive detention under Article 66 of the Criminal Code, which was to be qualified as a measure of correction and prevention and not as a penalty, neither violated the Convention nor the Basic Law. Moreover, Article 67d § 3 of the Criminal Code, in its version in force since 31 January 1998 (see paragraph 23 below), was constitutional. 16. On 15 March 2004 the Federal Constitutional Court, referring to its leading judgment of 5 February 2004 in the case of M. (file no. 2 BvR 2029/01; application no. 19359/04 to this Court), declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1838/03), in which he had complained that his preventive detention of an indefinite duration had violated Article 5 and Article 7 of the Convention. 17. On 19 July 2004, 19 July 2006 and 2 July 2008 the Aachen Regional Court, reviewing the applicant’s detention, refused to suspend the applicant’s preventive detention on probation. It considered that it could not be expected that the applicant, who refused to make a therapy with an external psychologist offered to him, would not reoffend on release. 18. The applicant was in his first preventive detention as ordered in the judgment of the Cologne Regional Court of 14 February 1990 until 15 March 2010. From 16 March 2010 onwards, the applicant’s preventive detention as ordered for the second time in the judgment of the Cologne Regional Court of 11 November 1996 is executed. 19. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions referred to in the present case provide as follows: 20. The sentencing court may, at the time of the offender’s conviction, order his preventive detention, a socalled measure of correction and prevention, under certain circumstances in addition to his prison sentence, a penalty, if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code). 21. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time). 22. Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first placement in preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3). 23. Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provided that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a § 3 of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis. 24. Article 458 § 1 of the Code of Criminal Procedure provides that a court decision must be obtained if objections are raised to the execution of a sentence. 25. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period (compare the provisions in paragraphs 22-23 above) and about the retrospective order of the complainants’ preventive detention respectively (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty. 26. The Federal Constitutional Court further held that all provisions of the Criminal Code on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention because those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003. 27. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the most. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law. If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. 28. In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung). In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above). | 0 |
dev | 001-59520 | ENG | GBR | CHAMBER | 2,001 | CASE OF ATLAN v. THE UNITED KINGDOM | 3 | Violation of Art. 6-1;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 7. On 5 July 1991, at the Crown Court at Isleworth, Middlesex, the applicants and another man, Jean-Pierre Terrasson, were convicted of illegally importing 18 kilograms of cocaine (with a street value of GBP 23 million) into Heathrow Airport, London, on 3 November 1990. 8. The applicants and Mr Terrasson had been under surveillance by officers of Her Majesty’s Customs and Excise for some five weeks prior to their arrest on 3 November 1990. On 29 September the three men were observed travelling to Copenhagen Airport. They did not leave the airport and almost immediately after arriving they checked in their luggage and returned to Heathrow. The second applicant (henceforth, “Thierry”) and Mr Terrasson travelled to Brazil on 30 September, and the first applicant (“Armand”) went to Los Angeles on 1 October. The two applicants returned to London on 30 October, when Armand was observed arriving at Heathrow carrying a black suitcase. On 2 November 1990 he met Thierry (who had been in France) and Mr Terrasson (coming from Brazil) at Heathrow. 9. On 3 November 1990 a man named Willi Smolny flew from Brazil to London via Copenhagen. He had with him a black suitcase containing 18 kilograms of cocaine. 10. That morning, the applicants went to Mr Terrasson’s London hotel. Thierry was seen carrying a black suitcase similar to Mr Smolny’s. Shortly thereafter he and Mr Terrasson left the hotel by taxi for Heathrow, carrying the black and a grey suitcase. At the airport they boarded a flight for Copenhagen, checking in the black suitcase in Mr Terrasson’s name and the grey suitcase in Thierry’s name. Immediately on their arrival in Copenhagen they checked themselves on to a return flight to Heathrow. Mr Smolny was also on this flight, although there was no evidence of contact between Mr Smolny, Thierry and Mr Terrasson. 11. When the aeroplane reached Heathrow, customs officers intercepted the luggage. They found that the two black suitcases were indeed very similar. Mr Smolny’s suitcase was to contain 18 kilograms of cocaine. It was almost twice as heavy as the suitcase checked in by Mr Terrasson, which had a number of identifying tags attached to it. 12. The officers put the two suitcases back with the other luggage from the flight which passed for collection on to the carousel. One of the officers saw Thierry take Mr Smolny’s suitcase from the carousel and put it onto Mr Terrasson’s trolley. Mr Terrasson took this suitcase through the green, “nothing to declare”, channel at customs. Thierry also collected the grey suitcase, which he took through the green channel. The other black suitcase, which had been checked on to the flight by Mr Terrasson, was not collected from the carousel. 13. Mr Terrasson and Thierry were arrested by customs officers. Armand, who had not been on the flight or at the airport, was arrested later that day at the home of a relative in South London. All three men were interviewed and denied any knowledge of or participation in the offence. Armand said that he was an emerald and diamond dealer in England for a short time on his way to Antwerp. He claimed not to know Mr Terrasson and stated that he did not know anything about his son’s trip to Copenhagen. Thierry said that he had previously travelled to Copenhagen in connection with the purchase of some jewels, but said that he had made the most recent trip to see a girlfriend. He also denied knowing Mr Terrasson, until customs officers told him that Mr Terrasson’s credit cards had been found in the grey suitcase. Thierry then conceded that he had had a brief encounter with Mr Terrasson in Copenhagen. Mr Terrasson denied knowing either of the applicants or Mr Smolny. He said that he had travelled alone to Copenhagen, taking with him a black suitcase, to meet a married woman friend. He was unable to meet her because her husband was home, so he returned immediately to London. He claimed to have taken his own, not Mr Smolny’s, black suitcase from the carousel. Mr Smolny was arrested later in Zurich. He said in interview that he had been instructed by a man called Mr Morgan to bring the black suitcase, which he believed to contain antiques, from Sao Paolo to Heathrow and to leave it on the luggage carousel. 14. In January 1991 “old-style” committal proceedings (requiring the prosecution witnesses to give oral evidence) were held at the Uxbridge Magistrates Court. Under cross-examination by the defence counsel, the customs case-officer claimed that the only relevant evidence held by the prosecution which had not been disclosed to the defence was two tapes of interviews with the applicants’ South London relatives, two or three interpreters’ statements and some material taken from the house where Armand had been arrested. 15. At the trial, which started in May 1991, the prosecution case was that Armand had organised the importation, using Mr Smolny as the courier from Brazil to Copenhagen and London, and that he had instructed Mr Terrasson, with Thierry as “minder”, to collect Mr Smolny’s suitcase at Heathrow as if in mistake for his own. There was no forensic, photographic or video evidence to substantiate the prosecution case, which relied to a large extent on the accounts given by customs officers of what they had observed. 16. All four defendants pleaded not guilty and gave evidence. The applicants maintained that Armand worked principally as a jewel trader, but that he did not keep written records because he systematically avoided paying taxes and duties in Brazil. The illegality of his jewel trading had motivated their lies during their initial interviews with customs officers. The applicants’ defence centred around a dispute between Armand and a rival jewel trader based in Brazil called Rudi Steiner. They stated that Armand had paid Mr Steiner USD 200,000 in advance for diamonds, which Mr Steiner had failed to deliver to the applicants as agreed in Copenhagen on three occasions: 28 August, 29 September and 3 November 1990. On this last occasion, since, as before, Mr Steiner did not appear, Thierry and Mr Terrasson, who had gone together to collect the diamonds, returned immediately to Heathrow, where Thierry removed Mr Terrasson’s, not Mr Smolny’s, suitcase from the carousel. The applicants contended that Mr Steiner was an informer for Customs and Excise. They claimed that, in order to avoid repaying his debt and for fear that the applicants would discredit him amongst other Brazilian traders following the non-delivery of the diamonds, he had arranged falsely to implicate them in the importation of cocaine. However, they had no evidence to connect Mr Steiner to Mr Molny’s suitcase full of drugs or to substantiate the suggestion that he was a Customs and Excise informer. 17. Under cross-examination the customs officers involved in the case refused either to confirm or deny whether or not they had used an informer. No evidence relating to an informer or to Rudi Steiner was served on the defence or put before the judge. 18. In his summing up the judge summarised the defence by saying, inter alia: “...Steiner had long since either directly or through the Brazilian authorities informed British Customs and Excise that Armand Atlan and Thierry Atlan and Mr Terrasson were preparing to smuggle cocaine to England, and in that way had induced the Customs and Excise here to mount a prolonged and labour-intensive observation of those three men. On the Saturday, 3rd of November, Steiner sprang his trap. He got Morgan to send Smolny off with the suitcase ... with the drugs in it, believing it, of course, to be antiques and works of art. He got Armand Atlan to believe that it was worthwhile going for the third time to Copenhagen for a delivery of the diamonds and he notified Customs of the itinerary of the various people which was to be foreseen from these arrangements, and that is how the incident you have heard about on the afternoon of that day and indeed the observations of that day, came about. It follows from that account – if it is an accurate one – that Mr Steiner had some luck: firstly, Terrasson had a suitcase just like Morgan’s. Possibly someone had observed Terrasson’s suitcase and given a very exact description to Morgan or Steiner and they were able to get a duplicate. It would be difficult for Steiner to ask the British Customs and Excise about Terrasson’s suitcase for that purpose, you may think, without revealing that he himself was engaged in setting them up. You may think that British Customs and Excise in Britain would agree – you may want to consider whether they would agree to co-operate on that basis in framing an innocent group of foreigners of good character at the behest of an unknown Brazilian businessman like Steiner. ... Just consider in your mind what it would be like to try and induce the British Customs Service, even as an English subject, to co-operate with you in such a way. ... [I]t is worth just looking at the costs to Mr Steiner if Mr Atlan’s story is right ... to see what was in it for Mr Steiner. His costs: he provided initially some samples [of diamonds] worth seven or eight thousand ... US dollars. ... He lost the cost of sending [his representative] diagonally across the world and back [with the sample] with a bit of time in a hotel. ... He lost the cost of Mr Smolny’s fare in the Euro-class Sao Paolo/Copenhagen/London return, and he lost the cost of Mr Smolny’s London hotel ... . [T]he case is that he lost all those things and whatever is the cost of 18 kilograms of 90 plus percent pure cocaine in Brazil. No doubt that cost is very, very much less than it would be in London, but ... you may think that 18 kilograms of high quality cocaine like that would cost a substantial sum, albeit nowhere near three million pounds, in the providing country. I put those bits and pieces of information together because it is not altogether obvious when one just runs through the story that that is what the information amounts to, but you may think it does, and it may be relevant to considering the likelihood of somebody behaving in the way Mr Steiner is said to have done.” 19. On 5 July 1991 the jury, by a majority of ten to one, convicted the applicants and Mr Terrasson of importing the cocaine. Mr Smolny was acquitted. On 12 October 1991, after an inquiry by the judge under the Drug Trafficking Proceedings Act 1986, Armand was sentenced to eighteen years’ imprisonment and a confiscation order of GBP 1,918,489.60 with a further ten years’ imprisonment to be served in default of payment. Thierry and Mr Terrasson both received sentences of thirteen years’ imprisonment and Thierry was also ordered to pay a confiscation order of GBP 6,140.66 or serve a further six months in prison. 20. On 8 August 1991 the first applicant applied for leave to appeal against conviction. On 8 November 1991 the single judge refused his application. The first applicant renewed it before the Full Court of Appeal and the second applicant applied directly to that Court for leave to appeal against conviction. On 8 February 1994 a summary of the case was prepared by the Criminal Appeal Office. 21. In spring 1994 the applicants learned from the French press (Libération) that a Swiss undercover police officer, Commissioner Cattaneo, had written a report, called “the Mato Grosso Report”, concerning his 1991 investigation into drug trafficking between Brazil and Europe. In early 1995 the applicants’ solicitor obtained a copy of the report. It mentioned Rudi Steiner, describing him as one of three regular informers of the Brazilian, Danish and French police. He was said to have an interest in stolen jewels and a long-term involvement in the traffic from Brazil to Europe of large quantities of cocaine, which he was able freely to obtain from the Brazilian police. In a letter dated 4 December 1995, the Swiss Federal Police Office informed the applicants’ solicitors that the report was the property of the Tessin cantonal police and that in 1991 a meeting was held at Federal Police headquarters in Bern concerning the Mato Grosso investigation but that it was not possible to provide any further information in this connection. The applicants provided a copy of the report to the prosecution, which declined to confirm or deny its authenticity or the truth of its contents, and repeated that there was no undisclosed material relevant to the issues at trial. 22. The applicants added a further ground of appeal coupled with an application for leave to call fresh evidence. They maintained that the Mato Grosso Report substantiated their suggestion at trial that Mr Steiner had access both to stolen jewels and cocaine and that he had an established relationship with law enforcement agencies in Europe. In their submission, the fact that the jury had not had before it evidence relating to these matters, and the fact that the judge, ignorant of the true facts, had characterised Mr Steiner in his summing up as an unknown Brazilian businessman, rendered their convictions unsafe. 23. On or about 19 October 1995 the prosecution informed the defence that, contrary to earlier statements, unserved unused material did in fact exist, which the prosecution wished to place before the Court of Appeal in the absence of the applicants or their lawyers. The prosecution then applied ex parte to the Court of Appeal for a ruling whether it was entitled, on grounds of public interest immunity, not to disclose this material. The applicants objected to the holding of an ex parte hearing, in writing on 27 November 1995 and orally before the Court of Appeal on 7 December 1995, submitting inter alia that the court was a tribunal of both fact and law and could be adversely influenced by material which was wrong or inaccurate. 24. The Court of Appeal dismissed the objections and heard the prosecution’s ex parte application. It decided not to rule on the application unless or until such time that, having considered the applicants’ application to introduce new evidence, it became necessary to do so. 25. The hearing of the applications for leave to appeal against conviction and to bring new evidence commenced on 18 December 1995. The Court of Appeal indicated its view that the Mato Grosso Report would not be admissible in evidence because, inter alia, its author could not be found to vouch for its accuracy and be cross-examined on its contents. 26. At the applicants’ request the hearing was adjourned on 19 December 1995 and legal aid was granted to enable their solicitor to travel to Italy where, it was believed, Rudi Steiner was in custody awaiting trial on a charge of smuggling cocaine. However, the Italian authorities were unwilling to assist the applicants without the backing of a formal letter of request from a competent authority. The applicants therefore applied to the Court of Appeal for a letter requesting the Italian authorities to give their solicitor access to the criminal proceedings there. On 10 June 1996 a different constitution of the Court of Appeal ruled that in principle it had jurisdiction to issue such a letter of request. On 19 July 1996, however, the originally constituted court decided that the applicants’ proposed request to the Italian authorities was too wide-ranging and, even if more restrictively drawn, unlikely to elicit information which would be either admissible or of assistance in the appeal. It therefore decided that it was not in the public interest to issue a letter of request, and adjourned the case until after the conclusion of Mr Steiner’s trial in Italy in the Autumn of 1996. In the event, however, Mr Steiner was released on bail and his whereabouts were unknown at the time of the applicants’ appeal hearing in February 1997. 27. The applicants’ solicitor was able to obtain a number of documents relating to the Italian proceedings, including transcripts of interviews with Mr Steiner, arrest warrants and a list of his previous convictions. He was also able to obtain a statement from Commissioner Cattaneo, the Swiss police officer who had prepared the Mato Grosso Report. In his statement the Commissioner confirmed the authenticity of the report. He stated that he had been introduced to Mr Steiner by a Danish police officer and had become Mr Steiner’s “handler”, passing information to the British authorities during the investigation into the applicants. According to the Commissioner’s statement, his British “contact” had been a customs officer named Martin Crago, whom he had contacted at the British Embassy in Brasilia. He believed that Mr Steiner had spoken to Mr Crago several times and had sought payment for information he had given him. The Commissioner concluded by indicating that he would be willing to appear as a witness in the Court of Appeal. 28. On 10 January 1997 the applicants added a further ground of appeal, alleging that the prosecution had failed to make full disclosure of the evidence in its possession concerning Mr Steiner, and that the lack of full disclosure rendered their convictions unsafe. 29. The day before the hearing of the appeal, Commissioner Catteneo informed the defence lawyers that his superiors in the Swiss Police Force had refused him authorisation to attend. The applicants’ counsel suggested to the Court of Appeal that this decision might have resulted from communication between British Customs and Excise and the Swiss authorities, but there is no evidence in support of this. Mr Crago was called by the defence to give evidence. He denied that he had been Commissioner Cattaneo’s contact and declined to answer any question about Mr Steiner. 30. On 16 February 1997, after hearing the applicants’ application to admit new evidence and holding an ex parte hearing in the absence of the defence lawyers, the Court of Appeal ruled that justice did not require disclosure by the Crown of the public interest immunity evidence. The applicants and their lawyers were not permitted to be present when the court delivered its judgment on disclosure. 31. On 20 February 1997 the court dismissed the application for leave to appeal. It observed: “Little, if any, of the material [put before the Court of Appeal by the applicants’ counsel] would have been admissible at the trial. That is not only because it is largely hearsay and unspecific as to events and dates, but simply because much of it is wholly irrelevant to the central issue in this case, namely whether British Customs and Excise officers conspired with Steiner to ‘frame’ the Atlans. However, in considering all the information put before us, we have not been able to avoid taking a view of its effect if, and to the extent that it were admissible and credible, on the outcome of this appeal, that is, whether ... it ‘[might] afford any ground for allowing the appeal’. We have tested that by assuming for the purpose: (1) that Steiner ... was charged in Italy, with others, on a charge of smuggling a large quantity of cocaine from South America to Italy in February 1995; (2) that his role in the importation of the drug to Italy is said to have been as a participating informer to the Italian police; (3) that since at least 1980 he had been concerned in the smuggling of large quantities of cocaine from Brazil to Europe; (4) that for many years before the November 1990 importation of cocaine he had been an informer to various law enforcement agencies in Europe, though there is nothing to suggest that he had any contact with the United Kingdom Customs and Excise before that importation; (5) that at the time of the November 1990 importation he had access to large quantities of cocaine in Brazil at little or no cost; (6) that he had provided information to a European law enforcement agency which led to the United Kingdom Customs and Excise observations of the Atlans before the November 1990 importation; and (7) that, as alleged by Armand at the trial, Steiner may have had a grudge against him arising out of some previous dealing between them. ... [Prosecuting counsel] suggested that the only way Steiner could have been sure of achieving such an end would have been to persuade the officers to ‘plant’ the drug on, or falsely attribute it to, Thierry or Terrasson. Such a conspiracy between Steiner and the officers would have been hard for them to organise to an assured outcome. ... [H]ow could they have organised it so that Terrasson had a suitcase almost identical to that of Smolny? And what possible motive or reason could the officers have had to lend themselves to such a disgraceful enterprise whether Steiner was a known informer or not? In the Court’s view, there is force and hard logic in those submissions. There are also a number of other questions indicating the impossibility of the Atlans’ defence. Why, if they thought they were to collect diamonds from Steiner, not drugs, did Thierry and Terrasson immediately check their luggage onto the return flight without apparently enquiring by telephone why he had not turned up or whether he had been delayed? Why did Smolny and the two of them make no contact in Copenhagen and ignore each other on the plane to Heathrow? Why did Thierry and Terrasson separate as Terrasson boarded a taxi at Heathrow with the case containing the cocaine? Why did the Atlans tell so many lies on arrest and in interview about their activities together before the flight to Copenhagen and about the reason for it? Why did Thierry lyingly state that he had travelled on his own on the return flight to Copenhagen and that he did not know Terrasson? Why did they later give wholly different accounts in evidence at their trial? Why did Smolny make indirect telephone contact with someone on Armand’s telephone number in Brazil on the day of the importation? In the Court’s view, none of its assumptions, some of which go well beyond the new information relied upon by the Atlans, detracts in any way from the overwhelming strength of the prosecution case identified in those various questions or provides any material support for the possibility of a conspiracy between the Customs and Excise officers and Steiner or anyone else to ‘frame’ the Atlans. The jury, by its verdict, clearly rejected Thierry and Terrasson’s suggestion of it. Although Armand did not then suggest such a conspiracy, it was his only possible line of defence, though, for the reasons we have given, a wholly unrealistic one. [Prosecuting counsel’s] submission, which echoes considerations voiced by the judge to the jury in the summing up, provides a logical and complete answer to the complaint based on Steiner’s alleged role as an informer and drug smuggler. If the jury had had before it information matching our assumptions, it might have led them to conclude that Steiner may have provided some information, direct or indirect, to the United Kingdom Customs and Excise, but it could not have left them with any doubt as to the Atlans’ knowing and deliberate involvement in the importation of cocaine into the United Kingdom. The evidence against them, which had been thoroughly and robustly tested at the trial, was overwhelming: the Customs and Excise officers’ observation of their various and highly expensive international air flights, for which there was no plausible explanation or documentation suggesting any legitimate business; the officers’ observation of their movements and meetings in London and of the two strange return trips to and from Copenhagen; their various handling of what was to become Terrasson’s suitcase used for the switch; their lies on arrest and in interview. All that activity pointed only to their involvement in the high value and high risk activity of drug smuggling, not some black market dealing in gems under Brazilian law. Whatever Steiner’s possible role as an informer, the Atlans’ guilty participation in cocaine smuggling is clear. ...” 32. At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence. 33. In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common law duty to disclose to the defence certain evidence of potential assistance to it ([1982] vol. 74 Criminal Appeal Reports p. 302: “the Guidelines”). The Guidelines attempted to codify the rules of disclosure and to define the prosecution’s power to withhold “unused material”. Under paragraph 1, “unused material” was defined as: “(i) All witness statements and documents which are not included in the committal bundle served on the defence; (ii) the statements of any witnesses who are to be called to give evidence at the committal and (if not in the bundle) any documents referred to therein; (iii) the unedited version(s) of any edited statements or composite statement included in the committal bundles.” Under paragraph 2, any item falling within this definition was to be made available to the defence if “it According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows: “... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.” According to paragraph 8, “in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence”. The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution, although any doubt should be resolved in favour of disclosure. If either before or during the trial it became apparent that a duty to disclose had arisen, but that disclosure would not be in the public interest because of the sensitivity of the material, the prosecution would have to be abandoned. 34. Subsequent to the applicants’ trial in 1992, but before the appeal proceedings in 1997, the Guidelines were superseded by the common law. In R. v. Ward ([1993] vol. 1 Weekly Law Reports p. 619) the Court of Appeal dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity. It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case, because: “... [When] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.” 35. In R. v. Davis, Johnson and Rowe ([1993] vol. 1 Weekly Law Reports p. 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence then had the opportunity to make representations to the court. Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte. The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence. The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial. | 1 |
dev | 001-4550 | ENG | AUT | ADMISSIBILITY | 1,999 | YAGIZ v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is a Turkish national, born in 1958, and living in Natters. He is represented before the Court by Mr. Horst Lumper, a lawyer practising in Bregenz. The applicant came to Austria in November 1989 without having a valid visa. In 1990 the Innsbruck District Administrative Authority (Bezirkshauptmannschaft) found him guilty of illegal entry and imposed a fine of 2,200 Austrian Schillings (ATS) on him. Subsequently, the applicant obtained a residence permit which was periodically renewed. In August 1991 his wife, who is also a Turkish national, as well as their son, born in 1975, and their daughter, born in 1985, were allowed to join him under a family reunion scheme. The applicant found employment as a worker. In 1993 the Innsbruck District Administrative Authority found him guilty of drunken driving and imposed a fine of ATS 12,100 on him. In 1994 the same authority found him guilty of refusing to undergo a breathalyser test when being reasonably suspected of drunken driving and imposed a fine of ATS 15, 400 on him. On 9 February 1995 the Innsbruck District Administrative Authority issued a residence ban valid for five years against the applicant. Referring to S. 18 § 1 and § 2 (2) of the 1992 Aliens Act (Fremdengesetz), according to which a residence ban has to be issued against an alien, inter alia, if he has been convicted more than once of a serious administrative offence, it found that the applicant’s convictions for drunken driving in 1993 and refusing to undergo a breathalyser test in 1994 constituted such serious offences. Although the residence ban constituted an interference with the applicant’s private and family life, this measure was necessary, as there were specific reasons to fear that his further stay would be a danger for public security. On 22 February 1995 the applicant, represented by counsel, filed an appeal. He argued that the residence ban against him was disproportionate, as the offences committed by him were not of a serious nature. Moreover, it forced him to separate from his family who were dependent on his income. Further, the applicant argued that Austria had become a member of the European Union on 1 January 1995 and was therefore bound by the Association Agreement between the European Union and Turkey. According to this Agreement and the decisions on its implementation, Turkish workers who had been legally employed in a member State for four years had a right of free access to the employment market and also to a residence permit. Moreover, measures of public security against such workers could not be based solely on criminal convictions but had to be justified by the specific conduct of the person concerned. On 3 October 1995 the Tyrol Public Security Authority (Sicherheitsdirektion) dismissed the applicant’s appeal. It confirmed that the applicant’s convictions in 1993 and 1994, relating to drunken driving and refusing a breathalyser test, constituted serious administrative offences within the meaning of S. 18 § 2 (2) of the Aliens Act. Referring to S. 20 of the said Act which requires the authority to weigh the negative consequences the residence ban would have for the alien and his family against the public interest in issuing a residence ban, it found in particular that the applicant had only lived in Austria since 1989 and his family since 1991. Moreover, his family could leave Austria with him. Having regard to the conduct of the applicant and the particular risks it entailed for life and limb as well as the property of others, he had to be considered as a danger for public safety. In sum, the interest in issuing the residence ban outweighed the interests of the applicant and his family in staying in Austria. Finally, the Association Agreement between the European Union and Turkey, relied on by the applicant, did not prohibit the issuing of a residence ban. On 25 October 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He repeated the arguments he had already forwarded in his appeal to the Public Security Authority. On 27 November 1995 the Constitutional Court refused to entertain the applicant’s complaint and referred the case to the Administrative Court (Verwaltungsgerichtshof). On 20 March 1996 the Administrative Court dismissed the applicant’s complaint. It found that the contested residence ban was necessary within the meaning of Article 8 § 2 of the European Convention on Human Rights in the interests of public safety and the prevention of crime. Referring on the one hand to the gravity of the offences committed by the applicant and on the other hand to his short stay in Austria, the Court confirmed that the Public Security Authority had duly weighed the interests involved. | 0 |
dev | 001-68564 | ENG | SVK | ADMISSIBILITY | 2,005 | W. AND OTHERS v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicants, whose particulars appear in the appendix, were represented before the Court by Mr Ľ. Mráz, a lawyer practising in Bratislava. The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants had originally served in the Police. On termination of their service they became entitled to a special monthly allowance for time served (príspevok za službu) pursuant to section 98 et seq. of the Act on Service in the Federal Police Corps (Law no. 334/1991 Coll., as amended). The allowance was paid to them by the Social Security Agency (“the Agency”) of the Ministry of the Interior (“the Ministry”) and its amount was calculated as a percentage of the applicants' monthly salary at the time of the termination of their service. The percentage depended on the number of the years served. Under section 98 (2) of Law no. 334/1991 Coll. the entitlement to the allowance expired once the officer in question recommenced “service”. The term “service” was understood to include also service in the Slovak Intelligence Service (Slovenská informačná služba - “the SIS”). It was the duty of the officer receiving the allowance to report the recommencement of “service” to the Agency within 8 days. At various dates in 1995, 1996 and 1997 the individual applicants started to work for the SIS. They were subject to an order of the Director (“the Director”) of the SIS no. 39/1996 which forbade them to report the recommencement of their “service” to the Agency so that their affiliation with the SIS would be concealed. The applicants thus continued receiving the allowance from the Agency (“the paid allowance”). At the same time they were receiving a salary from the SIS. The SIS was however withholding a part of this salary (“the withheld salary”) in an amount equal to the paid allowance. The applicants understood that the SIS would transfer the withheld salary to the State budget. At various dates in 1998 the applicants' service in the SIS terminated and the latter reported the termination to the Agency. The Agency subsequently reclaimed the paid allowance from the applicants on the ground that it had been paid to them without a valid legal title. The applicants unsuccessfully challenged the decision before the Ministry, accepted the debt and commenced paying it in instalments. The applicants then lodged demands with the SIS for repayment of the withheld salary. As their demands were not met, they lodged a claim with the Bratislava III District Court (Okresný súd) and also sought interest for late payment of the principal amount. In several separate decisions taken between May and November 2000 the District Court found that it had no jurisdiction to deal with the applicants' claims against the SIS and that the body to determine the matter was the Director. The District Court based its finding on sections 1 (3), 3 and 231 et seq. of the Act on Service in the Police, the SIS, the Corps of the Prison Guards and the Railway Police (Law no. 73/1998 Coll., as amended) and section 22 (b) of the Act on the Slovak Intelligence Service (Law n. 46/1993 Coll., as amended). The District Court thus referred the actions under Article 104 § 1 of the Code of the Civil Procedure to the SIS for a determination by its Director and discontinued the judicial proceedings in their respect. The Bratislava Regional Court (Krajský súd) upheld the decision on appeal. On numerous occasions between September 2000 and August 2001 the applicants again turned to the SIS claiming repayment of the withheld salary plus penalty interests. Invoking the above judicial decisions the applicants demanded that the Director determine the matter by a formal decision and insisted that the repayment be made directly to them. In August 2001 the SIS transferred an amount equal to a major part of the withheld salary of the applicant P. G. to his bank account. At various dates in February and March 2002 the Agency informed the remaining 12 applicants that the SIS had transferred an amount of money equal to the part of their withheld salary to the Agency. In substance this amount was identical to the paid allowance. The Agency further informed these applicants that the part of the paid allowance which they had already repaid in the meantime would be returned to them. Chapter (Časť) 5 governs the administrative judiciary. In accordance with its provisions administrative tribunals review the lawfulness of decisions taken by public administration authorities on the basis of administrativelaw actions under Section (Hlava) 2 of that Chapter and administrativelaw appeals under Section 3 of that Chapter. From 1 January 2002 the relevant provisions of this Chapter were amended by Law no. 501/2001 Coll. in that administrative tribunals also have the jurisdiction to review the “official conduct” of public administration authorities. Law no. 424/2002 Coll. further amended the provisions of this Chapter by defining detailed rules concerning actions against the inactivity of authorities of public administration. These rules are laid down in a new Section 4 and entered into force on 1 January 2003. By virtue of Article 244 § 3 the notion of “official conduct” also includes inactivity of the administrative authority concerned. Pursuant to Article 247 § 2 administrative tribunals are entitled to decide in administrativelaw actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all ordinary remedies. Under Article 244 § 4 in conjunction with Article 250t any natural or legal person who alleges that an authority of public administration is not pursuing a matter, contrary to law and without a weighty reason may seek an order by an administrative tribunal to the authority concerned to proceed with the matter and to determine it within a fixed timelimit which cannot be longer than three months. Under Article 250u a failure to comply with the order can be sanctioned by a fine of up to 100,000 Slovakian korunas. In its judgment (rozsudok) of 23 May 2002 (file no. 7 Sž 24/02) the Supreme Court found that the Ministry of Finance had been inactive in a set of administrative proceedings and ordered that the Ministry give a final decision in the matter within 30 days from delivery of its judgment. In a resolution (uznesenie) of 16 June 2004 (file no. 23 S 102/03) the Banská Bystrica Regional Court found that the Banská Bystrica Land Registry Office wrongfully failed to determine the plaintiff's objections in land adjustment proceedings which were conducted before that office. The Regional Court ordered that the Land Registry Office determine the objections within 60 days and awarded the plaintiff reimbursement of her costs. The right to protection of a person's dignity, honour, reputation and good name is guaranteed by Article 11 et seq. of the Civil Code. According to Article 11 any natural person has the right to protection of his or her personal integrity, in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics. Any natural person has the right to request that any unjustified infringement of his or her personal integrity should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction (Article 13 § 1). Article 13 § 2 provides that in cases when the satisfaction obtained under Article 13 § 1 is insufficient, in particular because a person's dignity and position in society have been considerably diminished, the injured person is entitled to financial compensation for non-pecuniary damage. | 0 |
dev | 001-84970 | ENG | BGR | CHAMBER | 2,008 | CASE OF SVETOSLAV DIMITROV v. BULGARIA | 3 | Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Karel Jungwiert;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych | 7. In a judgment of 14 September 1995 the Karlovo District Court found the applicant guilty of theft and sentenced him to one year's imprisonment, suspended for a period of three years. No appeal was lodged and the judgment became final. 8. In a judgment of 21 May 1997 the Karlovo District Court found the applicant guilty of theft and sentenced him to one year's imprisonment. As the conviction concerned an offence committed during the three-year operational period of the applicant's sentence in case no. 14/95, the court also ordered the applicant to serve the suspended sentence of one year's imprisonment. No appeal was lodged and the judgment became final. 9. In a judgment of 16 February 1999 the Plovdiv District Court found the applicant guilty of theft. Combining the applicant's sentence for this offence with his sentence of one year's imprisonment in case no. 88/96, the court sentenced him to a total of three years and two months' imprisonment for both offences. 10. The court also ruled as follows: “On the basis of Article 25 § 2 of the Criminal Code [the court] deducts [from the sentence to be served] the period, during which [the applicant] was detained, calculated from 7 June 1996 to 27 December 1998”. 11. No appeal was lodged by either the applicant or the public prosecutor's office and the judgment became final. 12. On 7 June 1996 the applicant was arrested and remanded in custody in connection with case no. 50/97. 13. On an unspecified date towards the end of 1998 the applicant appealed against his continued remand in custody in that case. 14. A report from Plovdiv Prison dated 16 December 1998, which detailed the different periods of the applicant's deprivation of liberty up to that point, was presented to the Plovdiv District Court. The said periods were indicated to have been the following: 15. In a decision of 17 December 1998 in case no. 50/97 the Plovdiv District Court revoked the order for the applicant's continued remand in custody in that case and granted him bail. Release was made conditional on the applicant providing a recognizance and subject to there being no other grounds for his continued deprivation of liberty. 16. The applicant deposited the monetary guarantee on 21 December 1998 and was released on 27 December 1998. 17. The applicant obtained a certificate from Plovdiv Prison dated 7 April 1999, which indicated that between 7 June 1996 and 27 December 1998 he had accumulated the equivalent of three years, two months and two days of time served, which included days he had worked towards reducing his sentences. The different periods of the applicant's deprivation of liberty were noted to have been the following: 18. In a letter of 29 April 1999 the Plovdiv district public prosecutor's office informed Hisar police station and Plovdiv Prison that the applicant had to be recalled to prison to serve the outstanding part of his sentence in case no. 50/97. The reasoning of the district public prosecutor's office was that the period during which the applicant had been serving his sentence of imprisonment in case no. 14/95 could not count as a remand in custody in case no. 50/97. 19. On 12 May 1999 the applicant was detained under an order issued by the district public prosecutor's office to serve the outstanding part of his sentence in case no. 50/97. 20. On an unspecified date the applicant appealed to the Plovdiv regional public prosecutor's office against the decision of the district public prosecutor's office. He argued that there was no outstanding prison term for him to serve as a result of the time he had spent remanded in custody in case no. 50/97 combined with his sentence in case no. 88/96, which had both expressly been deducted by the trial court from the time to be effectively served. 21. In a letter of 25 May 1999, the regional public prosecutor's office dismissed the applicant's appeal, stating, inter alia: “There is a sentence in criminal case no. 14/95 ..., which was not combined with the sentence in criminal case no. 50/97.” 22. The applicant appealed further. 23. In a decision of 4 November 1999 the Supreme Cassation Public Prosecutor's Office dismissed the applicant's appeal. In its reasoning, it stated: “Correctly ... the prosecutor from the Plovdiv district public prosecutor's office took into account the period of the remand in custody of the [applicant] in case no. 50/97 ... [as being] only from 7 June 1996 to 1 August 1997, because subsequently he had started to serve a sentence of 'imprisonment'.” 24. In the meantime, on an unspecified date the applicant requested the Plovdiv District Court to interpret, under Article 373 § 1 (1) of the Code of Criminal Procedure of 1974 (“CCP”), its judgment of 16 February 1999 in case no. 50/97. He argued, inter alia, that he had been remanded in custody during the whole period between 7 June 1996 and 27 December 1998. He further maintained that this period of two years, six months and twenty days plus the sentence of one year's imprisonment in case no. 88/96, which the applicant had already served, meant that he had effectively served the whole sentence of three years and two months' imprisonment in case no. 50/97. The public prosecutor's office meanwhile, apparently relying on a report prepared by Plovdiv Prison that the applicant's remand in custody in case no. 50/97 had been suspended on 1 August 1997, considered, inter alia, that the applicant still had to serve a year of the sentence imposed by the court in case no. 50/97. 25. A hearing was held in the presence of all the parties on 26 July 1999. In a decision of the same day the Plovdiv District Court dismissed the applicant's request for interpretation of the judgment of 16 February 1999 as it considered it to be clear. It found, inter alia, that its judgment quite unequivocally indicated that the whole period of the applicant's remand in custody between 7 June 1996 and 27 December 1998 should be deducted from his sentence of three years and two months' imprisonment. In this respect it stated the following: “Accordingly, the will of the court is to deduct THE WHOLE OF THE ABOVE STATED PERIOD [emphasis added by the Plovdiv District Court], i.e. the period during which the measure for securing the [applicant's] appearance before the court in the present case was a 'remand in custody', and not [just] a part thereof.” 26. The Plovdiv District Court also found that it was not competent to rule on the lawfulness of the decision of the public prosecutor's office to seek execution of the part of the sentence it claimed was still outstanding. 27. The applicant was released on 4 February 2000 after serving the remaining part of the sentence which the public prosecutor's office had alleged was outstanding in case no. 50/97. 28. On 11 November 1999 the applicant brought an action under the State and Municipalities Responsibility for Damage Act 1988 (the “SMRDA”, which was renamed in 2006) against the public prosecutor's office and the Ministry of Justice. 29. He contended that he had been unlawfully deprived of his liberty since 12 May 1999 because he had had no outstanding prison term to serve. He sought compensation for the non-pecuniary damage he had allegedly suffered as a result. 30. In a judgment of 28 January 2002, the Plovdiv Regional Court established, inter alia, the following: “... the [applicant] was remanded in custody in case no. 50/97 from 7 June 1996 to 1 August 1997. From 1 August 1997 to 10 April 1998 [he] served his sentence in case no. 14/95 ... This sentence cannot, by virtue of Articles 23-25 of the Criminal Code, be combined [with the other sentences] and it was served separately. From 10 April 1998 to 27 December 1998 the [applicant] served his sentence in case no. 88/96. This sentence was combined with the sentence in case no. 50/97 and therefore under Article 25 § 3 of the Criminal Code the [trial] court when delivering its judgment in case no. 50/97 should have deducted the whole period of the sentence [which had been] served. It should [also] have deducted the whole period of the remand in custody from 7 June 1996 to 1 August 1997 on the basis of Article 59 § 1 of the Criminal Code. These two periods amount to two years, two months and twelve days. When the [trial] court wrote in its judgment that it was deducting the time during which [the applicant] had been detained, calculated from 7 June 1996 to 27 December 1998, it in practice wrongly included the time during which he had been serving his sentence [in case no. 14/95] – from 1 August 1997 to 10 April 1998. [Accordingly,] from the sentence of three years and two months [the trial court] deducted three years and two months, being the period between 7 June 1996 and 27 December 1998 and it [thereby] transpired that the [applicant] had no time left to serve. The [trial] court made this mistake in spite [of the fact that] the case file contained information from Plovdiv Prison [detailing] the periods served by the [applicant]. In its decision [of 26 July 1999] dismissing the request to interpret its judgment, the [trial] court stated that its intention had been to deduct the whole period from 7 June 1996 to 27 December 1998, i.e. the period during which the [applicant] was remanded in custody and not [just] a part thereof. This shows that the [trial] court was misguided [in thinking] that [the applicant was remanded in custody in case no. 50/97 throughout] this entire period. Thus, with this judgment, one year of the [applicant's] sentence was pardoned, because only two years and two months should have been deducted. In spite of this, the public prosecutor's office did not appeal against the judgment and it became final ... After [the judgment] became final, it became binding on the public prosecutor's office under Article 372 § 1 of the [CCP] which should have implemented it instead of attempting to correct the [existing] mistake by interpreting the intention of the [trial] court. In the period between 12 May 1999 and 4 February 2000, including from 12 May 1999 to 11 November 1999, the date the present action was brought, the [applicant] unlawfully served a sentence of imprisonment, which if the mistake had not been made he [would] have served lawfully.” 31. In spite of the above conclusion, the Regional Court found that the applicant had failed to prove conclusively that he had suffered any nonpecuniary damage as a result of having been deprived of his liberty between 12 May 1999 and 11 November 1999. It therefore dismissed his action and ordered him to pay the resulting court fees. The applicant appealed against that judgment on an unspecified date. 32. In a judgment of 29 April 2002, the Plovdiv Court of Appeal dismissed the applicant's appeal and upheld the lower court's findings. The reasons for its decision were, inter alia, the following: “Irrespective of the wrongful deduction of the time during which the [applicant] was serving his sentence ... in case no. 14/95, when sentencing the applicant to three years and two months' imprisonment the [trial] court deducted two years, five months and twenty days. This was the period between 7 June 1996 and 27 December 1998. The remaining [period] was eight months and ten days, which the applicant had to serve in view of the delivered final judgment ... in case no. 50/97 of the Plovdiv District Court.” 33. The applicant filed a cassation appeal on an unspecified date. 34. In a final judgment of 20 October 2003 the Supreme Court of Cassation dismissed the applicant's appeal and upheld the lower courts' findings. In its reasoning, it indicated, inter alia, the following: “In the reasons [for its decision of 26 July 1999, the Plovdiv District Court] stated that the intention of the [trial] court had been to deduct from the so determined combined sentence the period during which the [applicant] was remanded in custody. With this clarification it became clearer what the intention of the [trial] court had been. The Plovdiv public prosecutor's office made a justified assessment that the period stated in the judgment to be deducted, namely from 7 June 1996 to 27 December 1998, included a period of one year when the [applicant] served a sentence of 'deprivation of liberty' under the judgment in case no. 14/95 ..., which sentence was not combined with [the sentence] in case no. 50/97 ..., and therefore was to be served separately. After deducting the period during which the [applicant] had served this first sentence the public prosecutor's office rightly established that not all the sentence in case no. 50/97 ... had been served and the [applicant] was recalled to prison on 12 May 1999 to serve the remaining part of the sentence. There is no indication that he was detained in prison for a period longer than [required] for serving the sentence imposed. Accordingly, the contention that he suffered damage as a result is unfounded. The incorrect indication in the judgment of the period of [remand in custody] to be deducted does not change the stated intention [of the trial court] in respect of the length of the sentence of 'imprisonment'.” 35. The Code of Criminal Procedure (1974) did not contain express provisions establishing a procedure to be followed in cases where there was a dispute as to whether a person had effectively served a prison sentence or not. 36. Article 373 § 1 (1) of the CCP provided that the court which had imposed the sentence would rule on all difficulties or uncertainties relating to the interpretation of its judgment. That did not include, however, issues concerning the execution of sentences and, in particular, the lawfulness of a continuing detention. 37. In general, the authority responsible for supervising the lawfulness of the execution of sentences was the competent public prosecutor (Article 375 § 2 of the CCP, section 118 of the Judiciary Act 1994 and section 4(1) of the Execution of Sentences Act). In particular, the public prosecutor was under a duty to order the release of every imprisoned person whom he or she found to have been unlawfully deprived of his or her liberty (section 119(7)(1) of the Judiciary Act of 1994). An appeal to a higher ranking public prosecutor's office lay against the decisions of a public prosecutor. 38. The Code of Criminal Procedure (1974) was replaced in 2006 by a new code of the same name, while the Judiciary Act 1994 was replaced by a new act of the same name in 2007. 39. Prisoners may work during their time in prison, whereby two days of employment are counted as them having served three days of their sentences of imprisonment (sections 65 and 103 of the Execution of Sentences Act). 40. The relevant parts of section 2 of the SMRDA provide: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the public prosecution, the courts ... for: 1. unlawful detention ..., if [the detention order] has been set aside for lack of lawful grounds; ... 6. execution of an imposed sentence in excess of the set term or amount.” 41. Compensation awarded under the Act comprises all pecuniary and non-pecuniary damage which is the direct and proximate result of the illegal act or omission (section 4). The aggrieved person must lodge an “action ... against the [entity] ... whose illegal orders, acts or omissions have caused the alleged damage” (section 7). Compensation for damage caused from cases coming within sections 1 and 2 of the Act can only be sought under the Act and not under the general rules of tort (section 8 (1)). 42. The liability of the investigating and prosecuting authorities may arise only in the exhaustively listed instances set forth in section 2(2) of the Act and not under the general rules of tort (решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). No reported cases have been identified of successful claims being made for damage stemming from acts of the investigating or prosecuting authorities which fall outside the list in section 2. 43. The reported case-law under section 2(1) and (6) of the Act is scant. In two judgments the Supreme Court of Cassation held that State liability arose where a detainee was remanded in custody or imprisoned for a period exceeding the final prison term subsequently imposed by the court of last instance (реш. № 1662 от 21 януари 1994 г. по гр. д. № 306/93 г., IV г. о. на ВС и реш. № 1144 от 20 юни 2003 г. по гр. д. № 904/2002 г., IV г. о. на ВКС). | 1 |
dev | 001-88721 | ENG | POL | CHAMBER | 2,008 | CASE OF DUBLAS v. POLAND | 4 | Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant was born in 1972 and lives in Pruszcz Gdański. 6. On 8 June 2004 he was arrested by the police. 7. On 9 June 2004 the Gdańsk District Court (Sąd Rejonowy) decided to place the applicant in pre-trial detention as there were reasonable grounds for suspecting that he had been dealing in drugs. The court also cited the risk that the applicant would go into hiding, in view of the likelihood of a heavy sentence. 8. On 2 September and 4 November 2004 the applicant’s detention was extended. In addition to the two grounds given previously, the District Court cited the need to ensure the proper conduct of the investigation. 9. On 26 October 2004 the applicant was indicted before the Gdańsk District Court. His pre-trial detention was subsequently extended. 10. As the length of the applicant’s detention had reached the statutory timelimit of two years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the District Court made a series of applications to the Gdańsk Court of Appeal (Sąd Apelacyjny) for the applicant’s detention to be extended beyond that term. On 18 May and 17 August 2006 the Gdańsk Court of Appeal granted the applications and extended his detention, citing the reasonable suspicion against the applicant and the length of the sentence that was likely to be imposed. The Court also considered that the District Court could not be held responsible for not having completed the trial as there had been objective procedural difficulties in hearing all the witnesses. 11. The first hearing was held on 21 January 2005. Subsequently, hearings were held at regular intervals. 12. The applicant’s applications for release from detention and his appeals against the decisions extending the preventive measure were dismissed. 13. On 17 October 2006 the Gdańsk Court of Appeal extended the applicant’s detention until 20 November 2006. It cited the reasonable suspicion against the applicant and found that detention was necessary to secure the proper conduct of the proceedings given the likelihood of a heavy sentence. 14. The applicant’s detention on remand was not extended beyond that date and on 20 November 2006 he was released. 15. On 4 August 2006 the applicant lodged a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). On 3 November 2006 the Gdańsk Regional Court dismissed the complaint, finding that the trial had been conducted speedily and with no periods of inactivity. 16. The proceedings are still pending before the trial court. 17. The relevant domestic law and practice concerning pre-trial detention (aresztowanie tymczasowe), the grounds for its extension and release from detention, and the rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006), and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 August 2006). 18. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland (no. 15212/03 (dec.), §§ 1223, ECHR 2005-V), and Ratajczyk v. Poland (no. 11215/02 (dec.), ECHR 2005VIII) and judgment in the case of Krasuski v. Poland (no. 61444/00, §§ 34-46, ECHR 2005-V). | 1 |
dev | 001-79160 | ENG | LVA | CHAMBER | 2,007 | CASE OF ESTRIKH v. LATVIA | 3 | Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - financial award | David Thór Björgvinsson | 5. The applicant was born in 1972 and lives in Krasnoyarsk in the Russian Federation. 6. The applicant arrived in the Republic of Latvia as a member of the ex-USSR armed forces located in the territory of Latvia. On an unspecified date in the beginning of the 1990s he and Ms B., a Latvian citizen, started living together in de facto partnership. In 1993 a child was born to the applicant and his partner. 7. After the military forces were withdrawn from Latvia, the applicant resided there between 11 June 1993 and 31 March 1994 on the basis of a temporary residence permit. On 31 March 1994, upon the expiry of the residence permit, he left Latvia. 8. Between 1994 and 1997 the applicant visited Latvia three times on the basis of a visa. The validity of the last visa expired on 17 November 1997 but the applicant continued to reside in Latvia illegally. 9. On 19 February 1998 the applicant was apprehended by the police and taken into custody on suspicion of having committed robbery and criminal proceedings were initiated against him and seven co-accused persons. 10. On 20 February 1998 the applicant was brought before a judge of the Ziemeļu District Court of the City of Riga who decided to detain him on remand. The judge filled in a standard form by typing in the date, the names of the court and the applicant and other details of the case. In substantiating the decision, the judge had to choose from and underline the pre-typed text of the standard form. She took into account the severity of the crime the applicant was suspected of, the danger of his possible absconding and the possibility that he could impede the investigation. However, the judge did not underline the pre-typed text as to whether or not a preventive measure should be imposed on the applicant. He did not appeal this decision. 11. On 17 March 1998 the applicant was officially charged with robbery. 12. On 9 April, 11 June, 10 August and 13 October 1998 a judge of the Ziemeļu District Court of the City of Riga, on the request of the prosecutor in charge of investigation, extended the applicant's detention on remand until 19 June, 19 August, 19 October and 12 December 1998 respectively. The applicant was not brought before the judge. The decisions were drafted using a standard form and repeated from one decision to the next the same grounds in the same words, i.e. the severity of the crime the applicant was charged with, the danger of his possible absconding and the possibility that he could impede the investigation. The applicant did not appeal any of these decisions. 13. On 30 October 1998 the prosecutor in charge of investigation and the applicant discussed the possibility of releasing him on bail. 14. On 25 November 1998, according to the prosecutor's permission, the applicant and his partner met in order to discuss the details of the applicant's release on bail without reaching any agreement in this respect. 15. On 10 December 1998, 11 January, 29 January, 20 February and 19 March 1999 a judge of the Ziemeļu District Court of the City of Riga, on the request of the prosecutor in charge of investigation, extended the applicant's detention on remand until 12 January, 29 January, 20 February, 20 March and 20 April 1999 respectively. The applicant was not brought before the judge. The decisions were drafted using a standard form and repeated, from one decision, the same grounds and in the same words, i.e. the severity of the crime the applicant was charged with, the danger of his possible absconding and the possibility that he could impede the investigation. The applicant did not appeal any of these decisions. 16. On 21 April 1999 the applicant was given access to the case file in order to take cognisance of its contents, which he completed on 29 October 1999. 17. On 7 August 2000 the last of the co-accused persons completed the reading of the case file. 18. On 23 August 2000 the investigating prosecutor N. informed all accused persons that the examination of the case file had been completed. The prosecutor, considering the fact that the applicant resided in Latvia illegally, the danger of his possible absconding and the possibility that he could impede the investigation, refused the applicant's request to alter the preventive measure imposed on him. The applicant did not appeal this decision. On the same day the final indictment, drafted by the prosecutor N., was presented to the applicant. 19. On an unspecified date the case was transmitted to the Riga Regional Court for adjudication. 20. During the preliminary investigation the applicant asked the prosecutor in charge of investigation for permission to correspond with his relatives; these requests, using a standard form, were refused as being contrary to the interests of investigation. 21. On 1 February 1999 the applicant asked the prosecutor for permission to meet his partner. His request was refused on 8 February 1999. 22. On 27 June 1999 the applicant asked the prosecutor for permission to exchange correspondence with his parents, who were living in Russia. 23. On 5 July 1999 the prosecutor informed the applicant that he was not allowed to meet his partner or to exchange correspondence with his parents. 24. On 22 July 1999 the applicant asked the prosecutor for permission to exchange correspondence with his relatives and to meet his partner and their child. These requests were refused on 2 August 1999. 25. On 10 August 2000 the applicant asked the prosecutor for permission to exchange correspondence with his mother and his partner. 26. On 16 August 2000 the prosecutor allowed the applicant to exchange correspondence with his mother. 27. On 13 September 2000 a judge of the Riga Regional Court allowed the applicant to exchange correspondence with his partner. 28. The applicant spent the whole period of detention from 19 February 1998 to 19 August 2002 in a remand prison. According to the Instruction on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons (hereinafter referred to as “the Instruction”), approved by the Minister of the Interior, and Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons (hereinafter referred to as “the Transitional Provisions”), approved by the Minister of Justice, long-term family visits were prohibited in remand prisons. 29. On 4 September 2000 the Riga Regional Court received the case file. 30. On 7 September 2000 a judge of the Riga Regional Court committed the applicant for trial and scheduled the hearing for 13 May – 10 June 2002. The applicant was not summoned. The judge decided to continue his detention on remand without giving reasons. The decision was not subject to appeal. 31. On 4 November 2000 the applicant asked the Riga Regional Court to schedule a separate court hearing in order to determine the date of trial and to reconsider the preventive measure imposed on him. 32. On 20 November 2000 a judge of the Riga Regional Court replied that the trial date had not been set. 33. On unspecified dates the applicant complained to the President of the Riga Regional Court and the Ministry of Justice that his right to trial within a reasonable time had been infringed. On 5 December 2000 the Ministry of Justice notified the applicant that the trial date had not been scheduled. 34. On 28 November 2000 the applicant asked the Riga Regional Court to hold a hearing in his case within a reasonable time. On 8 January 2001 the applicant repeated this request. 35. On 29 January 2001 a judge of the Riga Regional Court replied that the trial date had not been set. 36. On 26 February 2001 the applicant announced a hunger strike to protest against the lack of progress in the proceedings. 37. On 2 March 2001 the Riga Regional Court informed him that the hearing had been scheduled for May 2001 and he discontinued the hunger strike. 38. On 13 March 2001 the Riga Regional Court informed the applicant that the trial had been scheduled for 13 May – 1 July 2002. 39. On 15 March 2001, in reply to the applicant's earlier complaint, the Ministry of Justice informed him that the hearing had been set for 13 May – 1 July 2002. 40. On 27 March 2001 the Riga Regional Court confirmed that the trial date had been scheduled for 13 May – 1 July 2002. 41. On 5 April 2001 the Ministry of Justice confirmed that the trial dates were set for 13 May – 1 July 2002 and not May 2001 as erroneously stated by the Riga Regional Court in its letter of 2 March 2001. The applicant was also informed that, due to the court's case load, it was not possible to begin the trial within the time limit provided for in Article 241 of the Criminal Procedure Code. 42. On 11 April 2001, on the applicant's request of 2 April 2001 to alter his detention on remand, a judge of Riga Regional Court informed him that he had been committed for trial and that there was no reason to alter the preventive measure imposed on him. 43. On 13 May 2002 the Riga Regional court commenced adjudication of the applicant's case. 44. On 16 and 20 May 2002 the Riga Regional court adjourned the hearing as several witnesses did not appear. The court ordered the police to ensure the appearance of these witnesses under constraint. 45. On 11 June 2002 the Riga Regional Court found the applicant guilty of robbery and unlawful ammunition storage. The prosecuting authorities were represented by the prosecutor N. and his colleague. The court sentenced him to four years and six months' imprisonment and, according to Article 24 2 of the Criminal Code, ordered his deportation from Latvia after having served the sentence. The applicant appealed this judgment. 46. On 21 November 2002 the Criminal Chamber of the Supreme Court acquitted the applicant of the charge of unlawful ammunition storage and quashed the first instance court's sentence in regard to his deportation, upholding the remainder of the first instance court's judgment. The prosecutor N. represented the prosecuting authorities together with his colleague. The applicant did not file an appeal on points of law and thus the judgment became final. 47. On 29 July 2002 the Citizenship and Migration Authority (hereinafter referred to as the “CMA”) took a decision on forced expulsion of the applicant, stating that the applicant, a Russian national, arrived in Latvia on 20 August 1997 on the basis of a visa. It observed that the Riga Regional Court convicted the applicant on 11 June 2002 and ordered his expulsion from Latvia, according to Article 242 of the Criminal Code. The CMA noted that the applicant would be released on 19 August 2002 and decided, in accordance with Article 242 of the Criminal Code, to expel him from the territory of Latvia to the Russian Federation. There was no date indicated in the decision as to when the expulsion should take place. When the applicant took cognisance of this decision, he wrote next to his signature that he objected to his expulsion as he had a family in Latvia. 48. On 19 August 2002 the applicant was released from prison, the time he had spent in detention on remand counting as part of the sentence. On the same date he was transferred to the Detention Center for Illegal Immigrants and thereafter detained at the Center pending his deportation to the Russian Federation. 49. On 29 August 2002 the applicant appealed against the decision of the CMA to the Central District Court of the City of Riga. The court received the appeal on the same day. 50. On the same day the applicant was deported to the Russian Federation. 51. On 3 September a judge of the Central District Court of the City of Riga examined the applicant's appeal of 29 August 2002 and, as it was written in Russian, allowed the applicant until 30 September 2002 to rectify this procedural deficiency. 52. On 3 October 2002 the proceedings were terminated as neither the applicant nor his lawyer pursued the complaint. 53. On 4 September 2003 the applicant and his partner married in Krasnoyarsk in the Russian Federation. 54. The relevant part of Article 77 provides that the maximum term of detention on remand during the investigation of a criminal case may not exceed two months. If it is not possible to complete investigation of the case within that period and there are no grounds for altering a preventive measure, a judge may extend the period of detention for up to one year and six months. If necessary, the detained person and his defence counsel may be heard. Extension of detention beyond one year and six months is not allowed and the detained person is entitled to immediate release. 55. Paragraph 7 of Article 77 (adopted on 17 October 2002 and with entry into force on 1 November 2002) provides that in exceptional cases the Senate of the Supreme Court may extend detention beyond one year and six months. 56. Paragraph 5 of Article 77 provides that the time taken for all defendants to take cognisance of the documents in the investigation file shall not be taken into account in calculating the length of detention pending trial. 57. By virtue of Article 83, a preventive measure shall be terminated if it has been applied unlawfully or it ceases to be necessary, or may be changed to ateration of detention on remand applied by a judge or a court during the preliminary investigation shall be effected by a reasoned decision of a prosecutor, or it may be terminated by a court decision in the cases provided for in Article 2221. 58. According to Article 222, a complaint regarding acts of a prosecutor shall be subject to appeal to a higher prosecutor. The complaint shall be examined within three days upon its receipt and it can be dismissed only by a reasoned decision. 59. Pursuant to Article 2221, all decisions given by a judge at the pre-trial stage regarding the detention on remand and its extension can be appealed to a higher court by a suspected or accused person or his/her counsel or representative. The appellant and the prosecutor in charge of investigation shall be present at the adjudication of the appeal. The appeal shall be examined and a decision taken within seven days as of its receipt. The decision is final and not subject to further appeal. 60. After a judge has committed an accused person to trial, a court shall decide in a preliminary hearing on the question of preventive measures. A decision concerning committal of an accused person to trial shall be taken within 14 days upon receipt of a case file in the court (Article 223). 61. In deciding whether to commit an accused person for trial, a judge or a court shall determine whether the preventive measure applied was appropriate (Article 225). 62. When committing an accused person to trial, a judge holds a preliminary hearing to rule on the request to alter a preventive measure if the judge considers that the request is well-grounded. The decision refusing the request to alter a preventative measure cannot be appealed. (Article 226). 63. Articles 237 and 465 provide that the decisions of a court, ordering detention on remand or altering it, taken during the preliminary hearing or during the adjudication of the matter, may be appealed to a higher court. 64. Article 241 sets time-limits for examination of a case and provides that the examination of a case before a court must start not later than within twenty days or, under exceptional circumstances, no later than within one month, after the case is received by the court. 65. A judgment of the first instance court enters into force and becomes final after expiry of the time-limit provided for appeal of this judgment, if the judgment has not been appealed. A judgment of an appellate court enters into force and becomes final after expiry of the time-limit provided for cassation appeal of this judgment, if the judgment has not been appealed. If a cassation appeal has been submitted, the judgment becomes final after its examination by the cassation court, if the court does not quash the judgment (Article 357). 2. Criminal Code (Latvijas Kriminālkodekss), applicable at the material time (in force until 1 April 1999) 66. The relevant part of Article 242 provided that a court can decide to order expulsion from the Republic of Latvia of a person, who is not a national of Latvia. The expulsion is a supplementary punishment and is effected after serving the sentence. 67. Until 14 May 2001 the situation of persons detained in remand prisons was governed by the “Instruction on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Instrukcija par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos), approved by the Minister of the Interior on 30 April 1994 (hereinafter referred to as “the Instruction”). 68. Rule 26 of the Instruction provided that the sentenced persons and the arrested persons placed in the investigation prisons were allowed to send letters and to receive short-term visits upon approval by the authority conducting the criminal proceedings (i.e. either by investigating authorities or the court, depending on the stage reached in the proceedings). 69. Rule 32 of the Instruction stipulated that the arrested persons placed in the investigation prisons might be allowed to receive one short-term visit (up to one hour) per month from family members and other persons only on the basis of a written permission from the person or the body dealing with the particular criminal case. 70. Rule 35 of the Instruction provided that visits in the investigation prisons took place in the presence of a prison authority. 71. In 2001 the penitentiary institutions were transferred from the supervision of the Ministry of the Interior to the Ministry of Justice. On 9 May 2001 the Minister of Justice approved new “Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Pārejas noteikumi par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos) which entered into force on 14 May 2001 (hereinafter referred to as “the Transitional Provisions”). 72. Rule 25 of the Transitional Provisions provides that the sentenced persons and the arrested persons may be allowed to receive one short-term visit per month on the basis of a written permission from the authority dealing with the particular criminal case. 4. Civil Procedure Code (Civilprocesa kodekss), applicable at the material time (in force until 1 February 2004) 73. Article 228 § 3 provides that decisions of the state authorities, which affect the rights and obligations of individuals, are subject to judicial review by the court which is fully authorised to quash the impugned decisions and terminate the administrative proceedings against the concerned individuals. 74. According to Article 2395, the absence of an individual, who has submitted a complaint, at court proceedings is not an obstacle for the court to hear the merits of the case; however, the court may declare the individual's presence mandatory. 75. The court, having found the appealed act or decision unlawful and infringing the rights of an individual, declares the complaint lawful and obliges the responsible authority to remedy the violation complained about (Article 2397). 5. Law on Entry and Residence in the Republic of Latvia of Foreign Citizens and Stateless Persons (Likums par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā), applicable at the material time (in force until 1 May 2003) 76. The Head of the department or the Head of a territorial unit shall issue an expulsion order, demanding the departure of a person from the territory of the State if, inter alia, an alien resides in the State without a valid visa or residence permit or if the alien has otherwise violated the visa regime (Article 38). 77. A person is obliged to leave the territory of the state within seven days from the moment he/she has been notified of an expulsion order unless the order has been appealed. The person who has been notified of an expulsion order may appeal it within seven days to the Head of the department. The person may reside in the territory of the state during the examination of the appeal. The decision of the Head of the department may be appealed within seven days from its receipt, by submitting an appeal to a relevant court (Article 40). 78. The Head of the department of a territorial unit can decide on the forced expulsion of a person if this person within seven days of the notification about the expulsion order has not appealed it, as provided for by Article 40, or his/her appeal has been dismissed (Article 481). 6. Other relevant regulations 79. Article 1 § 1 of the Law on Public Prosecutor's Office (Prokuratūras likums) states that the Prosecutor's Office is an institution of judicial power, which independently carries out supervision of the observance of law within the scope of its competence. 80. The relevant part of Article 92 of the Constitution (Satversme) states that every person has the right to defend his or her rights and lawful interests in a fair trial. In case of unlawful interference with his or her rights, everyone is entitled to adequate compensation. 7. The judgments of the Constitutional Court of the Republic of Latvia (Latvijas Republikas Satversmes tiesa) 81. The judgment of 5 December 2001 in case no. 2001-07-0103, in the relevant part, reads as follows: “...The Constitutional Court established: ...the court verdict of not guilty is determined as the legal basis for receiving the compensation. The criterion of the addressees of the Law on Compensation is non-existence of person's guilt. Thus, it refers only to those persons, whose liberty has been limited because of an arrest, but who are not guilty of a criminal case and the fact has been acknowledged by a court judgment... .” 82. The judgment of 19 December 2001 in case no. 2001-05-03, in the relevant part, reads as follows: “...The Constitutional Court established: The Transitional Provisions [on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons; confirmed by the Minister of Justice on 9 May 2001] have been passed in compliance with Article 15 of the Law on the Structure of the Cabinet of Ministers, determining that individual ministers may issue instructions binding on the institutions subordinate to them if the respective issue has not been regulated by the Law on the Structure of the Cabinet of Ministers. Instruction No. 1-1/187 envisages that the personnel of the Department of Prisons and the institutions subordinated to it shall be acquainted with the Transitional Provisions. ... the Transitional Provisions ... have [not] been published for common knowledge. Thus the Transitional Prohibitions ... are internal normative acts... .” | 1 |
dev | 001-118756 | ENG | TUR | ADMISSIBILITY | 2,013 | ÇİÇEK AND OTHERS v. TURKEY | 4 | Inadmissible | András Sajó;Guido Raimondi;Paulo Pinto De Albuquerque;Peer Lorenzen | 1. The applicants in application no. 28883/05, Mrs Zeynep Çiçek, Mr Hayri Çiçek, Mr İbrahim Çiçek, Mr Cemal Çiçek, Mr Veysel Çiçek, Mr Rıza Çiçek, Mrs Nurcan Güngör, Mrs Hanım Yıldırım, Mrs Gülcan Çiçek and Mr Nurettin Çiçek, are Turkish nationals who were born in 1948, 1989, 1966, 1963, 1972, 1976, 1971, 1965, 1974 and 1981 respectively and live in the town of Hozat, near Tunceli. They were represented before the Court by Mr Hüseyin Aygün, a lawyer practising in Tunceli. 2. The applicants in application no. 32220/05, Mrs Garip Gülmez, Ms Fatma Karaduman, Ms Serayi Çetin, Mr Süleyman Gülmez, Ms Meneş Gülmez, Ms Yeter Kalkan, Ms Zeynep Gündoğdu, Ms Songül Gülmez and Ms Hatice Gülmez, are Turkish nationals who were born in 1931, 1955, 1957, 1961, 1966, 1967, 1969, 1973 and 1976 respectively and live in the town of Hozat, near Tunceli. They were represented before the Court by Mr Hüseyin Aygün, a lawyer practising in Tunceli. 3. The applicants in application no. 32096/09, Ms Rukiye Aksoy and Ms Ayşe Cingöz, are Turkish nationals who were born in 1972 and 1948 respectively and live in Diyarbakır. They were represented before the Court by Mrs Reyhan Yalçındağ Baydemir, Mr Muharrem Erbey and Mr Serdar Çelebi, lawyers practising in Diyarbakır. 4. The applicant in application no. 14018/10, Mrs Duri Yaman, is a Turkish national who was born in 1948 and lives in Şırnak. She was represented before the Court by Mr Mehmet Recai Bağcı and Ms Hülya Sarsam, lawyers practising in Ankara. 5. The Turkish Government (“the Government”) were represented by their Agent. 6. The facts of the cases, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. The first applicant’s husband and the remaining applicants’ father, Hasan Çiçek, lived in the village of Boydaş, which is located within the administrative jurisdiction of Tunceli, in south-east Turkey. 8. According to the applicants, on 5 October 1994 a number of soldiers took Hasan Çiçek from his home in order to use him as a guide during a military operation conducted in the area. The applicants’ neighbours witnessed the incident. Nothing has been heard from Hasan Çiçek since that date. 9. On 18 November 1994 an article was published in a daily newspaper stating that Hasan Çiçek’s corpse had been found. The applicants were not informed of this event by the authorities. 10. On an unspecified date the first applicant filed a petition with the Hozat public prosecutor’s office and requested that an investigation be initiated into her husband’s disappearance. On 1 August 1996 the Hozat public prosecutor issued a decision based on a lack of jurisdiction (görevsizlik kararı) and passed the investigation to the Elazığ military prosecutor’s office. 11. On 30 November 2004 the first applicant filed a petition with the Hozat public prosecutor’s office. In her petition, she stated that forty days after the disappearance of her husband, she had found a body in the vicinity of their village. She had thought that it was her husband, as she had recognised the buttons of the shirt on the body. Noting that there had been no investigation into Hasan Çiçek’s disappearance, she requested that an investigation be conducted. 12. On 11 January 2005 the Hozat public prosecutor heard the first applicant, who reiterated her request. 13. On 2 February 2005 the Hozat public prosecutor issued a decision not to prosecute in respect of the first applicant’s allegations. In his decision, the public prosecutor noted that the first applicant had filed a petition with the public prosecutor’s office in 1994, at which time she had also handed over a raincoat and empty cartridges which she had found in the vicinity of their village to the public prosecutor, and that there had been a previous decision not to prosecute issued on 1 August 1996 which had been based on a lack of jurisdiction. He further noted that the first applicant had not submitted any new evidence and that her previous allegations had already been dealt with by the public prosecutor’s office. The public prosecutor concluded that there was no reason to initiate an investigation into the first applicant’s complaints. 14. On 10 February 2005 Zeynep Çiçek objected to the decision of 2 February 2005. The objection was rejected by the Erzincan Assize Court on 21 November 2005. 15. In the meantime, on 22 February 2005 the Malatya public prosecutor issued a decision based on a lack of jurisdiction in relation to six cases of disappearance, including that of Hasan Çiçek. In his decision, the public prosecutor noted that it had been alleged that Hasan Çiçek’s body had been found. The public prosecutor referred the cases to the Hozat public prosecutor’s office. 16. On 14 April 2005 the Elazığ military public prosecutor’s office issued a decision based on a lack of jurisdiction in relation to the aforementioned six cases of disappearance, including that of Hasan Çiçek, holding that the military public prosecutor’s office at the General Gendarmerie Command had jurisdiction. 17. The first applicant’s husband and the remaining applicants’ father, Nazım Gülmez, lived in the village of Taşıtlı, which is located within the administrative jurisdiction of Tunceli, in south-east Turkey. 18. According to the applicants, in October 1994 Nazım Gülmez was taken from his house by a group of soldiers so that he could help them by using his familiarity with the area to act as a guide. Nine neighbours witnessed the incident. Nothing has been heard from him since that date. 19. The mayor of the town of Hozat and mayors of the nearby towns sent a joint letter to the office of the Prime Minister. In their letter the mayors stated that large scale military operations had been conducted in their areas in October 1994. During the operations a large number of houses had been burnt down and a number of villagers – including Mr Gülmez – had been taken away by the soldiers. The bodies of two of the villagers had subsequently been found but nothing had been heard from the remaining villagers. No response was given to this letter by the Prime Minister’s office. 20. In 2002 the applicant Meneş Gülmez made an official complaint to the Hozat prosecutor. However, on 13 December 2002 the prosecutor decided that military prosecutors had jurisdiction to investigate the disappearance. In January 2003 the applicants made an application to the Elazığ military prosecutor and asked for those responsible for the disappearance to be prosecuted. 21. As no response was received from the military prosecutor, the family submitted another petition on 12 January 2004. They also stated in their petition that the military prosecutors were not allowing them to consult the investigation file. 22. On 25 January 2005 the Elazığ military prosecutor’s office informed the applicants that the investigation file had been forwarded to the Malatya State Security Court’s prosecutor. 23. On 22 February 2005 the Malatya prosecutor decided that his office lacked jurisdiction to investigate the killings and disappearances of six people, including the disappearance of Mr Nazım Gülmez. The investigation files were forwarded to the prosecutor’s office in the town of Hozat. According to this decision, the first applicant, Garip Gülmez, had been questioned by the prosecutor and had stated that her husband had been taken away from their home by soldiers. 24. On 14 April 2005 the Elazığ military prosecutor decided that his office also lacked jurisdiction to investigate the disappearances and killings and sent the investigation files to the military prosecutor’s office in Ankara. It appears from this decision that the Hozat prosecutor had decided on 25 March 2005 that his office did not have jurisdiction either. It also appears from the decision that, according to the Hozat prosecutor’s decision, there was evidence showing that a number of villagers had been taken away from their villages by soldiers and that nothing had been heard from those villagers since. 25. According to the applicants, on 7 June 1995 the first applicant’s husband, Edip Aksoy, and the second applicant’s son, Orhan Cingöz, were bundled into an unmarked car in Diyarbakır by three plain-clothed members of the security forces and taken away to an unknown location. Two of their friends witnessed the incident. 26. In the course of the following days and years, the applicants and their families made a number of applications to various domestic authorities, including the local prosecutors, the State Security Court, local governors, the Ministry of Justice and the Ministry of the Interior. Most of their requests for information received no response. On some occasions they were told that the two men were not in custody. The disappearance of the two men was reported in the national media. 27. On 9 August 2001 the first applicant, Ms Aksoy, submitted a written petition to the Diyarbakır prosecutor. She alleged that her husband had been arrested and detained on a number of occasions prior to his disappearance on 7 June 1995. She asked the prosecutor to inform her as to whether there had been any developments in the investigation into the disappearance of the two men. 28. On 4 September 2001 the second applicant, Ms Cingöz, also submitted a written petition to the Diyarbakır prosecutor and asked for information about the investigation into the disappearance of her son. 29. On the same date the prosecutor questioned the second applicant and recorded her statement. She gave the prosecutor the names of the eyewitnesses to the incident. 30. On 6 July 2005 the applicants were questioned by a prosecutor in the town of Silopi in the presence of their two lawyers. The first applicant gave the prosecutor a copy of a national newspaper article published in 2004, in which it was reported that the two men had been killed by members of the security forces and then buried in a river bed next to Cudi Mountain. The newspaper article was based on information given by Mr Abdülkadir Aygan, a former agent of the JİTEM (Jandarma İstihbarat Terörle Mücadele – the anti-terror intelligence branch of the gendarmerie). A number of investigations had already been instigated into Mr Aygan’s allegations and the bodies of a number of individuals had been found in the locations described by him. 31. When the applicants were shown photographs of the bodies of people killed in the area, they told the prosecutor that two of the dead men looked like their disappeared relatives. They asked the prosecutor to identify the bodies and, if it was established that the bodies were indeed those of their relatives, they asked for the bodies to be returned to them. 32. The prosecutor ordered the exhumation of the remains of two people who had been killed in 1995 and whose bodies had been buried by the local authorities that year because no relative had claimed them. A DNA analysis conducted in 2006 showed that the two men were not the applicants’ disappeared relatives. 33. On 6 August 2008 the Diyarbakır prosecutor decided to close the investigation because the statute of limitations had expired. In the prosecutor’s decision, the offence was qualified as “deprivation of liberty”, for which the prescription period was ten years. The prosecutor considered that nothing had happened in the course of the ten years to stop the running of the time-limit. According to the documents submitted by the applicants, the prosecutor’s decision was only communicated to the first applicant, Ms Aksoy. 34. On 19 September 2008 the first applicant, with the assistance of her lawyer, lodged an objection with the Siverek Assize Court against the prosecutor’s decision. She stated that a number of newspaper articles had detailed how her husband and Mr Cingöz had been killed and where they were buried. 35. The objection was dismissed by the Siverek Assize Court on 25 November 2008. The Siverek Court did not respond to the first applicant’s arguments concerning the newspaper articles. The decision was communicated to the applicants’ lawyer on 3 January 2009. 36. In July 1995 the applicant’s 30-year-old son, Ahmet Yaman, was summoned to the Uludere District Gendarmerie Station. When he failed to return, the applicant went to the gendarmerie station to look for him. She was told that her son had been handed over to the military in Şırnak. 37. After receiving no news from her son for about a week, the applicant made an official complaint at the Uludere prosecutor’s office on 11 July 1995, and asked for her son to be found. 38. In October 1995 the Uludere prosecutor decided that he lacked jurisdiction to investigate the disappearance because, according to two eyewitnesses heard by him, the applicant’s son had disappeared in Şırnak, which was outside his jurisdiction. The prosecutor therefore forwarded the file to his opposite number in Şırnak. It also appears from the prosecutor’s decision that, in a letter sent to him on 18 July 1995, the Uludere Gendarmerie Station officials denied having summoned the applicant’s son to their station. 39. The applicant claimed that for a period of almost fourteen years she had visited various prosecutors’ offices on hundreds of occasions and had asked unsuccessfully for information about her son. 40. On 1 June 2009 the applicant, with the assistance of two legal representatives, sent a letter to the Şırnak prosecutor’s office and asked for information about the investigation into the disappearance. She claimed that the failure to find and prosecute those responsible for her son’s disappearance was in breach of Articles 2, 6 and 13 of the Convention and of applicable domestic law. 41. On 4 June 2009 the Şırnak prosecutor informed the applicant that the investigation into the disappearance of her son had been closed on 18 March 1996 by a decision of his office not to prosecute on account of a lack of evidence. 42. According to the decision of 18 March 1996, the Şırnak prosecutor’s office had been informed by the Şırnak Provincial Gendarmerie Command on 7 November 1995 that Ahmet Yaman had not been detained by them. The Şırnak prosecutor had also enquired as to the accuracy of two eyewitness statements to the effect that Ahmet Yaman had been put in a helicopter in Uludere and flown to Şırnak. In their reply of 1 December 1995 the Şırnak Gendarmerie had informed the Şırnak prosecutor that, although there were no regular helicopter flights between Uludere and Şırnak, the military did use helicopters between the two locations when the need arose. Thus, it was impossible to establish whether a helicopter flight had been made to Uludere on the day in question. 43. It also appears from the prosecutor’s decision that the applicant had informed the investigating authorities that the Şırnak Regiment’s Commander had visited a café in Uludere and told those present in the café, which had included civilians and village guards, that Ahmet Yaman was in Şırnak and would soon be released. When questioned by the Şırnak prosecutor, however, the village guards present during the commander’s visit had stated that the commander had not said anything about Ahmet Yaman. 44. Upon receiving the Şırnak prosecutor’s decision of 18 March 1996 on 4 June 2009, the applicant’s legal representatives filed an objection against it. They argued that the investigation by the Şırnak prosecutor had been inadequate. They submitted that important leads had not been followed up, not all eyewitnesses had been heard, and the prosecutor had been content to accept the written replies received from the military, rather than questioning them in person. 45. The objection was rejected by the Siirt Assize Court on 13 August 2009 on the grounds that the two legal representatives “had not been representing the applicant at the time of the adoption of the prosecutor’s decision of 18 March 1996 and the objection was thus filed outside the statutory timelimit”. 46. The Assize Court’s decision was communicated to the applicant’s lawyers on 25 August 2009. 47. Unbeknown to the applicant, on 30 September 2009 the Minister of Justice asked the Court of Cassation to set aside the Siirt Assize Court’s judgment because, the Minister argued, the applicant had lodged the objection within the time-limit foreseen in the applicable statute. 48. The Court of Cassation accepted the Ministry’s request on 13 January 2010 and quashed the Siirt Assize Court’s decision of 13 August 2009. Subsequently, the Siirt Assize Court examined the applicant’s objection against the Şırnak prosecutor’s decision and accepted it. The Assize Court ordered the prosecutor to carry out a new investigation into the disappearance of the applicant’s son. 49. The new investigation started by the Şırnak prosecutor is still pending. | 0 |
dev | 001-90158 | ENG | GBR | ADMISSIBILITY | 2,008 | SCOTT v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Kenneth Scott, is a British national who was born in 1948 and lives in Tyne and Wear. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 29 May 1993. His formal claim for widows’ benefits was made on 28 June 2002 and was rejected on 8 July 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. On 23 July 2002 the applicant appealed and reconsideration took place on 30 August 2002. The previous decision was upheld. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The Government submitted that the applicant was not in receipt of child benefit at the time of his claim. The applicant, who had initially submitted that he had ceased to be eligible for child benefit at some time in 2002, failed to submit any comments in reply, although invited to do so. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV, and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
dev | 001-5122 | ENG | GBR | ADMISSIBILITY | 2,000 | CRAIG v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is a British national living in Northern Ireland. She is represented before the Court by Messrs McClure and Company, a solicitors’ firm in Belfast The applicant is a social worker working with children under five years old. She also works on a voluntary basis as a classroom assistant in a local school. She is homosexual and her sexual orientation is known to her employer and to the school where she assists. The applicant has two children aged 11 and 12. The applicant has been involved in a homosexual relationship with L since 1990. L obtained a divorce in February 1993 but the custody and care of L’s four children (born in 1978, 1980, 1984 and 1986, respectively) were the subject of High Court proceedings. In or around December 1993 L and her former husband agreed interim shared care arrangements according to which the children would spend alternative weeks with each parent. On 10 May 1994 L and her former husband settled the High Court proceedings. L’s former husband would have custody of the children and her access to them would continue on the basis of the shared care arrangement. L also agreed that she would not permit the children to come into contact with or remain in the company of the applicant or of any other person known to L to be lesbian. The High Court made an order on the same day in the terms of this agreement. As a result of difficulties surrounding the applicant’s contact with L, the matter was brought before the High Court on 7 June 1995 when L again undertook to the Court that she would comply with the order of 10 May 1994. Following another summons issued by L’s former husband, on 25 January 1996 L undertook to the High Court that she would instruct the applicant not to call at her home at any time when she had access to the children, and she undertook not to answer or open the door if the applicant called at her house during a scheduled access visit. The High Court recorded L’s undertakings in its order of the same day and dismissed the summons. Since then L lives one week at her own address with her children and the other week with the applicant. During the course of the custody proceedings, social work and psychologist reports were submitted to the High Court dealing, inter alia, with the applicant’s position in relation to L and her children. The detailed report of a child and adolescent psychiatrist, Dr Gallagher, of September 1993 concluded that research showed there was no evidence that children living with lesbian mothers were adversely affected in terms of their sexual identity, personal development, peer relationships or social adjustment. He considered that there was no evidence that L’s sexual orientation posed a threat to the children or that L’s relationship with the applicant would adversely affect the children. The evidence was that cohabitation between L and the applicant, provided that relationship was good, would have a positive effect on the children. Given the acrimonious relationship between L and her former husband, the children’s need for stability and security, the difficulties L’s husband experienced with the shared care arrangements and since L was the main care giver, it was that expert’s opinion that L should be granted custody with frequent access being given to L’s former husband. A social work report of November 1992 indicated that there was nothing to suggest that L could not provide adequate care and protection for the children. Given the parents’ acrimonious relationship and the children’s need for stability, custody was recommended in favour of L with regular access in favour of L’s husband. A further social work report of June 1993 highlighted the husband’s concern about L’s relationship with the applicant. Having considered all of the care and custody options, the social worker indicated that he was unable to assess the children’s views on their mother’s homosexuality and that there was a lack of definitive research on the possible effects on the children’s developments of being in the custody of L who was homosexual. He found it extremely difficult to make a definite recommendation, but considered that custody should be given to L, her husband’s condition as regards the children having no contact with the applicant being considered “untenable”. Dr Harbinson, a consultant psychiatrist, did not agree with Dr Gallagher’s report of September 1993. In his report of November 1993, he considered that it was difficult to dismiss the vital importance of parents as role models for their children and the stigmatisation attached in our society to homosexuality. He considered that it would not be wise to raise the issue of L’s homosexuality with the children at that stage. Dr Gallagher produced an addendum to his report in December 1993 pointing out that Dr Harbinson had done limited research on lesbian couples and children and had misinterpreted the research quoted. He repeated that it was not the sexual orientation of parents that was the issue but rather the quality of the parents’ relationship. He added that psychological studies had shown that where the mother (the main care giver) was living with her lesbian partner, the mother was psychologically more secure and stable and this was, in turn, beneficial for the children. He confirmed his recommendation that L have custody of the children, with her husband having regular access. | 0 |
dev | 001-78283 | ENG | HUN | CHAMBER | 2,006 | CASE OF CSIKOS v. HUNGARY | 1 | Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Public hearing;Article 6-3-c - Defence in person) (Article 6-3-c - Defence in person;Article 6 - Right to a fair trial) | null | 5. The applicant was born in 1968 and lives in Budapest. 6. On 18 March 2003 the Eger District Public Prosecutor’s Office indicted the applicant and two other individuals for aggravated extortion. The applicant was assisted by defence counsel of his choice. After hearings held on 16 June and 8 October, on 13 October 2003 the District Court found the applicant guilty as charged and sentenced him to 3½ years’ imprisonment. The court relied on evidence given by the victim and several witnesses. 7. The prosecution appealed to have the sentence increased, while the applicant appealed to be acquitted or to have his sentence reduced. He also proposed that two further witnesses be heard. 8. At deliberations held in camera on 20 February 2004, the Heves County Regional Court upheld the applicant’s conviction, while increasing his sentence to 4 years’ imprisonment. Neither the applicant nor his lawyer was present. In its reasoning, the court did not deal with the proposal to hear two more witnesses. “(1) In the Republic of Hungary, everyone is equal before the law, and has the right to have any criminal charge against him or his civil rights and obligations determined in a fair and public trial by an independent and impartial court established by law. ... (3) Individuals subject to criminal proceedings are entitled to the right of defence at all stages of the proceedings. ...” “(3) The Constitutional Court shall order the review of such criminal proceedings as have been finally concluded under unconstitutional legal provisions if the convicted person has not yet been exempted from the legal effects of the conviction – provided that from the nullity of the provision applied in the procedure, the reduction or non-imposition of the punishment or measure, or the exemption from or reduction of [criminal] liability would follow.” “(1) Any person who claims to have suffered a violation of his rights enshrined in the Constitution on account of the application of an unconstitutional provision and has exhausted all other legal remedies or there are no such remedies available, may submit a constitutional complaint to the Constitutional Court. (2) A constitutional complaint may be filed in writing within 60 days of the service of the legally binding decision.” “(3) An appeal may concern questions of fact or law.” “(2) In order to eliminate the ill-foundedness of the first-instance judgment, evidence may be taken if the findings of fact have not been established or are deficient. Evidence shall be taken ... at a hearing.” “(1) Within 30 days of receiving the file, the president of the panel in charge shall schedule, in order to deal with an appeal, deliberations in camera (tanácsülés), a public session (nyilvános ülés) or a hearing (tárgyalás). ...” “(1) The second-instance court shall hold a public session, if – the first-instance judgment being ill-founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions, or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence. (2) The second-instance court shall summon to the public session those persons whose hearing it deems necessary ...” “(1) The second-instance court shall notify the public prosecutor and – if they are not summoned – ... the defendant and his lawyer of the public session. ...” “(2) In order to take evidence, a hearing ... shall be scheduled.” “(1) Review proceedings may be instituted against a final decision on the merits if: ... e) the Constitutional Court has ordered (elrendelte) the review of criminal proceedings concluded by a final judgment, provided that the defendant has not yet been exempted from the legal consequences flowing from his conviction, or the execution of the imposed punishment ... has not yet been terminated ... or its enforceability has not yet ceased; f) the determination of criminal liability or the imposition of a sanction ... has been effected in application of a criminal law provision, whose unconstitutionality has already been established by the Constitutional Court, but the defendant has already been exempted from the legal consequences flowing from his conviction, or the execution of the punishment has already been terminated or its enforceability has ceased ...” “(1) The Constitutional Court finds that section 360(1) of Act no. XIX of 1998 on the Code of Criminal Procedure is unconstitutional and therefore annuls it as of the date of delivery of this decision. ... (3) The Constitutional Court finds that Parliament has committed an unconstitutional omission by failing to regulate, in Act no. XIX of 1998 on the Code of Criminal Procedure and in accordance with the requirements of legal certainty and fair trial, the scope of those cases in which the appellate court may hold in camera deliberations. The Constitutional Court invites Parliament to comply with its legislative duties by 31 October 2005. (4) The Constitutional Court holds that section 360(1) of Act no. XIX of 1998 on the Code of Criminal Procedure was unconstitutional and therefore this provision cannot be applied in the following cases, concluded by a final judgment (jogerősen befejezett ügyeiben nem alkalmazható): ... nos. Bf.671/2003, 29.Bf.8790/2003, 22.Bf.9924/2003, 20.Bf.XI.8046/2004, 25.Bf.VIII.8647/2004, 3.Bf.328/2003, Bf.200/2004, 1.Bf.996/2004, 1.Bf.1905/2004 and 1.Bf.184/2004.” | 1 |
dev | 001-113164 | ENG | LVA | ADMISSIBILITY | 2,012 | BUKS v. LATVIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr Agris Buks, is a Latvian national, who was born in 1967 and lives in Vārve Parish, Latvia. 2. The Latvian Government (“the Government”) was represented by their Agent, Mrs I. Reine. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 2000 the applicant was diagnosed with diabetes, type II. From February 2001 the applicant needed to receive regular injections of insulin. 5. On 31 October 2001 he was arrested on suspicion of involvement in the organising of human trafficking. On the same day he was admitted to Rīga Hospital No 1. Two days later the applicant was transferred to the hospital wing of Rīga Central Prison, where he remained until 20 December 2001 when he was transferred to the medical unit of Matīsa Prison. 6. On 4 September 2002 the lower court found the applicant guilty, sentenced him to three years’ imprisonment and ordered the confiscation of his property. The appellate court on 26 November 2002 took the applicant’s poor health into consideration as well as the fact that the applicant could not be provided with proper medical treatment in prison. As a result the court reduced his sentence by one year. 7. In March 2003 the applicant was transferred to Jelgava Prison, from which he was released on 31 October 2003 after having served his sentence. 8. According to the applicant, on his admission to the medical unit of Matīsa Prison he was informed that owing to insufficient funds the prison was not in a position to provide him with insulin, and that he had to rely on his relatives to obtain it for him. 9. From 13 to 28 March 2002 the applicant was held in a disciplinary cell in Matīsa Prison for having committed a disciplinary offence. According to the applicant’s submission, he had had to inject himself with insulin there despite conditions being insanitary. 10. Meanwhile, from 29 May to 19 June 2002 and from 19 August to 9 September 2002 the applicant was held in the Kuldīga Police Department short-term detention unit in order to ensure his attendance at the court hearing in Kuldīga. According to the applicant, the conditions there amounted to torture in that he had been denied a consultation with a doctor and food was provided only once per day. 11. At the applicant’s request the Inspectorate for Quality Control of Medical Care and Working Capability (“the MADEKKI”) assessed the adequacy of the medical care received by the applicant in Matīsa Prison in 2002 and 2003. 12. In its report of 10 May 2002 the MADEKKI found no infringement of the applicant’s right to medical treatment over the period from October 2001 to May 2002. In the course of preparing the report a representative of the MADEKKI met with the applicant, who did not raise any complaints regarding the quality of medical care he had received. The inspectorate observed that, before the arrest, the applicant’s doctor had repeatedly recommended that he visit an endocrinologist but the applicant had not done so, blaming his busy schedule. The inspectorate concluded that the applicant had been injecting insulin himself following the doctor’s recommendations, and monitoring his sugar levels with the use of a glucometer. The applicant’s overall state of health was considered to be stable. 13. In several letters dated 26 February, 1 July and 17 September 2003 the Prisons Administration dismissed the complaints which the applicant had brought regarding the medical care he had received and the fact that he had not been provided with insulin in Matīsa Prison. The Prisons Administration noted, in particular, that under the State medical system the applicant’s relatives were allowed to obtain insulin and syringes free of charge on his behalf. 14. On 10 and 13 October 2003 the applicant addressed a similar complaint to the MADEKKI and the Office of the Prosecutor. The applicant also drew the MADEKKI’s attention to the poor conditions in the Kuldīga Police Department. 15. On 24 November 2003 the MADEKKI drew up a second report concerning the medical care the applicant had received in Matīsa Prison. It observed that his entire stay in Matīsa Prison had been spent in the medical unit, where he had been regularly examined by doctors. It noted that the applicant’s sugar level was 14-18 mmol/l and he had been injecting himself with insulin and testing his sugar levels. 16. With regard to the supply of insulin to the applicant, the MADEKKI concluded that during his stay in Matīsa Prison the administration had failed to furnish him with insulin; that the laboratory testing of his sugar levels had not been carried out regularly, and that he had not had a consultation with an endocrinologist. 17. With regard to the complaint of a lack of medical care in Kuldīga Police Department unit from 29 May to 19 June 2002 and from 19 August to 9 September 2002, the MADEKKI noted that the medical unit of Matīsa Prison had informed the Kuldīga Police Department that the applicant was permitted to use insulin, certain medications and a glucometer. The MADEKKI observed that the applicant had not raised any health-related complaints while in the Kuldīga short-term detention unit, where he had been provided with the standard diet for detainees. 18. The Office of the Prosecutor in its letter of 4 November 2003 reminded the applicant that according to his agreement with the medical unit of Matīsa Prison, from 20 December 2001 to 5 March 2003 he had agreed to supply the insulin himself. In the same letter the Office of the Prosecutor stated that on 16 October 2002 the Prisons Administration had purchased insulin especially for the applicant which he had used until his transfer to Jelgava Prison on 5 March 2003. The applicant did not complain in this respect to a higher prosecutor. 19. The applicant’s medical file, as summarised by the MADEKKI’s reports mentioned above, show that he was diagnosed with diabetes type II in February 2000. From February 2001 he was recommended insulin treatment because his sugar levels occasionally reached 16-17 mmol/l. Every two months, on average, the applicant’s doctor would issue repeat prescriptions for about twenty doses of insulin (Monotard). In response to the applicant’s complaints that his sugar levels occasionally reached 18 mmol/l the doctor had recommended, on at least two occasions, that the applicant attend self-care and awareness clinics for diabetic patients. The report reveals that the applicant had not done so. 20. From 2 November to 20 December 2001 the applicant received medical treatment in the prison hospital where he was seen by various specialists. The sugar level in his blood and urine was monitored twice a week on average. By 28 November 2001, according to prison hospital records, the applicant’s health had improved; he declined to increase his dose of insulin and agreed on a particular course of treatment with the doctor at the prison hospital. 21. On 10 and 15 January 2002, the applicant underwent medical examinations and was then admitted to the prison hospital on 19 January 2002, where he remained until 24 January 2002, because he was suffering from hyperglycaemia. 22. On the applicant’s discharge from the hospital in November 2001 and again in January 2002 it was recommended that he have his blood and urine sugar levels monitored and be given a tailored diet and medication, including insulin. In the medical unit of Matīsa Prison he was prescribed insulin and two kinds of medication as recommended. 23. On 21 February 2002 the applicant’s health was assessed by a medical consultative commission at Matīsa Prison, which prescribed a particular treatment including an injection of insulin twice per day. The follow-up of the treatment was carried out on average once a week until June 2002. After he had been transferred to the disciplinary cell he was authorised to use two other kinds of medication brought from home. 24. On 19 and 24 July and 1 and 5 August the applicant’s sugar levels had increased so he was repeatedly admitted to the prison hospital in the period from 8 August to 15 August 2002, when he was discharged from the hospital at his own request. 25. The applicant was visited by a doctor before and after his transfer to the Kuldīga Police Department on 27 May, 20 June, 15 August and 11 September 2002. He had not raised any complaints and his health was considered to be satisfactory. 26. According to a medical report from Ventspils hospital, the applicant’s former doctor gave the applicant’s wife prescriptions for insulin and the other medicine, at her request, on separate occasions in December 2001, February and April 2002. 27. At the Government Agent’s request on 9 July 2009 the Prisons Administration explained that under the State – financed health programme, as in force at the material time, all diabetic patients in Latvia received insulin and syringes free of charge, while detention facilities were obliged to purchase insulin for detainees suffering from diabetes from their budgets. Owing to insufficient funds available for medication, the administration of the prison authorised diabetic detainees to receive insulin from outside the prison. Usually family members received prescriptions for insulin from the detainee’s former doctor and brought the insulin to the detainee in prison. 28. In response to the Government Agent’s questions, the Health Inspectorate (Veselības Inspekcija) explained that the minimum healthcare requirements of diabetic patients comprised the regular administering of medication, monitoring of sugar levels and treatment for hypoglycaemia. Blood tests should be carried out as required. There was no vital need for an endocrinologist if the sugar levels were satisfactory. 29. The Inspectorate also noted that it was of crucial importance that diabetic patients had an understanding of their illness. Since there was no special “diabetic diet”, by monitoring the sugar levels of the patient the amount of insulin was to be adjusted according to the quantity of food taken. 30. Regulations no. 358 of the Cabinet of Ministers of 19 October 1999 concern the provision of medical assistance to convicted and detained persons in their place of custody (see Leitendorfs v. Latvia (dec.), no. 35161/03, § 27, 3 July 2012). | 0 |
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